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.
