For nearly two decades the pastoral and mining industries had fought a long bitter fight against Aboriginal land rights but by the 1990s implementation of the Native Title Act 1993 was one of the Keating government’s big endeavours.
The Mabodecision in late 1993 had rewritten the rule books. The establishment of the National Native Title Tribunal saw state co-operation the immediate challenge.
Eddie Mabo on his home island. Photo: Jim McEwan
Queensland – under the Labor government of Wayne Goss – proved friendly and Cabinet endorsed Paul Keating’s offer to meet at least 50 per cent of the compensation, legal and administrative costs likely to arise in determining what land was open to native title claim.
Western , under Richard Court’s Liberal-National coalition, was judged “implacable” in its opposition. Declaring that it would not recognise any NNTT decision, WA issued more than 10,000 titles under its Land (Titles and Traditional Usage) Act 1993, intended to guarantee land tenure under one system of law.
In February 1994 ministers agreed to further measures to keep other premiers, developers and industries onside. They also approved tactics of working with native title claimants to ensure that cases proceeding to the NNTT were credible and would enhance the tribunal’s authority.
In August 1994, Cabinet was reminded that the government had negotiated the NTA “on the basis of consistent legal advice from the Attorney-General’s Department, that native title would probably not have survived the issue of valid pastoral leases”. The NNTT, however, was accepting claims that pressed on that assumption and conceded to traditional owners a right to negotiate over pastoral leases that only increased their “bargaining power” more generally.
Pastoralists and miners, in response, declared intolerable uncertainties now surrounding their assets.
Ministers agreed that either the proceedings initiated by the Wik peoples of Cape York or those of the Waanyiin the Gulf of Carpentaria should be supported as likely to offer “early and definitive judicial determination” of these issues. The option of short-circuiting such determination by legislation was deemed both politically unwise and likely to fail in the High Court on the basis of racial discrimination. Still, Cabinet was advised native title claims would jump dramatically if the claimants won.
The High Court case of Wik vs the State of Queensland ran until late 1996, eventually overturning that “assumption” in the NTA.
In the interim, in March 1995 the Court government threw out WA’s 1993 Land Act. Ministers were warned that WA was now likely to overload the tribunal and show the system to be “unworkable”.
Mediation was similarly offered in other areas where the Commonwealth was keen to avoid confrontation with Aboriginal groups. Cabinet welcomed the success of former Governor-General Sir Ninian Stephen who – engaged by the Commonwealth – had brokered an agreement between the Northern Land Council and Energy Resources over the continuation of uranium mining in Kakadu National Park.
Kim Beazley, then deputy prime minister and a West n, said his home state was the only place where native title had not been repressed by other titles.
“In those days the most concerned groups miners and pastoralists were the most opposed, these days the miners are the greatest users,” he said.
“It was the beginning of what we now know as Indigenous Land Use Agreements, spinning off the right to negotiate as opposed to the right to veto. And is the better for it.”