CHAPTER 3
Key issues
3.1
This chapter discusses some of the key issues raised during the inquiry,
namely:
- the Bill's inclusion of the United Nations Declaration on the
Rights of Indigenous Peoples (Declaration);
- compulsory acquisition and the non-extinguishment principle;
- the normal (non-expedited) negotiation procedure;
- profit-sharing conditions;
- agreements to disallow prior extinguishment;
- the rebuttable presumption of continuity;
- the common law meaning of 'native title' and 'native title rights
and interests'; and
- trade and other commercial rights.
United Nations Declaration on the Rights of Indigenous Peoples
3.2
As noted in Chapter 1, one objective of the Bill is to refer to the
Declaration and to provide for certain principles to be applied in
decision-making under the Act.
Support for proposed new section 3A
3.3
Many inquiry participants supported inserting as an additional object of
the Act a requirement for Australian governments to take all necessary steps to
implement particular principles set out in the Declaration.[1]
3.4
There were two main reasons for this support: first, the belief that, by
signing the Declaration in April 2009, the Australian Government committed
itself to the meaningful implementation of the Declaration;[2]
and, second, the belief that the Declaration principle of 'free, prior and informed
consent', as proposed in new paragraph 3A(1)(c), should be a fundamental part
of any legislation affecting Aboriginal and Torres Strait Islander peoples.[3]
3.5
However, submissions which supported proposed new section 3A also
highlighted problems relating to its potential application and the way in which
the Bill seeks to incorporate the Declaration into the Act (due to inconsistencies
between the two).[4]
3.6
In this context, various opinions were expressed regarding how the
principles of the Declaration could be incorporated into Australia's native
title law.[5]
The Australian Human Rights Commission (AHRC) and Professor Jon Altman, for
example, considered that the Act should be aligned with the Declaration.[6]
The Yindjibarndi Aboriginal Corporation and the Law Council of Australia (Law
Council) considered that the Declaration could be referenced in the Act.[7]
The Queensland Government alternately suggested that the 'proper' way to
incorporate principles of the Declaration into the Act would be to enact
specific legislation to that effect.[8]
3.7
In relation to the practical effect of proposed new section 3A, the
Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS)
submitted that the provision could have a substantive impact on the enjoyment
of rights in Australia:
Many of the substantive rights recognised in the
[Declaration] are not fully recognised or protected by native title...Utilising
the [Declaration] as a touchstone for interpretation would, in the case of any
ambiguity, ensure a beneficial interpretation[.][9]
3.8
One particular issue raised by the Law Council, and discussed in some
detail at the public hearing, was the case of Western Australia v Ward.[10]
In that case, the (then) Human Rights and Equal Opportunity Commission (HREOC)
(now the AHRC) put forward the view that the Federal Court of Australia should
attempt to construe the Act consistently with Australia's international
obligations under the Convention on the Elimination of All Forms of Racial
Discrimination and the International Covenant on Civil and Political Rights.
However, in his judgement, Justice Callinan rejected this argument:
The task of this Court and other courts in Australia is to
give effect to the will of Australian Parliaments as manifested in legislation.
