Bills Digest No. 51   1997-98 Native Title Amendment Bill 1997

Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

• Passage History
• Purpose
• Background
• Main Provisions
• Concluding Comments
• Endnotes
• Contact Officer and Copyright Details

Passage History

Native Title Amendment Bill 1997

Date Introduced: 4 September 1997
House: House of Representatives
Portfolio: Prime Minister
Commencement: Generally, the amendments commence 9 months and one day after Royal Assent if not commenced earlier by Proclamation. Part 1 of Schedule 3 (initial amendments relating to Representative Bodies) also commences 9 months and one day after Royal Assent unless commenced earlier by Proclamation. Part 2 of Schedule 3 (later amendments which introduce a new regime for representative bodies at the end of a transitional period) commences 12 months and one day after the commencement of Part 1 unless a later day is fixed by Proclamation.

Purpose

The Native Title Amendment Bill 1997 contains extensive amendments to the Native Title Act 1993. A description of some of the amendments is contained in the Major Provisions section of this Digest.

Background

The material below sets out some of the major features of the High Court's decision in Mabo [No.2](1) 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, reservation and use by the Crown for an inconsistent purpose or failure to maintain traditional laws and customs in relation to the land. Parliament or the Executive can only extinguish native title where it has demonstrated a clear and plain intention to do so.

The extinguishment of native title has been additionally 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](2) that it was a breach of the Racial Discrimination Act 1975 to single out the legal rights of native title holders for extinguishment while leaving the legal rights of other people in the Murray Islands intact. 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 [No.2] decision.(3)

The Native Title Act 1993:

• recognises and protects native title rights and interests;
• validates certain 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 (NNTT) 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 validity of the Native Title Act 1993 and, alternatively, its application in that State. At the same time, the Wororra, Yawuru 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 unanimously 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 that 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 1997.

Under amendments made to the Racial Discrimination Act in 1992 and 1993, 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 what is called a Chapter III court.

Under the Native Title Act 1993, the NNTT 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 NNTT has developed an administrative response to the Brandy decision, pending amendments to the Native Title Act 1993. For example, the Tribunal now '... takes mediation to the point of an agreed determination and then refers the matter to the Federal Court for a consent order.'(8) The Tribunal continues to fulfil its functions relating to the acceptance of applications, who should be a party to them and decisions about mediation.(9)

Amendments to the Native Title Act 1993 to provide that native title determination and compensation applications will be made to and determined by the Federal Court were introduced into Parliament in 1995 and 1996 but were not enacted. The Native Title Amendment Bill 1997 also contains provisions which respond to the High Court's decision in Brandy.

Other judicial decisions Western Australia v. Lane; Waanyi

In Northern Territory v. Lane,(10) the Federal Court of Australia took the view that once a native title claimant lodges a claim with the NNTT, the claimant becomes 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. 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 Northern Territory v. Lane, the NNTT 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 case,(11) the High Court of Australia was invited to consider the question of the effect of pastoral leases on native title but held it could 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 NNTT.

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 NNTT 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.'

In Waanyi, the High Court held that the effect on native title of the grant of pastoral lease was a 'fairly arguable' question of law, and thus directed the Tribunal to accept the Waanyi People's application.

Amending 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 NNTT, 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 included in the then Government's response to the High Court's decision in Brandy v. Human Rights and Equal Opportunity Commission.

The Outline was followed in November 1995 by the introduction of the Native Title Amendment Bill 1995 into Parliament. This Bill lapsed due to the calling of the 1996 General Election.

In May 1996, the present 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 were contained in the Native Title Amendment Bill 1996. Others were contained in an Exposure Draft tabled in the Parliament in October 1996. The High Court's decision in the Wik Peoples v. Queensland led the Government to put the 1996 Bill and Exposure Draft aside and develop a comprehensive package of amendments in the form of the Native Title Amendment Bill 1997.

Wik Peoples v. Queensland

In June 1993, after the High Court's judgment in Mabo [No.2], the Wik Peoples began proceedings in the Federal Court claiming native title rights over land and the adjoining sea in Far North Queensland. In the event that their native title rights had been extinguished, they claimed damages and other remedies. Later, the Thayorre People whose claim to native title partly overlaps the Wik claim, were joined to the proceedings.

In the Federal Court, a single judge held that certain pastoral leases within the claim area conferred exclusive possession upon the lessees and therefore extinguished native title. These findings were appealed by the Wik and Thayorre Peoples to the Full Court of the Federal Court but were removed to the High Court.

In the High Court, the Wik and Thayorre Peoples argued that their native title rights were not extinguished by the grant of the pastoral leases(13) and could co-exist with the rights of pastoral lessees. They acknowledged that, in the event of an inconsistency between their rights and those of the pastoralists, the latter would prevail.

Four judges(14) comprised the majority. All delivered separate judgments. They examined the Land Acts and the pastoral leases issued under the Acts in the context of the history of land law and settlement in Australia. They also stressed, following Mabo [No.1] and [No.2], that general words in a statute should not be presumed to extinguish native title without clear and plain intention.

As a result, they concluded that undue emphasis should not be placed on notions of leasehold known to the English common law (such as an automatic right of exclusive possession). Rather, pastoral leases should be seen as creatures of statutes designed for uniquely Australian conditions taking into account factors such as the often vast tracts of land available for individual pastoral operations, official knowledge that much of this land was occupied by Indigenous people, the degree to which third parties were given rights to enter upon the same land and the Crown's unwillingness to grant freehold over such large areas.

These considerations combined with close statutory interpretation led the majority to conclude that the leases in question did not confer exclusive possession on the lessees. Therefore, there was no necessary extinguishment of native title.

The majority left open the question of whether native title might revive after an inconsistent title to land issued under statute has expired. And they said:

Three judges comprised the minority.(16) They also treated the case as primarily a matter of statutory interpretation. They too focussed on the wording of the Land Acts and the leases granted under them. But whereas the majority emphasised the history surrounding pastoral leases and the local conditions for which they were created, the minority emphasised English common law definitions of a lease and earlier cases dealing with statutory land grants. They thus reasoned to a conclusion opposite to the majority the two pastoral leases conferred exclusive possession, that right was inconsistent with the Wik's continued right to enjoy native title and thus their native title was necessarily extinguished in the area covered by the grants. The minority ruled out the possibility that native title was merely suppressed for the duration of the grant and revived upon expiry of the lease.

The majority decision of the High Court did not find that the Wik or Thayorre enjoyed native title over the relevant area. The case merely involved preliminary questions of law about whether the Wik could press their case for coexistence on pastoral leases in the courts below. After the High Court's decision, the parties returned to mediation. If agreement cannot be reached then it will be up to the Federal Court to determine whether and to what extent native title has survived. The answer is to be obtained by carefully weighing the consistency of the particular rights granted to pastoralists under the Land Acts against the rights asserted and proved by the native title claimants.

The aftermath of the Wik decision

The Wik decision produced considerable controversy and debate. The decision was significant for a number of reasons. However, the post-Wik debate has seen particular attention devoted to two issues: native title on pastoral leases and the post-1993 issuing of titles by governments without following Native Title Act procedures.

In relation to pastoral leases, it has been estimated that about 42% of the Australian land mass is under pastoral lease. In some States, the percentage is said to be as high as 70%-80%.(17)

The importance of the decision in the Wik case was highlighted by Justice Kirby. He said that, if the grant of a pastoral lease without a reservation in favour of Aboriginal people necessarily extinguishes native title, then native title has little real significance over much of the land surface of the nation. Especially, he said, this is so because pastoral lease land is likely to be amongst the land where traditional law has survived. He also acknowledged that the High Court's decision was important for pastoralists and other titleholders, governments and miners, and could produce uncertainty. This uncertainty, he said, was an inevitable consequence of working out the implications of the decision in Mabo [No.2].(18)

Uncertainties have arisen about what activities can be carried out on pastoral lease land and whether substantial property development like the building of dams can occur without the consent of native title holders.(19)

The second issue referred to above relates to the validity of some post-1993 titles issued by governments. Unless covered by the 'past acts' regime in the Native Title Act 1993, or other limited exceptions, government grants and actions after 1 January 1994 which affect native title are 'future acts.' This is significant because 'future acts' can only occur if they could be done on freehold land, are low impact future acts, are done offshore, or are the subject of a section 21 agreement. Additionally, some future acts for example, grants of mining rights are subject to the right to negotiate regime in the Native Title Act 1993.(20) It appears that, in the period since 1 January 1994, some State and Territory governments issued titles like mining leases without complying with the processes set down in the Native Title Act 1993.(21) Questions thus arise about the validity of those titles.

In the aftermath of Wik, the Government undertook consultations and produced a Ten Point Plan which is reproduced in the Explanatory Memorandum to the Native Title Amendment Bill 1997. The Ten Point Plan provides the framework for the Government's legislative response to Wik. The Native Title Amendment Bill 1997 seeks to give statutory expression to that Plan and to some of the amendments contained in the Native Title Amendment Bill 1996 (introduced in June 1996) and the October 1996 Exposure Draft amendments.

A considerable amount has been written about the Ten Point Plan. Among this is material issued by Senator Nick Minchin on 4 June 1997 entitled Federal Government's Response to the Wik Decision. The Ten Point Plan. The National Indigenous Working Group on Native Title has produced a package entitled Native Title & Wik. The Indigenous Position. Coexistence Negotiation and Certainty.

Main Provisions

Overview of the Native Title Act 1993

Item 2 of Schedule 1 repeals section 4(22) of the Native Title Act 1993 and substitutes proposed section 4 which provides an overview of the Act.

Racial Discrimination Act 1975

Present subsection 7(1) of the Native Title Act 1993 provides that the Act does not affect the operation of the Racial Discrimination Act 1975. However, present subsection 7(2) provides that the Racial Discrimination Act 1975 does not apply to the validation of 'past acts' under the Native Title Act 1993.

Item 3 of Schedule 1 rolls back the Racial Discrimination Act 1975 to permit the validation of 'intermediate period acts'.

Validation of intermediate period acts

Why have intermediate period acts been validated?

The Explanatory Memorandum for the Native Title Amendment Bill 1997 states:

On the other hand, ATSIC's June 1997 Commentary on the Ten Point Plan states:

Professor Garth Nettheim has expressed the problem in this way:

Intermediate period acts and their effect

Proposed subdivision B of Proposed Division 2A deals with intermediate period acts which are attributable to the Commonwealth.

Intermediate period acts are defined in proposed section 232A. In general, an intermediate period act is an act which:

• occurred between 1 January 1994 (the date on the which the Native Title Act 1993 took effect) and 23 December 1996 (the date of the High Court's Wik judgment) on land or waters where native title existed; and
• was wholly or partly invalid because of the existence of native title; and
• affected lands or waters at least part of which at any time was subject to a valid grant of freehold, leasehold (other than land on which only a mining lease had ever been granted) or on which a public work had been constructed.

The Explanatory Memorandum points out that 'as a general rule' acts done on vacant Crown land will not be validated, but this will occur if at least part of the land is or has been freehold or leasehold or occupied by a public work.(26) For example, a lease over vacant Crown land with no prior tenure history could be validated and could extinguish native title. This would occur if, for example, a 1995 lease also affected adjoining land (vacant Crown land or other tenure) which had been subject at some time (not necessarily currently) to a grant of freehold or to a lease or anything which described itself as a lease (such as an expired non-exclusive pastoral lease).

Intermediate period acts must not be 'past acts' that is, acts done in accordance with rights created by a past act before 1 January 1994. 'Past acts' are validated by the existing 'past acts' regime in the Native Title Act 1993.

If an act is both an intermediate period act and an act covered by proposed Division 2B (which deals with the past extinguishment of native title), then how native title is affected by the act is determined by Division 2B not Division 2A.(27)

Proposed section 22A validates intermediate period acts attributable to the Commonwealth.

Proposed section 22B deals with the effect of the validation of an intermediate period act attributable to the Commonwealth. What effect validation of an intermediate period act has depends on how the act is categorised.

The Explanatory Memorandum says that this provision is generally in the same form as the existing NTA regime dealing with validation of past acts using Categories A to D. Following Wik, only those agricultural or pastoral leases which are 'exclusive' have been placed in Category A. Other differences include the effective addition to Category A (the extinguishing category) of certain Crown to Crown and Crown to statutory authority grants(28), certain vestings, 'community purpose leases' and 'Scheduled interests', and the broadening of the definition of 'public works' and surrounding land. Grants to or for the benefit of Indigenous people are not Category A intermediate period acts. The regulations may provide for exclusion of an intermediate period act from Category A.

Proposed section 22C prevents the validation of intermediate period acts from detracting from non-native title rights of Indigenous people, or from reservations and conditions for the benefit of Indigenous people which attach to the act.

Category A intermediate period acts

Category A intermediate period acts include grants of freehold, Scheduled interests, commercial leases, exclusive agricultural leases, exclusive pastoral leases, residential leases, community purpose leases and leases (other than mining leases) conferring rights of exclusive possession.(29) A Category A intermediate period act extinguishes all native title at the time the grant or other act was done.

If the category A intermediate period act is the construction of a public work, then native title on the relevant land is taken to have been extinguished when the construction began. 'Public work' is given a new and broader definition in proposed section 253 and proposed section 251D extends the definition of land affected by construction of a public work.

There would appear to be an overlap between proposed section 22B and proposed section 23C. If that is the case, proposed section 23C prevails.

Category B intermediate period acts

Category B intermediate period acts are leases which are not Category A intermediate period acts, nor mining leases nor leases granted under legislation which grants interests in the land only for the benefit of Indigenous people (proposed section 232C).

In the case of a category B intermediate period act, native title is extinguished to the extent of any inconsistency between the native title and the act (proposed paragraph 22B(c)).

Category C intermediate period acts

A category C intermediate period act is the grant of a mining lease (proposed section 232D). A category C intermediate period act is subject to the non-extinguishment principle (proposed paragraph 22B(d)).

Category D intermediate period acts

A category D intermediate period act is an intermediate period act which does not fall into categories A to C (proposed section 232E). Like category C intermediate period acts, the non-extinguishment principle applies to category D intermediate period acts (proposed paragraph 22B(d)).

What is the non-extinguishment principle?

The non-extinguishment principle is defined in section 238 of the Native Title Act 1993. It means that if a grant is partly or wholly inconsistent with the enjoyment of native title, native title will continue to exist in its entirety but native title rights cannot be exercised, to the extent of the inconsistency, during the period of the grant.

What does extinguish mean?

'Extinguish' for the purposes of the legislation is now defined in proposed section 237A and means permanent extinguishment in other words, native title will not be able to revive at any future time for example, if the lease expires. In the Wik decision, the majority expressly left open the question of whether native title could revive upon the expiry of a grant. It is unclear why the Explanatory Memorandum which at page 10 sets out Point 4 of the Government's 10 Point Plan says:

And, indeed, the Explanatory Memorandum does say that 'Some of the Justices in Wik specifically left open the question' and that it is the policy of the Government to provide that extinguishment is permanent.(31)

Compensation and intermediate period acts

Proposed section 22D provides a compensation entitlement to native title holders for an intermediate period act attributable to the Commonwealth.

Proposed section 22E provides that where the invalidity of an intermediate period act attributable to the Commonwealth is due to a failure by the Commonwealth to acquire property on 'just terms' (as required by section 51(xxxi) of the Constitution), the native title holder is entitled to additional compensation if the compensation paid under Division 5 of the Act does not meet the 'just terms' requirement. This provision, like similar provisions in the Act, exists to ensure that section 51(xxxi) of the Constitution is not breached if the compensation provisions are not sufficient to satisfy its terms and because it is beyond the power of the Parliament to validate an action which is unconstitutional.(32)

Intermediate period acts and the States and Territories

Proposed Subdivision C deals with intermediate period acts attributable to the States or Territories. Proposed section 22F enables the States and Territories, by enacting laws that have the same effect as proposed sections 22B and 22C, to validate intermediate period acts attributable to them.

Proposed subsection 22G(1) provides that if a State or Territory law validates an intermediate period act, then the native title holders are entitled to compensation. Compensation is recoverable from the particular State or Territory.The top-up provision to ensure 'just terms' compensation which appears in proposed section 22E in relation to Commonwealth acts is not replicated in proposed Subdivision C for State and Territory acts. This is presumably due to the presence of section 53 in the existing Act.(33)

Previous exclusive possession acts and previous non-exclusive possession acts

Introduction

The Explanatory Memorandum explains the intent of the provisions contained in proposed Division 2B which is entitled 'Confirmation of past extinguishment of native title by certain valid or validated acts', in this way:

Proposed Division 2B provides that native title is entirely extinguished by what are defined as 'previous exclusive possession acts', while it is extinguished by 'previous non-exclusive possession acts' to the extent of the inconsistency.

The Native Title Act 1993 defined the effect on native title of validated grants only (generally understood to be those titles granted between 31 October 1975 and 31 December 1993 over native title land). For the majority of grants since 1788, the Act left it to the common law courts to determine the effect on native title. Thus, for example, the Wik decision by the High Court clarified that pre-1975 pastoral leases in Queensland did not necessarily extinguish native title at common law.

The Explanatory Memorandum says that leaving these issues to the common law has given rise to significant uncertainty and the purpose of proposed Division 2B in Part 2 is to limit this uncertainty. There is a question whether, in pre-empting the development of the common law in this way, the Act will go beyond what the courts would have decided and effect extinguishment. The Explanatory Memorandum says that proposed Division 2B is intended to reflect the common law. But the provision of compensation for extinguishment arising from "confirmation" where it would not otherwise have arisen demonstrates that there is a possibility that it travels beyond the common law.(35) The Explanatory Memorandum says that it is not expected that the compensation provisions will need to operate and have been included only as a safeguard in case the courts find that proposed Division 2B indeed does effect extinguishment.

