Bills Digest 25 1996-97 Native Title Amendment Bill 1996


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WARNING:
This Digest is prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest was available from 4 September 1996.

CONTENTS

Passage History

Native Title Amendment Bill 1996

Date Introduced: 27 June 1996

House: House of Representatives

Portfolio: Prime Minister

Commencement: The bulk of the Bill's provisions commence on a date to be fixed by Proclamation. However, if a provision has not commenced within 9 months from the date of Royal Assent, then it commences on the first day after the end of that period.

Purpose

The purposes of the Native Title Amendment Bill 1996 (the Bill) include responding to the High Court's decision in Brandy v. Human Rights and Equal Opportunity Commission(1), altering the registration test applied to native title determination applications, amending provisions relating to section 21 agreements, non-claimant applications and the renewal of leases and providing for the appointment of judicial registrars to determine the parties to native title claims and deal with unopposed or agreed claims.

Background

The material below sets out some of the major features of the High Court's decision in Mabo (No.2) (2) and some of the developments that have occurred since that decision was handed down.

The High Court's decision in Mabo (No.2)

In 1992, the High Court handed down its decision in Mabo v. Queensland (No.2). The Court noted that the common law recognises that native title to land held by indigenous peoples may survive the acquisition of sovereignty by a colonising power. A majority of six Judges rejected the legal fiction of terra nullius - the doctrine, that before white settlement, Australia was a land belonging to no one. It held that in the case of the Murray Islands, native title had survived up to the present day. The Judges also noted that as the same common law prevails throughout Australia, native title might exist on mainland Australia.

In Mabo (No.2), the High Court said that native title is a continuation of the type of interests held in land before sovereignty was acquired by the Crown. The nature of native title interests therefore depends on the traditional laws and customs of the Aboriginal group. These interests in land may range from rights of access to land to rights of exclusive possession. Native title cannot be transferred to others outside the system of traditional law. However, it may be surrendered to the Crown. Native title can also be extinguished in certain circumstances such as by legislation, inconsistent Crown grant, inconsistent Crown reservation or dedication, abandonment of the land or failure to maintain traditional laws and customs in relation to the land.

The extinguishment of native title has been constrained by the enactment of the Racial Discrimination Act 1975 (Cwlth) which came into force on 31 October 1975. The Act prohibits discrimination based on race in relation to the holding of property. The High Court held in the case of Mabo v. Queensland (No.1) that it is a breach of the Racial Discrimination Act 1975 to extinguish native title without complying with the same procedures by which other titles may be extinguished when compulsorily acquired under State legislation. The Racial Discrimination Act 1975 is a Commonwealth law. Section 109 of the Constitution provides that when there is an inconsistency between a valid Commonwealth law and a State law, then the State law will be inoperative to the extent of the inconsistency.

Native Title Act 1993 (Cwlth)

The High Court's decision in Mabo (No.2) left unanswered questions such as where native title exists, who holds native title and the nature of native title. It also opened up the possibility of extensive litigation in the High Court, Federal and State and Territory courts. In October 1992, the then Government announced that it would commence consultations with stakeholders and establish an interdepartmental committee to carry out the consultations and report to the responsible Ministers. In January 1993, the then Prime Minister announced his intention to introduce national native title legislation. The Native Title Act 1993 was enacted in order to provide a statutory framework for deciding questions left unanswered by the Mabo decision.(3)

The Native Title Act 1993:

  • recognises and protects native title rights and interests;
  • validates Commonwealth acts that would otherwise be invalid due to the existence of native title;
  • enables the States and Territories to validate past acts, including titles they have granted, without breaching the Racial Discrimination Act 1975 if they comply with Commonwealth rules about the extinguishment of native title;
  • creates a National Native Title Tribunal and provides for the establishment of recognised State and Territory bodies to deal with certain things - such as determining native title claims and compensation claims;
  • sets out how acts affecting native title may be done in the future - this includes a right to negotiate on certain types of future acts and compensation where native title is extinguished or impaired as a result of those acts.

Native Title Act Case

The Government of Western Australia challenged the constitutional validity of the Native Title Act 1993. At the same time, the Wororra and Martu Peoples challenged the validity of the Land Titles and Traditional Usage Act 1993 (WA). The Land Titles and Traditional Usage Act 1993 purported to extinguish any surviving native title in Western Australia and replace it with more limited statutory rights to traditional usage of land.

In 1995, the High Court brought down its decision in the Native Title Act Case.(4) With the exception of section 12, the High Court found the Native Title Act 1993 to be a valid exercise of the Commonwealth's races power.(5) The Court held that section 12 could be severed from the rest of the Act without affecting the validity of the remaining provisions. The High Court held the Land Titles and Traditional Usage Act 1993 was inconsistent with the Racial Discrimination Act 1975 (Cwlth) and the Native Title Act 1993 and thus inoperative by virtue of section 109 of the Constitution.