Courts may not flout the will of Australia's democratic representatives simply
because they believe that, all things considered, the legislation would "be better" if it were read to cohere with the mass of (often
ambiguous) international obligations and instruments. Consistency with, and
subscription to, our international obligations are matters for Parliament and
the Executive, who are in a better position to answer to the international
community than tenured judges. Where legislation is not genuinely ambiguous,
there is no warrant for adopting an artificial presumption as the basis for, in
effect, rewriting it.[11]
3.9
At the public hearing, Mr Anthony McAvoy from the Law Council did not
comment on whether proposed new section 3(A) represents either the HREOC or the
Federal Court of Australia position, however, he suggested that the proposed
provision is an 'appropriate way forward':
If the legislation is capable of being interpreted or applied
in a manner that is consistent with the Declaration on the Rights of Indigenous
Peoples then that is how it should be interpreted.[12]
Opposition to proposed new section
3A
3.10
Not all inquiry participants supported the incorporation of certain
principles of the Declaration into the Act, as proposed in new subsection
3A(1).[13]
The basis for such objections ranged from the fact that the Declaration is not
part of Australia's domestic law,[14]
and might therefore only be supported on an aspirational basis,[15]
to the negative effect that proposed new section 3A might have on state and
territory decision-making.[16]
3.11
The Western Australian Government also questioned the 'abstract'
language in proposed new subsection 3A(1) (specifically the phrase 'all
necessary steps');[17]
and drafting issues similarly concerned the Law Council (who supported the Bill
overall). Further, in the Law Council's view:
[S]ub-clause 3A(1) is a wide-ranging object that, prima
facie, is not tied to the [Act] or what the [Act] seeks to regulate. At
least some of the principles appear to go beyond what the [Act] regulates and
in other respects it is difficult to envisage how they will affect the
operation of the Act.[18]
3.12
The South Australian Government referred to 'obvious and potential
difficulties' in importing the Declaration and applying it to decision-making
under the Act:
[T]he Declaration is not couched in sufficiently precise
language to allow for its application as part of Australian law; a number of
important terms are undefined; and it is internally inconsistent. Taken at face
value, a number of the Articles would affect the existence and exercise of
third party property rights and the exercise of decision making powers by
government.[19]
3.13
Both the Attorney-General's Department (Department) and the National
Native Title Tribunal (NNTT) submitted that proposed new section 3A requires
further consideration. In its submission, the NNTT referred to
uncertainty and complexity within the Act:
It appears arguable that the application of the [Declaration]
principles listed [in proposed subsection 3A(1)] would render the provisions of
the [Act] relating to the expedited procedure nugatory. It may also precipitate
a challenge to the practice of state and territory governments including a
statement of expedition in a notice issued under [section]. 29 in relation to
an exploration or prospecting tenement as a matter of course. Other parts of
the NTA might also be able to be challenged on similar grounds.
...
[T]he impact of the articles of the [Declaration] (for which Australia
has indicated its support, but which it has not ratified) and the complex and interlocking
provisions of the [Act] should be considered closely before amendments such as
those proposed in the Bill are made. The Tribunal notes that substantive changes
to the [Act] in the past have resulted in delays (sometimes significant) and
the incurring of considerable expense in resolving claims and future act
matters.[20]
Committee comment
3.14
A number of submissions to the committee raised the issue of an
inconsistency between the current provisions of the Act, primarily the right to
negotiate provisions, and the principle of 'free, prior and informed consent',
as set out in the Declaration. The key concern was that the principle of 'free,
prior and informed consent' amounts to a right of veto, which is clearly and
intentionally not provided for in the Act.[21]
3.15
The committee accepts the evidence from numerous submitters – including
Indigenous stakeholders – who argued that proposed new section 3A is not the
most effective means of incorporating the Declaration into Australia's native
title law.[22]
3.16
Further, the committee is mindful of several practical difficulties
identified with proposed new section 3A, for example:
- it would cause an additional administrative burden on government
officials and it may not make any real difference to the outcomes of official
decision making;[23]
- there is confusion as to what parts of the Declaration are to be
applied because proposed subsection 3A(1) refers to only some of the principles
of the Declaration but proposed subsection 3A(2) refers to the entire
Declaration;[24]
and
- the language of the Declaration is not sufficiently precise to
enable application as part of Australian law.[25]
3.17
The committee observes that the objective of the Bill is to enhance the
effectiveness of the native title system and considers that the lack of
precision in proposed new section 3A and difficulties with its interpretation –
such as in the phrase 'free, prior and informed consent' – do not contribute to
this objective.
Proposals aimed at enhancing the effectiveness of the native title system
3.18
The Bill also amends several provisions in the Act relating to the future
acts regime (Part 2 of the Act), including the right to negotiate regime
(Subdivision P of Division 3 of Part 2 of the Act). Inquiry participants
commented widely on the proposed amendments both for and against the proposals
contained in the Bill. These arguments are explored further in the following
sections. Many submitters and witnesses were also critical of the lack of
consultation on reforms which amount to fundamental changes to the Act.