To illustrate by example, while the NNTT does not accept applications for native title determinations over land covered by private freehold, it does accept applications for determinations over land where the freehold title is held by the Crown or a Crown instrumentality.(36) The courts are yet to determine whether a Crown to Crown grant of freehold land extinguishes native title. Division 2B provides that any freehold grant extinguishes native title, other than a grant for the benefit of Indigenous people. In another example, as stated earlier, the amendments including Division 2B are predicated on extinguishment meaning permanent extinguishment, whereas the High Court expressly left open in Wik the issue of whether native title might revive upon the expiry of a Crown grant.

Types of previous exclusive possession act

Proposed section 23B defines 'previous exclusive possession act.' There are basically four categories of previous exclusive possession act. These are:

• valid grants of freehold, certain leases and other interests made on or before 23 December 1996 (see proposed subsection 23B(2));
• acts done after 23 December 1996 but in the exercise of rights created before that date, and which, but for their timing, correspond to the definition of 'previous exclusive possession acts' (see proposed subsection 23B(6));
• valid construction of public works commencing on or before 23 December 1996 (see proposed subsection 23B(7));
• valid construction of public works commencing after 23 December 1996 when an earlier valid legislative act set aside the land for a particular purpose and the construction was done bona fide under or in accordance with the setting aside of the land (see proposed subsection 23B(8)). The Explanatory Memorandum provides, as an example of an act covered by proposed subsection 23B(8), the building of a public hospital commencing in 1998 on land reserved by the Crown for the purpose in 1987.(37)

It will be possible, by regulation, for the Government to add to the list of previous exclusive possession acts, further tenures which will extinguish native title by declaring them a Scheduled interest (proposed section 249C).

Exclusion of acts benefitting Indigenous people

Proposed subsection 23B(9) provides that an act is not a previous exclusive possession act if it is a legislative grant for the benefit of Aboriginal people or Torres Strait Islanders.

The effect of previous exclusive possession acts attributable to the Commonwealth

Proposed section 23C prescribes the effect that a previous exclusive possession act attributable to the Commonwealth will have on native title.If an act is a previous exclusive possession act (other than a public work), then native title is extinguished at the time the act was done.

Proposed subsection 23C(2) provides that, in the case of a previous exclusive possession act attributable to the Commonwealth which is a public work, native title on the land is extinguished and the extinguishment occurred when the construction or establishment of the public work began.

Preservation of beneficial reservations and conditions for Indigenous people

Proposed section 23D means that the extinguishment of native title as a result of a previous exclusive possession act by the Commonwealth does not remove reservations and conditions for the benefit of Aboriginal people or Torres Strait Islanders. Nor does it affect their non-native title rights.

Previous exclusive possession acts and the States and Territories

Proposed section 23E enables, but does not require, a State or Territory to legislate that previous exclusive possession acts attributable to it extinguish native title so long as such legislation contains provisions to the same effect as proposed sections 23C and 23D.

What is a previous non-exclusive possession act?

An act will be a previous non-exclusive possession act if it:

• is valid(38) and occurs on or before 23 December 1996 and consists of the grant of a non-exclusive agricultural lease or a non-exclusive pastoral lease (proposed subsection 23F(2)); or
• takes place after 23 December 1996 and would be a previous non-exclusive possession act if it had occurred on or before that date and is done in accordance with a legally enforceable right or gives effect to a good faith offer made on or before 23 December 1996 (proposed subsection 23F(3)).

The regulations may exclude an act from the previous non-exclusive possession act category (proposed section 23F(4)).

Previous non-exclusive possession acts attributable to the Commonwealth

Proposed section 23G provides that if a previous non-exclusive possession act is attributable to the Commonwealth then the act extinguishes(39) any native title rights and interests:

• to the extent that they are inconsistent with the act;
• which confer exclusive possession, occupation, use and enjoyment of the land or waters covered by the lease.

Extinguishment is taken to have occurred when the act was done (proposed paragraph 23G(1)(c)).

Proposed section 23G does not modify the extinguishment of native title arising from the existing 'past acts' regime in its application to validated agricultural and pastoral leases (see section 15(1)(a)).

Preservation of beneficial reservations and conditions for Indigenous people

Proposed section 23H means that the extinguishment of native title as a result of previous exclusive possession act by the Commonwealth does not remove reservations and conditions for the benefit of Aboriginal people or Torres Strait Islanders. Nor does it affect non-native title Indigenous rights.

Previous non-exclusive possession acts and the States and Territories

Proposed section 23I enables, but does not require, a State or Territory to legislate that previous non-exclusive possession acts attributable to itself extinguish native title if they do so in accordance with proposed sections 23G and 23H.

Compensation for extinguishment by previous exclusive possession and previous non-exclusive possession acts

Proposed section 23J gives native title holders rights to compensation for extinguishment of their native title rights by previous exclusive possession acts or previous non-exclusive possession acts 'but only to the extent (if any) that the native title rights and interests were not extinguished otherwise than under this Act.' Where the act is attributable to the Commonwealth, then the Commonwealth pays the compensation. Where the act is attributable to a State or Territory, then the State or Territory pays the compensation.

The Explanatory Memorandum notes that 'Division 2B (which deals with previous exclusive possession and previous non-exclusive possession acts) 'is intended to reflect the common law. Therefore it is not expected that section 23J will need to operate. It is intended as a safeguard in the event that a court finds that extinguishment under Division 2B goes further than the common law.'(40)

Future acts and native title

Future acts

The future acts regime was designed to achieve two of the principal objects of the Native Title Act 1993: (a) to protect native title and (b) to establish ways in which future dealings on native title land may proceed. The Explanatory Memorandum states that the future act amendments contained in the Bill are designed to implement Points 3 to 8 and Point 10 of the Ten Point Plan as well as incorporate changes proposed in the 1996 Exposure Draft.

The Bill proposes that existing Division 3 in Part 2 be entirely repealed along with certain definitions, and replaced by what the Explanatory Memorandum calls a 'substantially more comprehensive regime.'(41) Instead of a scheme based around 'permissible' and 'impermissible' future acts, the Bill creates 12 separate categories of validity for future acts. Detailed provisions have been introduced to give effect to three types of Indigenous land use agreement which can endow future acts with validity. Another category, for example, validates future acts on non-exclusive pastoral and agricultural leases, where they fall within the definition of 'primary production.'

The range of acts which are additionally subject to the right to negotiate regime would be reduced by the amendments and the general procedure associated with the right to negotiate would be altered, particularly to permit early Ministerial intervention. State and Territory governments would be given additional opportunity to opt out of the national right to negotiate scheme and develop alternative procedures for certain leased or reserved land (such as non-exclusive pastoral leases), where minimum requirements regarding compensation and procedural rights are met.

The purpose of the right to negotiate amendments is, according to the Explanatory Memorandum, 'to streamline the right to negotiate processes so that unnecessary delays are eliminated while maintaining the protection of the legitimate interests of native title holders and claimants.'(42) The Government emphasises the need for flexibility and integration with existing State and Territory processes. The National Indigenous Working Group on Native Title has expressed opposition to proposals which would limit the right to negotiate, arguing that the procedure 'enables Indigenous peoples to protect their culture, and participate in the development of economic activity.'(43)

It has been argued that changes to the right to negotiate are inconsistent with the Racial Discrimination Act 1975. The Explanatory Memorandum acknowledges that a difference of opinion exists over whether a standard of formal equality or substantive equality (which would allow relevant differences between groups to be expressed in law to achieve equality of outcomes) should apply. It says the Government's view is that the amendments fall within the discretion allowed to Parliament under either view. It also rejects the view that the changes to the right to negotiate involve an acquisition of property, but states that section 53 of the Native Title Act 1993 would ensure constitutional validity in any case.(44)

Access to the right to negotiate is restricted by the introduction of a new registration test which is dealt with below in relation to 'Management of Claims.'

Proposed Division 3 also contains provisions for access by registered native title claimants to areas covered by non-exclusive agricultural or pastoral leases (see below).

Future acts: if procedures indicate the absence of native title

Introduction

The Native Title Act 1993 makes provision for what are called non-claimant applications. A non-claimant application (NCA) enables a person to ask the NNTT for a determination that native title does not exist in relation to particular lands or waters. This has been described as a 'speak now or hold your peace' provision, at least to a limited extent. It applies in what has been called the pre-determination phase that is before an approved determination of native title has been made.

Under present section 24, a future act will be valid in an area if no one has applied to oppose the NCA within two months, so long as the future act occurs before any determination of native title is made. This validity is called 'section 24 protection.' Proposals to change section 24 were contained in the previous Government's Native Title Amendment Bill 1995 and in the present Government's Native Title Amendment Bill 1996.

Section 24FA protection

Proposed section 24FA provides that, pre-determination, if an area is subject to section 24FA protection, then a future act done in relation to the area is valid and remains valid even if in the future a determination is made that native title exists. If a future act extinguishes native title to any extent then the native title holders are entitled to compensation. Compensation is recoverable from the Commonwealth, a State or a Territory depending on who the act is attributable to.

Proposed section 24FA protection will arise in three situations. The protection applies at a particular time if:

• an NCA has been made by a government before that time and there is no relevant native title claim at the end of the notification period. The boundaries of a government NCA must be carefully drawn as section 24FA is, for governments, an all-or-nothing matter. If the original NCA is in part subject to a relevant native title claim, then no protection is available for any of the area (proposed section 24FB).
• the NCA is a non-government NCA, then the provisions are similar except that section 24FA protection can attach to part of the original land specified in the NCA even if a relevant native title claim is made over the other part. Similarly, protection can expand after the end of the notice period where the native title claim shrinks or is withdrawn or dismissed (proposed section 24FC).
• there is an entry on the Native Title Register that no native title exists in relation to the area (new section 24FD).

In the first two instances, the protection lasts until an approved determination of native title is made.

The expression 'relevant native title claim' is defined in proposed section 24FE. There will be a relevant native title claim if, at the end of the notification period for non-claimant applications, there is an entry covering the area on the Register of Native Title Claims or there is a entry on the Register after the end of the notification period but the application for registration was made before the end of the notification period in the circumstances specified (proposed paragraph 24FE(b)). In other words, Indigenous claimants will not be prejudiced if they lodge a claim in time but registration is held up in the Tribunal or on appeal until after the notification period expires.

Future acts and primary production

One of the purposes of the Bill's provisions dealing with primary production is to ensure that '... acts which permit or require primary production, or activities incidental to primary production, can be validly done over non-exclusive agricultural or non-exclusive pastoral leases in force on 23 December 1996.'(45) Future act provisions including the right to negotiate which might otherwise apply to this expansion of the leaseholder's rights have no application under the Bill.

How is 'primary production activity' defined?

'Primary production activity' is defined in proposed subsection 24GA. It includes cultivating land; maintaining, breeding or agisting animals; taking or catching fish or shellfish; forest operations;(46) horticultural activities;(47) aquaculture; leaving the land fallow or de-stocking it in connection with doing anything that is a primary production activity. 'Primary production activity' does not include mining.

If a valid non-exclusive pastoral lease(48) or a valid non-exclusive agricultural lease(49) was granted on or before 23 December 1996 and a future act (such as a grant of rights) occurs which permits primary production activity or incidental activity on the leased area, then the act is valid and the non-extinguishment principle applies (proposed subsections 24GB(1), (5) & (6)). There is an entitlement to compensation for native title holders. 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.

Future acts occurring after 23 December 1996 which permit farmstay tourism are covered unless the act permits tourism involving the observation of Indigenous activities or cultural works.

This provision does not permit upgrades to freehold or a lease for exclusive possession. The Explanatory Memorandum gives an example of future acts which are valid as a result of proposed section 24GB:

The issuing of licences, permits and authorities to carry out other 'primary production activities' would also be valid future acts as a result of proposed section 24GB. It appears from the Explanatory Memorandum at page 94 that approval to build tourist farmstay facilities on up to half of the lease would be permitted.

Proposed section 24GB can be contrasted with proposed section 24GC (see below). The former relates to legal acts such as the grant of licences or permits. The latter relates to physical activities. The orthodox view is that only government actions can be future acts and the Explanatory Memorandum comments that because proposed section 24GC activities are physical rather than legal in nature they are:

Proposed section 24GC relates to the carrying on of primary production and related activities on non-exclusive agricultural or pastoral leases and provides that the conduct of such activities after 23 December 1996 on a valid non-exclusive pastoral or agricultural lease which was granted on or before 23 December 1996 prevails over any native title rights and interests. Proposed subsection 24GC(3) provides that native title holders are not entitled to compensation for the carrying on of these activities.

Off-farm activities

Proposed section 24GD deals with future acts which permit off-farm activities that are directly connected to primary production activities. The section extends to cover grantees with freehold and exclusive pastoral and agricultural leases as well. Proposed section 24GD attaches validity to certain future acts which occur after 23 December 1996 which take place near or adjacent to valid freehold estates, agricultural leases or pastoral leases granted on or before 23 December 1996. The proposed future act cannot be the grant of a lease. The future act cannot prevent reasonable access to the area by native title holders. The non-extinguishment principle applies and compensation is payable to native title holders for the act.

The Bill does not refer to the current or past tenure status of the nearby land on which such activities can occur. In other words, the activities may occur, for example, on vacant Crown land.

Grants of rights to third parties on non-exclusive agricultural or pastoral leases

Proposed section 24GE deals with future acts which grant rights to third parties and others on non-exclusive agricultural or pastoral leases. It applies to certain future acts which take place after 23 December 1996 on land subject to valid non-exclusive agricultural or pastoral leases which were granted on or before 23 December 1996. Proposed section 24GE applies where:

• future acts confer a right on the lessee or a third party to cut and remove timber, extract and remove gravel, quarry for and remove rocks, obtain and remove sand, soil or other resources (but not so as to authorise mining); and
• before the act takes place, the person wishing to do the act notifies any Representative Body, registered native title body corporate or registered native title claimant and has given them the opportunity to comment on the act.

The future act cannot be the grant of a lease.

If proposed subsection 24GE(1) applies and its procedures are followed, then the future act is valid, the non-extinguishment principle applies and native title holders are entitled to compensation for the act.

A right to quarry is a right to mine under the Native Title Act 1993 and would currently attract the right to negotiate.

Management of water and airspace

Proposed section 24HA deals with future legislative and non-legislative(52) acts in relation to management or regulation of surface and subterranean water, living aquatic resources or airspace. Such future acts are valid, the non-extinguishment principle applies and native title holders are entitled to compensation for the future act.

Water can be either onshore or offshore but does not include the bed or subsoil beneath the water, which is covered by proposed subdivisions M and N.

In these circumstances, any activity permitted by a requirement or permission in a future act prevails over any native title rights and interests, the existence of native title rights does not prevent the activity from being carried out and native title holders are not entitled to compensation for the doing of the activities (proposed sections 44H).

This implements Point 8 of the 10 Point Plan. The current Act at section 212 permits among other things the confirmation of certain existing rights in relation to water. The Bill would authorise future acts which have prospective effect. Native title rights in relation to water on- and off-shore are currently the subject of testing before the courts. Even if native title is proved to exist in certain water, this subdivision would mean that the relevant future acts could validly occur without reference to them other than creating an entitlement to compensation. The Government's policy position, as set out in the 10 Point Plan, is that such government and private rights should be put 'beyond doubt.'

Pre-existing right-based acts and permissible lease etc renewals

The purpose of proposed sections 24IA to 24ID is to provide that certain renewals, extensions and upgrades of leases etc and certain rights which will be created are valid.

It has similarities to sections 25 and 235 in the current Act but also some differences including:

• it expands the category of earlier acts to include those which occurred in the intermediate period (that is, basically, between 1994 and 1996 inclusive);
• it permits a renewal to expand the range of activities to encompass primary production.

What is a 'pre-existing right-based act?

Proposed section 24IB deals with and defines what are called pre-existing right-based acts. Under proposed section 24IB, a future act is a 'pre-existing right-based act' if it takes place in the exercise of a valid, legally enforceable right created by any act done on or before 23 December 1996 or in giving effect to a offer made in good faith on or before 23 December 1996 and evidenced in writing.

What is a 'permissible lease etc. renewal'?

Future acts which are 'permissible lease etc renewals' are the renewal, re-grant, re-making or extension of the term of a valid lease, licence, permit or authority:

• where the original lease etc was granted on or before 23 December 1996 or the grant of the original lease etc was a permissible lease etc renewal or a pre-existing right-based act or the original lease etc was created by an act covered by proposed sections 24GB, 24GD, 24GE or 24HA;(53) and
• the future act does not confer a right to exclusive possession or otherwise create a larger proprietary interest than was created by the original lease or create a proprietary interest where previously only a non-proprietary interest existed; and
• if the original lease etc was subject to a reservation in favour of Indigenous people, the renewed lease etc is subject to the same reservation; and
• if the original lease etc did not permit mining, the renewed lease etc does not permit mining.

Proposed subsection 24IC(4) sets out the features which do not prevent a lease etc from being regarded as a renewal, re-grant, re-making or extension of the term of the original lease etc. for example, where there is a new authority which covers a smaller area than the old authority, or the new authority has a longer term than the old authority, or the new authority permits a primary production activity or related activity, or the new authority creates a perpetual lease.

The consequences of an act being a pre-existing right-based act or a 'permissible lease etc. renewal'

Where there is a 'pre-existing right-based act' or a 'permissible lease etc renewal', then it is valid. If a 'pre-existing right-based act' is a pre-Wik right to convert to freehold or some other form of exclusive possession, then native title is extinguished. If it is a 'permissible lease etc renewal' or a 'pre-existing right-based act' which does not consist of a grant of freehold or exclusive possession, then the non-extinguishment principle applies. Compensation is payable for the act (proposed section 24ID).

