STATKMNT BY THE PRIME ) 4INISTEM, THE RON. P. J. KRATING
COMMOONWE. ALTH RESPONSE TO HIGH COURT MABO JUDGMENIT
The Cabinet tonight finalised the Commonwealth
Governmnent's response to the High Court's decision on
Native Title.
The decision is the culmination of a lengthy process of
discussion and negotiation with a wide range of interests
including Aboriginal and Torres Strait Islander people,
States and Territories, mining, pastoral. and other
industry groups.
The Government's aim has been twofold: t~ o preserve the
integrity and certainty of Australia's :: Wand management
system and so ensure continuing economic development; and
to provide a measure of justice for Abo:--iginal and Torres
Strait Islander people.
As Mabo was an historic judgment this is historic
legislation, recognising in law the fiction of terra
nullius and the fact of native title. W4ith that alone
the foundation of reconciliation is laid because after
200 years, we will at last be building on the truth.
In striving to meet these twin gjoals WE. have progressed
from a series of questions and uncertainties to a
detailed blueprint for Commonwealth legrislation.
The key points decided by Cabinet are:
the Commonwealth legislation will give full effect
to the High Court decision withoul. affecting the
existing rights-of any property holder.
the legislation, taken as a whole, will constitute a
special measure for the protection and advancement
of Aboriginal and Torres Strait Islander people
under section 8 of the Racial Discrimination Act.
Aboriginal and Torres Strait Islander people will be
abl~ e to choose the Federal Court or a recognised
State body ( suich as a State Supreme Court) to pursue
a claim for native title.
2
States which comply with the spirit and principles
of the Commonwealth legislation will retain their
traditional and paramount role in determining the
economic use of land within their borders.
The legislation will also:
allow States to validate grants affected by the
existence of native title on a basis that
provides certainty and accords with the RDA and
Australia's international obligations.
extend the cut-off date for validation of past
grants to 31 December 1993, thus providing
ample notice of the new rules which will apply
in future.
allow States to propose State cir Territory
tribunals or courts for the determination of
native title claims.
accept that normal State/ Territ. ory regimes
should determine compensation f~ or the
impairment of native title. This generally
relates to the surface disturbance caused by
mining, and is paid by the mink'ng company as
is the normal procedure. " Just. terms, will
govern compensation for extinguishment.
there will be further discussions wiLth States and
Territories on cost-sharing arrangemnents between the
Commonwealth and complying States.
the Bill will not jeopardise Australians, right to
enjoy beaches and other recreation a~ reas, including
-national parks.
industry will be a major beneficiary of the
legislation which will provide:
validation of existing grants, with governments
to pick up any compensation costs. There will
be no qualification whatsoever on the rights of
the grant-holder, which have primacy over the
native title and will indeed, in some cases,
extinguish it.
a clear, timely process for determining native
title funded by the government.
native title holders will not have a veto on
development, which could lock up native title
land, but will have a right to negotiation.
protection against the ' double jeopardy, of
consideration of exploration and, later, mining
grants.
so far as it affects pastoral leases at all the
proposed legiislation will only affect inaid
leases. there are a few pastoral leasegs which have been
issued since 1975 which could conceivably be
invalid hecause the req'uirements of the RDA
were not met when the leases were issued.
there may also be leases issued before 1975
which are invalid on grounds unconnected with
the RDA but connected to some other rights, as
yet unidentified in law, flowing from the
existence of native title.
The Commonwealth has been advii; ed that the
chances of such rights existingi and leading to
the invalidity of leases is smatll, but the
possibility remains. To remove~ this
uncertainty, the Cabinet has decided that the
Bill will provide that any lea, 3es which might
be found to be invalid in any circumstances
connected with native title can be validated by
the Government that issued themn.
In other words, these leases will be made
totally valid and all rights connected with
them will be totally valid and will always take
precedence over native title.
the validation of pastoral leases will extinguish
native title, as provided for in the September 2
outline, however;
where Aboriginal people who own or acquire a
oastoral lease, and who the tribunal determines
would satisfy the criteria for native title,
but for the existence of the pastoral lease,
wish to convert their holding to the equivalent
of native title, they may do so.
the tribunal will decide what native title
rights are in the particular case.
the owners would get the native title
benefits and protections under the
Commonwealth Bill.
the Commonwealth novernment wculd press for the
development of Codes of Conduct where there are
reservation rights, recognising though that, in
the final analysis, this depends on the
willingness of the pastoralists, Aboriginal
people and probably the States to come
together.
-' I 4 the Bill will enhance the right of native title
holders to negotiate on proposed actions which
affect their land:
time limits for negotiation and arbitration
will be extended beyond those proposed in the
September 2 outline. Four months will be
allowed for negotiation and another four for
arbitration in the case of exploration
licences, and six months for both in relation
to mining leases.
before a government compulsorily acquires any
native title land to grant to a third party,
negotiations must take place.
there will be greater recognition given to the
Potential value of regional and local negotiation so
that nothing in the Bill prevents agreements or
settlements at a regional or local level between
governments, Aboriginal people and others with
interests.
while details will await further legislation next
year, the Bill will make provision for a land
acquisition fund to address the land needs of those
Aboriginal and Torres Strait Islander people whose
dispossession from their land means they will be
unlikely to benefit from the Mabo decision.
18 October 1993