Senator Brian Harradine ends a 106-hour-long debate on native title--but the argument goes on

By LISA CLAUSEN

here are two views from the gate to Tony Gorman's farm in south-western New South Wales: in one direction, 140 hectares of healthy grape vines; in the other, 425 ha of potato plants. The rows of grapes lift Gorman's heart; the tufts of potato plants remind him of a deep frustration. Nearly two years after asking the state government to upgrade his pastoral lease--which covers his potato fields and prevents him from diversifying into crops like grapes--to an agricultural lease, Gorman is still waiting for a decision, left in limbo by bureaucratic confusion about the impact of a native title claim on his land. He's not alone. The whole region is on hold, he says, "and looks like being on hold for God knows how long."

The wait may be briefer than Gorman expects. Last week, after 292 amendments and a record 105 hr. 56 min. of parliamentary debate, the Senate passed the Native Title Amendment Bill by 35 votes to 33. The bill was devised as the legislative reply to the High Court of Australia's landmark 1996 ruling, in the Wik Peoples and Thayorre People v Queensland case, that native title--the rights and interests of Aborigines in their traditional lands--could coexist with pastoral leases. Like that judgment, the bill (drawn up in 1997 to amend the 1993 Native Title Act) stirred anger and confusion over its implications for farmers, miners and Aborigines.

In the end, it would probably not have passed without one man's change of heart. Tasmanian Independent senator Brian Harradine, who, with Independent Mal Colston, holds the balance of power in the Senate, decided early this month to reopen talks--"I felt I had a duty to do"--on the government's amendment package, which had already been rejected twice by the Upper House. When the bill passed, a jubilant Prime Minister John Howard declared it "a wonderful outcome for all Australians" that would end uncertainties about land use. Claiming the changes betrayed indigenous rights, Aboriginal leaders threatened a High Court challenge even before the final Senate vote. But farmers and miners expressed cautious approval.

Among the amendments is a tougher claim-registration test aimed at easing the workload of the Native Title Tribunal, which already has more than 800 cases to assess, some of them maverick claims with little chance of success. A sunset clause that would have set a six-year time limit for the lodging of claims over pastoral leases was removed in the final eight days of negotiations, but many leases granted between passage of the Native Title Act on Jan. 1, 1994 and the Wik ruling on Dec. 23, 1996--including at least 4,000 Queensland mining titles which were in doubt--have now been validated.

Farmers and miners are also happy that individual states can now pass laws giving Aborigines no more rights than pastoralists to consultation or compensation on mining projects. Though Aboriginal leaders fear the changes will remove pressure on mining companies to negotiate with them, Minerals Council of Australia head Dick Wells says it will still be in miners' interest to maintain good relations: "But what we won't have is one party being held to ransom by statutory procedures under an unworkable Act."

Whether the Act even has a chance to work may depend on the High Court. An argument that the constitution allows Commonwealth laws to be made only for Aborigines' benefit could threaten the new law's validity, says Australian National University constitutional lawyer George Williams, one of 10 advocates who voiced disquiet about the Act last week: "There is room for a High Court challenge." Aboriginal legal representatives are bracing for more courtroom fights. "This delivers litigation and a polarized community," says lawyer Ron Levy, of the Northern Territory's Northern Land Council.

Indeed the Act's toughest task will be ending the bitter public debate on land rights prompted by the Wik ruling. As details of the complicated legislative deal--and of a Federal Court ruling that native title may exist over Australia's seas--spread through the bush last week, people hoped the news was good, but few were sure. "That's where all the fear, all the frustration comes from--people's ignorance," says Elaine McKeon, an Aboriginal woman who negotiates joint-venture projects for her community at Cloncurry in central Queensland. The belief of many Aboriginal people that they have been sold out must also be addressed, says Victorian commissioner for the Aboriginal and Torres Strait Islander Commission Geoff Clark: "We feel cheated, absolutely cheated by this deal."

Brian Harradine says he did what he did to avoid the "national tragedy" of a third Senate rejection of the government's bill and its consequence, an election based on racial issues that he feared would have set back race relations by 50 years: "I did my best and I did it without compromising the principles I have stood on for years and years." Now, he says, "it's time to move on." Most Australians, among them farmer Tony Gorman and Elaine McKeon, agree. They'll be hoping that Harradine's best is good enough.