Future acts and reservations, leases etc

Proposed Subdivision J deals with land or waters which have been reserved by governments for a particular purpose. It also deals with leases granted by a government to a statutory authority for the use of land or waters for a particular purpose.

Brennan J in Mabo [No.2] said that native title would survive the reservation of land for a public purpose. He said that whether subsequent use for that purpose extinguished native title depended on whether it was inconsistent with native title. The Government believes that land set aside in the past should be able to be used in the future even if native title exists over it. The Bill would therefore prevent the future act regime standing in the way of this subsequent use. The present Act has a similar effect in subsection 228(9). But the Bill extends the definition of an earlier reservation to cover the intermediate period and allows the later act to include legislative action. It would also allow subsequent use for a different purpose, where this would entail no greater impact on native title.

Proposed Subdivision J provides that if a valid earlier act reserved land for a particular purpose then a later act done in good faith which fulfilled that purpose would be valid. Relevant use of the leases by statutory authorities would also be valid. The Bill provides three examples of later acts which would be valid under this provision.

If the future act is the construction or establishment of a public work, then native title is extinguished on the land or waters from the time the construction or establishment of the public work began. If the act is not a public work, then the non-extinguishment principle applies. Native title holders are entitled to compensation.

Similarly, if a valid earlier act was done by a government and consisted of the grant of a lease to a statutory authority to use land or waters for a particular purpose, then a future act done in good faith for that purpose is valid.

Facilities for services to the public

Proposed section 24KA relates onshore to facilities for services to the public which include such things as roads, railways, bridges, jetties, pipelines. The construction, operation or repair of such a facility by governments or anyone else will be valid if:

• native title holders maintain defined access to the land;
• native title holders have the same procedural rights as a freeholder, or a leaseholder where the act occurs on a non-exclusive agricultural or pastoral lease; and
• site protection laws apply.

The Government says that native title should not inhibit the provision of basic services. Currently, the Act would require the procedural rights of freeholders to apply in all cases.

The non-extinguishment principle applies to the act and compensation is payable to native title holders in the circumstances specified.

In relation to acts covered by proposed section 24KA, native title holders have the following procedural rights:

• if the land is covered by a non-exclusive agricultural or pastoral lease then they have the same procedural rights they would have if they held a lease of that kind;
• in any other case they have the same procedural rights, if any, as someone holding ordinary title.

Low impact future acts

A low impact future act is a pre-determination future act which has minimal effect on native title. Under the current Act it can proceed without further ado, the non-extinguishment principle applies and compensation is not payable (subsections 23(4), 235(8) and section 234). Two additions have been made to the definition of a low impact future act in the Bill. Otherwise the Bill reproduces the existing provisions.

Acts passing the freehold test

Introduction

Currently, the general body of onshore future acts is valid if they comply with what is called the freehold test. Legislation which puts native title holders in no worse a position than ordinary titleholders is basically valid. Non-legislative future acts which could have been done if the native title holders were instead freeholders are also valid. The Bill introduces many more categories whereby future acts can secure validity without necessarily complying with the freehold test. The validity of some future acts, however, will continue to be determined by the application of the freehold test.

Some of these future acts are, in addition, dependent for validity on the operation of the right to negotiate provisions or substitute procedures set out in proposed subdivision P. Putting those to one side, proposed subdivision M states that acts which pass the freehold test are valid. Where a freeholder has procedural rights in relation to the act, so too does the native title holder. Different procedural rights apply if the act relates to particular forms of mining activity set out in proposed sections 26A (approved exploration acts), 26B (approved gold or mining acts) and 26C (opal or gem mining).

If the act involves compulsory acquisition of native title and non-native title rights in the land then extinguishment can occur and compensation on just terms is payable. For any other act, the non-extinguishment principle applies and compensation is recoverable either from the relevant government or from the person who requested the act. A lessee of a non-exclusive agricultural or pastoral lease, however, is excused from such liability which could only fall on the relevant government.

The Bill

Proposed subdivision M applies only to onshore places and to certain future legislative acts, non-legislative acts or the creation or variation of a right to mine for opals or gems. More details about proposed subdivision M are provided below.

Legislative acts and the freehold test

A legislative act will pass the freehold test and be valid (subject to the right to negotiate) if it:

• applies to native title holders in the same way that it would if they held ordinary title; or
• does not put native title holders in a more disadvantageous position than ordinary title holders (proposed section 24MA).

Non-legislative acts and the freehold test

A non-legislative act will pass the freehold test and be valid (subject to the right to negotiate) if it:

• could be done in relation to land if the native title holders held ordinary title to the land; or
• could be done in relation to waters if the native title holders held ordinary title to the land adjoining or surrounding the waters; or
• consists of the creation or variation of a right to mine gems or opals (proposed subsections 24MD(1) and (2)).

Acts passing the freehold test and the rights of native title holders

Proposed subsection 24MD(6) specifies the procedural rights held by native title holders if a future act passes the freehold test. They have the same procedural rights in relation to the act which they would have had if they had held ordinary title to the land or the land adjoining or surrounding the waters affected by the act unless :

• the act is one covered by the right to negotiate; or
• the act is determined to be an approved exploration act under proposed section 26A; or
• the act is determined to be an approved gold or tin mining act under proposed section 26B; or
• the act is covered by proposed section 26C (which deals with opal or gem mining).

What are the consequences for native title if an act passes the freehold test?

If an act is covered by proposed Subdivision M, then the non-extinguishment principle applies(54) unless the act is a compulsory acquisition which satisfies the criteria set out in proposed paragraphs 24MD(2)(a) & (b). To satisfy those criteria a compulsory acquisition of native title:

• must be carried out under a Commonwealth, State or Territory law which permits both the compulsory acquisition of native title rights and interests and the compulsory acquisition of non-native title rights and interests; and
• must be accompanied by the acquisition of non-native title rights and interests.

In these circumstances, nothing in the Native Title Act 1993 prevents the compulsory acquisition from extinguishing all or part of the relevant native title rights and interests.

Compensation and acts which pass the freehold test

Compensation for the compulsory acquisition of native title is provided for (proposed paragraphs 24MD(2)(d) & (e)).

Who is responsible for paying the compensation is set out in proposed subsections 24MD(4) & (5). Importantly, if the native title is compulsorily acquired over land or waters which 'to any extent' are the subject of a non-exclusive agricultural lease or a non-exclusive pastoral lease, then the native title holders are not entitled to recover the compensation from the lessee. Instead, compensation is payable by the Commonwealth, the State or the Territory, depending on whom the act is attributable to.

In the case of acts covered by proposed Subdivision M which are not compulsory acquisitions of native title on land or waters which 'to any extent' are subject to a non-exclusive agricultural lease or a non-exclusive pastoral lease, then compensation is payable either by the Commonwealth, the State or the Territory to whom the act is attributable or by the person who is legally responsible when they request the future act to be done.

Acts affecting offshore places

Proposed section 24NA deals with future acts affecting offshore places. The expression 'offshore place' is defined in section 253 of the Native Title Act 1993. It means any waters beyond the limits of a State or Territory to which the Act extends. An example would be submerged lands in the coastal sea over which petroleum licences may be granted.

Future acts affecting the offshore are valid. A future act which is a compulsory acquisition will be able to extinguish native title wholly or partly if it:

• is done under a Commonwealth, State or Territory law which enables both native title and non-native title rights and interests to be compulsorily acquired; and
• acquires the whole or equivalent part of both sets of rights.

If the future act affecting an offshore place is not a compulsory acquisition, then the non-extinguishment principle applies.

Compensation provisions are set out in proposed subsections 24NA(5) & (6). If the future act is done under a Commonwealth, State or Territory law which provides that a person requesting the act to be done is liable, then that person is liable. In any other case, compensation will be payable by the Commonwealth, the State or the Territory (depending on who the act is attributable to).

If a future act affects an offshore area and also affects native title rights, then native title holders have the same procedural rights as they would have had if 'they instead held any corresponding rights and interests in relation to the offshore place that are not native title rights and interests'. The Explanatory Memorandum gives the following as an example:

The right to negotiate

Introduction

Under the Native Title Act 1993, a right to negotiate applies to certain permissible future acts. These acts are set out in existing section 26 and are basically acts in relation to mining and the compulsory acquisition of native title under a Compulsory Acquisition Act where the purpose of the acquisition is to confer interests in the property on persons other than the Government.

For Indigenous people, the right to negotiate is regarded as an inherent part of their native title rights to control access to their land rather than as something which has been granted to them.(56) In 1994, the Commonwealth Attorney-General's Department explained the existence of the right to negotiate in this way:

The right to negotiate does not apply under the present Native Title Act 1993 if there are no registered native title holders or registered native title claimants within two months of notification of the proposed act. In this situation, the act can proceed. Nor does it apply if an act is covered by present section 25 (where there is a legally enforceable right to renew an interest in land or waters which arose prior to 1 January 1994). Additionally, certain grants which have a minimal impact on native title can be excluded from the right to negotiate by the Commonwealth Minister.(58)

In cases where the right to negotiate operates, if negotiations are not completed within the time limits set, then arbitration occurs and there is the possibility of Ministerial override.

In his Second Reading Speech on 4 September 1997, the Attorney-General said that the right to negotiate has impeded resource and commercial development, without giving Indigenous people substantial benefits in return.

In summary, the Native Title Amendment Bill 1997 makes the following significant changes to the right to negotiate procedure:

• it removes or potentially removes a range of future acts from the right to negotiate;
• in some instances (eg exploration) it specifies procedures to apply to certain acts so removed;
• it permits Ministers to commence the process at an earlier stage than currently possible;
• it alters time limits by extending the notice period, and contracting the minimum period for negotiations and recommended period for arbitrations which relate to mining production;
• it both expands and possibly contracts the obligation to negotiate in good faith;
• it amends the criteria to be taken into account by an arbitral body;
• it enables the Commonwealth Minister (and, in certain circumstances, a State or Territory Minister) to intervene in the right to negotiate process before arbitration is concluded or, in other cases, commences;
• it inserts provisions dealing with the de-recognition of alternative State or Territory provisions;
• it provides for States and Territories to implement different sets of alternative procedures on 'leased or reserved land';
• in certain circumstances it provides a once-only right to negotiate in relation to mining projects (at present, the right to negotiate applies to both the exploration and production stages of a mining project and separately in relation to each act attracting the right to negotiate).

Access to the right to negotiate is also affected by the new registration test which is discussed below in relation to 'Management of Claims.'

When does the right to negotiate apply under the NTAB 1997?

Proposed section 26 sets out when the right to negotiate applies. Proposed subsection 26(1) provides that the right to negotiate applies to a future act if:

• the act is the grant or variation of a mining right or a compulsory acquisition of native title rights done to confer rights or interests on third parties (but not for the purpose of providing an infrastructure facility) or any other act approved by the Commonwealth Minister in writing; and
• the act is done by a Government party ie the Commonwealth, a State or a Territory: and
• new Subdivision M (dealing with acts that pass the freehold test) applies to the act.

What exceptions are there to the right to negotiate?

Proposed subsection 26(2) sets out what acts are not covered by the right to negotiate even if they meet the requirements of proposed subsection 26(1). The acts excluded are:

• future acts done in accordance with an indigenous land use agreement but only where the agreement states that the right to negotiate is not to apply; or
• acts covered by proposed section 24FA ie future acts where procedures indicate an absence of native title; or
• acts covered by proposed section 24GB ie acts permitting primary production on non-exclusive agricultural or non-exclusive pastoral leases; or
• acts covered by proposed section 24GD ie acts permitting off-farm activities directly connected to primary production activities; or
• acts covered by proposed section 24GE ie acts granting rights to third parties etc on non-exclusive agricultural or non-exclusive pastoral leases; or
• acts overed by proposed section 24HA ie acts which deal with the management and regulation of water and airspace; or
• acts covered by proposed section 24IA ie acts involving certain lease renewals, extensions and upgrades; or
• acts covered by proposed section 24JA ie acts involving government reservations of land or waters for particular purposes, or
• acts covered by proposed section 24KA ie acts involving facilities for services to the public; or
• acts covered by proposed section 24LA ie low impact future acts; or
• approved exploration acts under proposed section 26A; or
• an act which is an approved gold or tin mining act under proposed section 26B; or
• an act covered by proposed section 26C which deals with opal or gem mining; or
• an act covered by proposed section 26D which deals with renewals of valid mining leases etc; or
• an act relating solely to land or waters wholly within a town or city (proposed section 251C). The expression 'town or city' is defined in proposed section 251C.

What is an approved exploration etc. act?

Proposed section 26A sets out the criteria that must be satisfied before the Commonwealth Minister can determine that an act or each act in a class of acts is an approved exploration etc act. These criteria are that:

• the act(s) consist of rights to explore, prospect, fossick or quarry (ie other sorts of mining are not included); and
• the Minister considers that the act(s) are unlikely to have a significant impact on the land or waters concerned ( note simply because the act authorises drilling, does not mean that this condition cannot be satisfied); and
• the Minister has notified any relevant Representative Body and the public of the proposed determination, invited submissions from them and considered those submissions; and
• the Minister is satisfied that if the determination is made, all relevant registered native title bodies corporate, registered native title claimants and Representative Bodies will have certain procedural rights. Thus, they must have a right to be notified that the act is to be done. They must also have a right to be heard before an independent body, if anyone else with an interest in the land or waters has such a right. Finally, procedures must be in place to require consultation by the grantee with registered native title bodies corporate and claimants etc. The consultation should particularly relate to site protection, access to grantees and how other impacts will occur.

A determination made under proposed section 26A(1) must be revoked if the Commonwealth Minister considers that circumstances have changed to the extent that the criteria are no longer satisfied. If the act or acts are done by the Commonwealth, then the Commonwealth Minister must revoke the determination in writing. If the acts are done by a State or a Territory, then the Minister must provide the State or Territory Minister with written notification and if, after 90 days or 'such longer period as the Commonwealth Minister allows,' the conditions in proposed section 26A are still not satisfied, then the Commonwealth Minister must revoke the determination.

What is an approved gold or tin mining act under the NTAB 1997?

Proposed section 26B deals with approved gold or tin mining acts. Proposed subsection 26B(1) provides that if certain requirements are met, then the Commonwealth Minister may make a written determination that each act included in a class of acts done by a State or Territory is an approved gold or tin mining act and thus exempt from the right to negotiate. These requirements are that:

• the relevant State or Territory Minister has requested the Commonwealth Minister to make the determination; and
• the acts in the class are rights to mine gold or tin in surface alluvium; and
• it is a legal requirement in the particular State or Territory that such gold or tin must be extracted by a washing process; and
• under the law of the particular State or Territory the person with the mining right will be required to rehabilitate the land or waters; and
• the Commonwealth Minister has notified any relevant representative native title bodies and the public of the proposed determination, invited submissions and considered any submissions made; and
• the Minister is satisfied that if the determination is made, all relevant registered native title bodies corporate and claimants, and Representative Bodies will have certain procedural rights. Thus, they must have a right to be notified that the act is to be done. They must also have a right to be heard before an independent body, if anyone else with an interest in the land or waters has such a right. Finally, procedures must be in place to require consultation by the grantee with registered native title bodies corporate and claimants etc. The consultation should particularly relate to site protection, grantee access and how the act will be done.

Proposed subsection 26B(9) provides that if the Commonwealth Minister considers that circumstances have changed to the extent that the criteria in proposed section 26B would no longer be satisfied, then he or she must notify the relevant State or Territory Minister in writing. If at the end of 90 days (or such longer period as the Commonwealth Minister allows), the requirements of proposed section 26B would still not be met, then the Commonwealth Minister must revoke the determination in writing.

What constitutes excluded opal or gem mining under the NTAB 1997?

Proposed section 26C deals with excluded opal or gem mining. The creation or variation of a mining right will be excluded from the right to negotiate provisions if it:

• relates solely to land or waters wholly within an approved gem or opal mining area; and
• only allows mining for gems or opals in an area no larger than 5 hectares for a period of no more than five years; and
• if the right can be renewed it is renewable for no more than 5 years on each occasion.

If these conditions apply and the conditions set out in proposed subsections 26C(3) to (5) are met, then the Commonwealth Minister can make a written determination that land or waters are an approved opal or gem mining area. The conditions are that:

• the relevant State or Territory Minister has requested the Commonwealth Minister to make the determination; and
• the Commonwealth Minister is satisfied, on the basis of past mining rights granted and any other relevant matter, that in the future some small scale opal or gem mining rights will be granted; and
• before making the request to the Commonwealth Minister, the relevant State or Territory Minister has notified the public and any relevant registered native title bodies corporate and claimants, and Representative Bodies that he or she proposes to make such a request, and has invited submissions about the request and considered any submissions made.

Revocation provisions like those applying to gold or tin mining are provided in proposed subsection 26C(6).

What other mining acts are excluded from the right to negotiate under the NTAB 1997?

Certain mining renewals, extensions etc are excluded from the right to negotiate process by proposed section 26D. These are acts consisting of the creation of a right to mine if:

• the creation of the right is done by the renewal, re-grant or re-making of an earlier right to mine or the extension of the term of an earlier right to mine; and
• the earlier right to mine was created by an act which complied with new subdivision P; and
• the area to which the earlier right to mine relates is not extended.

Nor does the right to negotiate apply to the grant of a mining right if it is done after the right to negotiate has applied to the granting of an exploration or prospecting right and the conditions of any agreement or determination made at the end of the right to negotiate process have been met a conjunctive agreement or determination. As the Explanatory Memorandum states at page 166, this subsection 'ensures that "conjunctive" agreements can be negotiated where the parties agree.' It also ensures that conjunctive determinations can be imposed to create a single right to negotiate.