Brandy v. Human Rights and Equal Opportunity Commission

In October 1994, in the case of Brandy v. Human Rights and Equal Opportunity Commission(6), the High Court of Australia held that provisions of the Racial Discrimination Act 1975 relating to the enforcement of determinations by the Human Rights and Equal Opportunity Commission were invalid.(7) This decision is relevant to certain proposals contained in the Native Title Amendment Bill 1996.

Under amendments made to the Racial Discrimination Act in 1992, decisions of the Human Rights and Equal Opportunity Commission could be registered in the Federal Court. On registration, the decisions took effect as if they were Federal Court orders. The Human Rights and Equal Opportunity Commission is an administrative not a judicial body. The High Court held that the effect of the provisions was that the Commission could make decisions which became binding and enforceable. This was held to be an exercise of judicial power and to infringe the separation of powers doctrine in the Constitution. The doctrine means that the judicial power of the Commonwealth can only be exercised by a what is called a Chapter III court.

Under the Native Title Act 1993, the National Native Title Tribunal has the power to make determinations about the existence (or non-existence) of native title. This power can only be exercised where the application is unopposed or the parties agree. A determination is registrable in the Federal Court and enforceable as an order of the Court. The decision in Brandy suggests that this may be an infringement of the separation of powers doctrine.

The National Native Title Tribunal has developed an administrative response to the Brandy decision, pending amendments to the Native Title Act 1993. If, at the conclusion of mediation the parties in a claimant application reach an agreement, the Tribunal advises them to frame the agreement in the manner of a consent order suitable for filing in the Federal Court. The claimant application is then referred to the Federal Court by the Registrar and, on lodgment of the application in the Federal Court, the parties can seek a consent order for a determination in the terms of their agreement. Administrative procedures have also been devised for non-claimant applications.(8)

Other judicial decisions

Two other judicial decisions are worth mentioning.

In Western Australia v Lane(9), the Federal Court of Australia took the view that once a native title claimant had lodged a claim with the National Native Title Tribunal, the claimant became a 'registered native title claimant.' A 'registered native title claimant' has the right to negotiate and the right to be notified in relation to certain permissible future acts under the Native Title Act 1993.(10) This decision attracted some criticism. An alternative view to the one expressed by the Federal Court is that a person obtained these rights only after their claim had been accepted. After the decision in Western Australia v. Lane, the National Native Title Tribunal amended its procedures so that applications are entered onto the Register of Native Title Claims on lodgment rather than on acceptance of the claim.

In the Waanyi (11)case, the High Court of Australia might have considered the question of the effect of pastoral leases on native title but did not do so. The court focussed instead on procedural questions surrounding the rejection of a claimant application for a native title determination by the President of the National Native Title Tribunal.

The President had determined that the application should be rejected on the basis that the Waanyi People's claim could not be made out because their title had been extinguished by a pastoral lease. The High Court held that the President and the Registrar of the National Native Title Tribunal had adopted a procedure outside the ambit of section 63 of the Act and in doing so had considered material and information that they were not entitled to consider. The High Court also held that an application for a native title determination cannot be rejected if the claim is 'fairly arguable.' As a result, the National Native Title Tribunal must accept claims that are 'fairly arguable.'

In Waanyi, the High Court also suggested that the grant of a pastoral lease on native title was a 'fairly arguable' question of law.

Proposals to amend the Native Title Act 1993

There has been considerable discussion about the Native Title Act 1993 and a number of substantive proposals for its amendment. For example, in March 1995 the President of the National Native Title Tribunal, Justice Robert French, circulated a Discussion Paper on Proposed Changes to the Native Title Act 1993.

In September 1995, the Department of the Prime Minister and Cabinet and the Attorney-General's Department circulated a document entitled Outline of Proposed Amendments to the Native Title Act 1993.(12) Many of the proposals detailed in the document were the then Government's response to the High Court's decision in Brandy v. Human Rights and Equal Opportunity Commission.

In 1995, the previous Government introduced the Native Title Amendment Bill 1995 into Parliament. This Bill lapsed due to the calling of the 1996 General Election. The Explanatory Memorandum to the Native Title Amendment Bill 1996 asterisks proposed amendments which were contained in the Native Title Amendment Bill 1995.(13)

In May 1996, the Government released a paper entitled Towards a More Workable Native Title Act. An Outline of Proposed Amendments. This paper was prepared after consultations conducted by Senator Nick Minchin. Some of the matters foreshadowed in the Outline Paper are contained in the Native Title Amendment Bill 1996. The Bill's Second Reading Speech states:

