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	Legal Information Access Centre (LIAC) - Hot Topics

• The Native Title Act 1993 (Cth)
• Definition Of Native Title
• Past Acts
• Validated Past AcTS
• Future Acts
• Permissible Future Acts
• Valid Future Acts
• Compensation For Extinguishing Native Title
• The 10-Point Plan
• Intermediate Period Acts
• Valid Previous Exclusive Possession Acts
• Valid Future Acts
• The National Native Title Tribunal
• Mediation
• The Right To Negotiate
• Indigenous Land Use Agreements
• State And Territory Alternative Provisions

The Native Title Act and the 10-Point Plan

THE NATIVE TITLE ACT 1993 (CTH)

After the High Court’s decision in Mabo (No. 2), non- Indigenous people were concerned about the continuing validity of their interests in land. Following negotiations between the government, industry and Indigenous leaders, the Keating Labor Government submitted the Native Title Bill 1993 to the Federal Parliament. The bill had five goals:

• to create a uniform legal mechanism by which native title could be recognised and protected;
• to provide a procedure for creating valid new interests in land;
• to establish a non-litigious means of determining Indigenous peoples’ claims to both native title and compensation where native title was extinguished by the creation of non-Indigenous interests in land after 31 October 1975 (when the Racial Discrimination Act was passed);
• to validate existing interests in land;
• to provide a land acquisition fund (the National

Aboriginal and Torres Strait Islander Land Fund) for Indigenous people whose native title had been extinguished by past acts of dispossession for which they would not be compensated. After the longest debate in the Senate’s history, the bill was passed on 22 December 1993 and on 1 January 1994 the Native Title Act 1993 (Cth) (the ‘Native Title Act’) came into force.

The Native Title Act was designed to provide procedures both Indigenous and non-Indigenous people to find out whether native title exists over certain lands and how dealings in that land could proceed. Without the legislation, parties would have no other forum than the courts to determine whether native title rights continued to exist in relation to particular land.

DEFINITION OF NATIVE TITLE

Section 223 of the Native Title Act defines native title as the communal, group or individual rights and interests Aborigines or Torres Strait Islanders in relation to land waters possessed under traditional laws and customs by the people who are connected to the land or waters through the continued observation of those laws and customs. The Act acknowledges that those rights and interests may be recognised by the common law of Australia.

PAST ACTS

Past acts are acts of the legislature or executive that are to any extent invalid because of the existence of native title and were done prior to the commencement of the Native Title Act on 1 January 1994.

VALIDATED PAST ACTS

The Native Title Act validates past acts of the Commonwealth. The Act also provides that the States and Territories can validate any past acts of their own which created non-Indigenous interests in land by passing legislation, which they have all proceeded to do. The Native Title Act categorises past acts by reference to the type of interest in land that they create:

Category A - freehold and certain leases
Category B - leases other than mining leases not covered by category A
Category C - mining leases
Category D - all other grants including licences and permits.

Depending on the category of past acts, native title may be:

• extinguished in full (category A);
• extinguished to the extent of any inconsistency (category B);
• protected by the application of the non-extinguishment principle (categories C and D)

FUTURE ACTS

Future acts are the acts of the legislature done on or after 1 July 1993 or of the executive done on or after 1 January 1994 which may extinguish or impair native title.

PERMISSIBLE FUTURE ACTS

Prior to the amendment of the Native Title Act in 1998, interests that governments wished to create in relation to land where native title was not extinguished would permissible future acts if they could also be done to is called 'ordinary title' land (ie freehold or leasehold grants in the ACT).

The right to negotiate (see p 15) applies to future acts involving the creation of a mining lease, an exploration licence or the compulsory acquisition of land for the benefit of another person.

Future acts proposed to be done to offshore places ( and waters outside State or Territory limits) will always permissible (see p 13).

VALID FUTURE ACTS

In order to be valid, future acts must be done in accordance with procedures and requirements set out the Native Title Act. These include giving native title applicants and native title holders access to the same procedural rights that ordinary title holders have, as as observing other rights and procedures applicable to them, such as notification of an intention to grant interest in land where native title has not been extinguished.