Right to negotiate processes

Introduction

Under the Native Title Act 1993, certain processes must be adhered to if a future act attracts the right to negotiate. Certain future acts do not attract the right to negotiate under the Native Title Act 1993 (see above). Presently, where a proposed act does not directly interfere with the community life of native title holders or involve a major disturbance to land or waters it can proceed through an expedited process.(59)

Where it does operate, the right to negotiate is not a veto.(60) Under the Native Title Act 1993, the parties have 4 months from notification to negotiate an agreement if the act will allow exploration and six months in any other case. If agreement is not reached within these time frames, then any party can apply to the NNTT or a recognised State/Territory body for arbitration. The arbitral period should not exceed six months and there is provision for Ministerial override.

The NTAB 1997

Proposed section 28 provides that an act which is subject to the right to negotiate is invalid to the extent that it affects native title unless, before it occurs, one of the following requirements is met. These requirements are:

• at the end of three months after the notification day, there is no native title party for any of the land or waters that will be affected by the act; or
• after the end of three months, but immediately before the act is done, there is no native title party in relation to any of the land or waters that will be affected by the act. This provision is explained at page 134 of the Explanatory Memorandum; or
• no objection has been made within three months to an expedited procedure notice; or
• a determination has been made that the act attracts the expedited procedure; or
• native title parties who lodged objections to an expedited procedure notification have withdrawn their objections; or
• an agreement has been reached among the negotiation parties about whether the act should be done; or
• a Ministerial determination has been made that the act can be done (with or without conditions); or
• the Minister has overruled an arbitral body determination that the act cannot be done.

The Bill confines the invalidity of an act in breach of proposed section 28 to the extent that it affects native title.

Proposed section 29 sets out how and to whom a Government party must give notice of a future act to which the right to negotiate applies. A notice must specify a day as the notification day and state that persons have three months after this day to take steps to become native title parties under proposed section 30. Under proposed subsection 29(8) the notice may give notice of two or more acts. If these acts are part of a project to be carried out in a specified area and the arbitral body is the same for each act and the notice states that the acts are 'project acts' for the purposes of Subdivision P, then the acts are 'project acts.' 'Project acts' cannot attract the expedited procedure.

Normal negotiation procedures

Proposed section 31 deals with normal negotiation procedures. If the notice does not include a statement that the Government party considers that the act attracts the expedited procedure, then the Government party must give all native title parties an opportunity to make submissions about the act. Additionally, all negotiation parties must negotiate in good faith. However, good faith does not require a negotiation party to negotiate about matters which are unrelated to the effect of the act on native title rights interests.

The expedited procedure

Proposed section 32 deals with the expedited procedure which is a 'fast track' procedure to deal with acts which have minor impacts on native title. The expedited procedure enables future acts which attract the right to negotiate to be carried out without negotiation in the circumstances set out in proposed section 32 (which largely re-enacts existing section 32). If the Government party considers that an act attracts the expedited procedure, then this is stated in its section 29 notice. A native title party then has three months to lodge an objection. If no objection is lodged then the Government party can do the act. If objections are lodged by a native title party, then the arbitral body must decide whether the act attracts the expedited procedure. A native title party may withdraw their objection and if all objections are withdrawn then the act can proceed. A Government party may withdraw its statement that it considers the act attracts the expedited procedure and in this case the normal negotiation procedures apply.

In response to a Federal Court case, the Bill widens the 'fast track' exemption from the right to negotiate. An act which is not likely to interfere directly with the 'physical aspects of' community life will be able to attract the expedited procedure. In Ward v. Western Australia,(61) the Federal Court dealt with the existing provision which speaks of interference with community life and found that it could encompass spiritual aspects of community life. Instead, the Bill would permit an act which has effects on spiritual attachment but not the physical enjoyment of native title to still attract the expedited procedure.

The other requirements for the expedited procedure to apply are that it is not likely to interfere with significant traditional sites and is not likely to involve major disturbance to land or waters.

Who is a native title party?

A native title party is a registered native title body corporate,(62) a registered native title claimant, or an indigenous person or body who becomes a registered native title holder or claimant within three months after notification (proposed paragraphs 29(2)(a) and (b) and proposed section 30).

What can negotiations encompass?

Negotiations may include the insertion in an agreement of what is essentially a royalty condition. This re-enacts existing subsection 33(1). Proposed subsection 33(2) provides that negotiations can also take account of existing non-native title rights and interests, existing use of the land or waters by non-native title parties, and the practical effect of the exercise of existing rights, interests and uses on the exercise of any native title rights and interests.

Determinations about future acts made by an arbitral body

Proposed section 27 re-enacts existing section 27 of the Native Title Act 1993 which defines an arbitral body. It additionally provides that when exercising arbitral functions, the NNTT should not include a serving judge.

Proposed section 35 sets out when an application can be made to an arbitral body for a determination under proposed section 38.(63) An application can only be made if:

• at least four months have elapsed since the section 29 notice was given; and
• there has been no agreement reached under the normal negotiation procedures; and
• there has been no section 34A Ministerial determination made.

In the case of mining grants for production, proposed subsection 35(2) reduces the minimum time limits for negotiation before a party can seek arbitration. It would be the same as for exploration permits 4 months from the notification day. The Bill has extended the period for lodgment of a claim from 2 to 3 months in recognition of the registration test and its detailed requirements (proposed subsection 29(4)). The minimum negotiation period may thus reduce to one month, depending on when lodgment occurs and when parties apply for arbitration.

Current section 36 directs the arbitral body to take all reasonable steps to decide an arbitration within 4 months for an exploration tenement and 6 months for a production tenement or compulsory acquisition. Proposed section 36 instead directs the arbitral body reasonably to determine the matter 'as soon as practicable.' The Bill also provides that a determination must be made even if the parties have not negotiated in good faith, apart from the party which has applied for the arbitral determination. In 1996, the Federal Court case of Walley v. Western Australia(64) held that a matter could not proceed to arbitration where the existing 'negotiation in good faith' obligation had not been complied with by the relevant party in that case, the government.

Proposed subsection 36(4) provides that the relevant Minister may, within the specified circumstances, request the arbitral body to make a determination within a specified period. That period cannot be less than 4 months after the application for arbitration was originally made.

Proposed section 39 sets out the matters that must be considered by an arbitral body when making a determination. Some of these are criteria are re-statements of existing section 39. However, there are also some changes. For example, existing sub-paragraph 39(1)(a)(i) requires the arbitral body to consider the effect of the future act on 'any native title rights and interests.' Criteria dealing with impacts on the natural environment have been removed although such matters can be considered under proposed paragraph 39(1)(f)(65) which refers to 'any other matter that the arbitral body considers relevant.' Proposed paragraph 39(1)(d) has no equivalent in existing section 39. Proposed paragraph 39(1)(d) requires the arbitral body to take into account any economic or other detriment to any person other than a native title party if the act is not done.

Proposed section 39(2) is also significant. When considering the effect of the proposed act on the enjoyment of determined or claimed native title and the social and other interests of native title parties, the arbitral body must also take account of non-native title rights and interests in the land or waters and the use of the land or waters by non-native title parties.

The arbitral body must ascertain if there is agreement on any relevant issues and, with the consent of the parties, take that agreement into account in making a determination. To the extent the agreement relates to particular section 39 criteria, the latter need not be taken into account (proposed subsection 39(4)).

Proposed section 41 sets out the effect of an arbitral body determination or an agreement made under the right to negotiate processes. Such a determination or agreement binds the negotiation parties and all members of an affected native title claim group as if it were a contract between them. This provision re-enacts existing section 41. However, proposed subsection 41(3) differs from existing subsection 41(3). Under proposed subsection 41(3), if the arbitral body is the NNTT it cannot determine compensation. Compensation is determined either by agreement or by the Federal Court. However, an arbitral body can make it a condition of a determination that an amount be held in trust.

Ministerial determinations when a future act is considered to be urgent and significant

This is the first of two opportunities for a Minister to intervene in the right to negotiate process and decide himself or herself whether the future act will proceed. These opportunities are in addition to the existing right of the Minister to override an arbitral determination at the end of the process.

Proposed section 34A allows for determinations by the 'relevant Minister' in relation to certain future acts which attract the right to negotiate process. The expression 'relevant Minister' is defined in proposed section 27A. The effect of proposed section 27A is that where a State or Territory has a recognised State/Territory body as an arbitral body, then a State or Territory Minister can make a section 34A determination. Until then, only the Commonwealth Minister can make a section 34A determination.

A determination under proposed section 34A:

• cannot be made until at least three months have elapsed since the section 29 notice was given and the consultations specified in proposed section 36B have been carried out;
• cannot be made if the matters set out in proposed subsection 34A(2) exist for example, if there has been an agreement negotiated under the normal negotiation procedures contained in section 31 or if the native title holders would not enjoy the procedural rights of a freeholder.

A section 34A determination that the act can proceed cannot be made unless the Minister considers that:

the act is likely to be of substantial economic benefit to Australia; and

if the determination is not made at the time the benefit will be substantially reduced or not arise; and

if the act is done the native title holders will gain significant benefits.

Additionally, if the relevant Minister is a State or Territory Minister, then the Minister must consider that it is in the interests of the State or Territory to make the determination at the time. If the relevant Minister is the Commonwealth Minister, then he or she must consider that the act is in the national interest and, if the act is attributable to a State or Territory, that it is in the interests of the State or Territory to make the determination at the time.

A section 34A determination that the act cannot proceed cannot be made unless, if the relevant Minister is a State or Territory Minister, he or she considers that it is in the interests of the State or Territory to make the determination at the time; or, if the relevant Minister is the Commonwealth Minister, the decision must be taken in the national interest and, if the act is attributable to a State or Territory, in the interests of the State or Territory.

The relevant Minister can also consider other matters when deciding whether to make a determination.

A copy of the section 34A determination and the reasons for it must be tabled within 15 sitting days in the relevant legislature. However, the determination is not a disallowable instrument.

Ministerial determinations specifically during the arbitration phase

Proposed section 36A deals with the situation where the arbitral body determination is delayed. In this situation, the relevant Minister may make a determination in relation to the future act if:

• the arbitral body has not made a determination within the period specified in the Minister's section 36(4) notice; and
• an agreement has not been made under the normal negotiation processes of the Act; and
• the relevant Minister has not made a section 34A determination; and
• the requirements of section 36B (see below) are met.

If these pre-conditions are met, then the Minister can only make the determination if he or she considers that:

• an arbitral body determination is unlikely to be made within a reasonable period having regard to all the circumstances; and
• if the relevant Minister is a State or Territory Minister it is in the interests of the State or Territory to make the determination at the time; and
• if the relevant Minister is the Commonwealth Minister that it is in the national interest to make the determination at the time and, if the future act is attributable to a State or Territory that it is in the interests of the State or Territory to make the determination at the time.

The relevant Minister can also consider matters other than those set out above when deciding whether to make a section 36A determination.

Proposed section 36B sets out the consultation requirements which must be met by the relevant Minister before he or she makes a determination under proposed section 34A or proposed section 36A. The relevant Minister must give notice to the arbitral body requiring it, by a specified date, to provide the Minister and each negotiation party a summary of the material presented to it. In addition, the Minister must give notice to each negotiation party that he or she is considering making a determination under section 34A or 36A. Negotiation parties may make submissions to the Minister and must give copies of those submissions to other negotiation parties. If the Minister has complied with the notice provisions, then there is no requirement that any person be given a further hearing before the Minister makes the determination. In making the determination, the Minister must take account of the material provided by negotiation parties and any report provided by the arbitral body and may also take account of any other matter.

Proposed subsection 36C(2) provides that the Minister does not have to make a section 34A or 36A determination. Where the Minister does make such a determination, he or she must do so personally and cannot delegate the task. A determination may be that the future act cannot be done, can be done or can be done subject to conditions. As to contractual effect and compensation, the same provisions apply as to an arbitral body determination. If a determination is made, then a copy of the determination must be tabled, together with the reasons for the determination, in the relevant legislature. However, the determination is not a disallowable instrument.

Ministerial override of arbitral body determinations

Proposed section 42 provides for Ministerial override of arbitral body determinations and largely re-enacts section 42 of the Native Title Act 1993 enabling such a determination to be overruled in the national interest or in the interests of a State or Territory and declaring that the future act is able to proceed, cannot proceed or can proceed subject to conditions.

State or Territory alternatives to the right to negotiate

Proposed section 43 largely re-enacts existing section 43 of the Native Title Act 1993. Existing section 43 enables States and Territories to set up their own right to negotiate regime if certain requirements are satisfied. If those requirements are satisfied, then the Commonwealth Minister makes a determination which, while in force, means that the Native Title Act right to negotiate provisions are replaced by the State or Territory regime. The requirements which must be satisfied are largely re-produced in proposed section 43 one of the changes from existing section 43 is that the alternative State or Territory regime can make provision for Ministerial determinations like those under proposed sections 34A and 36A (as long as these are subject to the requirements set down in proposed sections 36B and 36C). Another is that the alternative scheme may apply to only some of the future acts attracting the right to negotiate in a State or Territory.

Proposed subsection 43(3) provides that if the provisions of a State or Territory regime are amended so that they no longer comply with the Commonwealth checklist, then the Commonwealth Minister must advise the State or Territory Minister of the fact. If at the end of 90 days, or such longer period as the Commonwealth Minister allows, those provisions still do not comply, the Commonwealth Minister must revoke the determination.

A second set of alternative State/Territory procedures applying to leased or reserved land

The Bill creates in proposed section 43A an additional opportunity for States and Territories to design alternative procedures to the right to negotiate. These would apply to 'leased or reserved land.'

If the Commonwealth Minister determines that a State or Territory regime which applies to leased or reserved areas (as defined) meets certain criteria, then that alternative regime replaces the Native Title Act right to negotiate regime on leased or reserved areas.

The expression 'leased or reserved area' is defined in proposed subsection 43A(2) as:

• an area that is or was covered by freehold or leasehold over which all native title rights and interests have not been extinguished; or
• an area that is or was covered by a reservation, proclamation etc made by the Crown under which the land or waters were to be used for public purposes generally or a particular purpose and the area was or is used for the public purpose or the particular purpose or for a similar purpose.

The criteria that must be met are:

• where the alternative State or Territory provisions relate to the compulsory acquisition of native title in a leased or reserved area in order to confer rights and interests on persons other than the Government party (other than for the purpose of providing an infrastructure facility) they must give native title holders the same procedural rights as freeholders;
• where the alternative State or Territory provisions relate to a 'non-exclusive area' they must give native title holder procedural rights equivalent to those conferred on the freeholder or leaseholder and must make provision for compensation to native title holders;
• in any other case they must contain appropriate provisions for notifying registered native title bodies corporate, registered native title claimants and potential native title claimants and give them the right to object and be heard and make provision for compensation.

A State or Territory can develop different procedures for different kinds of land or waters under this section.

The Commonwealth Minister must notify the State or Territory Minister if the alternative provisions are amended and no longer comply. If, after 90 days or such longer period as the Minister allows, the alternative provisions still do not comply, then the Commonwealth Minister must revoke the determination. Compulsory acquisitions cannot occur under these provisions if part of the land involved is not leased or reserved land. But mining grants can be split in the same situation, so that the right to negotiate and the alternative procedures operate side by side (proposed section 43B).

Statutory access rights for registered native title claimants to non-exclusive agricultural land and non-exclusive pastoral leases

Certain access rights to non-exclusive agricultural land and non-exclusive pastoral leases for traditional activities are conferred on a person(66) if the conditions set out in proposed section 44A are met. These conditions are that the person:

• is in a native title claim group which has a registered claim relating 'to any extent' to an area covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease; and
• as at the end of 23 December 1996, the person in the native title claim group themselves had regular physical access to the area covered by both the claim and the lease for the purposes of carrying out a traditional activity or is descended from a person who had regularly had such physical access as at 23 December 1996.

  The expression 'traditional activity' is defined in proposed section 44A(4) as hunting, fishing, gathering, camping, performing rites or other ceremonies, or visiting sites of significance but only where these activities are 'carried on for traditional purposes of Aboriginal people or Torres Strait Islanders.' The access and pursuit of traditional activities is confined in manner and extent to that which the relevant person had regularly enjoyed as at 23 December 1996.

  Any rights of access for traditional activities are subject to the rights of the lessee or any person with non-native title rights or interests in relation to the traditional access area.

  Proposed subsection 44B(3) provides that the lessee or any person with non-native title rights or interests in the traditional access area can come to an agreement with the person in the native title claim group about how their rights of access for traditional activities can be carried out or varied. Assistance in making such agreements can be requested from the NNTT or a recognised State/Territory body. Mediation can also be sought from the NNTT or a recognised State or Territory body if a dispute arises about such rights and all the parties agree to mediation.

  The Bill emphasises that access rights do not amount to native title rights. Further, no native title rights can be enforced by any person in relation to any part of the leased land while statutory access rights are in force. Any right provided under the Act such as the right to negotiate will continue in force.

  Proposed section 44D provides that Subdivision Q does not affect reservations, conditions, access rights or heritage protection provided under existing law.

Indigenous Land Use Agreements

Introduction

The Native Title Act 1993 says little about making enforceable agreements about what can happen on native title land. Section 21 of the Native Title Act 1993 makes provision for native title holders to make agreements with government to surrender their native title rights and interests or to authorise any future act which will affect their native title. Such agreements may be given for any lawful consideration or subject to any conditions. Subsection 21(4) says that native title holders may make such agreements on a regional or local basis.

The Native Title Amendment Bill 1997 makes provision for three different types of Indigenous land use agreement (ILUA). These are body corporate agreements, area agreements and alternative procedure agreements and are described below.

An act done pursuant to an ILUA is one of the 12 categories of valid future acts set out in proposed section 24AA. An ILUA can, by consent, authorise the by-pass of the right to negotiate process where it would otherwise apply.