The Government intends to address all the issues considered in the Outline Paper released in May this year. However, the Bill does not contain all of the measures described in that Paper as some of the Government's proposed amendments. It became obvious early in the consultation process that some proposals would be of much greater interest to, and have a greater impact upon, interest groups than would others. </ ul>
In particular, the right to negotiate provisions and the proposals to impose statutory rights and obligations on Aboriginal/Torres Strait Islander bodies are the subject of detailed submissions and ongoing consultation ... </ ul>
To include those proposals in the Bill would have pre-empted consultations of these key issues, and would have left insufficient time for serious consideration of the submissions made in response to the deadline for submissions of 18 June 1996. </ ul>
The Government will therefore move amendments to this Bill in the Budget session to deal with the right to negotiate provisions in the Act and with the role and responsibilities of representative bodies. There may well be other issues which emerge during that consultation process which need to be addressed at that time. </ ul>

Main Provisions

Native title applications

Under the Native Title Act 1993, applications for native title determinations are made to the National Native Title Tribunal. If a Presidential member of the Tribunal decides that an application should not be accepted then the applicant has a right of appeal to the Federal Court of Australia. Where an application that has been accepted by the Tribunal is unopposed or the parties reach agreement after mediation, then the Tribunal may make a determination of native title. Otherwise, the application must be referred to the Federal Court for hearing and determination.

Part 1 of Schedule 1 of the Bill is the Government's response to the High Court decision in Brandy v. Human Rights and Equal Opportunity Commission. In particular, references to the Native Title Registrar and the National Native Title Tribunal in the Native Title Act 1993 are omitted and replaced with references to the Federal Court. The effect of the changes is that an application for a native title determination will be made to the Federal Court, as will applications for compensation in relation to acts affecting native title. In addition, where an approved determination of native title is to be made, it must be decided whether the native title is to be held in trust and, if so, by whom. Under the Act as it stands, both the National Native Title Tribunal and the Federal Court can make such determinations. The proposed amendments mean that only the Federal Court will be able to make such determinations.

Item 23 of Schedule 1 repeals sections 63, 64 and 65 of the Native Title Act 1993. Section 63 of the Native Title Act 1993 provides that the Native Title Registrar must accept a native title determination application if the application contains certain information, if certain material accompanies the application and unless the Registrar considers that the application is frivolous or vexatious or that prima facie the claim cannot be made out. Section 64 of the Native Title Act 1993 deals with applications for native title determinations that are not accompanied by the material required by section 62 of the Native Title Act 1993. Section 65 of the Native Title Act 1993 sets out the powers of the Registrar and Presidential Members in relation to native title applications.

Item 23 of Schedule 1 also inserts new section 63. New section 63 provides that if an application that complies with sections 61 and 62 of the Native Title Act 1993 is filed in the Federal Court then, as soon as practicable, the Federal Court must provide a copy of the application to the Native Title Registrar. Section 61 of the Native Title Act 1993 provides that an application for a native title determination must be in the prescribed form and contained prescribed information. Section 62 of the Native Title Act 1993 provides that certain material is to accompany applications by native title claimants. At present, this material is an affidavit, information known to the applicant about other interests relating to the land or waters, a description of the area over which native title is claimed and the name and address of the claimant, any prescribed documents and the prescribed fee.(14)

Item 21 of Schedule 1 amends section 62 by adding to this material details of any other native title applications to the High Court, the Federal Court or a recognised State or Territory body known to the claimant that relate to the area and details of any notices under 24A or 29 of the Native Title Act 1993 or under equivalent State or Territory legislation.

Item 24 of Schedule 1 repeals subsection 66(1) of the Native Title Act 1993 and inserts new subsection 66(1). As presently worded, subsection 66(1) requires the Registrar, after accepting a claimant application, to notify persons whose interests might be affected. New subsection 66(1) will also give the Registrar a discretion to notify 'such other persons as the Registrar considers appropriate.'

Item 28 of Schedule 1 amends paragraph 66(3)(b). At present, a section 66 notice must state that a person who wants to be a party to a claimant application must notify the Registrar in writing within two months from the day the notice is given. New paragraph 66(3)(b) will substitute a period of three months for the period of two months.

Item 36 of Schedule 1 repeals subsection 84(1) of the Native Title Act 1993 and substitutes new subsections 84(1), (1A), (1B) and (1C). Under new paragraph 84(1A)(b), a person can become a party to proceedings by notifying the Federal Court in writing. This provision is in addition to:

  • new subsection 84(1) which provides that the applicant is a party; and
  • new paragraph 84(1A)(a) which provides, in part, that a person whose interests may be affected by a determination in the proceedings and who has notified the Federal Court in writing within the specified period, is a party to the proceedings.

Under new subsection 84(1B), the State or Territory in which a claim falls will be a party unless the State or Territory Minister gives written notice that he or she does not want to be a party. Under new subsection 84(1C), the Commonwealth may, at any time, become a party to a compensation application made under section 61 of the Native Title Act 1993.

Item 38 of Schedule 1 inserts new section 84A which provides, among other things, that the Commonwealth Minister may intervene at any time in a proceeding before the Federal Court under the Native Title Act 1993 by giving written notice to the Federal Court.

