Bills Digest no. 118 2009–10
Native Title Amendment Bill (No. 2) 2009
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
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Native Title Amendment Bill (No. 2)
2009
Date introduced: 21 October 2009
House: House
of Representatives
Portfolio: Attorney-General
Commencement: The day after Royal Assent.
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
To amend the Native Title
Act 1993 (the primary Act or the NTA) so that the
procedural rights of native title holders are curtailed when land
is required for public education and health facilities, for public
housing and for a wide range of other public facilities.
This Bill was referred to the Senate Legal and Constitutional
Committee (the Senate Committee) for inquiry and report by 2
February 2010. On that date the Senate granted an extension of time
for reporting until 23 February 2010. Details of the Inquiry are at
http://www.aph.gov.au/senate/committee/legcon_ctte/nativetitle_two/index.htm.
The Bill seeks to modify elements of the future act regime in
the NTA, so a very brief explanation of this terminology is
required.
The Native Title Act has always been controversial legislation,
and after numerous amendments has become a notoriously complex
legislative mechanism which regulates native title (a property
right originally identified by the High Court in 1992).[1]
The legislation has undergone numerous and extensive revisions
and the ‘future act’ regime has become one of the more
complex arrangements established by the NTA. It allows for
prospective developments which would usually have taken place under
State and Territory laws but which, since the discovery of native
title and the passage of the NTA, could be circumvented by the
operation of that Act – an over-riding federal law. In
summary:
The future act regime (Pt 2, Div 3) provides a
‘native title clearance’ for developments that are
typically undertaken pursuant to State and Territory law, and which
might otherwise conflict with the protection given to native title
by the NTA and/or the [Racial Discrimination Act
1975].[2]
Examples of such developments include ‘the construction of
a road, the passage of a new State Water Act, the grant of a mining
lease, [or] the compulsory acquisition of all interests in a given
area of land’.[3]
The current government has for some time made statements
defending and promoting native title, arguing for a ‘Native
Title system that promotes economic and social development’
and that native title should be ‘a vehicle for social and
economic development’.[4] Nevertheless this Bill proposes to limit the protections
offered to native title holders. The Government explains this
on the grounds that native title protections and consequent
uncertainties are hampering the construction of public housing and
other public facilities for indigenous communities when these
public works are urgently needed.
There are additional funds for housing (forming part of the
Government’s ‘closing the gap’ program), and the
availability of these funds forms the impetus for the legislation.
The proposed legislation also stems from initiatives taken under
the Northern Territory Emergency Intervention. According to
the Native Title Council’s submission to the Senate
Inquiry,
This amendment has been proposed as a result of
what has come to be known as the Northern Territory Emergency
Intervention (or the Intervention) initiated under the Howard
Government and continued under the Rudd Government.
The Government identifies a need to ensure that moneys designed
to improve indigenous housing are spent effectively and
efficiently. They point in particular to the following
proposed spending:
In 2008 the Council of Australian Governments
(COAG) recognised the pressing need to improve public housing and
infrastructure in remote communities. It agreed to the National
Partnership on Remote Indigenous Housing which sets out a new and
comprehensive framework for providing more and better houses.
Unprecedented funding of $5.5 billion over 10 years will be
directed to raise the standard of housing and infrastructure in
remote communities. This investment will fund approximately
4 200 new houses and upgrades to 4 800 existing
houses.[5]
The Government’s concern regarding the housing situation
is shared by many. For instance the Australian Human Rights
Commission comments that it is ‘acutely aware of the chronic
housing shortages in Aboriginal and Torres Strait Islander
communities and of the impact this situation has on the health and
wellbeing of Aboriginal and Torres Strait Islander
peoples’,[6]
while the National Native Title Council, along with most other
submissions to the Senate Inquiry, endorse an objective of
‘addressing the chronic parlous state of public housing and
other infrastructure in regional and remove Aboriginal and Torres
Strait Islander communities.’[7] Nevertheless both these submissions, and most of
the others made to the Senate Committee’s Inquiry, reject the
measures proposed by the Bill as inappropriate to addressing this
universally acknowledged housing problem.
The Government’s position on housing and the need for this
Bill is resisted by many submissions for two main reasons.