Indigenous land use agreements (body corporate agreements)

A body corporate ILUA is a post-determination agreement a term which is explained below.

What must be contained in a body corporate agreement?

Proposed section 24BB sets out what must be included in a body corporate ILUA. The agreement must be about one or more of a number of listed matters which include the doing of future acts, native title applications to the Federal Court, the relationship between native title and non-native title rights and interests, how native title and non-native title rights are to be exercised, the extinguishment of native title rights and interests by surrender to the Commonwealth, a State or a Territory, or 'any other matter concerning native title rights and interests in relation to the area.'

Proposed section 24BE provides that a body corporate agreement can be made for any lawful consideration and subject to any lawful conditions.

Who are the parties to a body corporate agreement?

Proposed section 24BC states that to be a body corporate agreement, there must be registered native title bodies corporate in relation to the whole of the area covered by the agreement in other words, the whole of the area must be subject to a determination or determinations that native title exists. Thus it is a post-determination agreement.

The parties to a body corporate agreement must include all registered native title bodies corporate in the relevant area. If the agreement includes provision for the extinguishment of native title by its surrender to the Commonwealth, a State or a Territory, then the Commonwealth, State or Territory must be a party to the agreement. Any other person, including the Commonwealth, a State or a Territory may be a party to the agreement (proposed section 24BD).

Registration of body corporate agreements

If all the parties to the agreement agree, then a party can apply to the Registrar for the agreement to be registered on the Register of Indigenous Land Use Agreements. The Registrar must then give notice of the agreement under proposed section 24BH to those listed in proposed subsection 24BH(1) including the public.

A party to the agreement has one month in which to advise the Registrar that the party does not want the body corporate agreement registered in the absence of such an objection the agreement must be registered. The effect of registration is dealt with below.

Indigenous land use agreements (area agreements)

An area agreement ILUA must be, at least in relation to part of the land, a pre-determination agreement.

What must be contained in an area agreement?

An area agreement cannot be made if registered native title bodies corporate exist in relation to all of the area (proposed section 24CC) in other words, an area agreement cannot be made if there has been a determination or determinations that native title exists in all of the area.(67) An area agreement can cover any of the matters covered by a body corporate agreement and, additionally, can deal with access rights to non-exclusive agricultural and pastoral leases for registered native title claimants (proposed section 24CB).

Proposed section 23CE provides that an area agreement may be made for any lawful consideration and be subject to any lawful conditions.

Who are the parties to an area agreement?

The parties to an area agreement must include all those in the 'native title group' as defined in proposed subsections 24CD(2) & (3).(68) Such agreements do not necessarily depend on the existence of a registered native title claim. The parties may include any other person and, if the agreement provides for the extinguishment of native title by surrender to the Commonwealth, a State or a Territory, then the Commonwealth, State or Territory must be a party to the agreement.

Registration of area agreements

If all the parties to an area agreement agree, then a written application can be made to the Registrar for the agreement to be registered on the Register of Indigenous Land Use Agreements [proposed subsection 24CG(1)]. The registration application must be certified by all Representative Bodies for the area or include a statement that all reasonable efforts have been made to identify those who may hold native title in the area and that all of the persons so identified have authorised the making of the agreement. The notice requirements for area agreements are similar to those for body corporate agreements but include some additional elements and there is a three month notice period.

Where an area agreement ILUA was certified by a Representative Body, objections to registration of the agreement must be lodged during the notice period. To dismiss an objection, essentially the Registrar must be satisfied that the issues of identification and authority have been satisfactorily dealt with by the Representative Body.

Where the agreement is not certified by the Representative Body, objections will take the form of registration of a native title claim during the notice period. Essentially, the Registrar must not register an agreement if a native title claimant who obtained registration within the time specified in proposed subsection 24CL(2) is not a party to the agreement, or if the Registrar is not satisfied on the issues of identification and authority.

Indigenous land use agreements (alternative procedure agreements)

An alternative procedure ILUA could be entirely a pre-determination agreement and must be so at least in relation to part of the land.

What must be covered in an alternative procedure agreement?

Alternative procedure agreements can deal with any one or more of the following: the doing of future acts, native title applications to the Federal Court, the relationship between native title rights and interests and other rights and interests, how native title and non-native title rights are to be exercised, any other matter concerning native title rights and interests in relation to the area, and access rights for registered native title claimants to non-exclusive agricultural and pastoral leases. Alternative procedure agreements can also be about providing a framework for the making of other agreements about native title (proposed section 24DB). Alternative procedure agreements cannot contain provisions about the extinguishment of native title (proposed section 24DC).

There must be at least one registered native title body corporate or one Representative Body for the area. However, an alternative procedure agreement cannot be made if there are registered native title bodies corporate in relation to all the land and waters in the area (proposed section 24DD).

An alternative procedure agreement can be made for lawful consideration or subject to lawful conditions.

Who are the parties to an alternative procedure agreement?

All persons in the native title group(69) and all relevant governments must be a party to an alternative procedure agreement. Any other person, including any registered native title claimants and any person claiming to hold native title in the area, can be a party to the agreement (proposed subsection 24DE(4)).

Registration of alternative procedure agreements

If all the other parties to an alternative procedure agreement agree, any party to the agreement can make a written application to the Registrar for the agreement to be registered on the Register of Indigenous Land Use Agreements (proposed section 24DH). The Registrar must then give notice in the required way to any of those listed who are not parties to the agreement the Commonwealth Minister, any relevant State or Territory Minister, any local government body for the area, any other person considered appropriate by the Registrar, and the public (proposed subsection 24DI(1)).

Within the notice period (three months) any person claiming to hold native title in the area can lodge an objection to registration on the grounds that it would not be fair and reasonable (proposed section 24DJ). If a condition specified in proposed subsection 24DL is satisfied then the Registrar must register the agreement. If none of the conditions is satisfied, then the Registrar cannot register the agreement. The conditions specified in proposed subsection 24DL(2) are that no objections have been lodged, or that any objections lodged have been withdrawn, or that although objections have been lodged and not withdrawn the objectors have not satisfied the NNTT or a recognised State or Territory body that it would be unfair or unreasonable to register the agreement.

Effect of registration of indigenous land use agreements

A registered land use agreement has contractual effect on the parties to the agreement and also binds any native title holders in the area covered by the agreement (proposed section 24EA). This applies for as long as the ILUA remains on the Register.

Effect of registration on future acts covered by indigenous land use agreements

Proposed section 24EB provides that if a future act is carried out in accordance with an indigenous land use agreement then that act is valid to the extent that it affects native title in the following circumstances:

• there are details of the agreement on the Register of Indigenous Land Use Agreements including a statement that the parties consent to the act being done;
• if the agreement authorises an act which would otherwise attract the right to negotiate, the agreement contains a statement that the right to negotiate is not intended to apply to the act;
• if the act is the surrender of native title, then the agreement must state that the surrender is intended to extinguish native title.

The non-extinguishment principle applies to an indigenous land use agreement unless the agreement provides for the surrender of native title.

Where a body corporate agreement exists, then for those acts specified in proposed subsection 24EB(4) there is no compensation entitlement under the Native Title Act for future acts done in accordance with the agreement other than compensation provided for in the agreement. There are similar provisions in relation to area agreements and alternative procedure agreements with some variations.

Register of Indigenous Land Use Agreements

Proposed section 199A provides for a Register of Indigenous Land Use Agreements which must be established and kept by the Registrar.

The contents of the Register are set out in proposed section 199B. If the Registrar is required to register an agreement, then the Register must contain a description of the area covered by the agreement, the name and address of each party to the agreement, the period during which the agreement will operate (if this is specified), and any statements in the agreement that the parties have agreed to the doing of an act or that the parties have agreed that the right to negotiate will not apply to certain acts.

Proposed section 199C requires the Registrar to remove the details of an indigenous land use agreement from the Register in specified circumstances these circumstances vary to some extent, depending on whether the agreement is a body corporate agreement, an area agreement or an alternative procedure agreement. For example, in the case of a body corporate agreement, the details must be removed if an approved determination of native title is made in relation to any of the area covered by the agreement and the persons determined to hold native title are not the same as those who had previously been determined to hold it. Fraud, undue influence or duress are other grounds for the Federal Court to order removal of the agreement from the Register.

Proposed section 199D provides that, subject to proposed section 199E, the Register must be available for inspection by members of the public during ordinary business hours on payment of the prescribed fee.

Proposed subsection 199E(1) provides that parties to an agreement may advise the Registrar that they do not wish some or all of the details of the agreement to be inspected by the public. In this case, the part of the Register containing those details cannot be made available for public inspection. However, proposed subsection 199E(2) provides that the information required to be in the Register as a result of proposed section 199B(1) is not caught by the confidentiality provision.

National Native Title Tribunal dealing with ILUA objections

Item 36 of Schedule 2 amends section 139 of the Native Title Act 1993 by adding to the NNTT's inquiry functions. One of the Tribunal's functions is to inquire into an objection to the registration of an alternative procedure indigenous land use agreement.

Proposed subsection 141(4), which is inserted by item 39 of Schedule 2 specifies that the parties to a paragraph 139(d) inquiry are the objector, the parties to the agreement and any other interested person.

Item 41 of Schedule 2 inserts proposed subsection 151(2) into the Native Title Act 1993. It enables the NNTT to make a determination about an objection to the registration of an alternative procedure indigenous land use agreement or a right to negotiate application 'on the papers' that is without hearing from the parties in person. However, the parties must be heard in person 'if it appears to the Tribunal that the issues for determination cannot be adequately determined' in their absence.

Item 47 of Schedule 2 repeals existing subsections 169(2) and (3) and substitutes proposed subsection 169(2). The new provision enables a party to an inquiry about the registration of an indigenous land use agreement to appeal to the Federal Court on a point of law from a decision of the NNTT.

Repeal of section 12 of the Native Title Act 1993

Item 1of Schedule 2 repeals section 12 of the Native Title Act 1993.(70) Section 12 reads: 'Subject to this Act, the common law of Australia in respect of native title has, after 30 June 1993, the force of a law of the Commonwealth.' Section 12 was the only provision of the Native Title Act 1993 which was found to be invalid by the High Court in the Native Title Act Case. It was struck down by the Court on the grounds that there were constitutional impediments to the common law being treated as a law of the Commonwealth. Their Honours said:

The Court held that the invalidity of section 12 did not affect the validity of any other provision of the Native Title Act 1993.(72)

Sunset clause

Item 3 of Schedule 2 inserts proposed subsection 13(1A) which is a sunset clause. It means that no application for a native title determination can be made to the Federal Court more than 6 years after the commencement of proposed subsection 13(1A). Proposed subsection 13(1A) will commence on proclamation. However, if no proclamation has been made within 9 months of the legislation receiving Royal Assent, it will commence on the first day after the expiration of that period.(73) The sunset clause will presumably not prevent common law native title claims being made, it only prevents the making of native title determination applications under the Native Title Act 1993 after the expiry of the sunset clause.

Item 9 of Schedule 2 inserts proposed subsection 50(2A) which provides that compensation applications cannot be made more than 6 years after the commencement of the subsection or 6 years after the act was done (whichever occurs later).

Management of claims

The NTAB 1997 Summary of provisions relating to the management of claims

The amendments grouped in Part 8 of the Explanatory Memorandum under the heading of 'Management of Claims' encompass a variety of amendments affecting applications for compensation and determination of native title, as well as applications relating to future acts. Some provisions flow from the Government's response to the Brandy decision (discussed above), which has been to transfer several functions from the NNTT to the Federal Court. The Explanatory Memorandum notes that many of these amendments were included in the previous Government's Native Title Amendment Bill 1995 which lapsed at the last General Election. The amendments, however, range far more widely than the implications of Brandy.

The main features of those amendments are:

• applications. The existing Part 3 of the Act has been repealed and replaced with provisions which prescribe rules for various applications to the Federal Court and the NNTT. The rules prescribe who may make applications, what they must contain, how they may be amended, where they cannot be made, how they are brought to the notice of others, how overlapping claims are dealt with and what roles the NNTT must or may fulfil.
• Federal Court proceedings. Substantial amendments to Part 4 are proposed. Existing section 82 emphasises informality in the conduct of Federal Court proceedings, but the amendments would appear to alter the tenor of that provision. Provision is made for who is a party, for parties to appoint agents, for parties to apply for the striking out of applications and for each party to ordinarily bear its own costs. Because the Court would supervise mediation after lodgment, Part 4 contains provisions defining the purpose of mediation as well as the circumstances in which it will occur and be brought to an end. Part 4 also deals with agreements and unopposed applications, transferring the relevant functions from the NNTT under the Native Title Act 1993 to the Federal Court.
• State and Territory bodies which would supplant the Federal Court and/or the NNTT. The checklist for approval of a recognised State/Territory body is amended in various ways and renumbered as proposed section 207A. An additional opportunity for 'equivalent State/Territory bodies' to displace NNTT functions is created in proposed section 207B.
• the National Native Title Tribunal. With the transfer of functions to the Federal Court following the Brandy decision, it is proposed to give the NNTT additional mediation, assistance and record-keeping functions. It would hear objections against Indigenous Land Use Agreements (ILUAs) and decide whether they should be registered. Such inquiries as well as right to negotiate applications may be heard 'on the papers'. Consultants may be appointed by the President to mediate or assist conflict of provisions would apply. The Bill contains confidentiality provisions which are similar to the current Act. Finally, proposed Division 4A provides some general rules for the conduct of mediation conferences.
• legal aid. Provisions for financial assistance to respondents have been expanded to cover participation in a mediation, negotiations and objections in relation to ILUAs, and negotiations relating to statutory access rights. Representative Bodies will generally be the sole source of funding for indigenous claimants in their areas.
• registration test. The registration test does not operate as a barrier to the pursuit of a native title claim. An application for a native title determination which fails the registration test may continue to be pressed in the Federal Court. Instead the registration test determines the access of claimants to the right to negotiate procedure. Only registered native title claimants have the right to negotiate over compulsory acquisitions and mining acts. The registration test also affects access to other entitlements under the Act such as access rights to a pastoral lease under proposed Subdivision Q in Part 2 Division 3. The Bill introduces a registration test with multiple conditions, each of which must be satisfied before registration will occur.
• definitions. A number of new and reworded definitions relating to the management of the claims are contained in the Bill, mainly inserted in sections 222 and 253.

Native title determination applications and compensation applications

Proposed section 61 requires native title determination and compensation applications to be made to the Federal Court and sets out who can make those applications. In relation to claimant applications, applications must be made by a person authorised by the native title claim group. The expression 'authorise' is defined in proposed section 251B.

Proposed section 61A sets out when native title determination applications cannot be made. For example, an application cannot be made over an area covered by an approved determination. Additionally, a claimant application cannot be made on areas subject to a previous exclusive possession act (defined in proposed section 23B). Nor can claimants claim exclusive possession in applications over previous non-exclusive possession act areas.

Proposed section 62 sets out the information and other material which must accompany a claimant application. Claimant applications must satisfy these formal requirements.

Proposed section 62 adds to the material which must accompany an application for a native title determination. Thus, the applicant must attest that he or she is the person authorised by the claimant group to make the application and the basis of the authorisation. Further requirements are set out in proposed subsection 62(2). These include descriptions identifying the claim and a map of the claim area, details of searches made to determine the existence of non-native title rights and interests in the area, a description of the native title rights and interests claimed, a general description of the factual basis of the claim, any activities currently carried on by the claim group on the land, details of any other native title applications made over the area and details of any relevant section 29 notices.

Proposed section 63 provides that when applications for native title determinations or compensation are filed in the Federal Court, they must be given to the Native Title Registrar as soon as practicable.

Proposed subsection 66(2) provides that the Registrar must then notify the relevant State or Territory Minister of the application and forward the application and other relevant documents. Proposed subsection 66(3) lists other notifications which must be made. These include the Commonwealth Minister, relevant registered claimants or native title corporations, any relevant local government body, anyone with a proprietary interest in relation to the area, and any other person whose interests may be affected by a determination if the Registrar considers it appropriate.

Proposed subsection 67(1) provides that if there are overlapping applications for a native title determination, the Federal Court must make orders to ensure that they are dealt with in the same proceedings.

Proposed subsection 68 provides that the Federal Court must, in general, only make one determination of native title in relation to a particular area.

Proposed section 69 provides that an applicant for a native title determination may make an application for a review of a decision by the Registrar not to accept a claim for registration.

Provision of assistance by the Registrar

Proposed subsection 78(1) adds to the assistance that may be provided by the Registrar. At present, the Registrar can assist 'people prepare applications and accompanying material.' Proposed subsection 78(1) will also permit the Registrar to 'help other people, at any stage of a proceeding, in matters relating to the proceeding.'

Proposed subsection 78(3) provides that, in the absence of special reasons, the Registrar must not assist the Commonwealth, a State or a Territory by conducting searches of registers or other records maintained by the Commonwealth, a State or a Territory.

Operations of the Federal Court and rules of evidence

Item 20 of Schedule 2 repeals existing Division 1 of Part 4 of the Native Title Act 1993 and substitutes a proposed Part dealing with rules for processing native title applications and making native title determinations in the Federal Court.

Existing section 82 deals with the Federal Court's way of operating. It provides that the Court:

must provide a mechanism of determination that is fair, just, economical, informal and prompt;

must take account of the cultural and customary concerns of Aboriginal and Torres Strait Islander people when conducting proceedings, and

is not bound by technicalities, legal forms or rules of evidence when conducting proceedings.

Proposed section 82 provides that the Court:

• is bound by the rules of evidence except to the extent that it orders otherwise;
• may take account of the cultural and customary concerns of Aboriginal and Torres Strait Islander people but 'not so as to prejudice any other party to the proceedings.'

