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Former farming representative believes there is a lot of misinformation about the impact of native title on farming land

TONY EASTLEY: As we mentioned earlier, Coalition backbenchers and the National Farmers' Federation are concerned about the Government's stance on native title. But a former farming representative says many pastoralists don't understand what native title actually means. The former head of the National Farmers' Federation, Rick Farley, negotiated with the Keating government when the Native Title Act was first introduced. Mr Farley, who is now a private consultant and a member of the Council for Aboriginal Reconciliation, says there's a lot of misinformation about the impact native title has on farming land. And he says that the Coalition backbenchers who are fighting the Prime Minister over native title have got the politics of the issue all wrong.

Michael Carey asked Mr Farley how much farmers had to fear from the Native Title Act.

RICK FARLEY: In my view, not all that much, because under the legislation which exists now there are a number of safeguards built in for pastoralists. The first is that any pastoral lease which is found to be invalid is automatically validated and the act of validation extinguishes native title. The second safeguard is that there is an automatic renewal provision for pastoral leases so that they're renewed automatically on the same terms and conditions which exist now. And perhaps most importantly, the legislation says that even if native title does exist, then native title can't interfere with the existing rights of pastoralists. So it should be a status quo position for pastoralists.

MICHAEL CAREY: So given that, why do you think there is the degree of anxiety which we hear is among the pastoral community?

RICK FARLEY: A couple of things have changed since the legislation was passed. If you go back to the original Bill, the Prime Minister, in the Second Reading speech, said that there would be a rigorous acceptance test, but that acceptance test initially was watered down in the amendments that were passed in the Senate, and perhaps most importantly, the High Court in the Waanyi decision, earlier this year, ruled effectively that there is no longer any sort of acceptance test. So that's led to a number of claims over pastoral leases where the expectation was that no claims could have been lodged. And that was the original position of the Native Title Tribunal.

MICHAEL CAREY: From your experience of talking to pastoralists, is native title and what it means well understood?

RICK FARLEY: It's not tremendously well understood in the pastoral community and, equally, it's not very well understood in a lot of Aboriginal communities, so I think that a lot of the problems arise, really, from the situation where the pastoralists themselves don't understand the safeguards which exist in the Act. The Aboriginal people don't. In a lot of cases, unrealistic claims are being lodged and that's been facilitated by the decision that the High Court took in the Waanyi case.

MICHAEL CAREY: Do you think, though, that people are seeing the word 'title' and assuming that we're talking about basically handing over a form of freehold over existing pastoral properties in some cases?

RICK FARLEY: There have been inaccurate and alarmist statements, made by some people who should know better, indicating that native title could result in people losing their homes and their businesses. Now, that is just not the case. It is demonstrably untrue.

MICHAEL CAREY: But if it does co-exist on some properties, what does that mean for the property holders of the moment?

RICK FARLEY: Very little, because the key element is that even if it does exist, it can't interfere with the management of the pastoral property. That's very clearly detailed in the Act.

MICHAEL CAREY: But could it require them, for example, to make provisions for ceremonial use and that sort of thing?

RICK FARLEY: Well, those provisions already exist in pastoral leases in South Australia, Western Australia and the Northern Territory. There are very detailed rights of access which exist in those jurisdictions. The view that I've always had and the legal advice which has been available to the States, the Commonwealth and industry, has always indicated that unless a lease already has a reservation of Aboriginal interest in it, then the very strong likelihood is that native title's been extinguished. And where existing reservations do exist, native title might be found, but even if it is found, it can't be greater than the rights which already exist in the lease, so it should be a status quo position for pastoralists.

MICHAEL CAREY: So when the High Court looks at the Wik case, later this year, you're expecting that that is the position it will come to?

RICK FARLEY: That's my expectation because that's the view that the Federal Court already has come to.

MICHAEL CAREY: So against that backdrop, how do you view the demands from Coalition backbenchers who want to see the Government legislate around the Racial Discrimination Act and extinguish native title on pastoral properties outright?

RICK FARLEY: My view is that that's simply not a feasible political option because, in the first instance, such legislation wouldn't get through the Senate. If you chose to fight a double dissolution, at least in part, on abolition of Aboriginal rights, that doesn't sound very attractive to me. Secondly, it would require winding back the Racial Discrimination Act. There would be a huge outcry, not only from the Aboriginal community, but from the ethnic communities. And then, thirdly, the Government conceivably would be open to a massive compensation claim, so the politics of it are all wrong.

TONY EASTLEY: Former head of the National Farmers' Federation, Rick Farley, talking with Michael Carey.