Australian Indigenous Law Reporter
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Paul Burke [1]
In late June 1998 the Prime Minister announced that he had reached agreement with Senator Harradine over further amendments to the Government's Native Title Amendment Bill (NTAB) that would enable Senator Harradine to support the passage of the amended Bill through the Senate. The additional 88 amendments were quickly passed by the House of Representatives and, after a longer debate in the Senate, were finally accepted by the Senate on 7 July. The amended Bill was passed by the Senate on 8 July. The Native Title Amendment Act 1998 (Cth) (NTAA) received the Royal Assent on 27 July and most of its provisions will commence on 30 September 1998. The provisions establishing the interim regime for representative bodies will commence a month later on 30 October 1998 and the new regime for representative bodies is due to commence a year after that: NTAA s. 2.
This brought to a close a tumultuous period in Australian political life amid sharply contradictory assessments of the outcome. The Prime Minister claimed that in essence he had delivered his 10 Point Plan. Senator Harradine claimed that he had protected an Indigenous "bottom line". Indigenous leaders decried the attack on their rights and the setback in the reconciliation process. It is impossible to place oneself outside these strongly contested positions as if a completely independent judgment can be made about such conflicting claims. However, what I hope to demonstrate is that it is possible to be explicit about the criteria for evaluation and to attempt a systematic application of the criteria to the outcome. I realise this cuts across some of the immediate needs of Indigenous interests who urgently need to communicate simply to a Wik [2] -weary public the detriment in the outcome for Indigenous people. But I think there is also an Indigenous interest in a systematic evaluation. In the end, it credibly endorses the position that, overall, Indigenous interests have lost out.
From the Indigenous perspective some obvious benchmarks for evaluation are the common law as established in Mabo (No. 2) [3] and Wik, and the Native Title Act 1993 (Cth) prior to the NTAA amendments (the original NTA). These are not as unproblematic as they sound. For example, contradictory statements in the majority judgments in the Wik decision have provided fertile ground for disagreement among lawyers about the fundamental question of the legal consequence for native title of the grant of inconsistent rights under a pastoral lease. This is the extinguishment versus revival argument. Differences over this issue played an important part in the final form of the Howard/Harradine agreement. The Government was persuaded not to resolve the question in the NTAA4 instead of insisting on its view that inconsistent rights were extinguished and that its Bill only reflected the common law.
The original NTA provides a benchmark around which there is a stronger consensus of legal opinion. Even on the contentious issue of the threshold test, there was fairly broad agreement that the intention of the original NTA was to require native title holders to overcome some hurdle to access the Right to Negotiate (RTN) before a formal determination of their native title rights. There was less consensus5 however, on other questions, such as whether the RTN itself can be characterised as a statutory recognition of native title rather than as an add-on to the common law.
Indigenous criteria of evaluation must go beyond the benchmarks of the common law and the original NTA. The key concern is the ability of native title holders to have an effective say over what happens on their traditional country or, in other words, the practical implications of the legal changes for the actual exercise of rights. The need for this more fundamental criterion is exemplified by the situation of native title in offshore areas. The Mabo (No. 2) decision did not provide an answer and the original NTA basically allowed other interests to prevail over native title rights (see below). Although the common law and the original NTA as criteria for evaluation are difficult and complex, they are reasonably certain when compared with the question of practical implications. Assessments of practical implications invariably require a great deal of background information and predictions about the likely reactions of participants. Thus, although the practical implications of a particular change for the effectiveness of control over traditional country provide the most sought after analyses, they are also the most difficult to do. The best that can be done is to identify the background information which is being relied upon and the assumptions about reactions.
I have not mentioned the more typical legal criterion of constitutional validity. This is not because I consider it unimportant. It is just too big to deal with it adequately here, although I do mention some constitutional issues in passing. [6] I have also not focused on the question of racial discrimination. This is partly because it is clear that the rights of a racially constituted group (native title holders) would be overridden to achieve its policy objectives: validation, confirmation of extinguishment (that may go beyond the common law); and allowing further diversification on pastoral leases. These issues have been canvassed publicly elsewhere. [7]
In summary then, the approach will be to:
* describe the pre-NTAA common law and legislative position;
* give an account of how the amendments proposed by the Government, the Senate and the Howard/Harradine agreement, [8] sought to change that; and
* make an assessment of the practical implications of the ultimate amendments for native title holders to effectively pursue their rights to their traditional country.
The order of the topics covered corresponds roughly to the order in which they will appear in the consolidated NTA. References to the Howard/Harradine agreement can in effect be read as references to the NTAA.
The Government wanted to retain the existing provision about the relationship between the RDA and the NTA: s. 7. This provision says that nothing in the NTA affects the operation of the RDA. There was some analysis of s. 7 in the Native Title Act case. [9] It is fairly clear that the High Court did not consider it to be a "clause-buster" (ie that it would make inoperative any clause in the NTA that is inconsistent with the RDA). But the precise scope of s. 7 remained unclear. This came as a surprise to some lawyers who were trying to recall the difficult negotiations with the Labor Government on this issue in 1993. Some were under the impression that, with the specific exception of the validation regime for past acts, the form of words agreed in 1993 meant that the RDA would override any inconsistent provisions in the NTA. [10] This was never the case.
In the Senate in April this year the so-called "Rolls Royce" RDA amendment moved by the Democrats/Greens (WA) (Dems-GWA) and a similar amendment moved by Bob Brown (Greens, Tasmania), were defeated. These amendments were specifically designed to be "clause-busters". [11] All provisions in the Government's Bill that marked out native title rights for special treatment less favourably than other property holders may have been declared inoperative if found by a court to be inconsistent with the RDA. These may have included provisions in the Government's Bill for validation of intermediate period acts, legislative extinguishment, diversification up to primary production and other future acts of governments.12
Senator Harradine indicated in November 1997 that he would not support an RDA amendment that was a "clause-buster". His own legal advice from John McCarthy QC, which he tabled in the course of the debate,13 was that the wording of the RDA amendment he supported in 1997 was not a clause buster. Instead, he supported the ALP RDA amendment, and it was ultimately supported by the Senate in April 1998. [14] It was aimed at ensuring that:
* the administration of all government native title regimes (including state and territory regimes) must be conducted in a non-discriminatory way;
* the RDA must be used to decide the meaning of any ambiguous terms of the NTA.
A new note, clarifying these two points was to be included in the Bill. [15]
Under the Howard/Harradine agreement the Senate amendments from April have been reformulated by moving the explanatory notes into the body of s. 7. This means that state/territory native title regimes must operate in a non-discriminatory way and that any ambiguous terms in the NTA are to be interpreted in light of the RDA. This clarifies the operation of the current provision and is a minor improvement. But it does not leave any scope for challenging the provisions of the NTA as amended on the ground of inconsistency with the RDA. Thus a clear provision of the NTA will override protection available under the RDA, and will permit state and territory laws to have a similar effect.
The original NTA set up a comprehensive regime for dealing with native title, including a process for governments to grant exploration and mining leases on native title land. Grants made without going through such a process were liable to be invalid to the extent they affected native title. Some states and territories assumed there was no native title on pastoral leases and, therefore, no need to use the processes of the NTA. Other states such as Western Australia used the NTA processes extensively. But all governments were on notice that the question of native title on pastoral leases had not been resolved by the courts when the NTA commenced. Following the Wik decision, state governments called for the validation of all grants made on pastoral leases since the commencement of the NTA. The Commonwealth Government's acceptance of the call for blanket validation was seen by Indigenous interests as particularly unfair as it offered little to native title holders and would reward those states which had ignored the processes of the NTA. At a bare minimum native title holders needed adequate notification procedures so that they might know where the validated act took place in order to prepare compensation claims. They also needed a more streamlined process than one which would require a full hearing of the native title claim and a native title determination before compensation is paid.