Mediation and the National Native Title Tribunal

Under subsection 72(1) of the Native Title Act 1993, the President of the National Native Title Tribunal must direct the holding of a conference of parties or their representatives in order to help resolve an application that is opposed.

Under the proposed amendments, the National Native Title Tribunal will primarily become a mediation body.

Item 39 of Schedule 1 inserts new Division 1A - Reference to NNTT for mediation. New subsections 86A(1) and 86A(2) describe the purposes of mediation in relation to native title and compensation applications. New subsection 86A(3) provides that the Federal Court must refer every native title and compensation application to the National Native Title Tribunal for mediation. However, there is provision in new subsection 86A(5) for the Federal Court on its own motion or on an application by a party to the proceedings to make an order that there will be no mediation in relation to all or part of the proceeding.

In addition, the Court may order mediation to cease [new subsection 86A(9)] and a party can apply for mediation to cease [new subsection 86A(10)]. New subsection 86A(13) provides that the Court may determine questions of law or fact referred to it by the National Native Title Tribunal during mediation.

In relation to unopposed applications, new section 86C provides that the Federal Court may make an order consistent with the terms sought by the applicant without a hearing taking place.

Item 49 of Schedule 1 inserts new Division 4A into the Native Title Act 1993. New Division 4A relates to mediation conferences.

New section 136A provides that if the Federal Court refers the whole or part of a matter to the National Native Title Tribunal under new section 86A, then the President must issue a direction that a mediation conference be held. Under new section 136A(2) a conference must be presided over by a member of the Tribunal. New section 136B enables the President of the National Native Title Tribunal to engage consultants to conduct mediation. In such a case, the consultant is regarded as a member of the Tribunal [new subsection 136B(2)].

Under new subsection 136C(1), the member presiding over a mediation conference may order a party or parties not to attend or be represented at a mediation conference. This may only be done if the presiding member '... considers it would assist the resolution of a matter that is the subject of mediation' [new subsection 136C(2)].

Under new section 136E, questions of law or fact arising during a mediation may be referred by the presiding member to the Federal Court.

Under new section 136F, mediation conferences must be held in private. Under new section 136G the presiding member at a mediation conference may prohibit the disclosure of evidence.

Under new section 136H, when mediation is concluded the presiding member must provide a written report to the Federal Court setting out the results of the mediation.

Criteria for the registration of native title claims

Under section 63 of the Native Title Act 1993, the Registrar must accept an application for a determination of native title unless he or she is of the opinion that:

  • the application is frivolous or vexatious; or
  • prima facie, the claim cannot be made out.

Under the Native Title Act 1993, if the Registrar declines to accept an application then it is referred to a Presidential Member of the Tribunal. If the Presidential Member takes the same view as the Registrar, then the applicant must be notified and given the opportunity to show that the application is not frivolous or vexatious or that, prima facie, a claim can be made out. The Presidential Member, if satisfied by the applicant, must direct the Registrar to accept the application. If not so satisfied, then the Presidential Member must direct the Registrar not to accept the application. In the latter case, the applicant can appeal to the Federal Court of Australia.

Until the decision of the Federal Court in Northern Territory v. Lane, the Tribunal took the view that an application should not go on to the Register until it had been accepted by the Registrar. From September 1995, the Tribunal amended its procedures so that applications were entered on the Register on lodgment. The Tribunal also set a limit of three months as the period during which applications would be accepted or referred to a Presidential Member.(15)

Part 2 of Schedule 1 deals with criteria for the registration of native title claims.

Item 96 inserts new section 190A. New subsection 190A(4) sets out the information that the Native Title Registrar must consider when deciding whether to accept a claim for registration in the Register of Native Title Claims - including information in the application, information about the claim supplied by the Commonwealth, a State or a Territory and other information that the Registrar considers appropriate.

Before accepting a claim for registration, the Registrar must also be satisfied that the claim meets the conditions set out in new subsections 190A(7)-(10). The Registrar must accept the claim if these conditions are satisfied and cannot register the claim if they are not satisfied:

  • first, the Registrar must be satisfied that, prima facie, each of the native title rights and interests claimed can be established [new subsection 109A(7)];
  • second, the Registrar must be satisfied that the application contains such things as sufficient information to identify the area claimed, a map showing the boundaries of the claim area, details of searches carried out to identify any interests in the area claimed, reasons for not conducting any searches that could be relevant to the claim, sufficient description of the native title rights and interests claimed to allow them to be identified, details of the factual basis of the claim, details of any current use of the land by the native title applicants and, if relevant, information about common or group rights in relation to the area claimed [new subsection 109A(8)].
  • third, the Registrar must be satisfied that all searches that could have been reasonably carried out and are relevant to determining the existence of other interests in the land or waters have been carried out [new subsection 109A(9)].
  • fourth, the Registrar must be satisfied that the application does not disclose that the claim covers any land or waters covered by ordinary title or residential or commercial leases except for pastoral or agricultural leases, or a lease granted to Aboriginal people or Torres Strait Islanders [new subsection 109A(10)].