COMPENSATION FOR EXTINGUISHING NATIVE TITLE

Indigenous peoples may apply for compensation on just terms when a past act that was done after 1975 is responsible for extinguishing their native title. Before 1975, racial discrimination was not illegal in Australia. Until the passage of the Racial Discrimination Act 1975 Cth) (‘the Racial Discrimination Act’), effective 31 October 1975, governments could create interests in Indigenous peoples’ traditional lands that were adverse to their continued ownership under their customary laws. After the Mabo (No. 2) decision, the possibility arose that the Racial Discrimination Act made such discriminatory dealings with Indigenous peoples’ traditional lands invalid.

Native title holders may also apply for compensation on just terms for the doing of a valid future act which impairs or extinguishes their native title. Compensation on just terms means that the compensation given to a person injured by an act is considered fair and just in relation to the injury caused. The special attachment of Indigenous people to the land must be taken into account when determining what are just terms of compensation for the injury caused by extinguishing or impairing native title.

THE 10-POINT PLAN

During the first few years of its operation, it was realised that some of the provisions of the Native Title Act would have to be amended if it was going to achieve its purposes.

Before the change of government in March 1996, the Keating Labor government introduced a Native Title (Amendment) Bill into the Federal Parliament. After the Howard Coalition government came into power, it introduced its own Native Title (Amendment) Bill and announced that further amendments would follow. When the High Court's decision in Wik1 was handed down on 23 December 1996, that bill was withdrawn. The government revised its proposed amendments to the Native Title Act and re-presented them as the ‘10-point plan’ for the future management of native title.

The 10-point plan incorporated many of the amendments that had been introduced in the earlier bills and imposed additional restrictions on the scope of native title. The government wanted to amend the Native Title Act to:

1 validate invalid acts creating non-Indigenous interests in land between 1 January 1994 and 23 December 1996;

2 empower the States and Territories to extinguish native title over non-freehold lands subject to various interests deemed to confer the right of exclusive possession on the interest-holder;

3 extinguish native title over land required for the provision of services to the public;

4 extinguish native title where there was any inconsistency with interests created by pastoral leases, including compulsory acquisition of native title to upgrade 'exclusive' leases;

5 create legislation regulating Indigenous peoples’ access to lands for traditional purposes;

6 impose the registration test before claimants could exercise the right to negotiate (see p 15) and remove it altogether in relation to mining exploration activities and limit it by allowing only one ‘negotiation’ per project;

7 remove the right to negotiate when a future act relates to compulsory acquisition for the construction of government-type infrastructure, restrict the right to negotiate in relation to land in and around towns and cities, and expand the activities that pastoralists could do on their leases without negotiating;

8 permit governments to do acts to regulate and manage water, sea and airspace without negotiating;

9 impose a higher registration test, require all native title claims to be filed within six years of the passage of the amendments and require all claims to be processed more quickly;

10 provide for binding local agreements (Indigenous Land Use Agreements) and regional agreements about the coexistence of Indigenous and non-Indigenous interests in land. The first time that the 10-point plan was presented to the Senate in the form of the Native Title (Amendment) Bill 1997, 87 per cent of the amendments were passed. Independent Senator Harradine, who held the balance of power in the Senate, insisted that:

• the Native Title Act be subject to the Racial Discrimination Act;
• there be no sunset clause requiring filing of all native title claims within six years;
• the registration test proposed in the amendments be modified;
• the right to negotiate not be wound back to the extent that the government proposed.

On 8 July 1998, following further negotiation with Prime Minister Howard and the government, the Senate accepted a version of the Bill which addressed Senator Harradine’s concerns. This version:

• confirmed that the Native Title Act be read and construed subject to the provisions of the Racial Discrimination Act;
• abandoned the six-year ‘sunset clause’;
• provided that native title holders did not need to show continuous physical connection in order to pass the registration test if they had been locked out of their traditional lands;
• provided that where native title holders occupied vacant Crown land or land granted under land rights legislation, prior extinguishment would be disregarded;
• provided that the creation of national parks or the vesting of an interest in land in the Crown in any capacity will not of itself extinguish native title;
• provided that the States/Territories could establish their own future act regimes subject to compliance with standards set by the Native Title Act.

These amendments made the Native Title Act more complicated, increased the number of procedural requirements that native title claimants had to meet and cut back the tenures over which a native title claim could be made.