The Government's 1997 amendments made some attempt to address the notification problem but did not make validation dependent on prior notification of the native title holders. In April 1998:
* Government amendments were passed which broadened the scope of the exception to validation for Aboriginal land to include land granted for Aboriginal use under general legislation. This amendment had been sought by Indigenous representatives and was a minor improvement; [16]
* the ALP proposal for the fast-tracking of compensation for validated acts was defeated; [17]
* the Dems-GWA validation proposals, which reflected the National Indigenous Working Group (NIWG) position, were again defeated. Those amendments sought to limit the scope of validation, make validation dependent on notification of native title holders and provide for fast-tracking of compensation (as in the ALP proposal).
This meant that the Government's validation regime for intermediate period acts was passed by the Senate in April with some minor improvements. It was unaffected by the Howard/Harradine Agreement. The validation regime for intermediate period acts (between the date of the commencement of the NTA, 1 January 1994, and the date of the Wik decision, 23 December 1996) mirrors the three-fold classification of validated past acts: see new ss. 232A-E, NTAA Sch. 1, item 39. It means that some acts will extinguish native title and others (mostly exploration and mining leases) will suppress native title rights while they are in existence. This is a significant loss to Indigenous interests in itself. But it also represents lost opportunities for native title holders to have negotiated site protection and other benefits under the RTN. Thus it offers little to the native title holders whose rights may have been sidestepped, and rewards those states, particularly Queensland, that have ignored or defied the provisions of the NTA. Compensation is provided for (new ss. 22D and 22G) but is difficult to obtain and is no real substitute for the opportunity to negotiate about the granting of the interest.
The immediate practical consequences will not become apparent until the states/territories pass their own validating legislation as provided for under the NTAA: new ss. 22F-H. Similarly, the adequacy of the notification of acts covered by the validation provisions will depend on action taken by state/territory governments within six months of enacting their own validating legislation: see new s. 22H.
The original NTA largely left the question of what extinguishes native title to the common law. Broad guidelines in Mabo (No. 2) required a clear and plain intention on the part of government for extinguishment to occur. This could be implicit in government actions totally inconsistent with the continuation of native title rights, such as the building of major public works. The common law of extinguishment is developing in an incremental way and there have been some recent decisions supporting the view that a grant of private freehold permanently extinguishes native title.
The Government in effect wanted to pre-empt the development of the common law by specifying in legislation the grants which extinguish native title. The original NTAB did this in four ways:
* a list of the kind of grants that extinguish native title;
* a long schedule of specific kinds of leases, both past and present, that the Government's legal advisers consider grant exclusive possession and extinguish native title;
* a definition of "extinguish" as permanent extinguishment (s. 237A); and
* in situations where native title rights and non-Indigenous rights coexist, specifying that inconsistent non-Indigenous rights permanently extinguish native title rights.
The Government's original proposal was adopted in the main by the Senate in November 1997 and again in April 1998, but with some major exceptions beneficial to Indigenous interests:
* the question of the revival of native title would be left to the common law. [18] In effect this would mean that extinguishment may not be permanent unless the courts eventually decide so. Senator Harradine at this stage supported this amendment, which covered all "exclusive possession acts", and did not move his amendments which sought to remove the permanent extinguishment of inconsistent native title rights on pastoral leases and the like; [19]
* Crown to Crown grants (ie from government to government or from government to a statutory authority) would be excluded from extinguishment provisions. [20]
The Government did accept some changes:
* historic tenures (the so-called "ghost leases") that are now vacant Crown land or Aboriginal reserves will be able to be claimed regardless of tenure history, as long as they are currently occupied by native title holders - a Government concession from December 1997 (see NTAA ss. 47A and 47B in item 12A of Sch. 1); and
* any acts to which the non-extinguishment principle applies are excluded from extinguishment provisions. [21]
There were some other minor concessions from the Government:
* broadening of the Aboriginal Land exclusion to include land granted for Aboriginal use under general legislation;
* clarification that national parks are not included; and
* adding relevant criteria for the Minister in deciding whether the Schedule of extinguishing tenures can be added to by regulation. [22]
Therefore, under the NTAA the main features of the Government's legislative extinguishment regime remain:
* all freehold grants, commercial leases, exclusive agricultural/pastoral leases, residential leases and community purpose leases extinguish native title regardless of whether or not they extinguish native title at common law: see new s. 23B. As the definition of "extinguish" as permanent extinguishment has been retained, questions that are currently before the courts about the effect on historic freehold titles have been pre-empted (new s. 237A);
* a long list of the tenures which the Government considers grant exclusive possession (new Sch. 1 - Scheduled Interests) extinguish native title. Again the question of revival of native title after these leases cease has also been pre-empted.
The exceptions already agreed by the Government, ie:
* Aboriginal Land (new s. 23B(9));
* any acts to which the non-extinguishment principle applies (new s. 23B(9B));
* national parks (new s. 23B(9A)); and
* historic tenures, if currently occupied (new ss. 47A and 47B),
were expanded by:
* excluding so-called "fake freehold" or Crown to Crown grants, ie grants from governments to their statutory authorities (new s. 23B(9C)); and
* inconsistent rights on non-exclusive tenures (eg pastoral leases), leaving it to the courts to decide the legal effect of these grants: new s. 23G(1).
This is a significant concession on legislative extinguishment as pastoral leases cover a large proportion of Australia. While this restores the common law position for Crown to Crown grants and inconsistent rights on non-exclusive tenures, it does not go as far as the Senate's Opp (RN2) which would also have provided for revival of native title after the extinguishing act ceased.
Under the NTAA there is a significant reduction in the amount of extinguishment in the Government's original Bill. This does not necessarily mean that native title will survive, only that the courts will decide the issue. The courts may yet decide that Crown to Crown grants and inconsistent rights on pastoral leases extinguish native title. But it still leaves the question of whether any extinguishment in the long list of tenures in the Schedule goes beyond the common law. In particular, doubts have continually been raised with the Government and Senator Harradine about the inclusion of Grazing Homestead Perpetual Leases (GHPLs) in the Schedule. In total they cover 12 per cent of Queensland. Many of them individually cover large areas and are put to similar use to the pastoral leases in the Wik decision. The passing of complementary Queensland legislation will permanently extinguish native title on these areas, which also means the native title holders for those areas will have no statutory access rights and no RTN.
Also, the question of the effect of historic freehold on native title (currently before the High Court in the Fejo case) [23] will be decided against Indigenous interests by the NTAA which provides for permanent extinguishment of native title by the grant of private freehold.
The provisions for regional agreements in s. 21 of the original NTA have a major flaw when applied to areas where the native title holders have not been formally determined (currently most of the country). Agreements under these provisions only apply to the native title holders that sign up, leaving the possibility that acts approved under the agreement may still be invalid in relation to other unknown or disputing native title holders. The new provisions fix the problem by ensuring that the agreement is legally binding on all native title holders following an open notification, objection and registration process. They largely reflect the proposal originally put to the Government by the NIWG.
The Senate amendments in April 1998 dealt with the possibility of validation by ILUA; strengthening protection for Indigenous parties when no representative body is involved in the negotiation; and tightening the provisions allowing for removal of agreements from the register of agreements.
The Government amendments of April 1998 went a little way to address some of the Indigenous concerns. They:
* clarify that compensation (including compensation for extinguishment following the validation of a past act or an intermediate period act) can be covered by an ILUA; [24]
* allow some acts to be validated by agreement, such as potentially invalid acts not covered by the definition of "intermediate period act" and "future acts" which have already taken place. [25]
ALP amendments, which the Government eventually accepted, extended the potential scope of ILUAs by allowing them to cover the consequences of agreeing to an act that affects native title, such as to provide that an act allowed under an ILUA would not extinguish native title: new ss. 24BB(ab) and 24CB(ab). [26]
Other Dems-GWA amendments passed by the Senate but not accepted by the Government included:
* a requirement for consultation with a representative body for a body corporate or area agreement that is not negotiated through the representative body;
* a requirement that all applications for registration of area agreements, including those negotiated outside representative bodies, must be certified by a representative body; and
* tightening provisions governing the removal of agreements from the register. [27]
Under the Howard/Harradine agreement all of the amendments previously agreed to by the Government are included in a slightly redrafted form. An additional concession (originally sought by the NIWG) means that representative bodies must be informed of agreements being negotiated in their area to which they are not a party: new ss. 24BD(4), 24BI and 24CD(7).
