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Editors --- "Native Title Report July 1995 - June 1996 - Digest" [1996] AUIndigLawRpr 89; (1996) 1(4) Australian Indigenous Law Reporter 695

Native Title Report July 1995 - June 1996

The Aboriginal and Torres Strait Islander Social Justice Commissioner presented his third report on native title to the Attorney-General on 14 August 1996. [1] The Commissioner is required under s. 209 of the Native Title Act 1993 (Cth) ('the NTA') to report annually to the Minister on the operation of the Act and its effect on the 'exercise and enjoyment of human rights of Aboriginal peoples and Torres Strait Islanders'.

As with the Commissioner's two previous reports this report is critical of the operation and administration of the NTA and its effects on Indigenous peoples. The change of Federal Government has meant some major changes in Federal policy on native title. The Commissioner's report addresses many of these changes, most notably the Federal Government's Native Title Amendment Bill 1996 introduced into Parliament on 27 June 1996. The report provides a detailed examination of the Bill and other proposed amendments to the NTA yet to be drafted.

The Commissioner raises numerous concerns about the consistency of the proposed amendments with the Racial Discrimination Act 1975 (Cth). He strongly criticises the changes to the right to negotiate over mining, the tougher 'registration test' for native title claims and the conversion of pastoral leases at the expense of native title. On the issues of native title representative bodies and Indigenous land use agreements the Commissioner suggests some positive directions for reform.

The Federal Government has foreshadowed that it will introduce further amendments to the NTA. The 'Executive Summary' is reproduced below.

Executive Summary

Chapter 1 - Workability

While claiming that it merely intends to 'improve the workability' of the Native Title Act 1993 (NTA) the Government has proposed amendments which undermine the human rights of Indigenous peoples and are racially discriminatory, breaching the Government's commitment to respect the principles of the Racial Discrimination Act 1975 (RDA).

In particular, the principles underlying the RDA have been breached with respect to amendments regarding the right to negotiate; the effect of the registration test in combination with the future act procedures; and changes to the terms of pastoral leases. The proposals regarding the renewal and variation of leases will permit the de facto extinguishment of native title on pastoral leases.

The way to achieve genuine 'workability' is not through an exercise of legislative power attempting to erode the rights of native title holders - this will only encourage litigation. Genuine 'workability' of the NTA can best be achieved by facilitating negotiation and broad-based agreements between stakeholders.

Chapter 2 - The Right to Negotiate

Under the banner of 'workability' the Commonwealth Government has proposed a number of major amendments to the right to negotiate. The effect of the amendments will be to reduce or, in some cases, remove Indigenous peoples' right to negotiate. The Government freely admits this. The proposed amendments do more than affect 'workability' - they infringe the property rights and other human rights of Indigenous peoples.

The right to negotiate is an inherent aspect of the NTA because it reflects the unique sui generis nature of native title. Under Indigenous law we have the right to control access to and activities on our land. The NTA reflects that right. If the NTA is amended to reduce or remove the right to negotiate then the Act will not afford native title holders the same level of recognition and protection which is provided to other title holders, and will be inconsistent with the RDA.

Eroding the right to negotiate also undermines the 'balance' which the scheme provides to the discriminatory validation provisions in the NTA. This will destroy the buoyancy of the NTA so that it sinks into racial discrimination. If the Act sinks below the surface, so too will the social justice aspects of the Act - those vital measures that address two centuries of dispossession of land and denial of culture.

The Government's economic rationale for many of the changes reduces our human and property rights to the benefits of trade and ignores the cultural, social and spiritual aspects of our title to land. To respect the right to negotiate is to respect native title.

Chapter 3 - Representative Bodies

Representative bodies are the linchpins for the native title process. They create a vital link between Indigenous law and the wider Australian legal system. Properly functioning representative bodies are essential to deal with the native title rights of the various communities, sub-groups and individuals which may hold native title rights. The core task of the representative bodies' arrangement is to ensure that the interests of all members of a title holding group are represented.

