A Free Speaking Church Goer's Guide to Wik in '98 -Frank Brennan SJ (and a lawyer BTW)

EUREKA STREET - January- February 1998

Warren Entsch is a robust pastoralist from north Queensland. He also chairs the Parliamentary Joint Committee on Native Title. When he called for a boycott of churches in the light of comments by Church leaders about John Howard's ten point Wik plan, the debate entered a new phase. Perhaps naively, I contacted the office of Senator Nick Minchin, Special Minister of State, the morning after. I pointed out that the two Catholic bishops who had responded that morning - Saunders from Broome and Foley from Cairns - were not from dioceses full of leafy suburbs but rather with pastoral leases as far as the eye could see. Church leaders would not be backing away. And churchgoer Senator Brian Harradine would be pivotal to the Senate debate commencing a week later. The minister's office thanked me for the discussion and assured me that Mr Entsch's remarks had "nothing to do with the government". It was as if we were re-running the government's response to Pauline Hanson. Remember how her maiden speech of September 1996 had been followed by the Prime Minister's free speech credo to the Queensland Liberal Party and a month of silence because it is a free country and "I'm not going to say what I believe through the prism of responding to what somebody else has said."

But that afternoon, the Prime Minister stepped up to the dispatch box not with a hose to douse the Entsch bush fire but with a fan: "May I say of my colleague the member for Leichardt that I understand his sense of frustration - and the sense of frustration of many people in rural Australia - about the way in which this debate is being conducted. I do not support a call for a boycott of church attendance, but I can understand the sense of frustration he feels." This was preceded by the Prime Minister's recitation of the written code for "church figures" who wish to avail themselves of the right of free speech: "The right to speak freely on a broad range of issues carries with it the obligation to speak in an informed, objective and constructive fashion....Importantly, there is also an obligation on church figures who do enter the debate not to allow the impression to be created that they speak on behalf of all adherents to their particular church or denomination." This was all fairly gratuitous, especially coming from the key participant in the debate who had so muddied the waters with the map on television falsely claiming 79% of Australia could be subject to an Aboriginal veto.

John Howard then went overseas and left Tim Fischer in charge. The Anglican Archbishops of Perth and Adelaide had been taken to task by an Anglican vicar from Charleville, Queensland. The Acting Prime Minister thought it worthwhile giving Parliament the vicar's assessment: "There are three words that could describe the comments made by the Archbishops. The first word is ignorant; the second word is uncaring; and the third word is hypocritical." For Fischer, "That is the church leader I support in relation to Wik and Mabo." John Howard's code was being liberally interpreted in his absence.

It was important for the government to do in the churches because the decision had been taken not to compromise one iota on the 300 page bill proposed to Parliament. The government would have to take on not only those critics who rejected the ten point plan out of hand, but also those like Brian Harradine who were prepared to allow the government to govern provided the proposed legislation had a decent moral bottom line. The government knew it would be difficult to reject reasoned, constructive suggestions which enjoyed community backing including from church leaders unless there were a concerted campaign against all critics, including the churches. For a touch of spice, there would also be one last suggestion that the backyards were under threat, salvageable only by an unamended ten point plan.

The crunch issue was whether or not native title holders whose lands were subject to pastoral lease should retain the statutory right to negotiate with mining companies. Aboriginal negotiators were adamant that this issue was non-negotiable, a right to negotiate being much less than a veto. They had support from many quarters including the churches. Rather than acknowledging this right, the Prime Minister took to describing it as simply "a special arrangement entered into by the former government". The finesse of the government's response was demonstrated in the Dorothy Dixer asked of Tim Fischer on 3 December 1997 by Mr Kevin Andrews, noted Catholic Liberal member from Victoria where there are no pastoral leases. Andrews was the advocate who had done so much to galvanise and present the Aboriginal perspective in the euthanasia debate, replete with a hand delivered message stick from remote communities to the Parliament. He asked, "Will the government's proposed amendments to the right to negotiate under the Native Title Amendment Bill create greater certainty for the mining industry, jobs and rural communities?" Mr Fischer: "I thank the Member for Menzies for his very relevant question. The short answer is yes, they will." After the question, Mr Fischer went back to have a friendly chat to the promising backbencher, returned to the front bench, later giving me a courteous wave up in the gallery. Message received. The main amendment was to permit State governments to remove completely the right to negotiate with mining companies if native title land was subject to a pastoral lease. All good Catholics had come to the aid of the party!