A similar amendment in proposed subsection 109(2) would affect the NNTT's way of operating.

Parties to native title determination applications

Proposed section 84 deals with parties to native title determination and compensation applications (section 61 applications). Justice French has stated that the use of the words ' in relation to ' rather than 'in any of the area', when referring to those with a registered proprietary interest, will widen the scope of the provision. This occurs in proposed subparagraph 66(3)(a)(iv) and also affects the question of who is a party. Proposed subsection 84(4) provides that a relevant State or Territory Minister will be a party to the proceedings unless he or she notifies the Federal Court in writing that he or she does not want to be a party.

Proposed section 84A provides that the Commonwealth Minister may intervene at any time in proceedings under the Act by giving written notice to the Federal Court. Costs may be awarded against the Commonwealth if it intervenes.

Proposed section 84B provides that a party may appoint a body to act as agent in proceedings. The same body may act as agent for 2 or more parties in the same proceedings.

Proposed section 84C sets out the circumstances in which a party to proceedings may apply to the Federal Court for a strike out order. The circumstances are that the application does not comply with sections 61, 61A or 62. However, the section does not preclude the institution of other strike out applications.

Proposed subsection 85A provides that unless the Federal Court orders otherwise, a party must bear his or her own costs.

Mediation

Introduction

There are mediation provisions in the present Native Title Act 1993 and, in practice, the NNTT now acts primarily as a mediation body. The Native Title Amendment Bill 1997 contains expanded and clarified mediation provisions.

The purpose of mediation

Proposed section 86A sets out the purpose of mediation. In relation to proceedings not involving compensation, this includes assisting the parties to reach agreement on matters relating to the existence of native title in the claim area, who holds any native title, the nature and extent of native title and other interests, the relationship between native title and non-native title rights and interests and whether native title rights and interests confer exclusive possession.

Proposed subsection 86A(2) sets out the purpose of mediation in proceedings involving a claim for compensation. This includes assisting the parties to reach agreement on the above matters, the amount or kind of compensation, who is entitled to compensation, how the quantum of compensation is to be determined and a dispute resolution mechanism for compensation entitlements.

When mediation will occur and when it can cease

Proposed section 86B requires the Federal Court to refer all native title and compensation determination applications to the NNTT unless an order is made that there be no mediation. Such an order can be made on application by a party to the proceeding or on the Court's own motion. The Court must order that there be no mediation if it considers that mediation will be unnecessary, if there is no likelihood that the parties will be able to reach agreement on the matters listed in proposed sections 86A or because the applicant has not provided sufficient detail about them.

Proposed subsection 86B(4) lists the matters that the court must take account of when deciding to make an order that mediation not occur. These matters include the number of parties, the number of parties who have appointed the same representative, how long it is likely to take to reach an agreement, the size of the area, the extent of any relevant non-native title rights and interests and any other relevant factor.

A matter may be subsequently referred back in whole or in part by the Court to the NNTT for mediation.

Proposed section 86C provides that the Court may, of its own motion, order that mediation cease if it considers that further mediation is unnecessary or there is no likelihood of the parties reaching agreement on the matters listed in proposed section 86A. After 3 months from the start of mediation, a party to the proceedings can apply for an order that mediation cease. The court must order that mediation cease if the applicant is the applicant for a native title claim or compensation determination or if the applicant is the Commonwealth, a State or a Territory unless it is satisfied that the mediation is likely to achieve its purpose. If any other party makes an application for the cessation of mediation, then the Court may make such an order unless satisfied that mediation is likely to achieve its purpose. In deciding whether to make an order that mediation cease, the Court must consider any report provided by the NNTT about the mediation.

Proposed section 86D provides that the Federal Court can determine a question of fact or law referred to it by the NNTT at any time during the mediation.

Mediation Conferences

Proposed section 136A provides that the National Native Title Tribunal may hold mediation conferences if the Federal Court refers a matter to it for mediation. Anything said or done at a mediation conference cannot be used in the Federal Court unless the parties agree.

Proposed section 136B provides that the presiding member at a mediation conference can direct that only some of the parties or their representatives attend and may, in certain circumstances, exclude parties or their representatives. A party can be represented at a mediation conference by a barrister, solicitor or other person.

Proposed section 136D enables a question of law or fact to be referred to the Federal Court by the presiding member of mediation conference in the circumstances specified.

A mediation conference must be held in private [proposed section 136E].

A presiding member can prohibit the disclosure of what was said or done at a mediation conference [proposed section 136F].

When a mediation is successfully concluded, the presiding member must provide a written report to the Federal Court setting out the results of the mediation, including any facts which were agreed between the parties. A progress report must be provided to the Federal Court if the Court so requests and can be provided to the Court if the presiding member considers it would assist the Court in progressing the proceeding to which the mediation relates (proposed subsections 136G).

Regulations, consistent with the Act, may be made relating to how the NNTT is to provide assistance or mediation (proposed section 136H).

Agreements and unopposed applications

In the light of the Brandy decision, it is proposed that agreed and unopposed native title determinations will be made in the Federal Court. The current provision for registration in the Court of National Native Title Tribunal determinations will disappear with the repeal of Subdivision E of Division 5 of Part 6.

Proposed section 86F provides that parties may negotiate on an application being withdrawn or amended, the parties to the proceeding being varied or anything else being done in relation to the application. This agreement may involve matters other than native title. The NNTT can assist the parties in negotiating the agreement and the Federal Court can adjourn the proceedings to allow time for negotiations.

If an application for a native title determination or compensation is unopposed after three months (ie the end of the notification period), the Court may make an order consistent with the terms sought by the applicant. If the order is a determination of native title, it must comply with the matters mentioned in proposed section 225 (proposed section 94A see below).

The Court may also make an order where, after the end of the notification period, the parties come to an agreement about the terms of an order. Once again, if the order is a determination of native title, it must comply with the matters mentioned in proposed section 225 (proposed section 94A). The Court must also be satisfied that the order is within its power.

Proposed section 225 defines a 'determination of native title' to be a determination of whether or not native title exists in relation to a particular area of land or waters and, if it does exist, who holds the native title, its nature and extent, the nature and extent of other interests in the area, the relationship of native title and non-native title rights and interests, and whether, if the land and waters are not subject to a non-exclusive agricultural lease or a non-exclusive pastoral lease, the native title rights and interests amount to exclusive possession, occupation, use and enjoyment of the land or waters.

National Native Title Tribunal staff and consultants

Item 33 of Schedule 2 inserts proposed section 131A which enables the President of the NNTT to engage consultants to provide assistance or mediation. A person can only be engaged as a consultant if the President considers that he or she has particular skills or knowledge substantially relevant to the mediation and, as far as reasonably practicable, has special knowledge of Aboriginal and Torres Strait Islander societies.

A consultant must disclose any conflict of interest which he or she has in relation to the assistance or mediation which he or she is providing and not perform those tasks without the consent of the President and the persons to whom assistance or mediation is being provided (proposed section 131B). Conflict of interest is defined (proposed section 131B).

Proposed section 181 prevents Tribunal officials from being required to give evidence or produce documents contrary to non-disclosure directions of the Tribunal [proposed section 181].

Financial assistance from the Attorney-General

Item 53 of Schedule 2 repeals existing section 183 and replaces it with proposed section 183. Proposed section 183 enables the Attorney-General to grant assistance to a person who is a party to a native title inquiry or proceeding, or to mediation, negotiations, inquiries or proceedings about ILUAs or negotiations about statutory access rights. Proposed subsection 183(3) enables the Attorney-General to make assistance available to a person who is not eligible to receive assistance from another source (like a Representative Body) and where it is reasonable in all the circumstances to do so. Proposed subsection 183(5) states that the Attorney-General cannot make assistance available to the Commonwealth Minister or a State or Territory Minister. Proposed subsection 183(6) prevents the Attorney-General from granting assistance to native title claimants and all those included in a native title claim group.

Registration test and registration procedures

Item 62 repeals subsection 188(2) of the Native Title Act 1993. The effect is to lift the confidentiality which currently applies to the names and addresses of native title claimants (other than the nominated applicant).

The Register of Native Title Claims must include details of claims accepted for registration under proposed section 190A and the details of claims that have passed an equivalent registration test under State or Territory legislation.

Proposed section 190A sets out the registration test for native title claims. A claim which passes the registration is registered on the Register of Native Title Claims. Registration enables the claimant to access certain things contained in the Act such as the right to negotiate or access to non-exclusive agricultural or pastoral leases described in proposed section 44B. The Registrar must consider a claimant application in accordance with proposed section 190A. If a relevant section 29 notice is issued while the Registrar is considering the claimant application, then the Registrar must attempt to finish considering the claim by the end of three months from the section 29 notification date.

In applying the registration test, the Registrar must consider the information in the application and any accompanying documentation, any information obtained by the Registrar from tenure searches, information obtained from the Commonwealth, and a State or Territory that is relevant to deciding whether the claim satisfies the registration criteria. The Registrar may also consider any other information he or she considers appropriate. This can include previous and current non-native title interests in the claim area.

The comments about the High Court's Waanyi decision at pages 4-5 in the Background section of this Digest are relevant to these amendments.

Proposed subsection 190A(6) provides that the Registrar must accept a claim for registration if that claim satisfies all of the criteria in proposed section 190B and proposed section 190C.

The conditions that must be satisfied under proposed section 190B are that the information and maps supplied with the application enable the claimed land or waters to be identified with certainty; the members of the native title claim group are named or described so that it can be ascertained whether a particular person is in the group; the native title rights and interests claimed are identified; the description of the factual basis of the claim is sufficient to support the assertion that the claimed rights and interests exist; that, prima facie, each of the native title rights and interests claimed can be established; that at least one member of the native title claim group has or had a traditional physical connection with the claimed area; and that section 61A(74) does not preclude the application being made. The Registrar must not be aware that the claim involves mineral rights owned by the Crown or certain offshore place rights.(75) Further, the Registrar must not be aware that the native title rights and interests claimed have been extinguished.

Proposed section 190C specifies the procedural and other conditions which must be met in order for a claim to be registered. The application must satisfy the technical requirements of proposed sections 61 and 62. Further, the Registrar must be satisfied that no person included in the native title claim group was a member of a claim group in a previous overlapping application, that the application has been certified by the relevant Representative Body or, if the application is not so certified, that the applicant is a member of the claim group and authorised to make the application and has set out briefly the grounds for these assertions.

Representative Body certification arises when a Representative Body is satisfied that the applicant has authority to make the application and all reasonable steps have been taken to ensure that all members of the native title group have been identified (proposed paragraph 202(5)(d)). The word 'authority' is defined in proposed section 251B.

Under proposed section 190D, if the Registrar does not accept the claim then the applicant and the Federal Court must be notified and given reasons. The applicant may apply to the Federal Court for a review of the decision not to accept the claim.

Item 67 repeals paragraph 193(2)(d) of the Act and substitutes proposed paragraph 193(2)(d). The amendments relate to what is to be included on the National Native Title Register. Proposed paragraph 193(2)(d) provides that the information is to include whether or not native title exists on the land and waters covered by a determination, if native title does exist who the common law holders of native title are, and if native title has been determined to exist and the name and address of any body corporate which holds the native title.

Equivalent State and Territory Bodies

Section 251, which establishes a checklist for approval of a recognised State and Territory body by the Commonwealth Minister, has been amended in some respects, and re-numbered as proposed section 207A. The requirement for consultation with the Commonwealth about non-judicial appointments would be removed. Other changes would incorporate the Commonwealth's proposed registration test in the State or Territory system. The period for bringing a State/Territory system into line with national standards before de-recognition must occur can be extended by Ministerial discretion.

Separately, the Bill creates an additional opportunity for 'equivalent State/Territory bodies' to take over functions from the NNTT in proposed section 207B. The Commonwealth Minister can ratify such a body once criteria set out in proposed subsection 207B(4) are satisfied. Once the body is approved, the NNTT ceases to have the relevant functions in that State or Territory. If the substitute body is to have functions under proposed section 43A to make future act determinations on leased or reserved land, it would appear that membership would no longer have to include a member of the NNTT or recognised State/Territory body nor a legal practitioner, and could be an individual decision maker.

The Explanatory Memorandum states at page 266 that the purpose of the criteria in proposed subsection 207B(4) is to ensure that the powers and functions conferred by the Commonwealth Minister's determination on the equivalent body are exercised or performed in a 'nationally consistent' manner.

Difficulties in preserving a 'nationally consistent approach' were raised by Justice French in his recent response to the amendments and evidence before the Parliamentary Joint Committee. He noted that the NNTT currently represents a one-stop shop for searches and native title information, and can achieve rapid flow of relevant information, such as 'template agreements', around the country. He said that as a result of these amendments the NNTT may not be able to maintain a complete national register of applications, determinations and agreements, of particular significance when claims cross State and Territory borders. He also noted the resource implications of setting up several new bodies and the need across all of them to develop a consistent interface with the Federal Court in its supervisory role.(76)

Representative Aboriginal/Torres Strait Islander Bodies

Introduction Bodies representing Aboriginal or Torres Strait Islander groups, which are commonly known as Native Title Representative Bodies (NTRBs), play an important role in the system of the Native Title Act 1993. A review of the initial operation of NTRBs commented: 'Indeed, there was a strong view that the future workability of the Native Title Act 1993 is critically dependent on the existence of efficient and effective Native Title Representative Bodies.'(77)

NTRBs operate under section 202 of the NTA, which provides that the Minister may determine that a body is an NTRB for a particular area, although it should be noted that there can be more than one NTRB for an area. A body is not to be appointed as an NTRB unless the Minister is satisfied that the body is broadly representative of the Aboriginal/Torres Strait Islander people in the area and that the body will satisfactorily perform its functions. The functions of NTRBs are also dealt with in section 202 and include:

• facilitating the researching, preparation or making of claims for native title or compensation;
• assisting in the resolution of disagreements between individuals or groups relating to claims; and
• representing individuals or groups in matters relating to native title or compensation if requested to do so.

NTRBs are not required to perform these functions as section 202 provides that an NTRB may, rather than must, perform these functions. This matter has been subject to some discussion and will be dealt with below.

An example of the role performed by NTRBs is in the mediation of disputes between claimants, as can often occur when two or more groups make claims in respect to the same land. In such cases, the relevant NTRB attempts to mediate the competing claims so that a resolution can be found before the claim is made to the NNTT.

In November 1994, ATSIC decided to review the operation of NTRBs which, it should be noted, had, at that time, operated only for a relatively short period. As indicated above, the review found that NTRBs played an important role in the native title process, and made a number of recommendations regarding how their operation could be improved. Many of the recommendations are implemented by this Bill. Major areas dealt with in the review included:

• that the current vagueness relating to the discretionary nature of the obligation for a NTRB to perform its functions (as represented by the use of the word 'may' in section 202) be removed and that the nature of mandatory functions be clarified. While the flexibility inherent in the current legislation was considered to be of value in some circumstances, it was considered that the certainty of the role of an NTRB and the purposes for which it could use its limited resources outweighed the value of the current amount of flexibility;(78)
• while the mitigation of disputes between claimants was a very important role for an NTRB, it had to be recognised that there was a limit on the amount of resources that could be devoted to mediation and that it should be recognised that: 'NTRBs will need policies and procedures specifying the conditions under which funding may be terminated in respect to apparently irreconcilable indigenous conflicts. Not all indigenous disputes will be able to [be] resolved within the arena of the native title legislation; nor should they be.'(79)
• that an NTRB be given exclusive jurisdiction over the area it covers. This will not only prevent possible difficulties where two or more NTRBs have jurisdiction over an area, which increases difficulties in mediation, but will also prevent duplication and allow the available funds to be put to the best use;(80)
• that 'NTRBs, especially those recently established, are significantly under-resourced in their capacity to undertake the variety of tasks described above [ie NTRB's current activities]. To this extent, they are unable to respond fully (even adequately, some argue) to the native title service duties attached to their statutory role as NTRBs';(81) and
• that accountability be improved by the adoption of a centralised financial management system at ATSIC Central Office.(82)

The review and other comments, particularly those regarding accountability, were considered by the Government which released draft legislation in relation to this area in October 1996. The proposals, which deal with many of the same areas addressed by this Bill, were commented on by ATSIC in November 1996. The ATSIC response to the proposed legislation accepted many of the proposed changes, including those that resulted from the review discussed above. Generally, ATSIC was in favour of the proposed changes(83). However, there is some conflict regarding various areas of the proposed reforms. ATSIC expressed views in relation to a number of matters, including:

• the potential for the Minister to affect adversely the representative character of all existing and any new NTRB, through the new scheme for recognition of Representative Bodies based on areas defined by the Minister. For example, ATSIC suggested that the Minister will be able to break up an existing NTRB by drastically reducing its area or insist that a number of NTRBs be merged.
• ATSIC supported the introduction of mandatory, statutory responsibilities for NTRBs (although as noted below the current functions of NTRBs will not be made mandatory, very similar functions will be mandatory) but disagreed that NTRBs' primary role should focus on consultation and mediation. ATSIC expressed the view that NTRBs should also act as a 'one-stop-shop' for consultations between developers and claimants.(84)
• The accountability provisions which propose to insert an additional level of review of financial management by the Minister were criticised by ATSIC as excessive. ATSIC noted that funding for NTRBs is subject to the financial management controls contained in the Aboriginal and Torres Strait Islander Commission Act 1989 and are also subject to regulation by various corporate bodies, such as the Registrar for Aboriginal Corporations. In relation to the proposed additional accountability to the Minister, ATSIC commented:

The Bill

Amendments relating to NTRBs split into two Parts within Schedule 3 of the Bill. The first Part has two main aspects: to confer new functions on NTRBs in what is called the transitional period, and to provide a new process of recognition of NTRBs as a prelude to the establishment of what is called the new regime. The second Part of Schedule 3 details the new regime which will operate from the end of the transitional period, and deals with functions, finances, subjection to Ministerial scrutiny, variations in NTRB areas of jurisdiction, de-recognition and other matters.