The NIWG proposals for ILUAs were largely adopted in the Government's original Bill and now have been improved to some extent in the NTAA. If there is sufficient goodwill to continue to pursue agreements, the improved ILUA provisions will be crucial in facilitating them. [28]
The original NTA does not directly address the question of diversification of the use of pastoral leases. It does allow renewals of pastoral leases without any requirement to negotiate with native title holders provided that the renewed lease does not grant a larger proprietary interest than the original. Although the Wik decision was about the coexistence of native title and pastoralists' rights, the Government's legal advisers considered the combined effect of Wik and the NTA produced uncertainty about whether some typical pastoral activities were valid. [29] There was particular concern that activities which required extra government permission were valid. The NIWG response was to support legislative confirmation of existing pastoral rights (or at least those associated with pastoral purposes with minimal effect on native title) in return for the protection of native title rights. [30]
The Government's Bill went further than confirming existing pastoralists' rights and allowed for diversification of activities on pastoral leases for most primary production purposes including agriculture, forestry, aquaculture and farmstay tourism. Subject to state laws, all of these activities could be undertaken without having to negotiate with any native title holders.
One of the major Indigenous concerns has been about native title holders having no say in diversification which may result in the radical transformation of pastoral leases (eg to intensive farming). The Government has always maintained that such development will be done by compulsory acquisition of native title rights. In response to concerns that the diversification provisions may be used for radical transformation without compulsory acquisition and result in de facto extinguishment of native title rights, the Government in its own 1997 amendments added some restrictions on diversification. For example on leases over 50 sq km, no greater than 50 per cent of the lease can be used for non-pastoral purposes. Its April 1998 amendments, which were aimed at closing a loophole in this restriction, moved in the right direction: new s. 24GB(4). But in reality diversification is more likely on the smaller leases which are generally in more fertile, better watered areas, and these are not covered by the Government's restriction.
The Dems-GWA amendments were defeated. These amendments sought:
* replacement of "primary production" with a much narrower "pastoral activity";
* further restrictions on farmstay tourism; and
* removal of provisions relating to off-farm activities and granting of rights to third parties.
The previous unsuccessful ALP amendments for a three tier scheme for diversification were not moved in April.
Senator Harradine's April 1998 amendments to limit diversification were passed. These sought to restrict diversification to that which could take place before the Wik decision. [31] In most jurisdictions (except WA) these amendments would probably not have provided much of a limitation because wide diversification was possible pre-Wik.
The Government Bill also allowed for off-farm activities associated with primary production to be undertaken without negotiation with native title holders if they received notification, the non-extinguishment principle applied and compensation would be provided. A successful Harradine amendment in April 1998 at that stage would have limited these provisions to the land where there is no determination of exclusive native title rights. [32]
Under the Howard/Harradine agreement Senator Harradine's position from April has been weakened in two main ways:
* the date for allowable diversification has been brought forward from the date
of the Wik decision
(23 December 1996) to 31 March 1998 to allow for
the WA Land Administration Act 1998 to have full effect: new ss.
24GB(1)(e) and 24GC(1)(d). The provision now proposes to limit diversification
to any activity that
could be approved before 31 March 1998, therefore
providing no real limitation, including in WA;
* the only limitation on off-farm activities is if there is a determination of native title that gives exclusive possession and the proposed act is inconsistent with that exclusive possession: new s. 24GD(1)(f). The latter additional qualification was added since the latest draft of Harradine's version.
The overall result is that state governments can allow the full range of primary production activities on what are now pastoral leases without the necessity of negotiating with the native title holders. While there are some limits on this, they are likely to be ineffective because:
* most state/territory Land Acts already allow wide diversification with Ministerial approval; and
* small farms (less than 50 sq km) are not covered.
Whether more diversification will result from the NTAA remains to be seen. The same ecological and financial constraints as applied before the amendments will still apply now. However, one area that needs close monitoring is the planned expansion of the Ord River scheme in the Kimberly region of WA. That will be a test of government claims that in the case of radical transformations compulsory acquisition procedures will be used and not the primary production provisions.
In the original NTA, s. 212 allowed confirmation of water management regimes that existed at the time the NTA was passed, but it is subject to a non-extinguishment principle. Hunting, fishing, gathering and cultural activity in the exercise of native title rights prevail over other government regulation provided the activity is for personal, domestic, or non-commercial communal needs: s. 211. (Note that s. 211 will be amended by the NTAA: see "Miscellaneous" below.)
The Government's Bill allowed the states/territories to enact new laws for the future management of, and the grant of interests in, airspace and water (both onshore and offshore and including living aquatic resources, ie fish) rather than simply the confirmation of existing regimes. It did make provision for the non-extinguishment principle, compensation, notification and opportunity to comment before granting an interest.
In April 1998 Dems-GWA amendments were defeated. They sought to:
* remove Subdiv. H altogether; or
* ensure consultation with native title holders prior to states/territories enacting legislation for the management of water and airspace; and
* extend the RTN to apply to grants of interests in water.
Under the Howard/Harradine agreement the position reached in April remains the same: new s. 24HA. The Agreement only adds some minor clarification of the meaning of "management or regulation of water". The effect of the NTAA is that there will be no requirement for governments to negotiate with native title holders before they grant interests in water both onshore and offshore, eg irrigation licences and commercial fishing licences. Claims to water can still be made but Government management laws and interests granted will prevail over native title. The lack of coverage of new management regimes in the current s. 212 provided an incentive for negotiations with native title holders. That incentive will no longer be there. The existing s. 211 fishing rights ameliorate the situation to some extent, but they do not cover ownership rights in water which would be relevant to irrigation licences and the privatisation of water reserves.
The original NTA limits permissible renewals of leases to the same kind of interest that was originally granted, so that renewal provided no improvement of term or tenure. Any improvement could be achieved under the original NTA by compulsorily acquiring coexisting native title rights through the RTN as an acquisition for the benefit of a third party (the lessee).
That position was maintained by the Senate in April 1998. [33] However, under the Howard/Harradine agreement, upgrades to longer term and perpetual leases will be possible if certain procedural rights are accorded to native title holders: new s. 24MD(6). These procedural rights are not as extensive as the RTN, but incorporate many of its features including:
* notification of the registered native title holders, body corporate and representative body;
* two month period for objections;
* consultation about minimising the impact on native title;
* objections to be heard by an independent body; and
* determination by an independent body must be followed unless overridden by the Minister in the interests of the Commonwealth/state: new ss. 24ID and 24IC(4)(b) and (c).
The two month time period will be difficult to meet given the new requirements of the registration test: see below. It seems to be an anomaly since the time period for registration in relation to the RTN was extended to three months for this very reason.
Overall, these amendments will make it a little easier than under the original NTA for lessees to upgrade to a longer term or perpetual lease. State/territory governments that wish to give more secure title to their pastoralists can choose to renew or upgrade to perpetual lease (minimal compensation involved) or acquire native title (maximum compensation) and upgrade to freehold (but see changes to the freehold test below).
There are no provisions in the original NTA specifically for reserved land. At common law a reservation such as the dedication of a national park does not necessarily extinguish native title. To avoid invalidity of government management action the options for governments under the original NTA included compulsory acquisition of native title rights, a non-claimant application or an agreement under s. 21.
The Government's 10 Point Plan stated that "future actions for the management of any existing national park or forest reserve would be allowed". The original Bill provided that if land was reserved before the Wik decision, (whether directly by legislation, reservation under an Act or the granting of a lease) for any particular purpose it is allowed to be used for that purpose (or another purpose having a similar effect on native title) subject only to compensation to native title holders (new ss. 24JA and 24JB) and the additional requirement of notification in the case of public works.