New subsection 109A(11) provides that if a claim is not registered, then the Registrar must give notice to the Federal Court and the claimant - including reasons for the decision.

New subsection 109A(12) provides that if the Registrar does not register the claim then the claimant may appeal the Registrar's decision to the Federal Court. In making a decision on such an appeal, the Federal Court must apply the test for registration set out in new subsections 109A(7)-(10) [new subsection 109A(13)].

Amendments relating to section 21 agreements

Under section 21 of the Native Title Act 1993, there is provision for agreements to be entered into between Governments and the holders of native title without recourse to lengthy and expensive court proceedings. There does not appear to be anything in section 21 that prevents third party beneficiaries of such agreements from being a party to a section 21 agreement. It also appears that section 21 agreements can be used by common law holders of native title as well by those who have been granted a determination under the Native Title Act 1993.

Item 99 of Part 3 of Schedule 1 inserts new section 21A into the Native Title Act 1993. New section 21A relates to agreements to surrender native title or to authorise a future act where there has been an approved determination of native title and the registered or common law holders of native title make a section 21 agreement and subsequently an approved determination of native title is made that other persons hold or also hold native title in relation to the area.

Under new section 21A(2) if such a situation arises then future acts done before the making of the subsequent native title determination are valid. Compensation is payable to those who hold native title under the subsequent determination if the future act extinguishes their native title or if the future act does not extinguish their native title and they would otherwise be entitled to compensation.

Compensation is payable by the Commonwealth if the act is attributable to the Commonwealth and by a State or Territory if the act is attributable to a State or Territory [new subsection 21A93)].

Item 100 inserts new paragraph 26(3)(aa) into the Native Title Act 1993. New paragraph 26(3)(aa) provides that the right to negotiate does not apply to an act covered by a section 21 agreement.

Amendments relating to agreements with registered claimants

Future acts and agreements between registered native title claimants, determined native title holders and governments

Item 104 of Schedule 1 inserts new sections 24A, 24B and 24C into the Native Title Act 1993. New section 24A enables registered native title claimants, determined native title holders and governments to reach an agreement to allow future acts other than those covered by the right to negotiate (16) - even where the acts might be otherwise impermissible. Impermissible future acts are acts which are not permissible future acts.(17) Permissible future acts are defined in section 235 of the Native Title Act 1993. Generally speaking, an act is a permissible future act if it could be done if 'the native title holders instead held freehold title (or leasehold in the ACT and Jervis Bay Territory) except where such title exists only for the benefit of Aboriginal or Torres Strait Islander people.'(18)

Under new section 24A, no party to a section 24A agreement is entitled to compensation in relation to the effect of the act on native title, other than compensation provided for in the agreement [new paragraph 24A(1)(c)].

New section 24A sets out the conditions that must be met before an agreement under new section 24A can be made [new subsections 24A(2)-(6)]. For example, acts which are subject to the right to negotiate are not covered by section 24A, the Government party must give notice of the act including public notice, any registered native title body corporate affected by the act must be a party to the agreement, certain registered native title claimants must be parties (19) and a grantee party may be a party to the agreement.

Under new subsection 24A(8), the parties may request assistance from the National Native Title Tribunal or a recognised State/Territory body in negotiating an agreement under section 24A.

Under new subsection 24A(10), the agreement may be made for any consideration and subject to any conditions agreed to by the parties except for consideration or conditions that are unlawful.

Future acts where there is no registered native title claimant and no determined native title holder

New section 24B relates to future acts done by Governments where there is no native title claim at the end of a three month notice period and no existing determined native title holders. New section 24B will apply if:

  • the act is not an act to which the right to negotiate applies; and
  • the Government has fulfilled certain notice requirements - notice must be given to the relevant representative Aboriginal or Torres Strait Islander body, any grantee party and the National Native Title Tribunal; and
  • notice is given to the public in the determined way; and
  • at the end of three months from the date of notification, there is no 'relevant native title claim' and no native title determination; and
  • immediately before the act is done there is no registered native title body corporate in relation to land or waters affected by the act [new subsection 24B(1)].

If new section 24B applies to an act then the act is valid, the non-extinguishment principle applies to the act and, in certain circumstances, compensation will be payable to native title holders [new subsection 24B(2)].

New subsection 24B(4) defines the expression 'relevant native title claim.' A 'relevant native title claim' will exist if, for example, at the end of the notice period specified in new paragraph 24B(1)(d), there is a registered native title claim or if, after the expiration of the notice period, there is a registered native title claim which was placed on the Native Title Register after a successful appeal to the Federal Court under new subsection 190A(12) and the appeal occurred not more than 28 days after the Native Title Registrar gave notice of refusal to register the claim.

