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Queensland: High Court makes a decision on the Wik people's native title claim on the Cape York Peninsula

BARRIE CASSIDY: Tonight, across the country, there is delight and dismay over the High Court's ruling in the long-running Wik case. Brought by the Wik people on the Gulf of Carpentaria, it was run to test the validity of pastoral leases that cover vast tracts of the outback, and whether those pastoral leases meant that native title no longer existed. Well, today they got their answer. In a four-three ruling, the High Court found that pastoral leases did not extinguish native title, but the judges added that when pastoral leases and native title conflict, then effectively the pastoralist gets the right of way. Aboriginal leaders say the ruling empowers native title claimants to negotiate the use of land, but pastoralists want government action to promise they are not entering an even greater period of uncertainty.

In a moment, we'll talk with lawyer and former head of the Cape York Land Council, Noel Pearson, and Donald McGauchie from the National Farmers' Federation. But first, this report from Eleanor Hall.

ELEANOR HALL: Their future was in the hands of judges. Did Mabo mean anything in practice for the Wik people who wanted title to their land? The answer from the High Court today was 'yes'.

GLADYS TYPINGOOMPA: This gives us the strength now to say: The highest court in Australia has made this decision - and we will not lose that. That's where we are being recognised now by the decision.

ELEANOR HALL: It's been a long journey for Gladys Typingoompa. She can remember her people being moved off part of their land to make way for mining three decades ago. She can remember the mission schooling and the assimilation policies, but she also maintained her traditional culture and ties to the land and she was there when the Wik people lodged one of the first claims for native title under Mabo. But the case has not gone smoothly. The problem was some of the land the Wik are claiming is under pastoral leasehold, so the case is not only about the Wik and their claim in Queensland, it has implications for pastoral leasehold title that covers 40 per cent of Australia.

JAMES FITZGERALD: There is no loser from today's decision. If the Wik people had been unsuccessful today, there would have been a clear loser and that would have been Aboriginal people throughout Australia. But the fact is the High Court has decided that it is possible for Aboriginal traditional owners and pastoralists to co-exist side-by-side.

ELEANOR HALL: But that's not the way the pastoralists who oppose the Wik people's claim see it. They say they lose out because the courts have now created even more uncertainty.

DONALD MCGAUCHIE: What the High Court has done today is to create enormous uncertainty and deliver a body-blow to the pastoral industry in Australia. And that situation of uncertainty in which will be involved in litigation I think for at least a decade and probably two decades, trying to sort out what are now the boundaries.

JENNIFER CLARKE: I think it's quite provocative to talk in those terms. There was initially, after the Mabo decision, a small question about uncertainty of titles, but that was cleared up by the Native Title Act. The issue today with pastoral leases is not an issue about any kind of question or doubt being posed over pastoral leases themselves, the only question is whether pastoralists have to share their land in any way with native title holders.

ELEANOR HALL: Today's judgment sets a precedent Australia-wide that pastoral leases do not fully extinguish native title. Pastoralists do have to share, with native title rights being decided on a case-by-case basis. This judgment doesn't remove any existing property rights, but it does give Aboriginal people a greater say over the land, something that mining companies in particular have been fighting. Now they will have to negotiate with Aboriginal native title holders before they mine on pastoral land.

JAMES FITZGERALD: There's a lot of misinformation about the right to negotiate process under the Native Title Act. The process allows for six months of negotiation between the Aboriginal traditional owners and the mining company, and if no agreement can be reached in that six months, then for a further period of arbitration, at the end of which a decision is made by an arbitrator, someone like a mining warden. That is a maximum of 12 months in total; that is, the same period of time at least which it would take to do other things like impact statements, environmental statements for a mine.

ELEANOR HALL: This decision is also putting pressure on the Federal Government which had argued before the court that native title should not survive a pastoral lease. The Queensland and Western Australian Governments, as well as the Northern Territory are now demanding that the Prime Minister legislate to kill off native title on pastoral lease land.

SHANE STONE: I've always said that John Howard should have faced this issue head-on. Now, the Prime Minister took the view that he wanted to wait until the Wik case. We've got the Wik case; we don't have the solution. And the Prime Minister is getting a letter from me, in fairly straight terms, pointing out that we've all played the game, we've been patient, we've tried to see this issue through. The position is getting worse; we have a capital city that has an ambit claim over it, and it's time for him to act.

