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3. The Co-existence of Native Title on Pastoral Leases
Nothing contained in any pastoral lease shall prevent the aboriginal natives of this colony from entering upon the lands comprised therein, and seeking their subsistence therefrom in their accustomed manner.
1850 Order in Council directed to the Colony of Western Australia
[Pastoral leases] give only the exclusive rights of pasturage in the runs, not the exclusive occupation of the land, as against Natives using it for their ordinary purposes.
Correspondence between Secretary of State, Earl Grey, and the Governor of New South Wales
What is co-existence?
The Wik decision held that native title rights and pastoral activities can co-exist, or sit together. The decision clearly states that the only native title rights that can co-exist with a pastoral lease are those that are not inconsistent with the rights of the pastoralists. Where the native title rights are not consistent with a pastoral activity, then the rights of the pastoralist will prevail.
A brief history
An unequal form of coexistence has existed on Australian pastoral leases for many decades. Last century and for the greater part of this century Aboriginal people who lived and worked on the stations were the backbone of the pastoral industry.
It is well documented that the first waves of pastoral expansion into the rangelands were generally characterised by violence and killings as Aboriginal peoples fought to defend their land, resources and sacred sites. This phase was often followed by the realisation that, without the skills, knowledge of the land and cheap labour provided by local Aboriginal people, individual pastoral enterprises were not viable.
From this realisation developed an informal, but unequal coexistence which enabled Aboriginal peoples to remain on or near their country while providing for the industry the cheap (for decades unpaid) labour which enabled the industry to survive. Although conditions and treatment were often brutal, where this form of coexistence developed Aboriginal people became highly skilled in cattle work and were able to maintain traditional laws and customs. In relatively recent times, the advent of equal pay and increased mechanisation of the industry resulted in some groups being forced off their land, despite their decades of backbreaking work to establish the stations.
Aboriginal people remain a vital part of the pastoral industry - they have a stake in the future of the pastoral industry, and many Aboriginal people live in the pastoral rangelands.
In the Kimberley region, for instance:
- 27 per cent of pastoral leases are owned by Aboriginal people;
- more than 50 per cent of the Kimberley Aboriginal population currently live on pastoral leases in small communities;
- over 100 Aboriginal communities are on Kimberley cattle stations; and
- most non-Aboriginal pastoralists have voluntarily surrendered tiny parcels of their leases to allow for small residential Aboriginal communities.
Similar situations apply in many areas of central and northern Australia - the regions where pastoral lease regimes generally apply, Many Aboriginal people have informal access arrangements with pastoralists.
This informal coexistence is, however, still highly uncertain for indigenous peoples. The leaseholder or manager can decide at any time to lock the gates and bar entry to traditional landowners whose religious and cultural responsibilities to country do not stop at pastoral lease boundaries. Aboriginal peoples all over Australia are locked out of their country on cattle stations.
Co-existence - a better way that recognises everyone's rights
The National Indigenous Working Group has developed a proposal for a formal process of coexistence which recognises and respects the rights and interests of all who have a stake in the pastoral rangelands.
The NIWG proposal is based on certainty for both sides - for Aboriginal peoples as well as for pastoralists.
How can pastoralists be assured of certainty?
The High Court's decision on the Wik case was clear that although native title rights could coexist with the rights of pastoralists on pastoral leases, the pastoralists' rights would prevail if there was a conflict between the two sets of rights. In other words, it confirmed the pastoralists' rights under their leases to carry on their pastoral activities.
Indigenous representatives understand the need of pastoralists to be certain that they can carry on their pastoral activities for the success of their enterprises, and are willing to support legislation to confirm those rights and remove any doubt. It is also understood that pastoralists want to know who they are dealing with and know they are working with people who have genuine claims.
However there must be equal certainty for Aboriginal people, both as a matter of justice and to be sure that coexistence will work.
How can Aboriginal people be assured of certainty?
Aboriginal people can be assured of certainty that their rights will be protected by a guarantee that their rights under the Native Title Act will apply to native title land which is under pastoral lease. Aboriginal rights must be confirmed, just as pastoralists rights have been confirmed.
Once they have passed a reasonable test (to show they have a fair native title claim) to register a claim with the National Native Title Tribunal, native title hoiders should have immediate rights of access to their land which should be set out in the Native Titl e Act - such as the right to hunt, fish and camp, to go to sites of significance, access for traditional ceremonies and to protect cultural heritage. Heritage protection is a particularly important aspect of native title and to ensure that indigenous culture continues to thrive. The right to protect and to access land for this purpose must be guaranteed.
Registration of a native title claim would also give the native title holders the 'Right to Negotiate' under the Native Title Act. (see the Right to Negotiate Fact Sheet)
Native title holders should also be able to seek a further confirmation of the full range of their native title rights either through an agreement process or through the Federal Court.
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