Pitfalls and Pipelines - Philippine Indigenous Peoples Links

150 Pitfalls and Pipelines: Indigenous Peoples and Extractive Industries
significantly on indigenous native title rights and interests as evidenced
through the Wik Decision in 1996, 36 resulting in the former Prime Minister
John Howard’s 10-Point Plan, or Native Title Amendment Act 1998, which
placed specific restrictions on native title claims. 37 There have also been a
number of significant Court determinations over the last eight years—most
notably the 2002 cases of Yorta Yorta v Victoria, which refused the native
claim of the Yorta Yorta people 38 and Western Australia v Ward, which
determined that native title rights could be extinguished one by one. 39
Following the Mabo decision, the Native Title Act was proclaimed in 1993.
The Act was a good piece of legislation that allowed for the recognition
of native title while validating other forms of land tenure. In essence, the
Native Title Act walks a fine line in negotiating competing interests with the
common law of Australia.
Since its creation, however, the Act has been amended to the detriment
of the rights of indigenous peoples and to the detriment of the Australian
community. Perpetual amendments have been made in order to satisfy
non-Aboriginal concerns, with none ever having been made to benefit
the interests of traditional owners. Unfortunately for traditional owners,
seeking the recognition of their native title rights continues to be a tortuous
struggle that drags on through years of appeals and counter-appeals in
the courts.
The government proclaimed that the Act was a special measure under
both the United Nations Convention on the Elimination of All Forms
of Racial Discrimination (CERD) and Australia’s Racial Discrimination
Act 1975. The amendments to the Native Title Act in 1998, however,
received strong criticisms from the CERD. These criticisms still require
an appropriate response by the Australian government. Recent court
rulings also demonstrate the urgent need for the Australian government to
address those concerns. Native title was supposed to be an opportunity
for the indigenous peoples of Australia to benefit from the wealth of the
nation. Should the Native Title Act have been allowed to follow its original
intention, things could have been much different.
The intent and spirit of the Act is clearly stated in its preamble:
It is particularly important to ensure that native title holders are
now able to enjoy fully their rights and interests. Their rights and
interests under the common law of Australia need to be significantly
supplemented… A special procedure needs to be available for the
just and proper ascertainment of na tive title rights and interests
which will ensure that, if possible, this is done by conciliation, and if
not, in a manner that has due regard to their unique character. 40