Compulsory acquisition and the
non-extinguishment principle
3.19
The committee received several submissions which supported reinstatement
of the application of the non-extinguishment principle to compulsory land
acquisitions (proposed new paragraph 24MD(2)(c)).[26]
3.20
However, as pointed out by the Law Council, the proposed amendment does
not address the issue of who the native title holder is while the land is
affected by a compulsory acquisition:
The effect of the amendment to [paragraph] 24MD(2)(c) appears
to be that the Commonwealth or State may be able to compulsorily acquire the
native title rights or interests. However, those rights are not extinguished
until a further act is done. This raises some complications. Even though the
State may hold the land subject to native title rights and can even be said to
be under an obligation not to act in a manner that affects the native title
rights and interests (without observing the future act regime), the Law Council
considers that the State cannot hold native title in its own right or on behalf
of any party.[27]
3.21
No other submitters presented their views on this technical legal issue
but opponents of proposed new paragraph 24MD(2)(c) also referred to elements of
uncertainty that are inherent in the provision.[28]
The South Australian Government pointed out that the proposed amendment is not
consistent with case law by which extinguishment occurs as a result of the grant
of inconsistent land rights.[29]
Normal (non-expedited) negotiation
procedure
Support for the proposed good faith
requirement
3.22
Proposed new paragraph 31(1)(b) requires the negotiation parties to 'negotiate
in good faith using all reasonable efforts' to reach agreement, for a period of
at least six months. The meaning of 'negotiate in good faith using all
reasonable efforts' is defined in proposed new subsection 31(1A).
3.23
Submissions and witnesses commented extensively on these two proposed
amendments.[30]
Many supported the proposals due to, for example, either personal involvement in (or knowledge of) native title negotiations, or on account of
the decision of the Full Court of the Federal Court of Australia in FMG
Pilbara Pty Ltd v Cox.[31]
Minimum negotiation period
3.24
Some submitters suggested ways in which proposed new paragraph 31(1)(b)
could be improved. For example, the AHRC considered that the proposed provision
should allow parties to negotiate in good faith for a period of less than six
months (where supported in relevant circumstances).[32]
On the other hand, the National Native Title Council (NNTC) called for a
minimum 12-month negotiation period due to the practical
realities of organising native title group meetings and ensuring that there is
free, prior and informed advice.[33]
3.25
At the public hearing, Ms Carolyn Tan from the Yamatji Marlpa Aboriginal
Corporation told the committee that, in practice, the proposed amendment would
not be onerous as 'in most cases negotiations have gone on for far more than
six months'.[34]
Mr Graeme Neate, President of the NNTT, noted that, in all the claims up to
June 2009, about 66 per cent of claims were negotiated for 18 months or
more after the relevant date.[35]
3.26
Ms Tan stated further that the requirements of proposed new paragraph 31(1)(b)
would not prevent parties from entering into agreements before the end of the
six-month negotiation period. However, she argued that the real importance of
the provision is not the length of time stipulated but its capacity to encourage
negotiation parties to seriously negotiate before they apply to the arbitral
body for a determination.[36]
3.27
The Minerals Council of Australia, which did not support the proposed
paragraph, agreed that the quality of negotiations, rather than the length of
relevant negotiation periods, should be the focus of the good faith provision.[37]
Non-exclusive list of indicia
3.28
In relation to proposed new subsection 31(1A), submitters did not
support the exclusion of confidential or commercially sensitive information from
disclosure during good faith negotiations (proposed new paragraph 31(1A) (b)).[38]
The Western Australian and South Australian Governments specifically
questioned the need for the proposed amendment.[39]
3.29
The NNTT noted that the amendment would have little practical effect:
Most of the criteria proposed in the Bill are similar to
those developed many years ago, and regularly applied, by the Tribunal in 'good
faith' inquiries. In the Tribunal's submission, codifying the indicia going to
show good faith may serve little purpose...[I]f it is decided to codify the
indicia, then it is submitted that a provision similar to [paragraph] 39(1)(f) of
the [Act] should be included to ensure that the arbitral body has a discretion
to take into account any other matter it considers relevant.[40]
3.30
Yamatji Marlpa Aboriginal Corporation agreed that the indicia proposed
in new subsection 31(1A) reflect current criteria applied by the NNTT; however,
Yamatji Marlpa Aboriginal Corporation endorsed codification of the criteria to
ensure clarity regarding the good faith requirement.[41]
Proving good faith negotiations
3.31
Proposed new subsection 31(2A) imposes upon the party asserting good
faith the onus of proving that it has in fact negotiated in good faith.