In a minor concession a Government amendment was passed in April 1998 which provided some minimal procedural rights (notification and opportunity to comment) for native title holders in relation to management plans for national parks. The Dems-GWA amendment which sought the complete removal of the whole Reserved Land Subdivision was defeated. The Howard/Harradine agreement does not affect the April outcome.
The general effect of these provisions will be to reduce any legal incentive for governments to negotiate with native title holders about the management of national parks or forest reserves. If there is no previous extinguishment, national parks can still be claimed. Native title holders' rights in relation to management activities are reduced to minimal procedural rights, a right of compensation and the application of the non-extinguishment principle. The right to compensation may still provide some incentive for negotiations with native title holders.
There were no provisions in the original NTA specifically relating to facilities for services to the public. Maintenance and repairs to existing facilities would probably have been permissible. However, the building of new facilities would have risked invalidity to the extent that it affected native title rights. To avoid invalidity, the options for governments under the original NTA included compulsory acquisition of the native title rights, a non-claimant application or an agreement under s. 21.
The Government's original Bill stated that construction, operation, use, maintenance and repair of facilities for services to the public would be allowed subject to procedural rights equivalent to freehold title holders, notification, the non-extinguishment principle, compensation, reasonable access and provision for protection of significant sites.
Senate amendments in April 1998 sought to:
* restrict the scope of the Subdivision so that it applies only to the maintenance and repair of existing facilities;
* remove the distinction between acts on non-exclusive leases and other tenures to ensure that native title holder procedural rights are equated with freeholders in all cases;
* strengthen provisions for native title holders' access to the facility; and
* extend procedural rights to registered claimants and representative bodies. [34]
The Howard/Harradine agreement drops most of the April Senate amendments but does take up the idea of extending procedural rights to registered claimants and representative bodies if there is no registered claimant: new s. 24KA(9).
In general the implication of these provisions is that governments will not have to compulsorily acquire native title rights before constructing any new facility for services to the public (the types of facilities being roads, railways, bridges, jetties, electricity transmission, wells, pipelines, irrigation, sewerage, cables and the like: new s. 24KA(2)). Note: the Government believes that these provisions will not be used to avoid compulsory acquisition of native title in the case of the construction of new facilities especially if exclusive possession is required: new s. 24KA(1A). But there is no guarantee. The use of these provisions will have to be closely monitored to see whether the Government's expectations prove correct.
The
freehold test was one of the fundamental safeguards for native title in the
original NTA in on-shore areas. In essence the test
is that an act can only be
done to native title if it can be done to freehold: old s. 235.
The
original NTA also allowed for compulsory acquisition of native title rights if
the relevant compulsory acquisition Act provided
for just terms compensation
and an opportunity to negotiate non-monetary compensation: old ss. 23(3) and
79.
Much of the wording of the freehold test in the NTAB came from the original NTA. The crucial differences are:
* the expansion of Government acts which are exempt from the freehold test (ie facilities for services to the public, reserved land, future water management, primary production, opal or gem mining). The implications of this are discussed above;
* ensuring that the compulsory acquisition itself extinguishes native title: s. 24MD(2)(c). From an Indigenous perspective this is an unnecessary extension of extinguishment beyond the original NTA;
*the requirement that when coexisting native title rights are compulsorily acquired, the other non-native title coexisting interests must be compulsory acquired as well: s. 24MD(2).
In the Senate in April 1998:
* the Government passed further amendments to achieve immediate extinguishment upon compulsory acquisition of native title. Under the original NTA acquisition itself did not extinguish native title, only the act done in giving effect to the purpose of the acquisition may have extinguished (original s. 23(3));
* Harradine amendments aimed at ensuring formal equality with freehold title in the procedures used for the compulsory acquisition of native title rights were passed;
* the Senate extended procedural rights to registered claimants and representative bodies. [35]
With two important exceptions, the Howard/Harradine agreement maintains the position reached in April in the Senate with certain reformulations.
The first exception is the new provisions that, in effect, require the
Commonwealth, states and territories
to have Aboriginal heritage protection
legislation in place in order to take advantage of the freehold test:
new s.
24MD(1)(c). As the provisions do not specify any standards for such legislation
they will probably have no effect in most jurisdictions
which already have such
legislation. However, it may have some effect in Queensland where the existing
relevant heritage legislation
does not specifically relate to Aboriginal
heritage and does not appear to provide protection for unaltered landscapes
that are of
cultural significance.
[36]
The second exception is the new provisions relating to a limited number of compulsory acquisitions of native title for the benefit of third parties: new s. 24MD(6B). The drafting of s. 24MD(6B) is misleading. It does not apply to all compulsory acquisitions for third parties as it seems to say. It only applies to those which the RTN does not apply in fact, this is a narrow range of acts:
* compulsory acquisition for third party infrastructure projects;
* compulsory acquisition for a third party in a town or city or the intertidal zone; and
* the grant of a mining tenement solely for the construction of infrastructure facilities associated with mining: s. 24MD(6B)(b). [37]
The new procedural rights are not as extensive as the RTN, but incorporate many of its features. A comparison appears overleaf.
Again, the two month time period is a concern to those who have to achieve registration under the new more onerous registration test before qualifying for the procedural rights. However, overall, the provisions go some way to addressing Indigenous concerns about the extinguishment of native title via upgrading the pastoral lease to freehold. Ever since the Commonwealth Government offered to pay 75 per cent of compensation for native title on pastoral leases Indigenous interests have been concerned about the potential for state/territory governments to simply compulsorily acquire and extinguish native title on pastoral leases in the process of upgrading pastoralists' title to freehold. Under the original Act such an upgrading process would attract the RTN because it would be a compulsory acquisition for the benefit of a third party. The provisions of the NTAA now allow states/territories to replace the RTN on pastoral leases (s. 43A) thus making it easier for state/territory governments to pursue upgrading to freehold. Therefore, under the NTAA the following legal restraints on upgrading to freehold will apply:
* the requirement that all non-native title rights to the land are also acquired along with native title rights. This was intended to make the NTAB's compulsory acquisition provisions non-discriminatory;
* the procedural rights required in the alternative s. 43A schemes. These include the right to be heard by an independant body about minimising the impact on registered native title rights (see "Right to Negotiate" below).
Compulsory acquisition for upgrading the tenure of pastoral leases to freehold is made marginally easier under the new legal framework, although the effect on native title rights will still have to be justified to an independent body. Whether state governments will pursue such a strategy will no doubt depend on their assessments about the perceived costs (potentially less control in environmentally fragile areas, 25 per cent compensation costs) and perceived benefits (removing native title concerns from their pastoralist constituency). Again, this will require close monitoring.
In
offshore areas under the original NTA, native title holders got procedural
rights if there were corresponding procedural rights
for others (old s. 23(6))
but the freehold test and the RTN do not apply:
old ss. 235(8)(a) and
26(1). Hunting, fishing, gathering and cultural activity in the exercise of
native title rights prevail over
other government regulation provided the
activity is for personal, domestic, or non-commercial communal needs: s. 211.
The NTAB retained many of the same provisions as the original NTA. But it went further than the original NTA and against Indigenous interests by ensuring that any compulsory acquisition itself extinguished native title rather than assuming initial non-extinguishment as in the old s. 23(3).
The unsuccessful ALP amendments from November 1997 that would have given native title holders specified procedural rights were not moved in April 1998. The Dems-GWA amendment to completely remove the Subdivision dealing with offshore areas was defeated. The Senate did pass an amendment extending procedural rights to registered claimants and representative bodies.