INTERMEDIATE PERIOD ACTS

Intermediate period acts are acts of the Commonwealth, State and Territory legislatures or executive done in the period between the commencement of the Native Title Act on 1 January 1994 and the High Court’s decision in Wik on 23 December 1996 over land where native title may continue to exist.

Before the Wik decision, the Queensland government had made grants of various interests in land without taking into account the possibility that native title may exist over pastoral leases. The ‘intermediate period act’ provisions of the amendments validated these invalid future acts done by Queensland and all other State and Territory governments between the commencement of the Native Title Act on 1 January 1994 and the Wik decision.

Where intermediate period acts extinguished or impaired native title, Indigenous people who could have claimed native title could now only claim compensation.

VALID PREVIOUS EXCLUSIVE POSSESSION ACTS

The amendments authorised State and Territory governments to pass legislation to confirm that previous exclusive possession acts extinguish native title. All previous exclusive possession acts which the States and Territories identified as granting exclusive possession are now scheduled to the Native Title Act as acts extinguishing native title. All states have now passed legislation to confirm extinguishment according to those schedules.

VALID FUTURE ACTS

Following the amendments, the steps necessary for a future act to be valid are set out in Part 2 Division 3. future act will be valid if the appropriate statutory procedures are followed and: it is the subject of a registered Indigenous Land Use Agreement (see p 15); or there has been no claimant response to a non-claimant application; or it is an act permitting primary production activities on non-exclusive agricultural and pastoral leases or offfarm activities that are directly connected to primary production activities; the act relates to the management or regulation of water and airspace; the act is a pre-existing right-based act such as the renewal, re-grant, re-making or extension of a lease, licence, permit or authority; the act is done in good faith in accordance with an earlier reservation or lease by the Crown; the act relates to an onshore place permitting the provision of facilities for services to the public such as construction of a road, bridge, cable, antenna; the act is a ’low impact future act’ (not specifically defined); the act passes the ‘ordinary title’ test (see p 11) the act relates only to an offshore place; the act occurs after the parties have participated in the right to negotiate procedures; the act occurs under an approved State or Territory alternative scheme (see p 16).

THE NATIONAL NATIVE TITLE TRIBUNAL

Native Title Act established the National Native Title Tribunal (‘the Tribunal’) to manage applications for native title or compensation by Indigenous peoples and nonclaimant applications by people who wish to know whether not land in which they have an interest is affected by native title.

Originally, if all of the parties to a native title claim agreed, the Tribunal could determine the existence of native title. If the parties did not agree to a determination by the Tribunal, the claim had to be referred to the Federal Court. In Brandy v Human Rights Equal Opportunity Commission,2 the High Court decided that only courts established under Chapter Three the Australian Constitution (the High Court and Federal Court) can make legally binding judicial decisions; administrative bodies like the Tribunal cannot. After the amendments to the Native Title Act, all native title applications were filed in the Federal Court, and all previous applications were deemed to have been filed in that Court.

THE REGISTRATION TEST

Native title applicants can only have the benefit of procedural rights if they are registered on the Register of Native Title Claims. This Register is maintained by the Registrar of the Tribunal.

Since the amendments to the Native Title Act, the Registrar must be satisfied that the application and its supporting material identifies:

• where the areas of land and water being claimed are, s. 190B(2);
• who comprises the native title claim group, s. 190B(3);
• which native title rights and interests are being claimed and how they can be established, s. 190B(4); and (6);
• what factual bases there are for the native title that is being claimed, s. 190B(5);
• how applicants can show that they have maintained their physical connection with the land, s. 190B(7); and
• that the applicants have the claimant group’s authority to make the claim and deal with matters arising from it, s. 190C(4)(b).

The registration test now requires the applicants to file more supporting material than was needed before the amendments. It is often difficult for applicants to amass the complex material required to satisfy the registration test within the three months allowed for a response to a non-claimant application or a notice that the government intends to perform a future act.

If an application fails to satisfy the registration test, it still has the status of an application before the Federal Court. The native title claim group will not be entitled to procedural rights in relation to future acts unless the application is amended or a new application is submitted and it passes the registration test.

Once the registration test has been applied, the Registrar is required to notify all other people who have an interest in the land identified in the application that it has been lodged. A period of three months is allowed for them to notify the Federal Court that they wish to be parties to the application. After the three month period, a person must seek leave of the Federal Court to be joined as a party.