3.32
The Kimberley Land Council considered that proposed new subsection 31(2A)
would improve the effectiveness of the native title system in a large number of
cases (where there is no dispute between competing claims).[42]
Australians for Native Title and Reconciliation, Professor Altman and the NNTC
also expressed support for the proposed amendment.[43]
3.33
However, the Western Australian Government submitted that proposed new
subsection 31(2A) appears to operate so that:
the native title party need merely raise the issue of good faith
negotiation and this would give rise to an obligation on the proponent or State
to marshal evidence that negotiations were conducted in good faith. This could
create unnecessary delays in a process that already allows for challenges on
the basis of good faith.[44]
3.34
The Association of Mining and Exploration Companies (AMEC) and the
Minerals Council of Australia expressed similar concerns,[45]
while the South Australian Government argued that the existing good faith
provision is appropriate.[46]
Pre-requisites for application to
the arbitral body
3.35
Proposed new subsection 35(1A) provides that a negotiation party cannot
apply to the arbitral body unless all the requirements of subsection 31(1) and
proposed new subsections 31(1A) and 31(2A) have been met.
3.36
A few submissions supported the proposed amendment.[47]
However, the NNTT questioned 'Who is to judge whether or not there has been
compliance?',[48]
and neither the South Australian nor the Western Australian Governments
endorsed the proposed amendment.
3.37
The South Australian Government considered that the 'vague, nebulous and
difficult to prove' requirements of proposed new subsections 31(1A) and 31(2A)
create potential for matters to 'bog down in endless argument'.[49]
3.38
The Western Australian Government argued against adding an additional
procedural layer to the approvals process, without any apparent benefit. It
submitted that the current normal negotiation procedure already covers the
matters sought to be addressed by proposed new subsection 35(1A).[50]
Department comment
3.39
The Department advised that, on 3 July 2010, the Attorney-General and
the Minister for Families, Housing, Community Services and Indigenous Affairs
released for consultation a discussion paper titled 'Leading Practice Agreements:
Maximising Outcomes from Native Title Benefits' (Discussion Paper). The focus
of the Discussion Paper was a possible package of reforms to promote leading
practice in native title agreements and the governance of native title payments.[51]
3.40
The Discussion Paper included a proposal to amend the Act to:
provide clarification for parties on what negotiation in good
faith entails and to encourage parties to engage in meaningful discussions
about future acts under the right to negotiate provisions [sections 25-44 of
the Act].[52]
3.41
The Department advised the committee that the Australian Government has
agreed to adopt this proposal,[53]
while it continues to consider the remaining issues canvassed in the public
consultation process.[54]
3.42
In relation to the Bill, the Department advised that the proposed
amendments to the good faith requirement are broader than those upon which the
Department has consulted stakeholders. Further, the Department
reiterated:
Detailed consideration of the proposed amendments and full
stakeholder consultation is required.[55]
Profit-sharing conditions
Support for arbitral determination
of profit-sharing conditions
3.43
A significant number of submitters supported the proposal to enable the
arbitral body to determine profit-sharing conditions (proposed new subsection 38(2)).[56]
These submitters considered it important for native title parties to be able to
negotiate with future act proponents, without the latter being able to circumvent
profit-sharing negotiations (and payments) by applying to the arbitral body for
a determination.
3.44
Supporters of proposed new subsection 38(2) also referred to its
potential to promote economic development,[57]
with some calling for the NNTT to be properly equipped to fulfil any new
function in this regard.[58]
Opposition to arbitral
determination of profit-sharing conditions
3.45
Some submissions did not support proposed new subsection 38(2). There
were a variety of reasons for this lack of support. The South Australian
Government, for example, argued that the Act does not recognise an entitlement
to compensation for the 'loss' of resources:
Native title parties do not own the minerals or petroleum. To
the extent that they have a compensation entitlement, it is the same as a
freehold owner would be entitled to – i.e. to be compensated for the effect of
land access, disturbance etc. It is not an entitlement to be compensated for
the loss of the minerals per se. Thus, while it is open to miners and
native title parties to agree on how native title parties may be compensated
for the effect of access, it is a very fundamental and important change to
suggest that the arbitral body should be able to impose profit sharing
conditions (and, by implication, to decide what the profit sharing arrangement
should look like).[59]
3.46
The NNTT was concerned with defining the parameters of monies determined
under proposed new subsection 38(2) and future compensation awards, recommending:
consideration be given to inserting in the [Act] provisions
to explain the relationship between any such condition imposed by virtue of a [subsection] 38(2)
determination with any prospective compensation award made by the Federal Court
pursuant to Division 5 of the [Act].[60]
3.47
AMEC and the Western Australian Government were not convinced that conditions
of a commercial nature are a proper matter for determination by an arbitral
body, removed from the broader commercial context.[61]
The Minerals Council of Australia harboured similar reservations:
The term profit sharing is too narrow a focus relative to the
current approaches being taken in negotiations, which is around benefit
sharing. The mining related agreements which are recognised by both industry
and native title representative bodies as leading practice are those which
contain a mix of both financial and non-financial benefits including education,
training, business development and employment. This is in addition to financial
compensation for loss/impairment of rights.[62]
3.48
The Australian Government noted that the impetus for the July 2010
Discussion Paper was the growing number, and increasing financial value and
importance, of native title payments to Aboriginal and Torres Strait Islander
groups. However, the Discussion Paper also indicated problems with the way in
which native title agreements are currently operating:
Indigenous groups and Industry regularly bring concerns
around particular negotiations or agreements to the Commonwealth's attention.