The overall result is that under the NTAA native title claims offshore will still be allowed and native title fishing and hunting rights will continue to be preserved by s. 211. But, as under the original NTA, mineral exploration licences and fishing licences can be granted without negotiation with native title holders. Native title holders will still get procedural rights if there are corresponding procedural rights for others, and those procedural rights can be exercised by registered claimants and the representative body. In effect, the NTAA again fails to address the key Indigenous concerns. Without a say in the grant of new commercial fishing licences and offshore mineral exploration, native title rights in offshore areas will not amount to much.
The Howard/Harradine agreement does not change the position reached in April. The Government has merely redrafted the provision for extension of procedural rights to registered claimants and representative bodies: see new ss. 24NA(9) and (10).
Assessing practical implications for offshore areas is complicated by:
* the overlap between Subdiv. H (Management of Water and Airspace) and Subdiv. N (Acts Affecting Offshore Areas). Thus if a government act falls within H (eg the grant of a commercial fishing licence) the procedural rights of the native title holders are notification and an opportunity to comment: s. 24HA(7). If the government act does not fall within H (eg the grant of an offshore petroleum exploration licence) native title holders will only get procedural rights if other people with offshore rights also have procedural rights;
* the legislative differences between states and overlapping Commonwealth jurisdiction. Thus a comprehensive account will require an analysis of state and Commonwealth legislation relating to offshore fishing and mining.
The
scope of the application of the RTN
In April 1998 Senate amendments largely retained the original scope of the application of the RTN. This included:
* in towns and cities;
* for private infrastructure projects; and
* on pastoral leases.
Thus the Government's attempt to allow the replacement of the RTN on pastoral leases and national parks, failed at that stage. Sections 43A and 43B were removed. [38]
Also provisions that would have excluded the operation of the RTN in the intertidal zone were removed at that stage. [39] But there are some new exclusions:
* approved alluvial gold or tin mining can be excluded from the RTN (s. 26B); and
* opal and gem mining can be excluded from the RTN on certain conditions.
Other Senate amendments in April included:
* an amendment was passed to ensure that state/territory governments identify whether a compulsory acquisition is for its own purposes or for third parties;
* ILUAs can incorporate some or all RTN procedures.
Under the Howard/Harradine agreement the RTN is removed altogether from compulsory acquisition for private infrastructure projects which are not associated with mining: new s. 26(1)(c)(iii). Private infrastructure projects associated with mining and compulsory acquisition for a third party in a town or city will still attract extra procedural rights, see "Freehold Test" above.
The RTNstill applies to grants of exploration and mining tenements and compulsory acquisition of native title rights for the benefit of a third party. However, the Howard/Harradine agreement also allows state/territory schemes to replace the RTN on historic and current:
* pastoral leases;
* land reserved for a public or a particular purpose (including by permission or authority of the Crown);
* national parks;
or if the area is in a town or city: new s. 43A(2).
The standards for the alternative schemes include many of the procedural rights that are in the RTN but not all:
There are some checks and balances such as the requirement to consult with representative bodies prior to approving an alternative state scheme and the determination of approval by the Federal Minister being a disallowable instrument (ie may be rejected by either House of Parliament). The effectiveness of the checks and balances will depend on the approach of the Commonwealth Minister, state governments and the Senate.
Therefore, the main differences are a loss of the obligation on the government to negotiate in good faith and the reduced scope of any consideration by the independent body. In effect, this will allow existing state structures (typically a mining warden's court making recommendations to a Minister) to be used to deal with native title issues relating to mining on pastoral leases. Overall, while the alternative scheme will give registered native title holders some leverage to negotiate, it will be less than under the RTN.
Under
the original NTA only those exploration acts that would have a minimal effect
on native title could be excluded from the RTN,
provided native title holders
were consulted about their continued access:
old s. 26(4). In the NTAB the
Government developed a much more elaborate alternative consultation scheme, but
broadened the scope
of potential exceptions to those acts that are "unlikely to
have a significant impact on the particular land or waters concerned".
In the Senate in April 1998 s. 26A was not removed (as happened in the Senate in 1997) but it was improved by:
* removing quarrying from the scope of the provisions;
* leaving open the method of site protection so that it can include work area clearance procedures (by removing the concept of "identification" of sites);
* changing one of the conditions for the approval from the Government's "unlikely to have a significant impact" to "will have an insignificant impact" and adding the additional requirement that in appropriate cases the likelihood that more than one act may affect the one area must be taken into account;
* ensuring that the right of the native title holders to be heard by an independent body does not depend on some other person having a similar right; and
* ensuring that there is an effective enforcement mechanism for the obligation on mineral exploration companies to consult in good faith with native title holders. [40]
The Howard/Harradine agreement rejects the non-Government Senate amendments from April and makes a further amendment to clarify that in considering that an act is unlikely to have a significant impact, the Minister must be "satisfied" that this will be so: new s. 26A(3).
Overall, this means that the alternative consultation scheme will only involve hearing an objection by an independent person if someone else had such a right (s. 26A(6)) and enforcement mechanisms for the obligation to consult have not been specified.
The provisions for the renewal of existing mines were tightened by an ALP amendment which ensures that the renewal is confined to the same term as the original lease, the same impact on the land and the same minerals. [41] The Senate amendments last year had completely removed the renewal provisions in s. 26D(1). Under the Howard/Harradine agreement the restrictions on the renewal of mining leases have been reformulated so that the renewal is limited to the same rights as created in the earlier grant (as opposed to the same impact): new s. 26D(1).
In April the Government's provisions allowing for one right to negotiate by agreement (ie an agreement at the exploration stage that also covers mining) or where a determination about exploration also covers mining were amended to:
* clarify that they apply to agreements made after this amendment;
* restrict the scope of this provision so that it applies to agreements only (by removing reference to arbitral body determinations and ministerial determinations);
* ensure that such agreements contain an express understanding that there will be no further negotiations about the later act; and
* provide for an exception where the parties to an agreement want the RTN to apply to the later act as well. [42]
The Howard/Harradine Agreement rejects the non-Government amendments from April and reformulates the provision for conjunctive agreements/determinations: new s. 26D(2).
The original time limit to become a registered claimant and therefore a native title party in the RTN procedure was two months. The NTAB extended that to three months (in view of the additional requirements of the new registration tests) and during 1997 added another month for the Registrar to consider whether the applicant should become a registered claimant, if a claim is lodged within the three month time limit. Note: while this extra month is an improvement, it does not address the inherent unfairness of allowing the deadline to pass even if the reason is the inability of the Registrar to process the application for registration.
During 1997 the Government had also agreed to improvements on current time
limits for negotiation
(six months for mining negotiations restored,
increase from four to six months on negotiations for exploration).
In the original NTA the obligation was on the Government to negotiate in good faith. In the NTAB all the negotiation parties must negotiate in good faith and there is an attempt to strictly limit negotiations to those matters directly related to the native title claimed: NTAB new s. 31.
The Howard/Harradine agreement basically retains the provisions outlined above.
The position reached by the Senate in April 1998 was:
* no early ministerial intervention for urgent, significant acts (proposed s. 34A removed);
* the provisions putting an obligation on the arbitral body to make a determination as soon as possible (s. 36) have been reformulated by an ALP amendment to ensure that the obligation to negotiate in good faith prior to applying for a determination is on the Government and the grantee party not just the party applying for the determination;
* Commonwealth Minister only (not state/territory ministers as proposed) can intervene in the national interest if an arbitral body determination is delayed. [43]
Under the Howard/Harradine agreement one of the main concessions is the acceptance of the Senate's removal of ministerial intervention for urgent, significant acts. There are also some other less significant concessions including, consultation with the Commonwealth Minister if a state/territory Minister intends to intervene because of a delayed determination: new s. 36A(1A).
The Senate amendments in April 1998 included:
* some parts of a negotiation may be postponed by agreement for later determination;
* a determination can provide for further negotiations at some later stage (ie to cover the situation of mining under exploration licences in WA) and there are effective enforcement mechanisms for this type of determination; and
* a determination may be varied or replaced by agreement, after a determination is made. [44]
Of the above amendments the Howard/Harradine agreement accepts a slightly
redrafted form of the first one allowing some parts of
a negotiation to be
postponed by agreement for later determination:
new s. 38(1A) and (1B).