ELEANOR HALL: The Government has said it will meet with the Premiers, but the Opposition has warned John Howard about challenging the court.

DARYL MELHAM: I think it's a great day for indigenous people, and I think what the Labor Party will be doing is respecting the High Court's decision. No one is above the law - farmers, miners, the Government - and I'd call on John Howard and his government to respect today's decision of the High Court.

JENNIFER CLARKE: We ought to hold back from this kind of a knee-jerk solution to abolish Aboriginal rights and to bolster up the rights of other people. That's discriminatory, in clear terms, within the international law standards.

ELEANOR HALL: For the Wik people, it's back to the Federal Court to see just what native title rights they can establish on the 35,000 kilometres of Cape York under claim.

BARRIE CASSIDY: And now to discuss the implications of today's decision, I'm joined from our Cairns studio by lawyer and former head of the Cape York Land Council, Noel Pearson, and the head of the National Farmers' Federation, Donald McGauchie, is here in the studio. Firstly to you, Donald McGauchie : what are we left with after today? More confusion, more litigation?

DONALD MCGAUCHIE: Yes, I think both of those, Barrie. We're going to have a great deal of uncertainty now and we are certainly going to have a very considerable increased demand of litigation as the boundaries between residual native title and the rights of pastoral leaseholders are sorted out. And I think that's .. the way the decision has been brought down, that's going to be required to be done, largely on a case-by-case basis; not every individual case, but a huge number. And our view is that this could take a decade, maybe two decades to sort out, and in that time, uncertainty and litigation are going to be the order of the day.

BARRIE CASSIDY: But there is something in her for you as well. If there are inconsistencies between the interests of the pastoralists and the interests of the Aborigines, then the native title rights must yield. Now, what's wrong with that?

DONALD MCGAUCHIE: Well, that's certainly the view that everyone has expressed, but the problem we have is, it is determining where they collide and what the difficulties of that are going to be. What we're dealing with here are people who have to run businesses in a very difficult international trading environment on pastoral leases, and if they're going to have to sort out every issue with respect to their rights of their leases, it's going to be damn near impossible for them to run their businesses.

BARRIE CASSIDY: But just so that everybody's clear about this, what in effect does it mean? What is it that a pastoralist wants to do that he can't do as a result of this ruling?

DONALD MCGAUCHIE: Well, that's the point, you see. Nobody really knows. And that's going to be the great difficulty. The simple fact is, when the pastoralist wants to do something different to what they're doing now, and of course it's ....

BARRIE CASSIDY: Like what? Build fences?

DONALD MCGAUCHIE: Well, quite possibly. I mean, you see, the thing is we don't know. I mean, Justice Gaudren, in her part of the judgment, made the point that even with respect to building houses doesn't necessarily extinguish native title. So what we're going to have under the Native Title Act as it now stands, under the right to negotiate, is effectively a blocking process which will mean conducting pastoral operations in a changing global environment, is going to be just about impossible while these things are sorted out in a sort of .. way that the courts do it, which is cumbersome and slow and of course extremely expensive.

BARRIE CASSIDY: Okay, Noel Pearson in Cairns, what's your response to what you've heard so far?

NOEL PEARSON: Well, I think this is one of the rare decisions of a court. It is a win-win decision. Most decisions of courts end up with losers. This decision says that the rights of the pastoralists are legal and are valid, and that there may be co-existing rights vesting in traditional owners. And to the extent that there is a difference between the two rights, the rights of the pastoralist prevail. Now, that is a position that we put from day one of this court case and it is a position that has been accepted by the court. It is a win-win position.

BARRIE CASSIDY: But what about the frustration that Donald McGauchie has already talked about, where the pastoralists really don't know what they can do and what they can't do?