Stakeholders have raised concerns about agreements that have resulted in poor
outcomes, such as benefits being dispersed in ways that achieve limited
outcomes for native title holders, including funds being dissipated to expert
advisers and being placed at risk by poor governance and trust management
practices. Poor agreements and governance arrangements risk impairing the
capacity of native title groups to deliver financial security and independence
for their community, now and into the future. Native title agreements are commercial
agreements, however there is a need to ensure that appropriate arrangements are
in place to maximise their sustainability.[63]
3.49
The Australian Government is therefore currently exploring, through the
consultation process, measures aimed at delivering practical and sustainable
outcomes for native title groups and their communities, both existing and
future.[64]
There is no indication in the Explanatory Memorandum or the Second Reading
Speech for this Bill that there has been any such consultation in respect of
the measure proposed in new subsection 38(2).
Agreements to disallow prior
extinguishment
3.50
In general, Indigenous submitters supported the proposal that there be a
mechanism for prior extinguishments of native title rights and interests to be
disregarded. However, while some of these submitters supported proposed new
section 47C,[65]
others expressed reservations regarding the requirement for the agreement of
the government party.
3.51
The Cape York Land Council Aboriginal Corporation, for example,
submitted:
[T]he proposed provision obviously relies on the goodwill of
the Government party in being willing to agree to disregard the extinguishment.
We have previously submitted to the Commonwealth that consideration should be given
to an extension of the beneficial provisions contained in [sections] 47, 47A
and 47B of the Act, to enable specified categories of historical extinguishment
to be ignored without requiring prior State or Commonwealth consent (noting
that any current interests in the land would prevail over native title).[66]
3.52
The NNTC cautioned:
Relying on the States and Territories to exercise goodwill by
agreeing to disregard historical extinguishment may not result in the
opportunities that the Federal Government may hope the amendment will produce
such as more claims to be settled by negotiation rather than litigation. In
some States or Territories the amendment may result in protracted negotiations
or unavoidable litigation.[67]
3.53
The South Australian and Queensland Governments did not support proposed
new section 47C: the South Australian Government called for further
consideration and consultation in regard to the terms and potential
implications of the proposed amendment;[68]
and the Queensland Government did not agree with the way in which the provision
has been drafted.[69]
Department's comment
3.54
From 14 January 2010 to 19 March 2010, the Australian Government consulted
on draft legislation that would allow parties to agree to disregard the
extinguishment of native title in areas which have been set aside or vested for
the purpose of preserving the natural environment of an area, in certain
circumstances (such as a park or reserve).[70]
3.55
The Australian Government received 17 public submissions, which were
broadly supportive of the proposal, and the government is now in the process of
considering these submissions. However, in its submission to the committee's
inquiry, the Department noted:
The amendments proposed by the Bill would allow parties to
agree to disregard any extinguishment which is far broader than the proposal
consulted upon and is a fundamental change to the Act.[71]
Rebuttable presumption of
continuity
3.56
A number of submissions supported the introduction of a rebuttable
presumption of continuity for applications for a native title determination
under Division 1 of the Act, as proposed in new sections 61AA and 61AB.[72]
However, several of these submitters identified concerns with the proposed
amendments.
Requirements of proposed new
subsection 61AA(1)
3.57
Proposed new subsection 61AA(1) sets out the criteria for application of
the presumption, including where '(b) the members of the native title claim
group reasonably believe the laws so acknowledged and the customs so observed
to be traditional'.