The Senate amendments in April 1998 included:
* a new obligation on the arbitral body to consider detriment to any person other than the native title party was removed; and
* an obligation on the arbitral body to consider the effect on the natural environment was reinstated. [45]
The Howard/Harradine Agreement goes some way towards the intent of the first Senate amendment by replacing the idea of detriment to persons other than native title holders with a more generalised criterion of economic or other significance at a national and regional level (including significance to Indigenous people): new s. 39(1)(c).
The current situation is that because of the Federal Court decision in Ward v Western Australia [46] the use of the expedited procedure can be halted if the proposed act directly interferes with community life (including spiritual attachment). The NTAB intended to take out the spiritual element and reduced the required interference to the physical aspects of community life. [47]
In the Senate in April 1998 amendments were made to ensure that beliefs and concerns of native title holders (including spiritual attachment) must be taken into account so that the position in the original NTA was retained. [48]
Under the Howard/Harradine agreement an apparent compromise was reached with
the concept of noninterference with "the carrying on
of the community or social
activities" of the native title holders:
new s. 237(a). This is certainly
broader than the physical interference in community life in the NTAB, but
whether it encompasses
the position established in Ward v Western
Australia is uncertain.
[49]
The most immediate impact will be in the area of expedited procedures, but the practical consequences are difficult to estimate because of the uncertain meaning of the new criteria noted above. A test case may be required before it can be established whether the position in Ward v Western Australia has been retained. If so, we may see a decline in the Government use of this procedure and a continuing increase in the success of objections.
Depending on how quickly the NNTT starts applying the new registration test (see below) the next most immediate impact will be the loss of the RTN by those native title parties whose claim does not meet the new test.
Other consequences will flow if and when state governments take action to:
* replace the RTN for exploration acts with a consultation regime (s. 26A);
* replace the RTN on pastoral leases, national parks etc with alternative schemes: s. 43A.
Practical consequences will depend on the details of the alternative schemes approved by the Commonwealth Minister and the attitude of mining companies to negotiations under the new regime.
There was nothing in the original NTA about access rights to pastoral leases. Access is provided by statute and reservation in leases in the Northern Territory, South Australia and Western Australia to varying degrees. Post-Wik there probably is a common law right of access depending on the nature of the traditional connection maintained and pastoralists' rights prevailing over it.
The NTAB provided:
* that Indigenous people who want to take advantage of the interim statutory access rights will need to satisfy requirements to become registered claimants and have had regular physical access as at the date of the Wik decision (s. 44A);
* that statutory access is limited to the scope of any previous access (s. 44B); and
* for the suspension of common law rights while interim statutory access rights are exercised (s. 44C).
Senate amendments in April 1998 would have ensured that:
* the regular physical access test would not apply if access was denied by the pastoralist or access had not occurred because of an act of government;
* there would be no suspension of common law native title rights while the interim statutory access rights are exercised prior to a formal determination of native title. [50]
Under the Howard/Harradine agreement the "stolen generation/locked gates" exception to the regular physical access test has been dropped and the suspension of common law rights remains unless overturned by an order of the Federal Court: new s. 44C(1).
The NTAA is a serious setback to the position reached in the Senate in April 1998. It leaves intact the unfair regular physical access test at the time of the Wik decision. It means there will be little improvement in Indigenous access rights in most jurisdictions (with the exception of Queensland where there are no current statutory access rights). In Queensland the Government's proposed statutory access rights will only help those who already had regular access as at the date of the Wik decision and have been refused access since then. However, the Government's proposed suspension of common law native title rights upon the exercise of the interim statutory access rights would make some worse off. In the situation where some members of a native title group could not establish regular access as at the date of the Wik decision, becoming registered native title claimants would not help them. They would be forced to go further and marshal their evidence of their native title rights to convince the Federal Court to grant an order allowing access.
The Government accepted Senate amendments in April 1998 for a simplified process for small compensation claims (less than $100,000).51 At that stage the Senate passed an amendment ensuring that all compensation under the NTA is "just terms" compensation. This was necessary because the original NTA allowed for less than just terms compensation where the impairment of native title does not amount to an acquisition of property (s. 51(3)). An Opposition amendment achieved this result by removing "subject to subsection (3)" from s. 51(1).52 It is arguable that this amendment is required to ensure that the NTA complies with the "just terms" requirement of the Constitution.
Under the Howard/Harradine agreement the previously accepted amendments for a simplified process for small compensation claims has been reformulated to clarify that even in the case of a small compensation claim a determination of native title must be made: NTA s. 13(2), new s. 18AB of the Federal Court of Australia Act 1976 (Cth) inserted by NTAA Sch. 2, Pt. 2. However, if the Supplementary Explanatory Memorandum [53] is correct in stating that the Judicial Registrar can only exercise the power to hear and determine compensation claims if a judge has made an approved determination of native title, the new provisions will have little utility in streamlining procedures.
Significantly, the Howard/Harradine agreement continues to reject the Opposition amendment ensuring that all compensation is just terms compensation. It allows an argument to be made in the High Court that the NTAA is invalid for not sufficiently providing for just terms compensation. It will be a novel argument, so the chances of success should not be overestimated.
The main changes proposed by the NTAB are that:
* details required in applications are now specified in the NTA itself (rather than in regulations) (s. 62);
* details include a description of any activities on the land done in the exercise of the native title rights claimed (mandatory) and information about prevention of access (optional) (s. 62);
* claimants must be authorised by the native title group to make claims (ss. 61(4), 62(1)(iv) and 251B);
* no claims allowed over land the subject of an "exclusive possession act" (s. 61A(2));
* no claims to exclusive possession on coexisting tenures (s. 61A(3)); and
* overlapping claims must be consolidated: s. 67.
The Government's own April 1998 amendments reformulated the definition of "native title claim group" to ensure it achieves its policy intention of reducing multiple claims ostensibly made on behalf of the same group. There are also new provisions about amendment of applications and replacement of applicant that to varying degrees reflect amendments proposed by the NIWG in 1997. The Senate outcome in relation to applications is unchanged by the Howard/Harradine agreement.
Most of the details now required in the NTAA were required by regulation under the original NTA. Additional requirements such as a description of the native title activities carried out on the claim area do not amount to requiring evidence at the application stage. The additional information and certification will require extra resources.
There was no time limit for claims under the original NTA. The Senate amendments in April 1998 removed the Government's sunset clause on applications for determination of native title and the sunset clause on compensation claims.
There were also:
* Government amendments to improve the limits on the number of parties were passed: new ss. 84 and 84B. These are similar to the amendments suggested by the NIWG;
* unsuccessful amendments attempting to retain the current provisions for the Federal Court's way of dealing with hearings were defeated. The current provisions state that the Federal Court's way of operating must be fair, just, economical, informal, prompt; must take account of cultural and customary concerns; and not be bound by technicalities, legal forms, and the rules of evidence. The Government's Bill states that the Federal Court is bound by the rules of evidence unless waived by the court and that Indigenous cultural concerns may be taken into account but not so as to unduly prejudice any other parties.
The Howard/Harradine agreement accepts the removal of the sunset clauses (see consequential amendment (H77)). This is a substantial improvement on the Government's original NTAB.
The Agreement retains the Senate outcome relating to the Federal Court's way of operating: new s. 82. The new prominence given to the rules of evidence will make it more difficult for claimants, but the extent of the difficulty will depend on how readily the Federal Court waives strict compliance.
Under the original NTA the Registrar must register a claim as soon as is practicable after the application is given to the Registrar: s. 190(1). Following comments by O'Loughlin J in NT v Lane [54] the Registrar interpreted this as basically automatic registration (except for frivolous and vexatious claims and clear cases of extinguishment). [55] Prior to that, the so-called acceptance test was used as the prerequisite for registration, ie the application must be accepted unless prima facie the claim cannot be made out: s. 63.