New section 24C sets out who pays compensation under new sections 24A and 24B. In brief, if the act is attributable to the Commonwealth then the Commonwealth pays the compensation. If the act is attributable to a State or Territory, then the State or Territory pays the compensation. New subsection 24C(2) provides that the Crown may make an agreement with the grantee party about the payment of compensation under new section 24C.

Section 24 protection

Under section 24 of the Native Title Act 1993, future acts will be valid when done over areas covered by an unopposed non-claimant application, if the future act occurs before any native title determination is made. Part 5 of Schedule 1 of the Native Title Amendment Bill 1996 amends provisions relating to section 24 protection. These provisions appear to carry over the current effect of sections 24 and 67. Where a claim is accepted over part of an area covered by a non-claimant application, then section 24 protection will be removed completely in the case of a government non-claimant application. Where a claim is accepted over part of an area covered by a non-government non-claimant application, then the protection given by section 24 will be read down to exclude the overlapping area.

Where a government makes a non-claimant application, new subsection 24(3) applies. In the case of a government non-claimant application, section 24 protection applies at a particular time if, before that time, a government has made a non-claimant application, the whole of the area in question is covered by the application, the notice period has expired, there is no relevant native title claim over any part of the area, the application is still on foot and there is no entry on the National Native Title Register that native title exists in relation to the area or a part of the area.

Where a non-government non-claimant application is made new subsection 24(4) applies. Where a non-government non-claimant application is made, section 24 protection will arise in relation to an area at a particular time if, before that time, a non-claimant application has been made which is not a government non-claimant application, the area is the whole or part of the area covered by the application, the notice period has expired, there is no relevant native title claim, the application is still on foot and there is no entry in the National Native Title Register that native title exists in relation to the area or a part of the area.

The expression 'relevant native title claim' is defined in new subsection 24(6).

The notice period for section 24 protection for government and non-government non-claimant applications is set out in new paragraph 66(3)(a). The notice period is 3 months and commences on the day that the notice of a non-claimant application is given.

Renewals of certain leases and rights

The Native Title Act 1993 contains a regime covering future dealings affecting land or waters (future acts) and native title rights. Under section 25(1) of the Native Title Act 1993, a future act is valid if it 'consists of the renewal of any interest in relation to land or waters that takes place in the exercise of a legally enforceable right that was created before 1 January 1994.' Although such acts are valid, they do not extinguish native title and compensation may be payable to native title holders.(20)

Under section 235(7) of the Native Title Act 1993, as presently worded, a renewal, re-grant or extension of a commercial, agricultural, pastoral or residential lease will be a permissible future act, provided that the lease does not create a proprietary interest where previously only a non-proprietary interest was created by the lease, and provided that the lease does not enlarge a proprietary interest.

Item 112 of Schedule 1 repeals section 25(1) of the Native Title Act 1993 and inserts replacement subsections. In conjunction with this repeal, item 114 of Schedule 1 repeals subsection 235(7) of the Native Title Act 1993.

Acts to which new section 25 will apply include permissible lease renewals, permissible pastoral lease renewals, permissible pastoral lease variations and permissible pastoral lease related acts. The leases and other interests which are covered are those that existed before the Native Title Act 1993 commenced operation on 1 January 1994.

A 'permissible lease renewal' is defined in new subsection 25(1B). In specified circumstances, the renewal, re-grant or extension of the term of a mining lease will be a future act that is a permissible lease renewal. At present, under subsection 235(7) of the Native Title Act 1993, a permissible future act does not include the renewal, re-grant or extension of a mining lease.

Other permissible lease renewals covered by new subsection 25(1B) include commercial, agricultural, pastoral or residential leases (these types of leases are covered by present subsection 235(7)).

The renewal, re-grant or extension of the leases covered by new subsection 25(1B) will not be a permissible lease renewal if a proprietary interest is created where only a non-proprietary interest previously existed or if a larger proprietary interest is created. In addition, if the lease is subject to a reservation in favour of indigenous people then the same reservation must continue (as is the case at present under section 235(7) of the Native Title Act 1993).

New subsection 25(1C) provides that, in certain circumstances, a future act will be a 'permissible pastoral lease renewal.' To qualify as a 'permissible pastoral lease renewal,' any reservation in favour of indigenous people must be preserved, and, if the lease did not allow mining, mining cannot be permitted by the renewal.

New subsection 25(1D) provides that a lease will be a permissible pastoral lease renewal (if the lease is an eligible pastoral lease (21)), even though the renewed, re-granted or extended lease:

  • permits the lessee to use the land or waters covered by the lease for a non-pastoral purpose (other than mining);
  • contains a proprietary interest where previously it contained only a non-proprietary interest;
  • creates a larger proprietary interest than previously contained in the lease; or
  • is a perpetual lease.