The first reason is that native title provisions are not
necessarily the cause of delays – rather State and Territory
bureaucracies and chronic neglect have led to the lack of
infrastructure facing indigenous communities. The second related
concern is that in any case the Bill’s measures are an
inappropriate response to the various difficulties experienced in
this area.
The submissions to the Senate Inquiry querying the necessity for
these changes, have argued that adding a new layer of complexity to
the NTA will not assist matters. Thus, for instance, Australians
for Native Title and Reconciliation comment in their submission
that the very nature of future acts under the NTA, with its
piecemeal approach, is problematic, and that adding another variant
with individually tailored processes ‘is merely another
example of this special pleading at the expense of Indigenous
rights.’[8]
Professor Jon Altman argues that
… it is incumbent on the Australian
Government to provide some evidence that the future act regime of
the Native Title Act is causing delay and uncertainty. The
provision of such concrete evidence should be the first step in
making any case for legal reform of the Native Title Act. In
the absence of such evidence, it is difficult to condone any new
expedited procedures that might add new layers to existing
negotiation and consultation avenues and hence increase rather than
decrease transactions costs and associated potential uncertainty
and delay.[9]
Other submissions to the Inquiry make similar points,[10] including Mr Warren
Mundine, the Chief Executive Officer of NTSCORP (a body with
statutory responsibilities under the Act to protect the rights and
interests of Aboriginal communities in New South Wales), who
commented that ‘insignificant evidence has been provided with
regard to the Native Title Act processes being a source of
delay.’[11]
In a supplementary submission made after the Committee’s
hearings the Government provides some account of instances of delay
caused through NTA processes (without identifying details) and
argues that these illustrate the relevant processes (for instance
indigenous land use agreements) are not enabling speedy responses
to the housing crisis.[12]
The Northern Land Council submission also identifies situations
in which the indigenous land use agreements processes have resulted
in delays, giving concrete details of lengthy and frustrated
procedures. However, in contrast to the Government’s
response, the Northern Land Council’s preferred response to
these delays is to streamline the processes by removing the
existing requirement that indigenous land use agreements be
registered (particularly where they have been certified by a
registered body).[13]
It is possible to agree that there are unacceptable delays in
the NTA processes and nevertheless disagree over the appropriate
response or solution. A large number of submissions argue that
delays cannot necessarily be laid at the door of native title
holders and that more often than not they are the result of
inadequate State and Territory administration and funding.
Another concern is that there is a lack of support or funding for
native title bodies.[14]
NTSCORP argues, for instance, that
…other bureaucratic processes provide
greater obstacles to the implementation of public infrastructure,
housing and services, than native title rights and interests. As
such, reform should be directed towards overcoming bottlenecks
within bureaucracy, rather than attempting to erode native title
rights. Indigenous communities should not be forced to bear the
consequences of bureaucratic inefficiency.[15]
While the North Queensland Land Council argues that it is
‘extraordinarily premature to wind back indigenous land
rights when the government has not made all reasonable attempts in
both resourcing and engagement to deliver on their own policy
objectives.’[16] They go on to comment that ‘[t]he bill will
not address State and Commonwealth Government failures in program
delivery.’[17]
Warren Mundine commented in his evidence to the Senate Committee
that
There is no evidence to show—and we argue
the contrary—that Indigenous communities have been the ones
that have slowed the process down. My previous experience in
working with mining companies and energy companies and my
experience now with native title is that the thing that really
holds it up is government process…[18]
While Daniel Lavery, a Barrister specialising in Indigenous land
issues, is even more stringent in his reflections:
It is not native title which is retarding or
preventing the construction of urgently-needed housing and
infrastructure. It is a result of neglect over several decades by
the States and the Northern Territory, and their continuing
ineptitude.[19]
The Bill has not excited a significant degree of attention,
however the Coalition has stated its intention of supporting the
Bill, and the Australian Petroleum Production and Exploration
Association’s Submission to the Senate Committee also gives
support to the Bill, as does the Western Australian Government and
the Queensland Government. However every indigenous body that
made a submission to the Senate Committee raised serious concerns
about the Government’s approach, as do advocates such as
Professor Jon Altman, Australians for Native Title and
Reconciliation, Daniel Lavery and the Law Council of
Australia.