The NIWG accepted the need for a higher threshold test but rejected the Government's approach, especially:
* the need to establish a physical connection;
* the need to establish each individual native title right claimed;
* the requirement to provide details of current use;
* the restriction on claims over Crown to Crown grants of ordinary title and grants of leases;
* the absence of a power to extend the three month deadline and limit the kind of information supplied by governments; and
* the retrospective application of the new test to most registered claims.
An ALP proposal for a registration test was passed by the Senate in April 1998. It involved an alternative "traditional attachment" test which makes the physical connection test optional. [56] If it had been accepted by the Government, to become registered, native title claimants would have to convince the Registrar that:
* the factual basis asserted supports traditional connection;
* prima facie at least one native title right can be established; and
* the claim group has a traditional connection, or one member of the claim group has a traditional physical connection.
The Howard/Harradine agreement provides for an exception to the physical connection test when physical connection cannot be established because a parent was removed from their traditional country (the so-called "stolen generation/locked gates" clause: new s. 190B(7)). But where the connection of a parent is relied on, registration can only be by a court order, which would be an additional burden to achieve within the time provided under s. 29.
Otherwise the registration test remains the same as the version proposed by the Government in the Senate in April, ie the Registrar must be satisfied that:
* the factual basis is sufficient to support the rights asserted;
* prima facie some (ie not just one) native title rights can be established;
* physical connection of at least one member of the claim group;
* compliance with the other requirements for the application; and
* native title has not been extinguished: see generally new ss. 190A-C.
The Registrar may add to the list of native title rights registered upon
receiving further information:
new s. 190(3A).
Under the original NTA the criteria for ministerial determination of a representative body are that it should be broadly representative, it satisfactorily performs existing functions, and will satisfactorily perform its representative body functions. The functions are stated briefly as facilitating claims, resolving disputes and representing native title holders.
The NTAA proposes an interim regime for representative bodies, followed by a re-recognition process for all areas of Australia, followed by the new regime. In the interim regime:
* existing representative bodies to continue in the interim period;
* some additional powers and functions, including certifying applications, becoming a party to ILUAs.
In the re-recognition process the Commonwealth Minister will:
* define new representative body areas;
* invite current representative bodies to apply;
* decide on applications; and
* if the current representative body is not successful, or there is no representative body, invite all eligible bodies to apply.
The new regime entails:
* extensively defined functions: facilitation and assistance, certification, dispute resolution, notification, agreement making, internal review (ss. 203B-203BK);
* extensive finance and accountability provisions: ss. 203C-203DH.
The NIWG supported the enhanced role of representative bodies and one
representative body per area
but opposed the re-recognition process and
excessive accountability provisions.
The practical implications for Representative Bodies will be enormous and beyond the scope of this analysis to explore fully. Suffice to say that re-recognition will be a major preoccupation for Representatives Bodies from now on.
The Government reformulated a NIWG amendment aimed at ensuring that members of the state/territory bodies will enjoy security of tenure no less favourable than the NNTT.
The Government reformulated the Harradine compromise amendment aimed at ensuring one member of a state/territory tribunal is from the NNTT to clarify that it applies to tribunals not state/territory Registrars.
Instead of a substantive provision for Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) review of state/territory tribunals as proposed by the NIWG, the Government inserted an explanatory note stating the same. Their view is that because the state/territory equivalent bodies will be directly exercising federal jurisdiction under the NTA, the ADJR Act will apply.
Under the current NTA, traditional hunting and fishing rights for personal and domestic needs overrides Government restrictions: s. 211. However, under the NTAA, there will be an exception for licences for research, environmental protection, public health and public safety purposes. [57] Amendments to remove these exceptions were not successful in the Senate. The drafting of the exceptions is very broad and thus could have a potentially large impact on traditional hunting and fishing rights. The practical effect will depend on what areas or species are covered by government regulation.
The general impression many Indigenous people and their supporters have of the outcome is that it has been an unmitigated tragedy for Indigenous people. However, if the source of these views is mass media statements, there is reason for concern. For there has also been an unfortunate confluence of the understandable desire of Indigenous interests to emphasise the negative aspects of the NTAA and the Government's need to minimise the perception of compromise. It has been politically impossible for the Government to say that in relation to mining, native title holders will have more procedural rights on pastoral leases than pastoralists. But this is one of the conclusions open on the above assessment of s. 43A. In the end, it was a genuine compromise between the Government's position in April and Senator Harradine's preferred approach of retaining the RTN on pastoral leases. However, the analysis also indicates that one cannot go as far as Senator Harradine and his legal advisers in claiming that the s. 43A schemes are essentially the same as the RTN.
On the above analysis a more balanced summary of the likely impact of the NTAA would be as follows:
* there is a reduction in the say native title holders have about exploration in their traditional country, moderated to some extent by alternative schemes for consultation;
* there will be an opportunity for states and territories to replace the RTN on pastoral leases with an alternative scheme that has many elements of the RTN. The practical effect will depend on what schemes are actually implemented by the various state governments;
* the full range of primary production activities on what are now pastoral leases will be allowed without negotiating with the native title holders. While there are some limits on this, they are mostly ineffective;
* despite some improvement in procedural rights for native title holders, overall it makes it marginally easier for state governments to pursue the complete extinguishment of native title on pastoral leases by compulsory acquisition of coexisting native title rights and upgrading the lease to freehold, thereby extinguishing all native title rights;
* interim statutory access rights to pastoral leases will be available to some, but not to those Indigenous people who have been locked out of their traditional country or who for some other reason did not have regular physical access at the date of the Wik decision;
* native title holders will have less of a say in a whole range of Government activities on their traditional country, including the management of national parks, forest reserves and other reserves, public facilities and water resources;
* although some of the extinguishment pre-empting the common law has been removed, the NTAA still says what kinds of leases (in the Schedule) extinguish native title before the courts have had a chance to consider them;
* native title holders, as in the 1993 Act, will not be able to have a meaningful say in offshore fishing and mining which impacts on native title rights;
* to obtain the RTN some native title holders will be required to prove traditional connection and, in addition, establish physical connection with the land. However, the NTAA does provide a significant "locked gates/stolen generation" exception;
* depending on how the Federal Court interprets the new provisions about its way of operating, it may be harder for native title holders to present their case in a claim hearing. Under the 1993 Act the court must take account of Indigenous cultural concerns. Under the NTAA taking account of cultural concerns is made optional. Also the strict rules of evidence will apply unless the claimants can convince the court otherwise.
Overall, Indigenous interests have lost out to those of the state/territory governments, miners and pastoralists. The best that can be said about the NTAA is that it is not as bad as it was going to be. This will not be much comfort to those native title holders whose traditional country is covered by GHPLs in Queensland, for example. They have been denied their day in court, the possibility of interim statutory access rights and any effective say over mining on their traditional country. From this perspective, Noel Pearson's response to the characterisation of the Howard/Harradine agreement as a compromise is understandable. He said: (paraphrasing) don't expect us to be thankful that you only cut one of our legs off, just because you originally had planned to cut both off.
Paul Burke was the Legal Adviser on the ATSIC Wik Team throughout its period of operation.
Endnotes
[1] The views expressed in this article are not necessarily the views of ATSIC. I would like to thank the numerous lawyers who have assisted me in clarifying my views on amendments over a long period of time, especially John Basten QC, Ron Castan QC, Michael O'Donnell, Chris Anthanasiou, Angus Frith, Sean Brennan and many others including, on the other side of the table, Robert Orr and Phillipa Horner. They have all contributed to this document in one way or another. Of course, the responsibility for the evaluations in this article and any remaining errors is mine alone.
[2] Wik Peoples v Queensland (1996) 187 CLR 1; 2(1) AILR 35; 71 ALJR 173; 141 ALR 129.
[3] Mabo v Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1; 66 ALJR 408; 107 ALR 1.