New subsection 25(1E) relates to future acts that are 'permissible pastoral lease variations.' A permissible pastoral lease variation enables a lessee to use land or waters covered by a pastoral lease for purposes which are non-pastoral (other than mining). Examples provided in the Explanatory Memorandum of such variations include the variation of a lease to permit the sowing of fodder crops, conduct feedlot operations or engage in farm-related tourism.(22)

New subsection 25(1F) states that a future act will be a 'permissible pastoral lease related act' if the lessee of a pastoral lease uses the land or waters covered by the lease for a non-pastoral purpose (not including mining) that:

... does not cause the land or waters covered by the lease to cease being used, or being capable of being used, solely or primarily for: </ ul>
(a) maintaining or breeding sheep, cattle or other animals; or </ ul>
(b) any other pastoral purpose. </ ul>

Under new section 25(1A), if section 25 applies to an act then the non-extinguishment principle applies and native title holders will be entitled to compensation if native title has survived and is affected by the renewal, regrant or extension of the lease.

Section 12, Native Title Act 1993

Item 115 of Schedule 1 repeals section 12 of the Native Title Act 1993. Section 12 of the Act was held to be invalid but severable by the High Court in the Native Title Act Case.

Funding for native title claimants

Item 132 of Schedule 1 inserts new subsection 183(4A) which provides that the Attorney-General cannot authorise assistance in proceedings for a native title claimant. The purpose of this amendment is to reflect Government policy that in such cases funding should be provided by representative Aboriginal and Torres Strait Islander bodies (23) or, in certain circumstances, by the Aboriginal and Torres Strait Islander Commission.

Amendments relating to judicial registrars

Schedule 2 of the Native Title Amendment Bill 1996 amends the Federal Court of Australia Act 1976 in relation to the appointment, powers and functions of Judicial Registrars. These are contingent amendments. If certain amendments to the Federal Court of Australia Act 1976 providing for the appointment of Judicial Registrars come into effect before the corresponding amendments in the Native Title Amendment Bill 1996 commence, then the corresponding amendments are omitted [Part 2 of Schedule 2].

Part 1 of Schedule 2 of the Bill consists of the corresponding amendments and concerns Judicial Registrars of the Federal Court.

New section 18AB of the Federal Court of Australia Act 1976 sets out the powers of Judicial Registrars. The amendments will allow Federal Court Judges to make Rules of Court delegating to Judicial Registrars the power to determine parties to proceedings under the Native Title Act 1993 and to make orders in relation to unopposed applications and where the parties reach agreement.

New section 18AC provides that a party to proceedings may seek a review of a Judicial Registrar's exercise of the powers delegated to him or her.

Remarks

Registration of native title claims

The Government has stated that:

The purpose of the registration test ... is to prevent claims with no reasonable chance of success from hindering other land use. If the threshold test is too high, there is a real risk that native title rights will be unfairly affected. If the threshold is too low, there is a risk that development will be unnecessarily impeded. </ ul>

One important consequence of registration under the Native Title Act 1993, as it presently stands, is that registration enables a claimant to access the right to negotiate process in relation to certain future acts. The right to negotiate is not a right of veto. Future acts attracting the right to negotiate are acts that create or vary a right to mine, that extend the period of a right to mine in some circumstances, or that involve compulsory acquisition of native title rights by a Government where the purpose of the acquisition is to confer rights on third parties. Additionally, to attract the right to negotiate, the future act must either validly affect native title or it must be invalid to some extent because of its impact on native title.

Under the amended Act, registration of a native title claim will also be important to preclude section 24 protection arising when a claim is made in response to a non-claimant application and to gain native title party status in response to a section 24A or 24B notice.

Various views can be taken about the proposed registration test. These include:

  • the proposed test is essential to weed out unmeritorious claims - especially because registration enables a claimant to access the right to negotiate process;
  • the proposed registration test constitutes a substantial hurdle and exists in addition to strike out procedures available in the Federal Court. Native title claimants are thus subject to double jeopardy, increased costs and a process that will result in delays in the making of native title determinations;
  • another approach would be to provide that all applications for a native title determination are accepted when lodged in the Federal Court with no registration test being applied by the Registrar.(24) Ordinary strike out procedures in the Federal Court would be available for unmeritorious or vexatious applications;
  • the threshold of the proposed registration test is unnecessarily high. For example, the proposed amendments require the Registrar consider that, prima facie, each of the native title rights and interests claimed can be established;
  • the proposed registration test is based on misconceptions about the right to negotiate - a right that applies only to a subclass of future acts;
  • the threshold of the proposed registration test is appropriate given that registered claimants will have access to the right to negotiate. The exercise of this right may jeopardise investment even though it will not prevent a future act from going ahead. In addition, failure to comply with right to negotiate procedures may affect the validity of a future act which goes ahead;
  • a substantial registration test will assist native title claimants to put together their case for a native title determination and will result in better prepared and more expeditiously determined native title claims;
  • whether the registration test provided for in the Bill will ensure that the registration process remains an ex parte one - that is, one essentially involving the applicant or whether it will become a mini determination process. For example, new paragraph 190A(4)(c) provides that, in considering a claim the Registrar may have regard to 'such other information as he or she considers appropriate.'