The Greens do not seem to have commented in the media, however
their concern to preserve the Racial Discrimination Act
1975 has been recently reinforced and it could therefore be
assumed that they will have concerns regarding the Bill (see
further, ‘Race Discrimination’ below).[20]
The Explanatory Memorandum states that ‘[t]here is no
direct financial impact on Government revenue from this
Bill.’[21] Certainly any financial impact that may occur due
to the proposal to modify negotiating avenues for native title
holders and any resultant decrease in expenditure required to reach
settlement of, for instance, indigenous land use agreements, would
be indirect and next to impossible to quantify.
There is wide spread consensus amongst the submissions to the
Senate Committee that ILUAs should be the preferred vehicle for
negotiating housing and other infrastructure arrangements. Thus,
for instance, the Cape York Land Council’s submission
(endorsed by a large number of later submissions) argues:
The Wik amendments also provided that
ILUAs over any future acts could be negotiated between government,
developers and native title holders in accordance with a process
that was more or less beneficial than [other] future act
procedures.[22]
The submission applauds the Rudd Government’s
‘proper focus on the importance of ILUAs as a form of
agreement making in settling all forms of native title disputes
– both determinations and future acts’, and argues that
this Bill’s departure from these principles is
inappropriate.[23]
The Torres Strait Regional Authority argue that an ILUA has
advantages in that it can ‘[alleviate] some burden on the
limited resources of the parties whilst providing a measure of
certainty as to the notification and consultation process necessary
for encouraging positive relationships between the
parties.’[24]
The Australian Human Rights Commission also argues strongly in
favour of indigenous land use agreements and generally promotes
arrangements which involve negotiation with the relevant indigenous
communities.[25]
It is a fairly straight forward proposition to identify the
provisions of the Bill as discriminating on the grounds of race.
Most curtailments of native title rights will fit the pattern of a
racially discriminatory act in that it will be detrimental to a
particular, race based group of property holders. Certainly the
majority of submissions to the Senate Inquiry identify the
Bill’s measures as racially discriminatory, and the
Government implicitly recognises that Bill contains a particular,
racially based scheme and then goes on to argue that this would not
offend against the Racial Discrimination Act 1975 (the
RDA) because the Bill’s provisions would qualify as a
‘special measure’.
Special measures are racially specific measures taken to ensure
the advancement of groups needing protection to enjoy human rights
and fundamental freedoms. They are recognised under the
International Convention on the Elimination of All Forms of
Racial Discrimination (CERD). Article 1(4) of CERD, from which
the RDA’s special measures are derived, provides as
follows:
Special measures taken for the sole purpose of
securing adequate advancement of certain racial or ethnic groups or
individuals requiring such protection as may be necessary in order
to ensure such groups or individuals equal enjoyment or exercise of
human rights and fundamental freedoms shall not be deemed racial
discrimination, provided, however, that such measures do not, as a
consequence, lead to the maintenance of separate rights for
different racial groups and that they shall not be continued after
the objectives for which they were taken have been
achieved.[26]
The Australian courts have interpreted this definition as
containing four elements:
- a special measure must confer a benefit on some or all members
of a class;
- the membership of the class must be based on race, colour,
descent, or national or ethnic origin;
- a special measure must be for the sole purpose of securing
adequate advancement of the beneficiaries in order that they may
enjoy and exercise equally with others human rights and freedoms;
and
- the circumstances of the special measure must provide
protection to the beneficiaries which is necessary in order that
they may enjoy and exercise human rights and freedoms equally with
others.[27]
Logically a special measure must not be continued after the
objectives for which it was taken have been achieved.
