THE DEPARTMENT OF
THE PRIME MINISTER AND CABINET I
1/
K-'
WIK TASK FORCE
The Prime Minister released the following statement to the media on 1 May 1997.
WIK 10 POINT PLAN
Following discussions with the government members' Aboriginal Affairs Committee
today I am pleased to publicly release my 10 Point Plan in response to the High
Court's Wik decision.
The issues thrown up by the Wik decision are difficult and complex. I believe that
this plan offers the one fair, practical response which, and importantly, provides
certainty to pastoralists and miners, but respects native title.
I have spent a great deal of personal time and effort in seeking a solution.
I will continue to discuss aspects of my plan with all interested parties as well as the
government members' committee and the party room.
KEY LEGISLATIVE ELEMENTS OF THE PACKAGE
1. Validation of acts/ grants between 1/ 1/ 94 and 23/ 12/ 96
Legislative action will be taken to ensure that the validity of any acts or grants
made in relation to non-vacant crown land in the period between passage of the
Native Title Act and the Wik decision is put beyond doubt.
2. Confirmation of extinguishment of native title on ' exclusive' tenures
States and Territories would be able to confirm that ' exclusive' tenures such as
freehold, residential, commnercial and public works in existence on or before
1 January 1994 extinguish native title. Agricultural leases would also be
covered to the extent that it can reasonably be said that by reason of the grant
or the nature of the permnitted use of the land, exclusive possession must have
been intended.
3. Provision of government services
Impediments to the provision of government services in relation to land on
which native title may exist would be removed.
4. Native title and pastoral leases
As provided in the Wik decision, native title rights over current or former
pastoral leases and any agricultural leases not covered under 2 above would be
permanently extinguished to the extent that those rights are inconsistent with
those of the pastoralist.
All activities pursuant to, or incidental to, ' primary production'' would be
allowed on pastoral leases including farmstay tourism, even if native title
exists, provided the dominant purpose of the use of the land is primary
production. However, future govenrment action such as the upgrading of title
to perpetual or ' exclusive' leases or freehold, would necessitate the acquisition
of any native title rights proven to exist and the application of the regime
described in 7 below ( except where this is unnecessary because the pastoralist
has an existing legally enforceable right to upgrade).
Statutory access rights
Where registered claimants can demonstrate that they Currently have physical
access to pastoral lease land, their continued access will be legislatively
confi rmed until the native title claim is determnined. This would not affect
existing access rights established by state or territory legislation.
6. Future mining activity
* For mining on vacant crown land there would be a higher registration test for
claimants seeking the right to negotiate, no negotiations on exploration, and
only one right to negotiate per project. As currently provided in the NTA,
This will be based on the definition in the Income Tax Assessnent Act 1936. a copy' of which is
attached.
states and territories would be able to put in place alternate regimes with
similar right to negotiate provisions.
For mining on other ' non-exclusive' tenures such as current or former
pastoral leasehold land and national parks, the right to negotiate would
continue to apply in a state or territory unless and until that state or territory
provided a statutory regime acceptable to the Commonwealth which
included procedural rights at least equivalent to other parties with an interest
in the land the holder of the pastoral lease) and compensation which
can take account of the nature of co-existing native title rights ( where they
are proven to exist).
7. Future government and commercial development
On vacant crown land outside towns and cities there would be a higher
registration test to access the right to negotiate, but the right to negotiate
would be removed in relation to the acquisition of native title rights for third
par-ties for the purpose of governiment-type infr-astr-ucture. As Currently
provided in the NTA, states and territories would be able to put in place
alternate regimes with similar right to negotiate provisions.
For compulsory acquisition of native title rights on other ' non-exclusive'
tenures such as current or former pastoral leasehold land and national parks,
the right to negotiate would continue to apply in a state or territory unless
and until that state or territory provided a statutory regime acceptable to the
Commonwealth which included procedural rights at least equivalent to other
parties with an interest in the land the holder of the pastoral lease) and
compensation which can take account of the nature of co-existing native title
rights ( where they are proven to exist).
The right to negotiate would be removed in relation to the acquisition of land
for third parties in towns and cities, although native title holders would gain
the same procedural and compensation rights as other landholders.
Future actions for the management of any existing national park or forest
reserve would be allowed.
A regime to authorise activities such as the taking of timber or gravel on
pastoral leases, would be provided.
8. Management of water resources and airspace
The ability of governments to regulate and manage surface and subsurface
water, off-shore resources and airspace, and the rights of those with interests
under any such regulatory or management regime would be put beyond doubt.
9. Management of claims
* In relation to new and existing native title claims, there would be a higher
registration test to access the right to negotiate, amendments to speed up
handling of claims, and measures to encourage the States to manage claims
within their own systems.
SA sunset clause within which new claims would have to be made would be
introduced. Agreements
Measures would be introduced to facilitate the negotiation of voluntary but
binding agreements as an alternative to more formal native title machinery.
DEFINITION OF ' PRIMARY PRODUCTION'
Income Tax Assessment Act 1936 section 6:
' primary production' means production resulting directly from
the cultivation of land;
the maintenance of animals or poultry for the purpose of
selling them or their bodily produce, including natural increase;
fishing operations;
forest operations; or
horticulture;
and includes the manufacture of dairy produce by the person who
produced the raw material used in that manufacture.
I