3.58
Australians for Native Title and Reconciliation queried whether the bar
in proposed new paragraph 61AA(1)(b) is still too high,[73]
while the North Queensland Land Council argued that the presumption should
apply without the need for any 'trigger points'.[74]
3.59
Other participants in the inquiry commented that proposed new subsection
61AA(1) still requires native title claimants and their representative bodies
to undertake considerable anthropological and ethno-historical research (to
satisfy the court that the presumption applies).[75]
Professor Altman, for example, submitted:
[I]t is important to note that these changes will reduce the
legal burden of proof that claimants have to demonstrate to a generally
non-Indigenous wider jural public and the state. But there will still be a need
for detailed and complex connection research both for passing the registration
test to lodge a claim and to ensure that the correct native title interests are
identified within regional Indigenous domains.[76]
Effect of proposed new subsection
61AA(2) on Indigenous claimants
3.60
Proposed new subsection 61AA(2) creates the presumption of continuity in
the absence of proof to the contrary. In this context, submitters supportive of
the proposed amendment again raised the issue of anthropological and
ethno-historical research.
3.61
The Centre for Native Title Anthropology at the Australian National
University expressed a number of concerns about the possible consequences for
the native title research process and research outcomes for native title
claimants, if a presumption of continuity is 'aggressively' challenged (which could
be done by respondent parties who are other Indigenous peoples or native title
claimants):
Most of these concerns arise from the possibility that,
burdened with the onus of disproving continuous practice of law and custom,
respondent parties may become significant commissioners of native title
research.[77]
3.62
Both the Centre for Native Title Anthropology and AIATSIS expressed
concern with the effect of respondent-commissioned research on individual
claimants and native title claim groups, with the latter commenting on
consequential social disruption:
[I]nformation gathering on behalf of respondent parties would
tend, intentionally or unintentionally, to pit groups against one another
without their understanding the implications of their actions for the success
of their own claims. States and other respondents have neither the
responsibility nor the capacity to resolve such disputes, or to understand
their location within the broader dynamics of a claimant group or its
neighbours.[78]
3.63
The Centre for Native Title Anthropology noted the potential exposure of
vulnerable witnesses to examination by respondent parties:
It is widely acknowledged that giving testimony in open court
can be a particularly stressful experience for Aboriginal witnesses,
particularly when they are elderly or frail, are illiterate, or have English as
a second language...We are concerned that in circumstances where respondent
parties seek to disprove continuity and native title claimants do not consent to
participate in primary research to this end, the frequency with which
Aboriginal people are subpoenaed to give evidence may in fact increase.[79]
3.64
The NNTC, which welcomed this 'significant amendment', considered that
placing the burden of proof on a government party would be beneficial:
[T]he burden placed on the State by virtue of such a
presumption may also result in positive behavioural changes, with the State
having little incentive to expend resources in difficult disputes over
continuity and connection or to assert, for example, that continuity had
effectively been broken because of actions that in our modern human rights climate
would be considered abhorrent (e.g. genocide or other breaches of international
human rights law). In this respect, the introduction of a rebuttable
presumption may act as a significant catalyst for change, facilitating a
paradigm shift in the way negotiations are conducted and in the quality and
quantity of positive outcomes for claimants.[80]
'Substantial interruption' element
in proposed new section 61AB
3.65
Proposed new section 61AB enables the presumption to be set aside by
evidence of a 'substantial interruption' (new subsection 61AB(1)), and requires
the court to have regard to the primary reason for any demonstrated
interruption or significant change (new subsection 61AB(2)).
3.66
A number of submissions supported the proposed amendments.[81]
However, some supporters also commented on the drafting and scope of the
provisions.