The purpose of securing adequate advancement for a racial group
is not necessarily established by showing that the person who takes
the measure does so for the purpose of conferring a benefit, if the
group does not seek or wish to have the benefit. In Gerhardy
v Brown a seminal case on this topic, Brennan J
stated that the ‘wishes of the beneficiaries for the measure
are of great importance (perhaps essential) in determining whether
a measure is taken for the purpose of securing their
advancement’.[28]
The Parliament is currently considering the nature of special
measures with respect to another Bill which seeks to revise what
are, arguably, discriminatory elements of the Northern Territory
Emergency Legislation. Issues regarding special measures are
explored in the relevant Bills Digest,[29] which identifies some recent
commentary by the United Nations High Commissioner for Human Rights
Special Rapporteur, James Anaya, after a visit to Australia:
… any special measure that infringes on
the basic rights of indigenous peoples must be narrowly tailored,
proportional, and necessary to achieve the legitimate objectives
being pursued.[30]
Any answer to the question of whether the Bill’s measures
satisfy the ‘special measures’ provisions would be
difficult to arrive at. The Government argues that the NTA itself
is a ‘special measure’ and that the proposed amendments
provide ‘a relatively small adjustment to meet the urgent
need for housing and public infrastructure in Indigenous
communities.’[31] On the other hand the Cape York Land Council, National
Native Title Council, NTSCORP and a range of other entities
identify the proposed amendments as racially discriminatory, with
the Carpentaria Land Council Aboriginal Corporation commenting:
The Bill appears to be premised on the
assumption that if a project is of benefit generally, there is
justification in overriding the interests of native title holders.
This is of concern because such an attitude is fundamentally
discriminatory. It would be unacceptable for the property rights of
non-Aboriginal people in Australia to be diminished for the
provision of benefits such as public housing or infrastructure. Any
attempts by government to sweep away the property rights of
individual non-Indigenous Australian in such circumstances on the
basis that a public benefit would be provided would rightly lead to
outrage and resistance. This will also be the case in aboriginal
communities.[32]
While the analogy is inadequate, contemplating the reactions of
a suburban resident faced with having their property acquired to
build a local school (or an airport) may assist in identifying
differential assumptions regarding property and who should have the
right to veto or receive just compensation. The suburban
property owner may not be so sanguine regarding that hypothetically
welcome provision of facilities if it involves the use of their
land.
When contemplating whether the Bill fits the definition of a
‘special measure’ it may also be instructive to
contemplate Brennan J’s concern that a special measure be
generally accepted by the community. The widespread disquiet
amongst Native Title groups evinced in submissions to the Senate
Committee may be of concern in this regard, as is the generally
held view that the Government has progressed this Bill’s
measures without sufficient consultation and without having due
regard to the input of the relevant Indigenous communities.
The Cape York Land Council comments
The Bill, and the August 2009 Discussion Paper,
have been fast‐tracked to the extent that indigenous people
have had no meaningful opportunity to negotiate with the
Commonwealth.[33]
The North Queensland Land Council sets out its position
that this bill is a knee-jerk reaction to
delays the government is experiencing meeting its promise to build
public housing and infrastructure in some remote indigenous
communities.[34]
Once again a significant
number of submissions argue the consultation process for this Bill
was inadequate, including the Australian Human Rights Commission,
Professor Altman and the Carpentaria Land Council Aboriginal
Corporation.
The proposed amendments proceed on the grounds that they will
deal with situations in which no compulsory acquisition is
occurring and that the native title is simply subject to a
temporary suspension which will be restored after the legislation
expires or when the facilities which have been constructed cease to
be used. Several submissions to the Committee argue that in
fact there will be a de facto acquisition, with the Law Council of
Australia commenting that
Whilst the application of the
non-extinguishment principle is supported, it is submitted that
long-term suppression of native title would have the same practical
effect as extinguishment.