By the end of the Senate debate, the Prime Minister said Frank Brennan does not speak for all Catholics and disclosed that he had covenants with the miners and pastoralists. Covenants are to be kept. Aborigines were the only party without a covenant. Rational, constructive dialogue about proposed amendments was impossible because the covenants were in place. On 6 December 1997, John Howard identified four key sets of amendments which were "in the eyes of the government, completely unacceptable". He said the Government would vote against them because they had "substantially altered the thrust and the intent of the legislation".

The four objectionable sets of amendments were identified as the threshold test, the six year sunset clause, the statutory negotiation process for mining and development projects, and the proposal to subject the Native Title Act to the provisions of the Racial Discrimination Act.

But in debate, the Government was sympathetic to Senator Harradine's amendment to the threshold test which would allow Aborigines locked out of pastoral leases still to lodge a claim. Senator Minchin told the Senate on 1 December 1997: "We have had a good look at Senator Harradine's amendment and we would be prepared to accept that amendment. In the light of the comments that have been made around the chamber, we think that is a not inappropriate amendment."

A sunset clause is now completely arbitrary and unprincipled. Native title claimants can lodge a claim over their traditional lands which they occupy once any freehold estate or lease has expired and not been renewed. The effect of a sunset clause would be to permit a claim over land if the lease were to expire within the next six years, while barring a claim over land were the lease to run out in another seven years without any prospect of renewal.

If a right to negotiate with a mining company is to be enjoyed by native title holders whose country is vacant crown land, that right should not be taken away from native title holders who suffer the disadvantage of having their land subject to a pastoral lease without their consent. The Prime Minister has only ever provided two arguments for taking away this statutory right. One is meaningless and the other unprincipled. Both are wrong. He says, "Of the many ironies that are thrown up by this debate, none is stronger than the consequences of the Labor Party's insistence that the right to negotiate in the existing Native Title Act be left unaltered by the amendment bill, because that has two consequences. The first consequence it has is to prevent effect being given to the spirit of the Wik decision, because if you leave a right to negotiate there you cannot possibly give effect to the spirit of the Wik decision. The second consequence is that you are conferring a right on native title claimants that you are not conferring on pastoralists. So apparently in relation to a mining claim it is perfectly all right for a right to negotiate to be available to native title claimants but it is not all right for it to be available to pastoralists. There is no equity, there is no fairness and there is no justice in that outcome."

The spirit of the Wik decision is not that pastoralists necessarily have more or the same rights as native title holders when it comes to dealing with miners. The spirit of the decision is that native title holders retain their rights provided there is no conflict with the rights of the pastoralists. Any conflict of rights between native title holders and pastoralists is resolved in favour of the pastoralists. Nothing in the Wik decision relates to mining rights.

As for the second consequence, the Commonwealth Parliament has an obligation to set an appropriate bottom line for relationships between native title holders and miners. It is a matter for the States to determine the relationship between miners and pastoral lessees holding state titles. The right to negotiate encourages Aborigines and miners to talk together and to work together from the beginning.

The Commonwealth Parliament has no power to make laws for the rights exercisable by pastoral lessees under State titles. The veto, negotiation and compensation rights of farmers affected by mining is a State matter. For example, some farmers in Western Australia whose lands are cultivated and enclosed have a veto over mining development. At the other end of the scale are those pastoralists who have only a right to compensation for disturbance to the land. The Commonwealth Parliament has the power and the responsibility to set a bottom line for relationships between native title holders and miners.

The right to negotiate with mining companies was not even mentioned by the Prime Minister in his address to the nation. A right to negotiate with mining companies should be retained by all native title claimants who can satisfy a reasonable threshold test.