[4]
See Australia, House of Representatives, Explanatory Memorandum to the
Native Title Amendment Bill 1997,
para. 5.22 and Australia, House of
Representatives, Native Title Amendment Bill (No. 2) Supplementary
Explanatory Memorandum to Government Amendments Moved in July 1998,
p. 7.
[5] There is also the question of whether the regime for validation of past acts in the 1993 Act is constitutionally valid in light of the procedural fairness elements of the concept of just terms compensation -- an argument not canvassed in the Native Title Act Case: Western Australia v Commonwealth [1995] HCA 47; (1985) 183 CLR 373; 69 ALJR 309; 128 ALR 1.
[6] For an introduction to the issues see Australia, Parliament, Senate Legal and Constitutional Legislation Committee: Constitutional Aspects of the Native Title Amendment Bill 1997, November 1997.
[7] See for example the advice of Jack Fajgenbaum QC and Mark Moshinski in Appendix 4 of Australia, Parliament, Tenth Report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund: the Native Title Amendment Bill 1997, October 1997.
[8] Unless otherwise indicated:
NTAB = The Native Title Amendment Bill 1997 as introduced into Parliament in 1998:
ie includes most of the amendments accepted by the Government in December 1997;
Govt = the Government's own amendments on Sheet B98BK221.W16;
Opp = ALP amendments on Sheet 917;
Dems-GWA = Democrats/Greens (WA) amendments on Sheet 918;
Harradine = Senator Harradine's amendments on Sheet 936;
* = amendments accepted by the House of Representatives on 3 July 1998; and
H = amendments arising from the Howard/Harradine Agreement introduced into the House of Representatives on 3 July 1998 on sheet B98BK12.WB (2 July 1998 7.55pm).
[9] Western Australia v The Commonwealth [1995] HCA 47; (1985) 183 CLR 373; 69 ALJR 309; 128 ALR 1. See especially 453-5; 483-4.
[10] The differences between the Labor Party in Government and in Opposition fed into Frank Brennan's argument against the ALP's opposition to compromise on this sticking point. See Brennan, F, "A Free Speaking Church Goer's Guide to Wik in `98" Eureka Street, January 1998.
[11] Dems-GWA (4), (189A), Australian Greens (1) on Sheet 940. Also see Blackshield, A R, Notes Concerning the RDA Amendment, March 1998 (unpublished).
[12] For a list of provisions potentially affected see the advice of Fajgenbaum QC and Moshinski published in Appendix 4 of Australia, Parliament, Tenth Report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund: the Native Title Amendment Bill 1997, October 1997.
[13] Australia, Senate, Debates, 6 April 1998, pp. 1412-15.
[14] See Opp (RN42) on Sheet 941. The second limb of the note is based on n 301 in Western Australia v The Commonwealth [1995] HCA 47; (1985) 183 CLR 373; 69 ALJR 309; 128 ALR 1 at CLR 453.
[15] Opp (RN42) on Sheet 941.
[16] Govt (1),* (2).*
[17] Opp (13), (N1).
[18] Opp (RN2).
[19] Harradine (2), (3), (4).
[20] Opp (N3), (N10).
[21] Opp (N5), (N10).
[22] Govt (3), (5),* (9), (10).*
[23] Fejo and another on their own behalf and on behalf of the Larrakia People v Northern Territory (1998) 152 ALR 477. An appeal against the Federal Court decision was heard by the High Court in Brisbane on 22-23 June 1998 and dismissed on 10 September 1998.
[24] Govt (13),* (15),* (18).*
[25] Govt (11),* (12), (14), (17), (19), (20),* (21),* (22).* Also see minor amendments: Govt (16),* (23),* (89).*
[26] Opp (N46), (N47) on sheet 956 Revised; Opp (N11)-(N16).
[27] Dems-GWA (23), (24), (28), (29)-(31), (32A), (163).
[28] For a full explanation of the ILUA amendments see Smith, D E, Indigenous Land Use Agreements: the Opportunities, Challenges and Policy Implications of the Amended Native Title Act (Discussion Paper No. 163/1998) Centre for Aboriginal Economic Policy Research, Canberra.
[29] See Legal Implications of the High Court Decision in The Wik Peoples v Queensland: Current Advice. The Attorney-General's Legal Practice, 23 January 1997. Published by the Commonwealth Attorney-General's Department, Canberra.
[30] See Co-existence -- Negotiation and Certainty: Indigenous Position in Response to the Wik Decision and the Government's Proposed Amendments to the Native Title Act 1993, National Indigenous Working Group on Native Title, April 1997, pp. 8-10. This document was published by the NIWG and ATSIC, Canberra.
[31] Harradine (N1)/Opp (N17), Harradine (N2)/Opp (N18).
[32] Harradine (R9).
[33] Harradine (14).
[34] Opp (93), (94), Dems-GWA (92)/Opp (100), Opp (95)/Dems-GWA (87), Opp (RR101).
[35] Govt (32),* (34),* (37),* Harradine (18), (21) and also see Govt (33),* Opp (RR107), (RR110).
[36] See the definition of "Landscapes Queensland" and "Queensland Estate" in the Queensland Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987. See also H Fourmile, "The Queensland Heritage Act 1992 and the Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987: Legislative Discrimination in the Protection of Indigenous Cultural Heritage" (1996) 1(4) AILR 507.
[37] Thanks to Peter Jeffery of the Australian Government Solicitor's Office for helping me untangle the relationship between s.24MD(6B) and s. 26.
[38] Opp (177)/Dems-GWA (107)/Harradine (23), (22), Opp (178)/Dems-GWA (146)/Harradine (31).
[39] Dems-GWA (268), (270).
[40] Govt (38),* (39),* Opp (N24)-(N26).
[41] Opp (RN27) on Sheet 942.
[42] Govt (41),* Opp (125)-(127), (134).
[43] Opp (137)/Dems-GWA (127), Opp (142), (143), (145)-(147), (151), (153)-(158), (161)-(164), (148), (165).
[44] Opp (167), (170), (173).
[45] Opp (172)/Dems-GWA (137).
[46] Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208; 136 ALR 557. For the general approach to interpreting the old s. 237 see Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391; 144 ALR 1.
[47] NTAB, Sch. 1, items 42-4.
[48] Opp (R209), (210).
[49] Also see:
Govt (42)* - notification of multiple acts in one notice will be confined to public notice;
Govt (45)* - extension of time period for the revocation of non-complying state/territory schemes;
Opp (130) - standing for those wishing to challenge non-compliance with s. 29 (notification); and
Opp (134) - enforcement procedures for negotiated agreements.
[50] Opp (N30), Opp (183)/Dems-GWA (151).
[51] See Govt (51), Opp (RN32).
[52] Opp (R188).
[53] Australia, House of Representatives, Native Title Amendment Bill 1997 (No. 2) Supplementary Explanatory Memorandum to Government Amendments Moved in July 1998, p. 33.
[54] Northern Territory v Lane (1995) 59 FCR 332; 138 ALR 544; 39 ALD 527.
[55] Also see the Waanyi case: North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2; (1996) 185 CLR 595; 70 ALJR 344; 135 ALR 225. Although this case related to the acceptance test (old s. 63) rather than registration (old s. 190), in finding that claims containing arguable points of law should be accepted, it reinforced the impression that there was no real hurdle prior to registration.
[56] Opp (N36) as amended by Opp (N37).
[57] NTAA Sch. 1, item 31.1. The views expressed in this article are not necessarily the views of ATSIC. I would like to thank the numerous lawyers who have assisted me in clarifying my views on amendments over a long period of time, especially John Basten QC, Ron Castan QC, Michael O'Donnell, Chris Anthanasiou, Angus Frith, Sean Brennan and many others including, on the other side of the table, Robert Orr and Phillipa Horner. They have all contributed to this document in one way or another. Of course, the responsibility for the evaluations in this article and any remaining errors is mine alone.
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/1998/28.html