Between the commencement of the amendments and the end of the transition period, the functions of NTRBs will be expanded by item 5 of Schedule 3 to include assisting individuals in relation to land use agreements or rights of access; certifying applications for native title and registration of land use agreements; and becoming a party to a land use agreement.

Certification of applications for native title determinations and registration of ILUAs

An application for a determination of native title is not to be certified by an NTRB unless it is satisfied that the applicant has the authority of all others in the claim group to make and deal with the application and that all reasonable steps have been taken to identify all other members of the claimant group. Where there are competing claims in respect of an area under the jurisdiction of an NTRB, the NTRB is to take all reasonable steps to resolve the conflict through agreement and to minimise the number of claims over the area. Failure to achieve agreement or minimise application numbers will not invalidate certification of an application. When an application is certified, the NTRB is to include a statement as to why it considers that the applicant has the authority of others in the claim group to make the application and that all reasonable steps have been taken to identify those members and the steps taken to resolve any conflicting claims (section 202).

In relation to land use agreements, an NTRB is not to certify an agreement unless of the opinion that all reasonable steps have been taken to identify all people who hold, or may hold, native title in the land or waters and the people so identified have authorised the making of the agreement. Again, the certificate is to contain a statement of reasons why the NTRB is satisfied that these steps have been complied with (item 6 of Schedule 3).

Proposed section 202A provides that before an NTRB enters into an Indigenous land use agreement it must, as far as practicable, consult with, and have regard to the interests of, any person who has or may have native title in respect of the land concerned (item 7 of Schedule 3).

Currently, section 203 provides that an NTRB may apply to either the Minister or ATSIC for financial assistance to enable it to perform its functions. Items 9 and 10 of Schedule 3 will remove the ability to apply to the Minister for funds.

Recognition of NTRBs

Proposed Division 2 will be inserted into Part 11 of the NTA by item 11 of Schedule 3 and will deal with the recognition of NTRBs. The proposed regime relates to applications for recognition and the grounds for the Minister to approve NTRBs. The Minister may invite applications from eligible bodies (as defined in proposed section 201B, an eligible body must be a corporation established under the Aboriginal Councils and Associations Act 1976 or a prescribed law, or be an existing Representative Body).

Proposed section 203AA deals with the transition from the current bodies to potential new bodies. The amendments apply during the 'transition period' (which, basically, is the time between the other provisions of the Bill coming into effect and a date fixed by Proclamation, or if such a date is not determined, after the end of 9 months after the Bill receiving Royal Assent, at the end of that period proposed sections 201A and clause 2 of the Bill). During this period, the Minister must invite applications under proposed section 203A for all land and waters covered by the NTA.

If an area is currently covered by an NTRB, the invitation must initially be made to that body. The Minister may invite other bodies to apply for recognition if none of the original invitees responds or if the Minister has rejected their application.

The Minister's power to recognise bodies is dealt with in proposed section 203AD. The Minister may recognise a body if satisfied that:

• the body will satisfactorily represent the people who do, or may, hold native title;
• the body will be able to effectively consult with the Aborigines and/or Torres Strait Islanders living in the area;
• if it is an existing NTRB, that it is satisfactorily performing its functions; and
• the body will be able to satisfactorily perform its functions as an NTRB.

The Minister is not to recognise more than one body for an area.

Exempt State bodies, as defined in proposed section 201A (a body established by a State law to represent the interests of Aborigines or Torres Strait Islanders) cannot be recognised as an NTRB except in certain circumstances [proposed subsection 203AD(3)].

In making a decision regarding the recognition of a body, the Minister is to have regard to the matters contained in proposed section 203AI, which relate to whether in representing or consulting with Aboriginal people or Torres Strait Islanders the body's organisational structures and administration will operate in a fair manner. In determining if this is the case, the Minister 'must have particular regard to' the opportunity of the people being represented/consulted to participate in the processes of the body; the level of consultation; procedures for making and reviewing decisions; rules relating to the conduct of executive officers; management structures and processes; and reporting procedures.

Once the transition period is over, amendments contained in Part 2 of Schedule 3 would regulate variations in NTRB areas and the withdrawal of recognition by the Minister.

Under proposed section 203AE, the Minister may extend the area covered by an NTRB in certain circumstances, including:

• there is no Representative Body for the area of the proposed extension;
• the Minister considers that the area to which coverage will be extended is not of such significance that a new invitation is required;
• the Minister is satisfied that the body will satisfactorily represent/consult with Aboriginal people and Torres Strait Islanders in the area and satisfactorily perform its functions in relation to the adjoining area; and
• the NTRB has agreed to the extension of the area it covers.

Where there are adjoining NTRBs, they may apply to have the boundary between them varied. Before making such an application, the bodies are to consult with the people concerned and be satisfied that there is 'broad support' for the change. If such an application is made, the Minister may vary the boundary if satisfied that the bodies will satisfactorily represent and consult with the people in the area covered and will satisfactorily perform their functions (proposed section 203AF).

The Minister will be given power to reduce the area covered by an NTRB in certain circumstances. The Minister will be able to remove an area from the jurisdiction of a NTRB if satisfied that the body is not satisfactorily representing or consulting the people it represents in the area or is not adequately performing its functions in relation to that area (proposed section 203AG). The Minister must allow a period of 90 days for comment on any proposed reduction in NTRB area.

The de-recognition of a body is dealt with in proposed section 203AH. Recognition must be withdrawn if the Representative Body has ceased to exist or has, after a meeting open to all members of the relevant community, requested that recognition be withdrawn. The Minister will also have a discretionary power to withdraw recognition. This may be done where the Minister is satisfied that the body does not satisfactorily represent or consult with the people it represents or that the body is not satisfactorily performing its functions and is unlikely to rectify these problems within a reasonable period. The Minister will be required to notify the NTRB of a proposed withdrawal of recognition and must consider any submission on the matter from the NTRB.

Functions and powers of NTRBs

The functions and powers of NTRBs under the new regime to take effect at the end of the transition period are dealt with in proposed Division 3 of Part 11. The main functions of a NTRB, which will be mandatory, are:

• facilitation and assistance to research and prepare native title applications and to assist registered native title corporations and actual or potential native title holders in consultations and proceedings relating to native title matters. Such functions are only to be performed on request and can only relate to land and waters under the NTRB's jurisdiction (although if a matter overlaps an area covered by an adjoining NTRB, the first NTRB may exercise jurisdiction over the adjoining area with the written consent of the NTRB covering the adjoining area). Where the NTRB already represents a person or body in relation to an area of land or waters, the NTRB is not to represent another person or body in relation to that area without the consent of the person or body that they already represent. However, this will not prevent the NTRB from arranging for another person to represent the person. In performing these functions, an NTRB is to consult with and have regard to the interests of actual or potential native title holders and is to be satisfied that they understand and consent to any general course of action taken on their behalf (proposed sections 203BB 203BD). (Also refer to proposed section 203FB).
• certification to certify applications for native title determinations and for the registration of land use agreements. Proposed section 203BE also contains a number of matters that must be complied with prior to certification, which are the same as detailed in relation to the amendments contained in item 6 (authority, identification and minimising overlapping claims);
• dispute resolution to assist in promoting agreement between the NTRB's constituents in relation to native title applications or the conduct of negotiations, or other proceedings relating to native title. The function will also include a mediation role in relation to such negotiations or proceedings (proposed section 203BF);
• notification to ensure, as far as reasonably practicable, that notices and other instruments given to the NTRB relating to land or water within its jurisdiction are bought to the attention of actual or potential native title holders within the area covered by the NTRB where those people would not otherwise receive the notice. The function also includes informing such people of any time limits that apply under the NTA or other law when those people would not otherwise be informed of such time limits (proposed section 203BG);
• agreement making to be a party to Indigenous land use agreements. The NTRB is to consult with, and have regard to the interests of, actual or potential native title holders in the area (proposed section 203BH);
• internal review to provide a mechanism for an NTRB to review a decision or action when so requested (proposed section 203BI);
• other these include, as far as reasonably practicable, to enter into agreements with other NTRBs; identify people who may hold native title; promote understanding amongst Aboriginal people and Torres Strait Islanders of the operation of the NTA; to inform and where necessary consult with relevant bodies and people on matters affecting native title and to co-operate with other NTRBs (proposed section 203BJ).

Finance is dealt with in proposed Division 4 of Part 11. NTRBs may apply to ATSIC for a grant (proposed section 203C) and ATSIC may make a grant subject to such conditions as determined by ATSIC. However, grants must be subject to certain conditions, including conditions relating to: the purpose for which the money may be used; the acquittal of money spent; giving of information relating to the spending of the money; the appointment, when ATSIC considers that money has been spent other than on an approved purpose, of a person who will have power to ensure that money is spent only on approved purposes; the satisfactory performance of the NTRB's functions; and compliance with the NTA. If a condition is breached, ATSIC will be able to recover the money and if there have been serious or repeated breaches of conditions, ATSIC is to inform the Minister of the breaches and what measures ATSIC proposes to take to address the situation (proposed section 203CA). There will be restrictions on the manner in which money not immediately needed by the NTRB may be invested (proposed section 203CB).

Accountability

Accountability is dealt with in proposed Division 5 of Part 11. The main accountability provision is proposed section 203DF which allows the Minister to appoint a person to inspect, audit or investigate the financial affairs of an NTRB if of the opinion that there is, or may be, serious or repeated irregularities in the body's financial affairs or a serious or repeated failure to perform its functions. A person so appointed must report to the Minister and the report must disclose any irregularities found relating to the financial affairs of the body or the performance of its functions.

ATSIC will be required to inform the Minister when it is of the opinion that an NTRB is not satisfactorily representing actual or potential native title holders; is not effectively consulting with the Aboriginal people or Torres Strait Islanders that it represents; is not satisfactorily performing its functions; or that there may be irregularities in its financial affairs (proposed section 203F). If the Minister is of the opinion any of these matters may have occurred or be occurring, or that a condition of a grant has been breached, the Minister may require ATSIC to produce information on the matter and ATSIC must comply with the request (proposed section 203FA).

Where an NTRB makes a decision not to assist a person in the performance of its facilitation and assistance functions, the person affected may apply to ATSIC for a review of the decision. If such an application is made, ATSIC must appoint a person to review the decision and that person generally must recommend that the decision be affirmed or that a grant should be made to the person. A recommendation need not be made by the person if the initial decision has not been subject to internal review (this is to encourage people to use the internal review procedure prior to applying to ATSIC). If a recommendation has been made, ATSIC will have to determine if the decision is to be affirmed or a grant made (proposed section 203FB). If ATSIC determines that a grant should be made, the grant is to be made by ATSIC and will be subject to the grant conditions referred to above (proposed section 203FE). Proposed section 203FE also provides that if there is no NTRB in respect of an area, ATSIC may make a grant to a person or body to enable them to perform all or some of the functions of a NTRB in the area. Again, the grant conditions will apply.

The remainder of the accountability provisions relate to largely non-contentious matters, such as the need to prepare strategic plans; the keeping of proper accounting records; and the need for NTRBs to prepare annual reports.

The conduct of directors and other senior management officials in NTRBs is regulated by Division 6. These provisions impose most of the conduct provisions in the Commonwealth Authorities and Companies Bill 1996 which in turn draw on the Corporations Law.

Scheduled Interests

The purpose of Schedule 4 of the Bill is to list the things covered by the expression Scheduled interest (see proposed section 249C). The Schedule and a Supplementary Explanatory Memorandum are now available. The Schedule '... contains leases and other interests ... which the relevant State or Territory, and the Commonwealth, consider, on the basis of the common law, have conferred exclusive possession and have therefore extinguished native title.'(86) Scheduled interests are particularly relevant to the validation of intermediate period acts in proposed subdivision 2A and to the 'confirmation' of past extinguishment by certain acts in proposed subdivision 2B of Part 2.

In Wik, among other things, the High Court looked at the statute under which the pastoral leases in question had been granted and the terms of the leases themselves in order to decide whether the leases had granted exclusive possession to the lessees (see Background section). To determine what leases and other interests should be included in the Schedule, reference was made to the relevant statute and to the factors set out on pages 6-8 of the Supplementary Explanatory Memorandum. The Memorandum states: ' ... it has not been possible to look at the terms contained in particular lease instruments. ... if it could be said with reasonable certainty that, based on the legislation and other factors, a particular type of lease conferred exclusive possession on the grantee, then the lease has been included in the Schedule. If there was significant doubt ... it was not included in the Schedule.'(87)

The Schedule includes both current and defunct leases and other interests. Pastoral leases, mining leases and lesser interests have not been included but most agricultural leases have been.

Application and Transitional Provisions

Schedule 5 of the Bill deals with the application of the Bill's provisions and with transitional arrangements for example, the transitional arrangements for pre-commencement right to negotiate processes.

Item 3 of Part 2 provides that, in general, the proposed future act provisions of Subdivisions G to K of Division 3 of Part 2 will apply to future acts that take place from 23 December 1996. These Subdivisions relate to such things as primary production, renewals and extensions of leases and facilities for services to the public. For example, the right to negotiate will, from that date, only apply in the more limited circumstances permitted by the amendments.

Item 4 of Part 2 preserves the continued operation of old right to negotiate processes for existing matters in limited circumstances and provides for other circumstances in which the new right to negotiate processes take over. For example, if an arbitration is underway but the amendments would mean the right to negotiate no longer applies to the future act under consideration, then the arbitration will cease.

Item 11 of Part 4 provides that unless a native title determination has been made in relation to a claimant application, the transitional provisions dealing with the application of the new registration test will apply. Details of how applications are to be dealt with are contained in item 11 which sets out three basic situations. If the claim was lodged on or after 27 June 1996 the new registration test will be applied as soon as practicable. If the claim was lodged before that date on a non-exclusive pastoral or agricultural lease, then the Registrar must endeavour to apply the test within 12 months of commencement of the amendments. For any other claim lodged before that date, the test will only be applied if and when a new section 29 notice is issued.

In the case of overlapping claims the test will be applied to claims in order of lodgement and once a claim is registered any subsequent overlapping claim will not achieve registration if it cannot satisfy the test and particularly section 190C(3).

Existing claims which fail the new test will be removed from the Register. Removal will bring existing negotiations and arbitrations to an end if the claim was lodged on or after 27 June 1996 but not if the claim was lodged before that date.

Item 16 of Part 5 deals with access to non-exclusive agricultural or pastoral land where a native title application has been registered but not yet tested under the new registration test. In such a case, the native title claimants can have physical access for traditional purposes so long as their application remains on the Register of Native Title Claims.

Item 17 of Part 5 provides that proposed section 24GC applies to primary production and incidental activities on non-exclusive agricultural or non-exclusive pastoral leases which occur at any time and that they prevail and are not impeded by native title irrespective of whether the activities are done before or after the commencement of the new Act. The same latitude is given to requirements or permissions referred to in proposed section 44H

Concluding Comments

The Native Title Amendment Bill was introduced into the Parliament on 4 September 1997. Debate commenced in the House of Representatives on 25 September 1997 some four weeks before the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund is due to report on the Bill. Given the time frame in which this Digest has been prepared, only brief comments can be made. These comments should not be read as exhaustive. However, some of the issues raised by the Native Title Amendment Bill 1997 relate to:

The right to negotiate

The Government has argued that the purpose of the right to negotiate amendments is to streamline procedures, provide flexibility, integrate with State and Territory processes and reduce delays while maintaining native title protection. It asserts that the right to negotiate has impeded resource development without giving indigenous people substantial benefits in return.

Indigenous organisations have argued that the amendments to the right to negotiate are of central concern in the overall Government package. ATSIC in its appearance before the Parliamentary Joint Committee on 24 September 1997, stated that the right to negotiate is not a veto and argued that there is no evidence to support the Government's assertions that the right to negotiate is impeding resource development in Australia.

ATSIC argued that substantially changing the right to negotiate ('RTN') breaches a negotiated compact reached in 1993, that the RTN is a means for protecting communities and sharing in the benefits of development and that native title holders will be driven to rely on use of the courts to protect their interests at common law, thus promoting uncertainty for all parties. The Commission nominated four criticisms. It argued that the amendments dramatically reduced the area of country to which the RTN applied. Secondly, it said that the scope for exclusions from the RTN was significantly widened. Thirdly, it criticised reducing timeframes and permitting Ministerial intervention. And finally, it said that permitting alternative State and Territory regimes on leased and reserved land would remove the right and replace it with generally inferior protection for native title.(88)

The new registration test

The Government argues that the new registration test is necessary to prevent unmeritorious claims gaining registration. Others have suggested that it raises the threshold too high and will prevent bona fide applicants from accessing the right to negotiate and other provisions in the Act. For example, a claimant application must satisfy the Registrar that, prima facie, each of the native title rights and interests claimed can be made out. Justice French, the President of the NNTT, has responded to this provision in public and in similar terms before the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund in the following way:

Another condition is that at least one of the claim group has or had a traditional physical connection with the claimed area. Native title requires Indigenous people to have maintained a continuing connection with land and waters according to traditional laws or customs. It is arguable that this 'continuing connection' can be physical or spiritual.