There is a particular anomaly arising from the
fact that Indigenous persons are potentially being required to
forego their native title rights for an extended, perhaps
indefinite, period in return for the provision of public housing
and infrastructure on their traditional lands. In return for
agreeing to a lease, Aboriginal communities will be required to pay
rent and be subject to public housing policies which may not be
appropriate to their particular circumstances. Moreover, there does
not appear to be an associated plan for the return of native title
lands on which housing or infrastructure has been built under this
new process.[35]
The Torres Strait Regional
Authority, speaking of these future results, quote the Special
Rapporteur, Mr James Anaya, who said that
...government initiatives to address the
housing needs of indigenous peoples, should avoid imposing leasing
or other arrangements that would undermine indigenous peoples'
control over their lands.[36]
The Regional Authority goes
on to conclude that the effects of the Bill’s measures on
Native Title are likely to be long term, as does NTSCORP, who
comment that the Bill ‘will effectively result in the
extinguishment of native title… given the permanency of acts
such as public infrastructure…[p]ublic housing and
infrastructure is not generally considered
temporary’.[37] Similarly Australians for Native Title and
Reconciliation comment that given the lifetime of public housing
and infrastructure… ‘while native title is not
formally extinguished, its exercise is affected to such an extent
that it may as well be.’[38]
The Cape York Land Council
submission explores the implications of these arrangements as
follows:
The nature of the future acts covered by the
Bill is such that they will remain for a period that will probably
make it impossible for native title to ever meaningfully revive. As
such, the amendments are a de facto form of compulsory acquisition
but which avoid the prescribed freehold test and right to negotiate
applicable under the NTA to compulsory acquisitions. Notably, it is
not legally possible for such developments to occur on non
indigenous title without triggering compulsory acquisition
legislation.[39]
In its second supplementary submission to the Senate Inquiry the
Government reasserts its belief that native title will not be
extinguished by measures in the Bill, saying ‘it is clear
that the new Subdivision will prevent the extinguishment of native
title, where it applies.’[40]
Part 2 – Division 3 of the NTA deals with ‘Future
Acts’ – dealings with native title land which fall into
various categories, with varying procedural approaches attached to
the different types of future act (defined in section 233).
Thus we have, for instance, these pre-existing subdivisions:
- Subdivision G – Future acts and primary production
- Subdivision J – Reservations, leases etc.
- Subdivision K – Facilities for services to the
public
- Subdivision L – Low impact future acts
These current categories have various ways of dealing with
proposals to deal with native title land, with a legislative and
policy on indigenous land use agreements (ILUAs) as the preferred
mechanism to facilitate future acts. An ILUA can allow future
acts by agreement between the relevant parties and must be
registered with the ‘Register of Indigenous Land Use
Agreements’.[41]
This Bill proposes a new category ‘Subdivision JA
– Public housing etc’. The coverage of
this proposed subdivision is set out in
proposed subsection 24JAA(3) and includes not only
housing and public education and health facilities but also police
facilities and emergency facilities (the section requires that they
would benefit the Aboriginal people or Torres Strait Islanders
living in the area), as well as a wide range of utilities.
The proposed ‘Subdivision JA—Public Housing
etc’ contains some provisions which mirror
comparable Subdivisions, but also includes unique or differently
formatted provisions. The Digest will focus particularly on
the differences between the proposed provisions and pre-existing
Subdivisions.
It is important to note that the Future Acts provisions are
likely to have a restricted application and preclude a significant
proportion of the Northern Territory (i.e. any land held under the
Aboriginal Land Rights (Northern Territory) Act 1976 and
certain other Commonwealth legislation, and also significant parts
of South Australia).[42] There would also seem to be some uncertainty regarding
the coverage of the future act regime more generally (this was
discussed particularly by the Northern Land Council and the Law
Council of Australia). A supplementary submission from the
Attorney-General’s Department and the Department of Families,
Housing, Community Services and Indigenous Affairs argues that the
Bill is still necessary to address uncertainties as to what might
constitute a future act. In particular they argue that if there is
a future act, contrary to expectations, and the appropriate
procedures have not been complied with:
The consequences of the act being invalid will
ultimately be borne by the entity that is constructing the housing
etc. with no legal right to do so, and by the entity that purported
to grant the legal right. In light of this potential risk,
the Government considers that the new Subdivision is appropriate to
provide certainty and ensure essential housing and infrastructure
can be built.[43]
Unlike other subdivisions, the proposed
subdivision includes a sunset clause which would come into
operation 10 years after the amendment comes into operation
(subparagraphs 24JAA(d)(i) and (ii)). The
significant COAG funding for housing discussed above is currently
scheduled to last for 10 years.
The proposed subdivision, in a comparable
manner to subdivision K, would apply to areas or sites which may be
of particular significance to Aboriginal peoples or Torres Strait
Islanders in accordance with their traditions, but requires the
presence of some Commonwealth State/Territory law which
‘makes provision in relation to the preservation or
protection of areas, or sites’ that may be of particular
significance to Aboriginal peoples or Torres Strait Islanders in
accordance with their traditions’ (proposed section
24JAA(1)(e)).