In the dying stages of the Senate debate, the Labor Party insisted that the legislation be read and construed subject to the provisions of the Racial Discrimination Act. When in government in 1993, Labor could not bring itself to agree to such amendments proposed by the Democrats and Greens because such complex legislation which is desgined to give all parties certainty about their property rights would not accord certainty until the courts had determined the effect of the Racial Discrimination Act on each and every clause. Senator Brian Harradine was right on the last day of debate before the lunch at which he changed his mind when he said, "There will be endless litigation about it. Why did we not put it in the 1993 legislation? For the very reason that we ought not be putting it in here. The Labor government at that time knew that it was a nonsense to put a similar provision in the Native Title Act. If the Labor Party faced up to the real world now, they would realise that it would be, and is, not an appropriate thing to do if you want to have the legislation work for the benefit of indigenous people-native title holders-and in fairness to the rights of other persons." Despite the populist appeal of this amendment, the Opposition parties should back down in the interests of certainty, justice and workability for all stakeholders.

On 6 December 1997, the Prime Minister told Parliament of his commitment to find "an honourable, decent and worthy compromise". He said, "In a compromise, you do not surrender to one interest, you try to strike a fair balance." In relation to the four issues of concern raised by the Prime Minister such a compromise could only be effected by the Senate dropping its insistence that the Native Title Act be read and construed subject to the provisions of the Racial Discrimination Act 1975. The Government should agree to a threshold test which unlocks the gates on those pastoral leases where the gates have been locked in the past. The Government should also agree to drop the six year sunset clause which will simply result in excessive claims being lodged in six years time and which would preclude bona fide claims to areas no longer subject to lease or freehold after six years. Most importantly, the Government should agree to Commonwealth legislation maintaining the right to negotiate with mining companies for all native title holders.

With this compromise, pastoralists and shire councils could be assured by March 1998 the certainty they have been seeking with a new threshold test and the guarantee that they can engage in the same diversification on their leases post-Wik as they could pre-Wik. Without this compromise, the shire councils and pastoralists will be put on hold for an additional year with minimal possible gain. If the Government simply wants to put all other stakeholders on hold for the benefit of miners unwilling to negotiate with native title holders on pastoral leases, the Prime Minister will be unable to sustain his claim that "The Australian people will know that the government wants to bring it to an honourable conclusion and it has been completely frustrated in those attempts by the behaviour of the Labor Party and by the behaviour of the Democrats and by the behaviour of Senator Harradine." Back in July 1997, such a compromise was publicly praised by the Prime Minister's trusted friend and ABC Chairman, Donald McDonald, who said such a proposal would be welcomed by all fair minded people as it would "benefit all parties directly involved and help lead to an outcome of fairness and certainty longed for by the Australian people".

This compromise would come at considerable cost to the Aboriginal groups and the Opposition parties in the Senate. It would result from minimal rewriting of the Howard bill simply so as to draw a just, workable and certain bottom line. Mr Gareth Evans, Deputy Leader of the Opposition, indicated the ALP's willingness to compromise given the bottom line drawn by the Harradine amendments when he warned against the choice of "setting the country on a divisive and confrontational path, of setting loose those forces of fear and prejudice on one side, of hurt and humiliation on the other side, that are an absolutely inevitable part of any election which makes native title, for which read 'race', a central theme". He told the House of Representatives: "We should have accepted, we should now accept, the Senate's amendments and move on."

There are now two groups in the country anxious for a double dissolution on Wik. First, there are those opposed to native title rights being exercised on pastoral leases. They want the election so that the Howard government can implement its plan without the full range of Senate amendments. They especially want to do away with the right to negotiate with mining companies except on "vacant crown land" subject to native title claim. In the past they have criticised the High Court for delay when the court took only six months to reach a decision. They have told Parliament, "This legislation needs passing because time is not on our side." But after a year of consultation and debate, these same people now urge the bush to wait another year - for the good of the miners. And this from a government that understands "the sense of frustration of many people in rural Australia". Second, there are the strong advocates of native title who believe that a double dissolution will give the Labor Party a real chance of election with a commitment to a full blooded implementation of the Wik decision. For them the more draconian the Howard bill, the better in the long run.

There are many Australians, not stakeholders and some of them churchgoers, who are left wondering why a Senate compromise would not be good for all of us in March 1998. When a legislative package praised by Don McDonald can be damned by John Howard within six months, one is left wondering whose interests are being served in the debate. Perhaps everyone, including John Howard should reconsider the Senate compromise, whatever they think of his selective free speech code, and whether or not they go back to church.