The Agreement on Native Title
         compared with the Ten Point Plan
Attachment to The National Indigenous Working Group (NIWG) Media Release 5 July 1998, contact Clair Colyer (0419) 239 219

The Prime Minister's agreement with Senator Harradine on native title has been wrongly portrayed as a workable solution which is fair to indigenous peoples. That is not the case -- in reality, this is still the unfair Ten Point Plan with some minor changes.

Ten Point Plan
Did it go through?
What this means for indigenous people
How it should have been resolved
1. Validation of illegal grants from 1.1.94-23.12.96 Yes -- in full
  • State Governments have been rewarded for illegally granting new interests in land without following the procedures of the Native Title Act.
  • Where they have done this native title will have been impaired or extinguished and native title holders will have to wait years for compensation.
  • Agreements process for validation of major projects
  • 'fast track' compensation for minor development
  • application of non-extinguishment principles to validated acts
2. Extinguishment of Native Title on so-called "exclusive tenures" Yes 
  • except for 'crown to crown' grants, national parks and land held in trust for Aboriginal people, 
  • the Government has agreed to disregard earlier grants of title to non-indigenous interests on vacant Crown land or reserves currently occupied by Aboriginal people.
  • means native title has been wiped over large areas of the country in countless situations where a government has granted certain titles, even if the land has never been used for that purpose or the use stopped long ago.
  • If native title is found by the courts to have survived on these tenures, the Government will be liable for compensation, but indigenous people will have lost their land.
  • Government has listened to Aboriginal people in taking out Crown land, national parks and land now held by Aboriginal people from the schedule BUT
  • Courts should determine where native title still survives (if Govt had done this in 1993 with pastoral leases we would never have had the Wik decision -- but that would have meant a huge compensation bill and in reality it amounts to legalised theft of people's land).
3. Winding back native title for provision of Government Services Yes. * Governments can go ahead with any project they classify as providing a Government service

* Right to negotiate no longer applies and legal protection of native title is reduced.

* An effective right to negotiate should apply
4. Upgrading pastoral leases Yes -- full primary production upgrades allowed, BUT 
  • instead of permanent extinguishment of inconsistent native title rights, the courts will decide if native title has been extinguished or can be revived.
  • Allows sheep or cattle stations to be used for all kings of new intensive agricultural activities that could impair or suppress native title -- e.g. farming, horticulture, acquaculture -- but with no right to negotiate for native title holders to protect their interests.
  • Native title rights don't have to be considered
  • The new arrangement applies whether or not a pastoralist previously had actually held rights to do the expanded range of activities
  • Should have kept the Right to Negotiate so Aboriginal people can be involved in economic, cultural and social planning on what will happen on their traditional land.
5. Limited Statutory Access Rights Yes -- BUT 
  • access will only be available to people who had access to their land at 23.12.96
  • Arguably is of no net benefit, and will ratify unlawful acts wherever native title holders have wrongly been excluded from country covered by a pastoral lease.
  • Senate amendments to ensure that people who have been locked out of their land would benefit from this provision should have been retained.
6. Winding back native title rights in relation to future mining activity. Yes -- BUT although Government has removed right to negotiate in many cases there will be some consultation rights
  • Higher registration test
  • No right to negotiate on mineral exploration
  • No right to negotiate if there is an 'approved' State or Territory scheme.
  • Leaves protection of native title to the mercy of States and Territories
  • States and Territories can set up their own regimes and eliminate the right to negotiate on pastoral leases, public purpose reserves and national parks -- native title holders will only have a right to be consulted and less capacity to protect their land or culture from damaging aspects of development
  • Right to negotiate only applies on vacant Crown Land which has never had any form of title issued -- means right to negotiate eliminated over vast areas of Australia -- leaving only a right to be 'consulted'
  • New registration test will make it more difficult for indigenous people to access 'right to negotiate' and consultation procedure. 
  • Indigenous people support a fair registration test but the one that has been adopted is far too harsh.
  • The right to negotiate as it is presently in the Native Title Act should be retained.
7. Compulsory acquisition of native title for Government and Commercial Development Yes -- same as above.
  • Much the same as point 6 above.
  • Is effectively compulsory acquisition of native title, but the right to negotiate will only apply on vacant Crown land.
  • Same as above.
8. Winding back native title re management of water resources and air space. Yes
  • There will be no Right to Negotiate
  • There will be limited right to be consulted but gives people much less say over what is done
  • The right to negotiate should apply equally over areas where native title survives, including waters.
9. Harsher registration test and Sunset Clause -- re "Management" of Claims Yes -- 
  • Government's registration test has gone through except for a provision that native title holders may apply for orders to the court if their parents enjoyed access to the land.
  • Sunset clause dropped.
  • People who have been cut off from their traditional land will have to go to contested court proceedings with governments and miners to be registered as a native title claimant and will effectively have to prove their native title claim to be registered.
  • This places many hurdles in front of indigenous people seeking to establish they are native title holders, and seeking protection of their native title
  • Likely to cause development delays and reduce workability while people establish their right to be claimants
  • Minister has greater powers to intervene and all Native Title Representative bodies will have to reapply for recognition, regardless of their performance or effectiveness -- an administrative nightmare.
  • Indigenous people support fair registration test. The test agreed by the Government and Senator Harradine is not a fair one.
  • Native Title Representative Bodies should be supported and given appropriate statutory functions to manage claims -- the Government has made some changes along these lines but these do not give the Representative bodies the tools to do the job properly.
10. Land Use Agreements Yes 
  • Indigenous people wanted inclusion of workable process for agreements and supported this being included.
  • There is general agreement about the process for agreements -- this area is not controversial.

National Indigenous Working Group on Native Title
PO Box 201, Deakin West, ACT 2600
Tel: 61 (2) 6234 3330 Fax 61 (2) 6282 4109.


The National Indigenous Working Group has confirmed that indigenous Australians have adamantly rejected the Government's Native Title Bill and condemn the Government's "deal" on native title as a sell out of indigenous people that will prove unworkable. 

NIWG Executive Officer, Olga Havnen said:  "In essence this bill is still the Government's unjust discriminatory Ten Point Plan with a few very minor concessions. 

"If passed by the Parliament, the bill will be a devastating blow for indigenous people," Ms Havnen said. 

"This legislation is about winding back our rights for the benefits of other interests, at immense cost to Australian taxpayers.  The bottom line is that it amounts to legalised theft of our property rights.  It is terribly unjust. 

"The Prime Minister, as he has done all along, has negotiated with other parties and excluded us totally from the process. Indigenous people in Australia have not consented to the way our property rights are being treated, and will not accept it.  The Prime Minister has done irreparable damage to relations between the Government and indigenous people in this country. 

Ms Havnen said the NIWG did not believe the amendments would achieve a sustainable, workable outcome.  "The 'lawyers picnic' is no longer a joke. The whole thrust of these amendments is to shift the approach of the Native Title Act away from mediation and negotiation into litigation," Ms Havnen said. 

Ms Havnen said the NIWG acknowledged the efforts of Senator Brian Harradine to mitigate the worst aspects of the Government's legislation, under pressure of the threat of a double dissolution.  However, she said the Bill was now a legalistic  nightmare which the Government would have to come back to in the future to resolve. 

"This bill will not resolve the issue -- it will create a mess of litigation and all kinds of administrative nightmares. 

"This political process has been so counterproductive and costly, not just financially, but for the well being of indigneous people at every level. The Government has used us as pawns in their political game." 

5 July 1998
Contact:  Claire Colyer (0419) 239 219