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Professor Garth Nettheim discusses his concerns about the Prime Minister's 10-point plan on native title

PAUL MURPHY: More than 6,000 staff from universities from around Australia have come together to protest against John Howard's 10-point Wik plan. It started with an academic sending out a simple e-mail message to colleagues all over Australia, but this has grown into a nationwide expression of concern and a letter from the group to politicians on all sides of politics. Professor Garth Nettheim from the Law Department at the University of New South Wales is one of the signatories, and he joins us now. Garth, good morning.

GARTH NETTHEIM: Good morning, Paul.

PAUL MURPHY: Garth, what are the major concerns of this group?

GARTH NETTHEIM: Well, the major concerns that are expressed in the letter is the concern about the fact that there is, under the 10-point plan, likely to be a substantial transfer of leasehold land to higher forms of tenure which will extinguish native title to that extent, will enrich the pastoralists concerned, and all this will require compensation which the taxpayers will have to pay, and the emphasis is on trying to find a solution which is legislated instead of trying to work through the process of agreements, negotiated agreements.

PAUL MURPHY: Do you think this 10-point plan actually really amounts to total extinguishment? I know the Prime Minister said it stops short of that, but what do you think?

GARTH NETTHEIM: I've gone through it in some detail, trying to work out exactly what it's doing, and it's extinguishment by, if not a thousand cuts, 10 cuts. It's a fragmentation of ... a fragmentary approach rather than a one-line extinguishment, which the National Party had wanted, but it seems to achieve everything the National Party would want. It's substantially going way beyond Wik or way beyond what Wik achieved and it is trying to make it quite clear that states and territories can extinguish native title by declarations, that native title is permanently extinguished on current or former pastoral leases, and while that is said to be consistent with Wik, it is not. The Wik decision simply said that native title interests are displaced to the extent of inconsistency with native title, and it also contemplated that when a lease came to an end, the full native title rights would revive, whereas the proposal is to permanently extinguish those.

PAUL MURPHY: Yes, so when you take Mabo and then add Wik, obviously it's a real shemozzle. The major problems, as you see them, with the Native Title Act ... I mean, could it be redrafted or better done?

GARTH NETTHEIM: Yes, certain problems have come to light and one of them is the constitutional problem which had nothing to do with the Native Title Act itself, and that is to say that doing such things as determining whether native title exists is properly a judicial function which ought not to be performed by the Tribunal under the Native Title Act, but should be done by the Federal Court. So both the Keating draft amendments and the Howard draft amendments propose to deal with that issue by formally changing the Act.

Other things can be usefully fine-tuned. There are some very positive proposals from last year which were developed by indigenous people's organisations together with other stakeholders for indigenous land use agreements, which put a very strong emphasis on trying to reach agreement as to what is to be the proper use of land. There are also positive proposals to strengthen the powers of representative Aboriginal and Torres Strait Islander bodies, and this might help to cut out wild cat claims. But the two major things, which were heralded last year and which are being extended under the 10-point plan, are the substantial powers to states and territories to substantially dismantle native title on lands which are or, at one time, either have been subject to pastoral leases, and the effect of dismantling of the power of native title holders to negotiate in respect of mining on their lands.

PAUL MURPHY: Yes. Do you think the Prime Minister, John Howard, is listening to people, to critics and others, or do you think this 10-point plan is set in stone?

GARTH NETTHEIM: One can only listen to what he says, and he seems to say that the scheme, as it now stands - and it's gone through various changes - as it now stands as of 8 May has gone through Cabinet and is now solidly entrenched. He, of course, has been preoccupied with trying to fight off concerns from his National Party colleagues and the National Farmers' Federation and trying to defend it, so to speak, from the right who wanted more sweeping, simple-to-understand form of extinguishment. I think he probably hasn't had the time to attend to some of the concerns that is going way to far, way further than is necessary. The Wik decision....


GARTH NETTHEIM: ... one or two apparent problems and one is the fact that some governments, such as that in Queensland, had simply ignored the possibility of pastoral leases and granted interests in land without going through the Native Title Act processes.

PAUL MURPHY: Okay. Garth, we'll have to leave it there. Thanks very much indeed for that. Professor Garth Nettheim from the University of New South Wales.