Wild Rivers and Indigenous economic policy

The recent power broking over Canberra’s hung parliament saw an unusual focus on Indigenous property rights. Before declaring his support for the Coalition, Independent MP Bob Katter declared Indigenous affairs ‘a very burning question for me’. Katter called on Julia Gillard to overturn the Queensland Wild Rivers Act 2005 – which places restrictions on development in particular areas – to support black economic empowerment. During the caretaker period, Noel Pearson lauded Tony Abbott, who shares Katter’s opposition to Wild Rivers, as a ‘once-in-a-generation conservative’; Pearson unsuccessfully urged the independent MP Rob Oakeshott to support the Liberal leader. For his part, Abbott has condemned Wild Rivers as ‘an attack on the rights of Aboriginal people’.

The cultural strangeness of Liberal and (former) National Party politicians advocating black property rights can only be fully appreciated in the context of the short but turbulent history of native title in Australia. The 1993 Mabo (No. 2) decision saw an explosion of hyperbole from the political right; in his 2009 book Contesting Native Title, former native title lawyer David Ritter noted that ‘at times, wilder opinion forecast the break-up of Australia, the collapse of the economy and outbreaks of violence’. The Keating Government’s Native Title Act (‘NTA’) ignited some of the longest debates in Australian parliamentary history; the Coalition voted against every section. Fearful of the Act’s impact, the WA Coalition government quickly legislated to extinguish all native title in the state; its legislation was overturned for its inconsistency with the Racial Discrimination Act 1975, which rendered it invalid under s109 of the Constitution. Similar pre-emptive tactics had been tried before in Queensland. While the Mabo litigation was pending, Joh Bjelke-Petersen’s National Government passed the Queensland Coast Islands Declaratory Act 1985, which provided for the extinguishment of any native title within the state. In 1988, the High Court declared this law invalid in Mabo (No. 1). In short, native title has long been a tussle between the state and federal governments, and the mining states’ hostility lingers: a 2009 review of approvals processes in WA characterised the NTA as an ‘intrusion’ by the Commonwealth.

The parochial focus of conservative opposition to native title has recently been turned on its head with the federal Coalition’s attempt to overturn state legislation to protect Indigenous property rights. Earlier this year, the Country Liberal senator Nigel Scullion introduced the Wild Rivers (Environmental Management) Bill into parliament. The bill, which was not passed, sought to alter the Wild Rivers Act to require the consent of ‘the traditional owners of native title land’ before any ‘wild rivers’ declaration is made. It is legislation of this nature which Katter has urged Gillard to pass. In explaining his party’s opposition to the bill, Greens senator Scott Ludlam suggested that ‘changes to the Native Title Act would be far more likely to produce an outcome consistent with what we believe Senator Scullion’s legislation is trying to achieve’. Ludlam also cited Professor Jon Altman, who argued that ‘unless such provisions are extended Australia-wide this change will constitute Cape York bioregion-specific legal exceptionalism’, suggesting that this was ‘hardly appropriate given the Closing the Gap framework applied nation wide’.

If Abbott seeks to support stronger property rights for all Indigenous people, he would do well to advocate reform of the NTA. The Act, as interpreted by the High Court, has set an extremely high bar for establishing native title. Further, the ‘recognition’ the NTA offers to those who can satisfy its requirements has often proved illusory. If parliament wished to further Indigenous autonomy and economic empowerment, it could for instance amend the Act to provide claim groups with a right of veto in respect of applications for mining leases (no such right currently exists), deem groups to own any minerals within their claim areas, or recognise the right of all native title holders to trade in the resources of their country and profit economically from it.

Such eventualities, however, are highly unlikely. Sceptics may conclude that the conservatives’ embrace of Indigenous property rights is rooted in a desire to ‘wedge’ the Bligh Government and wage war on the increasingly powerful Greens. The debates over Wild Rivers remind us that policy born of political opportunism is a strange looking beast indeed.

Sarah Burnside is a lawyer and freelance writer with a background in history and law. She is currently employed at the Yamatji Marlpa Aboriginal Corporation (YMAC), a native title representative body, and works with claim groups in the Pilbara region of Western Australia. The views expressed here are not necessarily those of YMAC.

Blog Comments

Talk about damning with faint praise! It seems that Sarah supports the coalition policy on this issue, but because it is from the coalition she has to criticise it on the basis of the past, not the present policy itself. Come on, praise where it is due, and criticise where it is due please Sarah. Take off the ideological harness, tell it like it is, and sink the boots into Labor on this issue, not the Coalition.

So is Noel Pearson equally poorly motivated?

Sarah Burnside’s scepticism is well founded. The Coalition set out to undermine land rights legislation in the Northern Territory (an approach continued by Labor). In particular their hostility to homelands, outstations and similar small to medium sized Aboriginal communities loctaed on traditional lands has been particularly pernicious and flies in the face of the aspirations of many thousands of Aboriginal people. So why should they suddenly be concerned about Cape York? If they were genuine about native title they could push to have the tenure history of land ignored when claims are made (that is only current tenure would be a relevant consideration) and where exclusive title is found allow that to be converted to inalienable freehold if that is the wish of the native title holders.

Robert, I take your point about the need for consistency. My point is simply that the Coalition is inconsistent on this issue: why should the principle of free and informed consent not be extended Australia-wide? As Greg notes, the Coalition has long been hostile to Indigenous land rights – if their position has changed, then let Parliament amend the Native Title Act accordingly. Nicholas, I don’t impugn Pearson’s motivations – he is standing up for his region and is of course free to seek support from the conservative side of politics. If we are indeed in a moment where there is enough political goodwill to strengthen Indigenous property rights, then let’s try to do so for all native title claimants and holders.

a vital function of government is to limit private property rights in the public interest. the wild rivers act sets out to do this, so that as further develpment inevitably occurs on cape york, this development doesn’t lead to a destruction of the considerable environmental values present.

the day of the release of the guide to the murray-darling basin plan is a good one to reflect on the full cost of an evironmentally degraded river system.

i’ve faced the argument that it is paternalism to introduce environmental regulation on native title, that indigenous australians should b free to use their land however they wish. i can’t accept this, we owe them far too much to encourage a repeat of past mistakes.

[…] I got an email last week from a friend about some comments Nigel Scullion has been making. The comments were regarding the Wild Rivers legislation, and Tony Abbott’s private member’s bill in particular. As Shadow Minister for Indigenous Affairs, Scullion spoke about the lack of informed consent in regards to the way the Wild Rivers legislation was written and implemented. A point that, if true, is a valid criticism and one that means the Wild Rivers legislation needs further work to become law. I’m not going to get into that here though, it’s too big for my limited lack of legal matters to get my head around and I feel that there have already been some good writings about it that can be found online. […]

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