Further, the nature and extent of information required to be supplied to the Registrar may not only have significant resource implications for representative bodies but may mean that, in practice, native title holders will not be able to exercise rights such as the right to negotiate unless, before a section 29 notice, is issued 'an application for a native title determination has already been lodged or is at an advanced stage of preparation.'(90) This may be a particular question for Representative Bodies in areas of high mineral prospectivity where section 29 notices are frequently issued. The Government notes, however, that as a result of the greater details required for claim registration, the Bill will increase by one month the time in which a claimant must lodge a claim in response to a section 29 (right to negotiate) notice in relation to mining or to a non-claimant application.(91)

Justice French has also commented on other procedural aspects of the registration test.Commenting on the likelihood that strike out applications might be taken in the Federal Court at the same time registration was under consideration by the Registrar, he suggested that the three month clock on registration could be stopped while the strike out proceedings were completed. He also suggested that the time limits for registration were rigid, that in the experience of lawyers and courts rigid time limits can produce technical difficulty and injustice at the margins and that some flexibility might be advisable. He also observed that overlaps can occur between claims which are consistent with Aboriginal law and custom, and there may be difficulties if overlapping claims are too rigidly excluded from the native title process.(92)

Extinguishment

Under the Native Title Amendment Bill 1997 certain intermediate period acts and previous exclusive possession acts attributable to the Commonwealth will extinguish native title. The Bill enables the States and Territories to enact laws which have the same effect. While such extinguishment is said to reflect commonly held understandings about the nature of the tenures granted, some of the amendments may pre-empt the development of the common law of native title in a number of ways. First, 'common understandings' may not equate with judicial determinations made after hearing from all the parties about the tenures involved and native title claimed in a particular case. Second, the common law has not yet determined whether native title might revive after a tenure has expired or been surrendered. The Native Title Amendment Bill 1997 defines 'extinguishment' as permanent extinguishment. Third, the Bill defines some acts as previous exclusive possession acts which are difficult to conceptualise as conferring exclusive possession for example, memorials and stock routes.(93)

The Supplementary Explanatory Memorandum at paragraph 36.55 acknowledges that Schedule 4 may contain Category D past acts. Schedule 4 defines what is a Scheduled interest. A Scheduled interest permanently extinguishes native title. That is the effect of proposed section 23C. The same effect can be achieved by States and Territories through proposed section 23E. The current Native Title Act 1993provides that native title is suppressed by a Category D past act to the extent of inconsistency and then revives to its full extent upon expiry of the relevant grant. The amendments would effect permanent extinguishment.

The debate about whether the Government, in pre-empting the common law, actually exceeds it crystallises around the inclusion of proposed section 23J. The Government argues that this provision, which provides compensation for any extinguishment due to the 'confirmation' provisions which would not have occurred but for the operation of the Act, is unnecessary. The Government says the provision is simply there as a safeguard. ATSIC has argued that given the rights of grantees prevail over native title to the extent of any inconsistency and that legal certainty will develop as early test cases are resolved, there is no need to run the risk of extinguishment which this compensation provision is there to cover.(94)

Finally, it may be difficult to estimate the likely quantum of compensation involved in the extinguishment of native title by previous exclusive possession acts since previous exclusive possession acts may have taken place at any time since European settlement.(95)

Racial Discrimination Act 1975

There is a debate about whether the amendments and particularly those relating to changes to the right to negotiate are inconsistent with the Racial Discrimination Act 1975 (RDA). The Explanatory Memorandum acknowledges that a difference of opinion exists over whether a standard of formal equality or substantive equality (which would allow relevant differences between groups to be expressed in law to achieve equality of outcomes) should apply. It says the Government's view is that the amendments fall within the discretion allowed to Parliament under either view. It also rejects the view that the changes to the right to negotiate involve an acquisition of property, but states that section 53 of the Native Title Act 1993 would ensure constitutional validity in any case.

ATSIC argued before the Parliamentary Joint Committee that a law which extinguishes or impairs native title rights while leaving the property rights of others intact breaches the principles of the RDA. It argued that in contrast with the validation of past acts in 1993, the rolling back of the RDA in the 1997 Bill cannot be seen to either reflect the agreement of indigenous representatives nor be part of a legislative arrangement which is on balance beneficial to native title holders. ATSIC also argued that validation of intermediate period acts, confirmation of extinguishment of native title and most of the future act amendments are contrary to Australia's international obligations to prohibit racial discrimination.(96)

Statutory access to pastoral lease land for traditional purposes

The Government argues that proposed Subdivision Q is one of the significant benefits for indigenous people which the Act as amended will provide. If the registration test is passed then any existing physical access to pastoral lease land enjoyed by native title claimants will be protected.

In its evidence to the Parliamentary Joint Committee on Native Title, ATSIC argued that this provision will do nothing to assist native title holders who have been locked out of their country or otherwise discouraged from having access to it. It therefore, in ATSIC's view, unfairly discriminates against some native title holders. Secondly, ATSIC criticised the proposed suspension of all common law rights to an area, not just access rights, once the statutory access rights apply. It argued this would prejudice the capacity of native title holders to protect their country and preserve the status quo in the pre-determination phase. It advocated an alternative scheme for negotiation and if necessary arbitration over access.

Indigenous land use agreements

The concept of ILUAs was developed in discussions by indigenous organisations with industry groups and incorporated into the Government's amendment package. Many aspects of the ILUA amendments enjoy widespread stakeholder support.

However, ATSIC has argued that given other changes contained in the Bill for example, to the registration test and the right to negotiate incentives to enter into land use agreements may well be diminished.(97)

Federal Court rules of evidence

Native title is not easy to prove '[m]ost of the evidence of native title will, of necessity, be oral evidence passed on from generation to generation. Such evidence leads to problems of admissibility due to the evidential rule against hearsay.'(98) Under the Native Title Amendment Bill 1997, the Federal Court is obliged to observe the rules of evidence unless it orders otherwise. This provision can be contrasted with existing provisions regarding the Federal Court which is given the task of providing a determination mechanism which is, among other things, informal and which is not bound by technicalities, legal forms or rules of evidence when conducting proceedings.

The Government says the current provisions are to be removed because they are 'unnecessary'.

Justice French in his response document to the Bill and in his evidence to the Parliamentary Joint Committee on Native Title on 23 September 1997 expressed concern that the relevant provision proposed section 82 might be an attempt to entrench judge-made law as a statutory law of the Commonwealth. It was on this basis that section 12 of the current Act was found invalid in the Native Title Act case.

Justice French has also referred to the concept of prejudice contained in proposed section 82 as 'slippery,' 'ill-defined and highly dependent on perceptions of disadvantage.' He said this provision probably creates more difficulties than assistance and there is a real question as to its usefulness.(99)

The Constitution

The Government's legal advice is that '... on the basis of existing authority, the [Native Title Amendment] Bill is clearly supported by [the races power(100)]. Other powers may also be relevant.'(101)

The Government argues that '... the Native Title Act as amended will continue to provide significant benefits for Australia's indigenous people. Most significantly, co-existing native title over most of Australia's rangelands will be recognised and protected.'(102)

ATSIC has an opinion that there are substantial arguments to support at least one of two propositions: that the races power cannot be used to legislate adversely to a race, or more specifically the races power cannot be used to legislate to the detriment of the Aboriginal race.(103) ATSIC's position is that the amendments are overwhelmingly detrimental to Indigenous interests and, in their words, to a considerable degree a regime of rights has been replaced by a scheme for compensation.(104) It has also been reported that the Australian Law Reform Commission considers that 'the Wik plan to effectively extinguish native title on pastoral leases is unconstitutional.'(105)

Endnotes

1. Mabo v. Queensland [No.2] (1992) 175 CLR 1.
2. (1988) 166 CLR 186.
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 and 'Brandy v. Human Rights and Equal Opportunity Tribunal,' Research Note No.11, March 1995, Parliamentary Research Service.
8. French, R 'The National Native Title Tribunal and the Native Title Act, agendas for change,' in G Meyers (ed), Implementing the Native Title Act. The Next Step: Facilitating Negotiated Agreements, Selected Discussion Papers of the National Native Title Tribunal 1996, National Native Title Tribunal, 1997: 26.
9. Ibid.
10. (1995) 39 ALD 527.
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 Proposed Amendments to the Native Title Act 1993, 18 October 1995.
13. The leases considered in the Wik case had been granted under the Land Act 1910 (Qld) and the Land Act 1962 (Qld). The first Mitchellton Pastoral Lease was granted in 1915 and forfeited in 1918. It covered 535 square miles. A second Mitchellton lease was granted in 1919 and surrendered in 1921. Since 1922, the land has been reserved or held in trust for Aboriginal people. The first Holroyd Pastoral Lease was granted in 1944. A second lease was issued in 1974 over an area of 1,120 square miles. None of these leases contained express reservations in favour of Aboriginal people.
14. Toohey, Gaudron, Gummow and Kirby JJ.
15. Wik Peoples v. Queensland (1996) 141 ALR 129 at 190.
16. Brennan CJ; Dawson and McHugh JJ. The Chief Justice delivered a judgment with which the other two judges concurred.
17. See Wik Peoples v. Queensland (1996) 141 ALR 129 at 260 per Kirby J.
18. See Wik Peoples v. Queensland (1996) 141 ALR 129 at 261 & 285 per Kirby J.
19. See Nettheim, G 'Responding to Wik: first define the problem,' Indigenous Law Bulletin, 4(1), April 1997: 14-15.
20. Ibid: 14.
21. An exception, since 16 March 1995, appears to be Western Australia which has followed the future act procedures of the Native Title Act for almost all mining titles granted and has done this on pastoral lease land irrespective of whether that land included a reservation in favour of Aboriginal people. See Williamson, S 'Implications of the Wik decision for the minerals industry,' in G Hiley (ed) The Wik Case. Issues and Implications, Butterworths, Sydney, 1997: 45.
22. Existing section 4 is a table which outlines the content of the Native Title Act 1993.
23. Explanatory Memorandum, Native Title Amendment Bill 1997: 23.
24. ATSIC, The Ten Point Plan on Wik & Native Title. Issues for Indigenous Peoples, June 1997: 10.
25. Nettheim, op.cit: 14.
26. Explanatory Memorandum, Native Title Amendment Bill 1997: 26 7.
27. See Explanatory Memorandum, Native Title Amendment Bill 1997: 27.
28. Crown to Crown and Crown to statutory authority grants of freehold are specifically excluded from Category A past acts in the Native Title Act 1993 [paragraph 229(2)(b)(i)]. Crown to Crown or Crown to statutory authority grants of certain leases (eg commercial, agricultural, pastoral or residential leases) are specifically excluded from being Category A past acts by paragraph 229(3)(d)(i). In terms of the past act regime, these acts are Category D acts which attract the non-extinguishment principle.
29. Definitions of some of these terms are found in proposed sections 249C, 247A, 248A & 249A.
30. Explanatory Memorandum, Native Title Amendment Bill 1997: 10.
31. Explanatory Memorandum, Native Title Amendment Bill 1997: 48.
32. University of Wollongong v. Metwally (1984) 158 CLR 447.
33. Section 53 relates to 'just terms' compensation.
34. Explanatory Memorandum, Native Title Amendment Act 1997: 39.
35. Clarke, J 'The Native Title Amendment Bill 1997,' Indigenous Law Bulletin (forthcoming).
36. For example, an application for a native title determination by the Worrora People has been accepted by the Tribunal. The claim area includes freehold land which is used as a Defence Training Area and which is owned by the Commonwealth.
37. Explanatory Memorandum, Native Title Amendment Bill 1997: 44.
38. Validity can be the result of the validation of 'past acts' under existing sections 14 or 19 of the Native Title Act 1993 or the result of the validation of 'intermediate period acts' under proposed sections 22A or 22F. Alternatively, the act may have always been valid.
39. The majority in Wik said that upon the grant of a non-exclusive pastoral lease, native title rights 'yield' to the extent of any inconsistency. Because the majority refrained from expressing an opinion whether native title can revive upon the expiry of a grant and because of their use of the term 'yield' rather than 'extinguished,' it is an open question whether proposed section 23G travels beyond the common law and itself effects extinguishment.
40. Explanatory Memorandum, Native Title Amendment Bill 1997: 51.
41. Explanatory Memorandum, Native Title Amendment Bill 1997: 55.
42. Explanatory Memorandum, Native Title Amendment Bill 1997: 148.
43. National Indigenous Working Group on Native Title, Coexistence Negotiation and Certainty. Indigenous Position in Response to the Wik Decision and the Government's Proposed Amendments to the Native Title Act, 1993, April 1997: 3.
44. Explanatory Memorandum, Native Title Amendment Bill 1997: 151 2.
45. Explanatory Memorandum, Native Title Amendment Bill 1997: 85.
46. Defined in proposed section 253.
47. Defined in proposed section 253.
48. Defined in section 247B.
49. Defined in section 248B.
50. See Explanatory Memorandum, Native Title Amendment Bill 1997: 94.
51. Explanatory Memorandum, Native Title Amendment Bill 1997: 89.
52. Examples of non-legislative acts are grants of licences, leases, permits or authorities.
53. These proposed sections deal with certain acts relating to primary production activities or involve the management or regulation of water and airspace.
54. Provisions relating to compensation where the non-extinguishment principle applies under Subdivision M are set out in proposed subsection 24MD(3).
55. Explanatory Memorandum, Native Title Amendment Bill 1997: 132 3.
56. See, for example, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report July 1995-June 1996, AGPS, Canberra, 1996: 18 20.
57. Attorney-General's Department, Native Title. Legislation with Commentary by the Attorney-General's Legal Practice, AGPS, Canberra, 1994: C17.
58. See subsections 26(3) & (4), Native Title Act 1993.
59. See sections 32 and 237, Native Title Act 1993.
60. Attorney-General's Department, op.cit: C17.
61. (1996) 136 ALR 557.
62. There will be a registered native title body corporate when there has been a determination that native title exists for a particular area. The registered native title body corporate will be the body registered on the National Native Title Register as holding the native title. A registered native title claimant is a person who has passed the registration test and is registered on the Register of Native Title Claims as the person claiming to hold the native title in a particular area.
63. Proposed section 38, which re-enacts existing section 38, sets out the kinds of arbitral body determinations that can be made. In general, these are that the act must not be done, may be done or may be done subject to conditions [proposed subsection 38(1)]. However, the arbitral body cannot determine that these conditions include profit sharing [proposed subsection 38(2)].
64. (1996) 137 ALR 561.
65. Proposed paragraph 39(1)(f) reproduces existing paragraph 39(1)(f).
66. Proposed subsection 44B(1).
67. In such a case, a body corporate agreement can be made.
68. If there is a registered native title claimant or a registered native title body corporate in relation to any land or waters in the area, then the native title group consists of all registered native title claimants in the area and all registered native title bodies corporate in the area [proposed subsection 24CD(2)]. If proposed subsection 24CD(2) is not applicable, then the native title group consists of any person claiming to hold native title in the area and/or any Representative Body for the area [proposed subsection 24CD(3)].
69. The 'native title group' is defined in proposed subsection 24DE(2) as all registered native title bodies corporate and all Representative Bodies in the area.
70. The purpose of the section may have been '... to confer jurisdiction upon federal courts to deal with the common law, in so far as it relates to native title. This would given federal courts jurisdiction to determine that native title exists. The second possible reason is that this is an attempt to give the common law relating to native title, priority over State legislation.' See Bills Digest Native Title Bill 1993.
71. (1995) 183 CLR 373 at 487.
72. (1995) 183 CLR 373 at 488.
73. See proposed subsections 2(5) and (6) of the Native Title Amendment Bill 1997.
74. Proposed section 61A provides that a native title determination application cannot be made in relation to an area for which there is an approved native title determination or where certain previous exclusive possession acts or previous non-exclusive possession acts have been done.
75. That is, that the claim asserts exclusive possession to an offshore area.
76. French, Justice RS & Lane, P Response to the Native Title Amendment Bill 1997, September 1997: 112.
77. ATSIC, Review of Native Title Representative Bodies: iii.
78. Ibid: 6 & 7.
79. Ibid: 13.
80. Ibid: 38 40.
81. Ibid: 66.
82. Ibid:. 84.
83. ATSIC, Proposed Changes to the Native Title Act 1993, Issues for Indigenous Peoples, November 1996: 26 29.
84. Ibid: 27.
85. Ibid: 28.
86. Supplementary Explanatory Memorandum, Native Title Amendment Bill 1997: 1.
87. Supplementary Explanatory Memorandum, Native Title Amendment Bill 1997: 5.
88. Australia. Parliament. Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Proof Hansard Report, 23 September 1997: 234 5.
89. French, Justice RS & Lane, P Response to the Native Title Amendment Bill 1997, September 1997: 93.
90. ATSIC, Proposed Amendments to the Native Title Act 1993. Issues for Indigenous Peoples, November 1996: 16.
91. Second Reading Speech, Native Title Amendment Bill 1997: 15.
92. Australia. Parliament. Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Proof Hansard Report, 23 September 1997: 126 8, 134.
93. See Clarke, J 'The Native Title Amendment Bill 1997,' Indigenous Law Bulletin, (forthcoming).
94. Australia. Parliament. Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Proof Hansard Report, 24 September 1997: 224.
95. Ibid.
96. Australia. Parliament. Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Proof Hansard Report, 24 September 1997: 248.
97. ATSIC. Proposed Changes to the Native Title Act 1993. Issues for Indigenous Peoples, November 1996: 25.
98. Twomey, A 'A guide through the Mabo case maze,' in Department of the Parliamentary Library, Parliamentary Research Service, Subject Collection No.1, The Mabo Papers, AGPS, Canberra, 1994: 102.
99. French, Justice RS & Lane, P Response to the Native Title Amendment Bill 1997, September 1997: 64 & 75.
100. Section 51(xxvi), Constitution.
101. Explanatory Memorandum, Native Title Amendment Bill 1997: 6.
102. Second Reading Speech, Native Title Amendment Bill 1997: 16.
103. Australia. Parliament. Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Proof Hansard Report, 24 September 1997: 247 8.
104. ATSIC, Submission to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Attachment D.
105. Sydney Morning Herald, 29 September 1997: 1.

 

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