Similarly to other subdivisions it is specified that the
proposed subdivision will not apply to compulsory
acquisitions of some or all of the relevant native title rights and
interests (proposed subsection 24JAA(2)).
Generally speaking such acquisitions are dealt with elsewhere in
the NTA and require just terms compensation (but see above for a
discussion of whether there may be a de facto acquisition).
As previously mentioned, proposed subsection
24JAA(3) specifies the sorts of activities which will be
covered by the subdivision, including public housing for Aboriginal
people or Torres Strait Islanders living in the area
(24JAA(3)(a)), public education or health
facilities, or police or emergency facilities
(24JAA(3)(b)) or a broad range of facilities,
including roads, jetties, lighting, communication facilities and
sewerage treatment facilities (this is an extension on the
pre-existing coverage in ‘Subdivision K Facilities for
services to the public’ which currently only covers ‘a
sewerage facility, other than a treatment facility’
(24JAA(3)(c)). Importantly this proposed
sub-paragraph leaves open the possibility of extending the list of
facilities further by specifying it will also cover ‘things
prescribed by the regulations’
(24JAA(3)(c)(iii)).
The directly comparable ‘Subdivision K Facilities for
services to the public’ goes on to define the procedural
rights of native title holders, whereas the proposed
Subdivision does not give comparable procedural rights,
instead requiring the ‘action body’ (defined in
proposed 24JAA(1)(c) as the governmental body
planning to create the housing or specified facilities) to notify
the relevant native title claimant, registered native title body
corporate or representative bodies and, to report on any comments
received (there is a time frame of two months during which comments
can be made (proposed subsections
24JAA(10)&(11)). This two month timeframe commences
from a time at which, in the action body’s opinion, the
relevant parties should have received their notice
(proposed subsection 24JAA(12)). Giving the action
body the right to determine when the relevant parties
‘should’ have received their notice seems unique in the
framework of the legislation.
If a registered native title claimant or registered native title
body corporate requests consultation in writing the action body
must conduct consultations, and the two month opportunity for
comment is extended to a maximum of four months. Once again, a
report must be given to the Minister, (proposed subsection
24JAA(16)).
The provisions regarding notice, consultation and comment are
novel and quite specific with respect to some elements of the
scheme, while with respect to other elements the Commonwealth
Minister is given the power to determine matters by legislative
instrument.
The entitites who must receive notice are identified as:
- registered native title claimant
- native title body corporate
- or representative Aboriginal Torres Strait Islander body
(proposed subsection 24JAA(10).
Whilst, as mentioned, it is a statutory requirement that a
report be prepared as a result of these activities, there are no
provisions governing response to concerns raised, nor any
significant requirements that would ensure the relevant native
title body or native title claimants concerns are given
attention. A supplementary submission from the
Attorney-General’s Department and the Department of Families,
Housing, Community Services and Indigenous Affairs argues that:
The concept of ‘consulting’ has an
established meaning. It is insufficient to simply ‘go
through the motions’, and a proponent who failed to seriously
engage or to consider information and arguments put forward would
not in fact be ‘consulting.’[44]
The Torres Strait Regional Authority, however, comments that
‘the right to comment as opposed to the requirement for
consent does not provide native title holders with any assurance
that their concerns will be taken into account.’[45]
Finally item 8 provides for compensation for
acquisition of property. This provision follows a standard
format which responds to a constitutional requirement that
acquisitions of property be compensated for if they have not been
undertaken on just terms. There would seem to be a drafting
oddity here in that the section is not to be inserted into the NTA
itself but will remain an item in the Schedule of the Act resulting
from passage of this Bill. All the other items of the
Bill’s Schedule function by amending the NTA, whereas item 8,
which makes no provision for incorporation into the Principal Act,
will continue to function as the lone and independently active
provision of the resultant Act.