3.67
The Law Council noted inconsistencies and difficulties with some of the
language used in proposed new section 61AB. For example, the 'substantive
difficulty of having potentially conflicting bases for overcoming what would
otherwise be a presumption' ('proof to the contrary' under proposed new subsection
61AA(2) as opposed to 'evidence of substantial interruption' in proposed new
subsection 61AB(1)).[82]
In the Law Council's view, proposed new subsection 61AB(1) should be removed
from the Bill, and proposed new subsection 61AB(2) could be replaced with a
simpler alternative.[83]
3.68
The Yamatji Marlpa Aboriginal Corporation sought to extend proposed new paragraph
61AB(2)(b) to enable the Federal Court of Australia to recognise the long
history of forced and institutionalised dispossession from traditional lands
experienced by Indigenous peoples, including by non-government organisations
and institutions.[84]
3.69
Similarly, Australians for Native Title and Reconciliation suggested
that the Commonwealth should be named in proposed new subsection 61AB(2).[85]
Opposition to proposed new sections
61AA and 61AB
3.70
The Queensland Government highlighted numerous evidential difficulties
with proposed new sections 61AA and 61AB,[86]
while the South Australian Government argued that proposed new section 61AA
represents a very substantial change to the Act, warranting full and careful
consideration. Further, the presumption as drafted:
goes further than most statutory presumptions and introduces
complex notions such as 'reasonable belief' which will make it more open to
challenge on threshold issues than most statutory presumptions and may lead to
'trial within trial' which could lead the parties back to complex and lengthy
litigation.[87]
3.71
AMEC, the NNTT and AIATSIS also commented on the uncertain language in
proposed new sections 61AA and 61AB, which, in their view, would lead to
litigation and delays in the determination of native title applications.[88]
3.72
A representative from the NNTT suggested that some aspects of the Bill could
lead parties to reassess their position.[89]
Its submission cautioned:
The practical approach to agreement-making (both in terms of
determinations of native title and broader or alternative settlements) was
developed within the current legal framework and not without considerable
effort on the part of all major participants in the system. It is not possible
to predict with any certainty what impact the introduction of proposed [sections]
61AA and 61AB (along with proposed [section] 3A and the changes to [section]
223) might have on the approach of one or more government parties[.][90]
3.73
On this point, the Western Australian Government submitted that, if
introduced, proposed new sections 61AA and 61AB would radically disrupt
existing processes for claims resolution. Its submission concluded:
[I]f the onus of proof shifts to the Government it has no
option except to test the proof to its fullest[.][91]
Common law meaning of 'native
title' and 'native title rights and interests'
3.74
Several submissions supported defining the meaning of 'traditional laws
acknowledged' and 'traditional customs observed' in current paragraph 223(1)(a)
as the laws and customs that remain identifiable through time (proposed new
subsections 223(1A) and 223(1B)).[92]
However, not all submissions supported the proposed new definitions.
3.75
The South Australian Government described proposed new subsections 223(1A)
and 223(1B) as 'vague and largely unhelpful'. In its view, there is no need for
the proposed amendments:
Native title jurisprudence already accommodates the concept
of evolving laws and customs and this [proposed] concept does not elucidate or
simplify the approach already taken by the courts. Adding the concept of
'identifiable through time' may well complicate any presumption of continuity
by adding another layer to the meaning of 'traditional'...[T]his is an issue that
requires careful consideration and full consideration.[93]
3.76
AIATSIS considered that proposed new subsections 223(1A) and 223(1B)
would clarify contradictory and ambiguous case law, but did not
agree with the approach taken in the Bill:
[The 'loose' language 'identifiable through time'] may
generate more apparent uncertainty than is necessary, and could be remedied by
more clearly articulating the relevant characterisation of present-day law and
custom. We would recommend the use of language emphasising the linkage rather
than the similarity between contemporary and historic law and custom; focusing
on the means of transmission and the idea of inherited law and custom.[94]
Trade and other commercial rights
3.77
Several submissions supported amending the Act to provide a mechanism
for the recognition of commercial rights, as anticipated by proposed new
subsection 223(2).[95]
A recurrent theme in these submissions was the non-recognition of trade and other
commercial rights in the current Act. Another theme was that Aboriginal and
Torres Strait Islander peoples should be entitled to derive the maximum short-
and long-term benefits possible from their native title rights and interests.