NOEL PEARSON: Well, it's very clear from the court's judgment that those rights that are granted under legislation are the rights that the pastoralists are entitled to enjoy. They need to have reference to their rights, set out in the Land Act of Queensland, in order to determine what rights they can exercise. And if those rights are inconsistent with the exercise of native title rights, well then those rights will prevail over Aboriginal rights. Now, it seems to me that the kind of clarity that a lot of the spokespeople for the rural industry and the mining industry are putting forward today, the kind of clarity they're seeking, is a total annihilation of any Aboriginal right. That is the scenario that will please them, that is the scenario that will provide absolute clarity for them. Well, we can't return to terra nullius; we can't accede to simple propositions about Aboriginal people totally losing their position so that pastoralists can have absolute clarity of their position.

BARRIE CASSIDY: And just on that point, Donald McGauchie, there's one property up there on the Cape, held by one white family that covers 3,000 square kilometres. Now, in a situation like that in those circumstances, surely it's reasonable to give Aborigines some access to that land, when we're talking about things like hunting, camping and fishing?

DONALD MCGAUCHIE: Well, those rights have existed for a long time in a lot of places, and in many cases, such as the Northern Territory, Western Australia and South Australia, they exist by virtue of statutory rights which have been given, and equally in other places they've existed by agreement between people. No one's got a problem with that, but the difficulty we're going to have with this issue is, the only real winners out of this will be the legal profession, and we are just going to see so much of the boundary between native title rights and pastoralists' rights are going to be determined by litigation, on a case-by-case basis. I mean, if you read the judgments, overwhelmingly that's the argument put by their Honours, that this issue has to be dealt with on a case-by-case basis, and of course if you just imagine ....

BARRIE CASSIDY: Well, there are 450 outstanding cases, so clearly that's not practical.

DONALD MCGAUCHIE: Well, in one claim alone, we have 3,500 land holders. Now, each one of those is going to have to be hammered out one-by-one. That's why I'm saying this is going to take 10 to 20 years of argument and litigation. That's the problem.

BARRIE CASSIDY: But given that that is the problem then, surely that is an argument as Justice French has suggested today, the need for people like you and the Aborigines to get together and try and find ways to co-exist.

DONALD MCGAUCHIE: Well, certainly. There's no doubt about that, and of course we're more than happy to do that. I think that's something that we will do and have been doing, and will be quite happy to do. But the problem we have is that in many cases the Aboriginal people themselves can't determine who are the claimants. I mean, we've got plenty of cases where there are multiple claimants to the same piece of land, and in that situation .. just let me come back, because in that situation, Barrie, what we're going to have is those issues being sorted out in the courts before the issue of the pastoral leases. And, in the meantime, somebody who's got to decide whether to sell cattle or whether to buy cattle, whether to invest their money or how to borrow money to keep their pastoral operations going, are going to have an enormously difficult time doing that with this level of uncertainty.

BARRIE CASSIDY: Noel Pearson, do you suspect that's an argument the Federal Government will accept and that they'll legislate to overrule what occurred today?

NOEL PEARSON: Barrie, whilst this case was pending before the court, the cattlemen of Cape York Peninsula didn't waste time, they sat down with the Aboriginal traditional owners, they sat down with the Cape York Land Council and they negotiated the practical arrangements for co-existence of interests on pastoral leases in Cape York, and came up with an agreement. They reached that agreement in February this year, and that agreement provides the framework to work out, in a practical way, the meaning of traditional recognition inside those pastoral leases: things like fire management, non-interference with the business, gates, fences, camping, access for traditional owners - all of these issues are contemplated to be settled through talks and through the establishment of a code of conduct, so that these rights can be managed in a practical way, so as not to cause interference to pastoralists.

BARRIE CASSIDY: But back to the original question: What do you think the Federal Government will do?

NOEL PEARSON: Well, in my view, the Federal Government ought to look at the way in which these very leases that are the subject of this High Court decision have been dealt with in a conciliatory way through negotiation. I believe that no solution lies in the Federal Government trying to step in and legislate to take rights away from traditional owners and try to provide clarity for pastoralists by denying Aboriginal people their rights.

BARRIE CASSIDY: Okay, very quickly, Donald McGauchie, what do you think the Government will do?

DONALD MCGAUCHIE: Well, we've obviously got to talk to them and we would hope that they will move to clarify the position as much as possible, as quickly as possible, by legislation.

BARRIE CASSIDY: All right. Well, we're out of time, but thanks for your time, Donald McGauchie here, and Noel Pearson in our Cairns studio. Thank you very much.