There are many provisions which refer to the need for just terms
compensation in the NTA, with the most comprehensive provision
seeking to ensure that the compensation is provided by the relevant
governmental authority and confining the statutory right to take
action to the Federal or High Court (Section 53—Just terms
compensation). It seems odd that item 8 has not
been incorporated into the relevant Subdivision or somewhere in the
NTA itself. The Explanatory Memorandum makes no comment on
this drafting decision. In general it would seem a desirable
outcome to have all provisions incorporated into the Principal Act
rather than being left in what should become, effectively, a spent
piece of amending legislation. From a purely pragmatic point of
view the difficulties of tracing the relevant statutory provisions
is increased under this proposed legislative arrangement.
A large number of submissions recommend that the Bill be
rejected. There are, however, some submissions which make
more detailed recommendations regarding specific changes they would
like to see. Thus, for instance, the Western Australian
Government suggests addressing problems that could arise given the
proposed requirement that a report to a Minister be in a form that
can be stipulated by legislative instrument. It argues this could
introduce further uncertainty and potentially further delays.
The submission suggests the possibility that a report ‘may be
deemed as not fully complying with the Commonwealth
Minister’s requirements’ could jeopardise the validity
of the act. They are also concerned that these provisions do
not specify time frames for the Commonwealth Minister to respond,
if the Minister ever does respond, and that the requirements
regarding the reporting process have great potential to create
further delays.[46]
The Queensland Government notes that the Bill
does not state that the consultation should be
undertaken with a view to reaching agreement to the doing of the
act. This is something that could be set out explicitly in
the legislative instrument to be made by the Commonwealth
Minister.[47]
There are other concerns regarding uncertainties which could
arise as a result of the innovative aspects of the regime, and also
the potential inadequacies of the regulation of the
consultation. The Carpentaria Land Council Aboriginal
Corporation’s perspective may be useful in this context:
[C]onsultation requires effective and genuine
engagement with Aboriginal people. Consultation does not occur:
a. by meeting with
Aboriginal people to tell them what has been already decided
b. by meeting with
Aboriginal people to discuss a stated issue but then raising a
completely different issue with that Aboriginal community which
they did not have notice of, or time to consider
c. where Aboriginal
people are pressured to decide an issue a particular way under
threat of a negative impact or sanctions
d. where discussion
papers and other proposals are issued with very short time frames
in circumstances where many Aboriginal organisations do not have
the resources to respond to such short time frames or
e. where
consultation sessions are held in capital cities hundreds or
thousands of kilometres away from the relevant Aboriginal community
making it impossible for members of that community to
attend.[48]
Another issue which the Law Council of Australia identifies as
needing to be addressed by the legislation is the current
‘lack of an associated plan for the return of native title
lands on which housing or infrastructure has been built under this
new process.’[49]
Concluding comments
It is unfortunate that the interests of native title holders and
the need for the development of infrastructure are being pitted
against each other. While these two interests need not necessarily
coincide there should presumably be good opportunities for
negotiation, an opportunity which is not being tapped.
The Bill would seem to have been prepared in haste and the
Committee process has been important to draw out hitherto
unexplored issues, including an array of suggestions for amendments
to the Bill. The nearly unanimous rejection of the Bill by
native title holder representative bodies must be of concern.
The Carpentaria Land Council Aboriginal Corporation recount an
all too believable story of problems encountered in negotiation
procedures:
In the CLCAC’s experience, government
agencies often seem to view native title issues as simply a box to
tick in the development process. Unfortunately, it is also often
left as the last box to tick. Rather than go to native title
holders and their representatives to develop proposals upfront, the
project is developed, consultants retained, contracts entered to,
and then, when the project is about to commence the native title
process commences. This has the inevitable consequence that the
native title holders are only provided with input into a proposal
at a point where it is essentially concluded. This makes any
consultation a farce and makes consultations subject to strict
timeframes coupled with the pressure of cost blow-outs.[50]
The story shows all too graphically how badly managed
consultation can be destructive. In its quest to ensure the
large-scale construction of housing and facilities for Indigenous
communities the Government will need to monitor the effective
delivery of another large-scale infrastructure project. While
the need to deliver the facilities is imperative there is also a
need to balance this with the long-term impacts of legislative
change.
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277 6277
2680.
Kirsty Magarey
24 February 2010
Bills Digest Service
Parliamentary Library
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