Funding of native title claims

The Native Title Amendment Bill 1996 replaces access to legal aid funding for native title claimants with funding from representative bodies. There is some potential for difficulty with this approach. Difficulties may arise, not only there is no representative body in an area, but when the representative body denies funding or when there are competing native title claimants in an area covered by one representative body. In other words, there may be circumstances where it is appropriate for the Attorney-General to authorise funding of native title claimants. It particular, it should be noted that 'proposals to impose statutory rights and obligations on representative Aboriginal/Torres Strait Islander bodies' (25) are not included in the Native Title Amendment Bill 1996 because they are the subject of ongoing consultation.

Endnotes

  1. (1995) 183 CLR 245.
  2. Mabo v. Queensland (No.2) (1992) 175 CLR 1.
  3. Department of the Prime Minister and Cabinet, The Native Title Act 1993. What it does and how it works, December 1994.
  4. Western Australia v. Commonwealth (1995) 183 CLR 373.
  5. Section 51(xxvi), Constitution.
  6. (1995) 183 CLR 245.
  7. For further discussion of this decision see 'Trimming the Tribunals: Brandy v. Human Rights and Equal Opportunity Commission', Current Issues Brief No.40 1994/95, 30 March 1995, Parliamentary Research Service & Brandy v. Human Rights and Equal Opportunity Tribunal, Research Note No.11, 2 March 1995, Parliamentary Research Service.
  8. National Native Title Tribunal, Further Revised Procedures for Applications for Native Title Determination and Compensation, 30 April 1996.
  9. Western Australia v. Lane; Northern Territory v. Lane, Federal Court of Australia, 24 August 1995.
  10. Registered native title claimants have a right to be notified in relation to permissible future acts that attract the right to negotiate.
  11. North Ganalanja & Bindanggu Aboriginal Corporation for the Waanyi People v. Queensland & CRA, (1996) 135 ALR 225.
  12. For a response to the Discussion Paper see Aboriginal and Torres Strait Islander Social Justice Commissioner, Response to the Commonwealth Government's 1995 Proposed Amendments to the Native Title Act 1993, 18 October 1995.
  13. See Explanatory Memorandum, Native Title Amendment Bill 1996, p.4.
  14. See the Regulations and Forms.
  15. National Native Title Tribunal, Annual Report 1994/95, AGPS, Canberra, 1995.
  16. Acts that are subject to the right to negotiate are found in section 26 of the Native Title Act 1993. They include the creation or variation of a right to mine, compulsory acquisition of native title rights and acts approved by the Commonwealth Minister.
  17. Section 236, Native Title Act 1993.
  18. Department of the Prime Minister and Cabinet, op.cit, p.9.
  19. This includes any person who, at the end of the three month notification period, is a registered native title claimant and, in certain circumstances, a person who becomes a registered native title claimant after the end of the notification period. These circumstances include the situation where a native title claim is registered after a successful appeal to the Federal Court after the Registrar has refused to register the claim and the appeal was made within 28 days after notice of the Registrar's rejection of the claim was given.
  20. Paragraphs 25(1)(a),(b)&(c).
  21. An eligible pastoral lease is a lease that permits the lessee to use the land or waters covered by the lease solely or primarily for maintaining or breeding sheep, cattle or other animals; or any other pastoral purpose (section 248(a), Native Title Act 1993).
  22. Explanatory Memorandum, op.cit., p.37.
  23. A representative body is a body which is the subject of a determination under section 202(1) of the Native Title Act 1993. Under the Act, the Minister may determine that a body is a representative body for a specific area if the Minister is satisfied, among other things, that the body is broadly representative of the indigenous peoples of that area. Representative bodies have certain functions under the Native Title Act 1993 including facilitating the making of native title claims.
  24. This view was taken by the President of the National Native Title Tribunal in his Discussion Paper on Proposed Changes to the Native Title Act 1993.
  25. Second Reading Speech, Native Title Amendment Bill 1996, p.5.

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Jennifer Norberry Ph. 06 277 2476
3 September 1996
Bills Digest Service
Parliamentary Research Service

This Digest does not have any official legal status. Other sources should be consulted to determine whether the Bill has been enacted and, if so, whether the subsequent Act reflects further amendments.

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ISSN 1323-9032
© Commonwealth of Australia 1996

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Published by the Department of the Parliamentary Library, 1996.

This page was prepared by the Parliamentary Library, Commonwealth of Australia
Last updated: 29 August 1996

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