MEDIATION

Sections 86A and 86B set out the purposes of mediation under the Native Title Act. Mediation helps the parties to identify which aspects of an application could be settled by agreement. Unless it orders otherwise, once the notification period has expired and all eligible parties have been joined, the Federal Court will direct that applications be referred to the Tribunal so that the application can be mediated by members of the Tribunal or consultants appointed by the President.

If, as a result of mediation, the parties reach agreement about the outcome of any or all of the issues raised by the application, they can ask the Federal Court to make consent orders or a determination setting out the terms of their agreement. A mediated agreement can also be expressed as an Indigenous Land Use Agreement. Alternatively, a mediated agreement can simply take effect as an ordinary contract between the parties.

Any issues that are not resolved by agreement are referred back to the Federal Court for determination. Similarly, if no agreement is reached during mediation, the Tribunal will send the whole application back to the Federal Court for a contested hearing.

THE RIGHT TO NEGOTIATE

The right to negotiate is a procedural right available to Indigenous people who are registered on the Register of Native Title Claims or whose claim has been determined in their favour. Where a future act attracts the right to negotiate, the government must notify registered native title claimants of its intention to do the act, and the government, the native title parties and grantee parties (the persons who are seeking the grant) must negotiate in good faith about the conditions under which the act can go ahead (see s. 31(1)(b) and s. 33). If the government and grantee parties have negotiated in good faith and no agreement is reached within six months from the date of notification, they can ask the Tribunal to decide whether or not the act should proceed.

Since the amendments, the right to negotiate applies to a much more restricted range of future acts than previously. For example, the Native Title Act no longer provides any right to negotiate in relation to a range of future acts not including mining or compulsory acquisition.

INDIGENOUS LAND USE AGREEMENTS

Indigenous Land Use Agreements (ILUAs) are legally binding agreements about native title that are registered on the Tribunal’s Register of Indigenous Land Use Agreements. Native title holders can agree to authorise future acts by developers or government, or make agreements with governments about recognising or surrendering native title, or setting up frameworks for making other agreements.

People negotiating ILUAs can seek assistance from the Tribunal.

To register an ILUA the parties apply to the Registrar, who will give public notice of the application and check that the ILUA meets the statutory requirements.

Once registered, ILUAs bind all native title holders, even if they are not parties, and limit compensation for impairment of native title to the terms set out in the agreement for those native title holders who are parties. Because they are legally binding on all native title holders ILUAs can take some time to negotiate.

Some examples of Indigenous Land Use Agreements that have been registered include agreements between:

• the Mackay City Council and local native title applicants authorising land subject to native title claims to be used as the site of a new surf life saving club;
• a group of native title applicants and a mining company authorising the grant of mining leases;

• native title claimants and farmers about upgrading the permitted use of land to allow more intensive cultivation; and
• native title claimants, the New South Wales and

Victorian governments, and a construction company authorise the construction of a gas pipeline. Parties to a native title claim can also make informal agreements about issues relating to native title. These may include:

• local reconciliation agreements;
• written protocols for access to pastoral land; or
• framework agreements about negotiations.

These agreements might not be legally binding, but they can help express a relationship between Indigenous and non-Indigenous interests.

STATE AND TERRITORY ALTERNATIVE PROVISIONS

The Native Title Act has always provided for the States and Territories to create alternative bodies to the Tribunal to perform the functions of an arbitral body under the right to negotiate regime. For example, in June 1996 South Australia established an alternative right to negotiate scheme with the approval of the Federal government. The native title amendments introduced further provisions to enable the States and Territories to create their own tribunals to deal with recognition of native title either concurrently with or in substitution for the National Native Title Tribunal.3

To establish any alternative scheme the State must have the approval of the relevant Commonwealth Minister Federal Attorney-General), who must be satisfied that main elements of the scheme are consistent with the Native Title Act.

The Senate has the power to disallow the Attorney General's determination to approve the State or Territory scheme.

As at July 2000 the Northern Territory, Western Australia and Queensland have submitted alternative proposals state schemes to the Federal Attorney General, who approved them. The Senate rejected the Northern Territory model in August 1999. The Western Australian and Queensland proposals have not yet been subjected to Federal Parliamentary scrutiny.