There is a historic opportunity unfolding for the High Court of Australia to improve the bargaining powers of native title claimants. It is nearly a quarter of a century since the Mabo 2 High Court ruling that dissed on the racist cruelty of ‘terra nullius’. In this 25th year since the historic Mabo decision it maybe that there shall arise the opportunity to improve bargaining powers for native title claimants. The rights of all the claimants are being revisited. Some potential rights were watered down firstly by the Paul Keating government following the immature public hysteria after the High Court in 1992 put an end to the disgrace of ‘terra nullius’. Several years later, the John Howard government went about butchering native title rights and bargaining power deteriorated to beggary.
In Western Australia, a controversial compensation package, said valued at $1.3 billion, was pushed by the state government to 40,000 Noongar peoples. In the end very few voted; 1,578 voters but not unique voters. The package came with what should have been unimaginable, that in effect the Noongar peoples extinguish their native title rights! The Native Title Bill, despite all the theatre about exclusive and non-exclusive rights, was established 24 years ago, in reality as a compensatory mechanism ‘in perpetuity’ to secure where possible from miners and developers a quid to prosper social reforms, to reduce inequalities. But the Western Australians in their ‘genius’ figured a way to do away with even this, with a one-off package, if accepted. There was gut-wrenching dissent, families pitted against families, the majority refused to vote. But some did vote and it was close, and the ‘yes’ vote got up.
Despite the ‘yes’ vote, some of the original applicants refused to sign the Indigenous Land Use Agreements (ILUAs) as they saw themselves effectively ceding their lands and any rights over their historical lands. Four Noongars did an Eddie Mabo and challenged their right over their historical lands. They challenged the Native Title Bill in that it required that all original claimants to sign off the ILUAs.
The four successful complainants were Noongar Elders Margaret Culbong and Mingli McGlade and social justice stalwarts Mervyn Eades and Naomi Smith. Following the unanimous decision in their favour, emotion spilled in the capacity filled gallery. Ms Culbong, “This is the greatest moment in my life.”
The Queensland Government and Adani Carmichael were interested parties, with representatives in the courtroom gallery. The decision puts in jeopardy the Adani coalmine project because like the Noongar ILUAs where some claimants refused to sign it off, so too with the local peoples, Wangan and Jagalingou.
– Adani Carmichael mine in doubt after shock court decision – Townsville Bulletin – February 3, 2017
Following the ruling you’d think that the Western Australian government and other interest groups would invite to the table all the claimants and do the propriety bit and try to negotiate a better deal. No. Instead the lobbyists ran to Attorney-General George Brandis to rush amendments to the Native Title Bill. The Guardian reported Mr Eades vowing there would be a High Court challenge if there was an “attempt by government to change the native title law again to suit their interests and disregard our people’s interests.”
“If they feel the law got it wrong then they should take their appeal to the High Court, but they do not want to do this because they know all too well that the High Court will uphold the Federal Court ruling.”
“So instead they want to change their own rule book,” said Mr Eades. Last year, Mr Eades was the recipient of the Eddie Mabo Social Justice Award at the National Indigenous Human Rights Awards.
But the battle with Adani to stop a coalmine or ILUAs from here onward will require more bargaining – a great thing – must not deflect from the catastrophic travesty facing the Noongar peoples and what led some of them to invest their faith in the full bench of the Federal Court. The Noongar ILUAs effectively extinguish native title rights. Noongars are in a battle for their survival in terms of retaining perpetual rights. Noongars are fighting to not become the first to “cede our land and rights” as Mr Eades puts it.
My view is that 1) there is a historic opportunity that has presented to improve the bargaining powers of native title claimants and therefore inquiries should be had to ensure, and in turn deliver to impoverished peoples greater social reform opportunities than ever before. Officially, one in 18 of Aboriginal and Torres Strait Islander deaths are a suicide – 30 per cent of Australia’s child suicides are of Aboriginal children and 80 per cent of Australia’s suicides of children aged 12 years and less are of Aboriginal children. My research argues that nearly 100 per cent of Aboriginal and Torres Strait Islander suicides are of people living below the poverty line.
And 2) importantly if the Commonwealth Government buckles and pushes through amendments to keep the minimalist bargaining powers, without requirement for all the claimants to agree, it must include an exception in that the Noongar ILUAs should not be allowed to proceed. They are about extinguishing their perpetuity rights. Those seeking amendments to the Native Title Bill to undermine the Federal Court ruling and to subsequently push through the Noongar ILUAs should be instructed to settle either with the claimants or in the High Court.
The Member for Lingiari, ALP parliamentarian, Warren Snowdon said in the House of Representatives, “I might just remind the House that I was part of the Keating government and indeed on the cabinet committee that finally negotiated the Native Title Bill.”
“I am aware of the negotiations that took place and the fact that aspects of the Bill were watered down to satisfy crossbenchers in the Senate. Part of the reason, I think, that we are in this fix is what happened in the final days of negotiating the Bill through the Parliament in the first instance.”
“It is worth pointing out that I am in this place now, in this debate, when I would otherwise be in the House of Representatives Standing Committee on Indigenous Affairs discussing matters to do with Indigenous affairs. Why wouldn’t the parliament, the Attorney and the Prime Minister refer this legislation for an inquiry by the House committee, for example?”
“We are not mugs around here. Some of us know what goes on.”
It maybe true that 140 ILUAs have been invalidated and that Adani Carmichael and the Queensland Government may not get their way just yet and their coalmine. I am not a supporter of another coalmine but more importantly here is the opportunity to repair some of the diabolical debacle that has been native title.
The Noongar native title extinguishment deal with its $1.3 billion compensation package time-limited over 12 years is the worst ever native title deal offered. Maybe I’m dreaming that the landscape has changed enough to deliver repair to native title, and that social reforms can be secured that will transform lives, save lives. We should be that honourable and visionary…