The Government has responded to the ATSIC Review of Native Title Representative Bodies by proposing to increase the mandatory powers of these bodies. But it appears from the Outline that the proposed amendments are aimed primarily at easing access to Indigenous lands for industry and increasing accountability to the Commonwealth, and only secondarily at improving representation for native title holders.

While supporting many of the proposed expanded functions for representative bodies I am concerned that appropriate safeguards be put in place to ensure that representative bodies fulfil their functions diligently and competently. An essential safeguard is that representative bodies should be required to identify, consult and obtain the informed consent of the native title holders before action is taken that affects native title.

Representative bodies must be adequately resourced if they are to properly fulfil their functions under the NTA. If representative bodies are to play a pivotal role in the access of governments and developers to native title land and waters then it makes good economic sense to properly resource these bodies. Poorly funded and inefficient bodies will only increase transaction costs dramatically.

Chapter 4 - Applications and Mediation

It may not be necessary for claims to be lodged in the Federal Court, provided that the determinations are made by the Court. Lodgement in the Court exposes claimants to an immediate risk of strike out proceedings. This encourages disruptive and expensive court proceedings and creates an onerous and unnecessary 'screening' mechanism for claims.

Federal Court costs orders may also reduce the ability of claimants to protect their rights. There should be a presumption that no party will be ordered to pay another party's costs, except that any party may be liable where they have acted unreasonably.

The amendments set out the purposes for mediation conferences. A broader view of mediation is required. For example, the National Native Title Tribunal (NNTT) should be empowered to assist parties to negotiate Indigenous Land Use Agreements in certain circumstances.

The Native Title Amendment Bill 1996 (NTAB 1996) specifies situations in which the Federal Court can order that mediation be ceased or avoided. These provisions are inconsistent with encouraging mediation. I believe that the Court should not initiate an order to bypass or discontinue mediation; and a party should only be able to ask for mediation to be ceased after the mediation has run for three months, unless they have the agreement of all other parties. Similar limitations are also suggested in relation to the referral of questions of law and fact from the NNTT to the Federal Court.

Chapter 5 - The Registration Test

The registration test operates as a governor on claimants' access to the right to negotiate; the Government's proposed agreement mechanisms; and the removal of s. 24 protection (the 'future act procedures.')

The Government's amendments would introduce four distinct conditions for the registration of a claim.

The Government's proposed registration test raises the threshold to a level which dramatically curtails access to the future act procedures. The test removes a vital protection to the exercise and enjoyment of native title interests on a basis of substantive equality. The proposed registration test, when combined with the future act mechanisms, so reduces the practical protection available to native title holders as to breach the principles of the RDA.

Extending the lodgement period for claims in response to future act notices is an utterly inadequate recognition of the increased burden imposed by the proposed registration test.

I do not contend that there should be automatic access to the future acts procedures merely by the presentation of a claim. Some filtration to ensure that a claim has substance is reasonable and proper. A qualified version of the registration test set out in the Native Title Amendment Bill 1995 (Cth) would be an appropriate approach.

It would appear that, technically, the backdating to 27 June 1996 of the registration test is not retrospective. Nevertheless in practice, whatever the effect at law, there is a potential for a retrospective operation of the proposed registration test.

There is great uncertainty as the result of the Government's proposal. In whatever way the threshold test is amended, if at all, then it should only be prospectively effective from the date of the commencement of the amending legislation.

Chapter 6 - Agreements

In Part 4 of the NTAB 1996 the Commonwealth Government is proposing a claims and determination-based mechanism which allows governments and third parties to enter agreements about future acts affecting native title with registered native title claimants or holders.

The proposal is similar to various aspects of the existing right to negotiate and non-claimant mechanisms. However, it does not apply to future acts to which the right to negotiate applies.

Critically, under the amendments, if no claim is lodged within a three month period, or a claim fails to achieve registration, a notified future act will be valid (s. 24B).

The combination of the proposed s. 24B, the amended non-claimant procedures and the planned registration test involve such a reduction in the protection provided to native title holders as to contravene the principles underlying the RDA.