3.78
The NNTC predicted that proposed new subsections 223(1A) to 223(1D):
will do much to encourage the development of indigenous
commercial initiatives which take customary trade rights and practices as their
starting point, but are not strictly confined to the manner and form of those
indigenous trade rights and practices which existed at the time of sovereignty.[96]
3.79
Other submissions commented variously on proposed new subsection 223(2). The Law Council, for example, queried the necessity for
the proposed amendment:
It is already clear at common law that native title rights
and interests may be of a commercial nature. The clause might aid...clarification
and codification of these particular forms of native title interests, however
it may be undesirable to single out two, and only two, types of native title rights
that are quite disparate.[97]
3.80
The Western Australian Government, which did not support proposed new
subsection 223(2), considered that the amendment would expand the nature
of compensable rights and interests in a manner which would unduly burden
government parties.[98]
AMEC expressed a similar concern with respect to mining entities.[99]
3.81
AIATSIS considered that the proposed amendment is inherently flawed:
[T]he classic formulation of a determination of native title
rights and interests to include use of resources for personal, communal,
ceremonial and non-commercial purposes is antithetical to the notions of a
proprietary interest.
...
There is a need for a provision that specifically states that
exclusive possession native title carries with it the full beneficial title to
the land and that the rights and interests exercised by native title holders
remain a matter internal to the groups, subject to laws of general application.[100]
Committee view
3.82
Based on the evidence received during the inquiry, the committee
acknowledges that there is dissatisfaction among certain stakeholders with
particular aspects of the native title system. The committee agrees that
reforms which expedite effective native title outcomes are desirable. However,
the committee is not persuaded that the Bill will achieve its stated objectives
in that regard.
3.83
The committee has serious reservations about the introduction of
legislation which seeks to make amendments – particularly in an area as complex
and technical as native title – in a piecemeal manner. As a general principle,
the committee does not consider that piecemeal amendments represent good
legislative practice. A more thorough approach is always favourable, in order
to ensure that all relevant issues are considered in a holistic way and that no
unintended consequences arise.
3.84
With respect to the efficacy of the Bill, the committee notes that every
key provision raised concerns among contributors to the inquiry, whether
policy-oriented or relating to technical drafting issues. Numerous comments
were also directed toward the lack of attention to practical considerations,
which could result in unintended and undesirable consequences, as well as the
dearth of comprehensive consultation and consideration. One state government
claimed to have had no knowledge of the Bill prior to the committee's inquiry
and told the committee:
It is rather surprising that this Bill was introduced into
the Parliament without any consultation or discussion with State and Territory
governments or (to our knowledge) other important stakeholders.[101]
3.85
The Department described proposed new paragraphs 24MD(2)(c) and
31(1)(b); proposed new subsections 31(1A), 31(2A), 35(1A), 38(2), 223(1A),
223(1B) and 223(2); and proposed new sections 47C, 61AA and 61AB as significant
amendments to the Act, which would require detailed consideration of their full
implications and consultation with the affected parties.[102]
3.86
The South Australian Government similarly commented:
The proposals represent a significant re-visiting of a number
of the basic precepts of the Act, but no or very little justification has been
offered in support of them. There has been no opportunity to debate or discuss
the changes, to consider the implications, both intended and unintended, and
the effect in the context of other legislation or 'on the ground'.[103]
3.87
Mr Graham Neate, President of the NNTT, told the committee:
[I]f the parliament is to go down some of these steps, which
in our submission are likely to make some fairly significant changes to the
current architecture of the scheme, then we would want those changes to be well-informed
and at least some of the consequences thought through.[104]
3.88
It is clear from evidence presented during the course of the inquiry
that the Australian Government is cognisant of the need for evidence-based native
title reform. In this context, the Department advised that, as a matter of
general principle:
The Government will only undertake significant amendments to
the [Act] after careful consideration and full consultation with affected
parties to ensure that amendments do not unduly or substantially affect the
balance of rights under the Act.[105]
3.89
The submission from the Department provided two relevant examples,
namely, its efforts in respect of agreements to disregard prior extinguishment
and the good faith provisions.[106]
As a result of these processes, the committee notes that the Australian
Government has decided to amend the good faith provisions and is determining
its position in relation to agreements to disregard prior extinguishments.
3.90
The committee endorses the approach being taken by the Australian Government,
and considers that it would be prudent to amend the Act only after
comprehensive consultation and full consideration of all competing interests
and issues has taken place. The committee supports the Australian Government's
commitment to practical, considered and targeted native title reforms;[107]
and encourages the Australian Government, in its broader consideration of
native title issues, to take note of the views expressed during the course of
this inquiry in relation to all aspects of the Bill.
3.91
In light of these views, the committee considers that the Bill should not
proceed at this time.
Recommendation 1
3.92 The committee recommends that the Senate should not pass the Bill.
Senator
Trish Crossin
Chair
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