Negotiating access to Indigenous lands can proceed in tandem with Indigenous attempts to formally establish native title. However, negotiations over land use need not be predicated on claims and determinations being made. The Government's proposals in Part 4 of the NTAB 1996 are misconceived and regressive in this regard. Recognition of our connection to land is a sufficient foundation stone on which Indigenous Land Use Agreements (ILUAs) can be built.

ILUAs have the potential to provide flexibility, certainty and respect for Indigenous land ownership and decision-making processes. They allow the Indigenous and non-Indigenous parties to control the process of finding agreement over proposed uses of Indigenous land and waters. A number of the key features of ILUAs should apply to agreements already provided for under the NTA.

Chapter 7 - Conversion and Renewal of Leases

While the NTAB 1996 doesn't explicitly extinguish native title on pastoral leases, it contains provisions which permit extinguishment to occur in practice, by allowing the untrammelled extension of new, non-pastoral uses over pastoral land.

Although the NTAB 1996 states that the non-extinguishment principle shall apply to acts done under the provisions, this principle does not protect native title against impairment which may be caused by the kinds of acts which would be allowed.

The amendments are racially discriminatory, as they allow the expansion of interests held by non-Indigenous stakeholders at the expense of the rights of native title holders in circumstances where such expansion could not occur on 'ordinary' title land.

Presently, the 'future acts' regime of the NTA provides that no expansion or change in the nature of a pastoral lease is possible unless it could also be done to 'ordinary' title land; native title holders possess the same procedural rights as 'ordinary' title holders. Native title holders are therefore protected against discriminatory damage to their interests on pastoral leasehold land. These protections are removed by the proposed amendments.

The amendments also enable all mining titles granted before 1 January 1994 to be renewed without following the 'right to negotiate' process, regardless of whether the title in question contains a legally enforceable right of renewal. This makes the property rights of native title holders subordinate to the mere expectations of mining companies that their pre-1994 titles will be renewed.

Chapter 8 - Other amendments

A statutory presumption should be created that where applicants can produce material consistent with a continuing connection to land, the connection will be presumed to have existed since the British assertion of sovereignty unless the respondent can show beyond a reasonable doubt that it did not. All governments should also give immediate statutory recognition to native title over Indigenous reserves, other land dedicated for the use and/or benefit of Indigenous peoples, and vacant Crown land. Further, the Commonwealth should ensure that expired grants of tenure do not affect native title.

In the NTAB 1996, a statutory guarantee of validity is given to certain acts done under s. 21 agreements if a determination is subsequently made that people who were not included in an agreement are native title holders. Such validity should not be granted to acts done after registration of a new native title claim. Further, acts done under s. 21 agreements should not be automatically excluded from the right to negotiate scheme.

The amendments provide for s. 24 protection to apply to all acts done in an area until a determination of native title is made. It is unacceptable and discriminatory for s. 24 protection to apply to acts done after a native title claim has been registered, as, upon registration of a claim, any party wanting to perform an act in an area is on notice of competing and pre-existing interests. Further, the combination of the registration test with s. 24 protection and the proposed s. 24B reduces the ability of native title holders to protect their rights to an extent which breaches the principles of the RDA.

The NTA provides better protection to native title which occurs in 'onshore places' if those places are defined as 'land' rather than 'waters'. It is proposed to amend the NTA so that the inter-tidal zone is clearly defined as 'waters'. Native title rights over the inter-tidal zone are a vital part of the property and culture of Indigenous peoples, and this reduction of native title rights is unacceptable.

Copies of the Native Title Report 1996 can be purchased ($15 each) from the Publications Officer, Human Rights and Equal Opportunity Commission, GPO Box 5218, Sydney, NSW, 2001, Telephone: (02) 9284 9600, Fascimile: (02) 9284 9715.

[1] The establishment of the position of an Aboriginal and Torres Strait Islander Social Justice Commissioner was a recommendation of the Royal Commission into Aboriginal Deaths in Custody. The Commissioner is a member of the Human Rights and Equal Opportunity Commission and the position has been occupied since its inception by Mr Mick Dodson.