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

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:

To say that the pastoral leases in question did not confer rights to exclusive possession on the grantees is in no way destructive of the title of those grantees. It is to recognise that the rights and obligations of each grantee depend upon the terms of the grant of the pastoral lease and upon the statute which authorised it.(15)

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:

Prior to the Wik decision, it was widely assumed ... that native title had been extinguished on leasehold land (including land formerly the subject of a lease). ... Governments believed, therefore, that they were free to do various acts over pastoral lease land (including converting it to freehold) without following the processes of the NTA. As a consequence of this belief, acts were done over leasehold land which we now know, on the basis of Wik, may have been invalid because of native title. The Government does not believe that invalidity is the appropriate consequence for acts done on the basis of a legitimate assumption subsequently proved wrong.(23)

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

Indigenous representatives have made clear their agreement to the confirmation of all pastoral acts conducted within the terms of existing pastoral leases. Typically, this would cover raising livestock and incidental activities such as establishing fences, yards, bores, mills and accommodation. The validation of grants is a different question. These grants include many exploration and mining tenements. All governments were on notice that the question of native title on pastoral leases had not been resolved in the courts and that the NTA provides processes (provisions for the Right to Negotiate and for non-claimant applications) for making such grants with certainty. Only Western Australia extensively used these processes. In States which chose not to use the processes, native title holders were effectively denied the Right to Negotiate, including over some large mining developments.(24)

Professor Garth Nettheim has expressed the problem in this way:

Miners, naturally, seek validation of [their] leases. They argue, reasonably enough, that they took those titles in good faith, and that any failure was that of government. Native title holders, equally reasonably, ask why their interests should be jeopardised by yet another retrospective validation of the interests of others.(25)

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:

As provided in the Wik decision, native title rights over current or former pastoral leases and any agricultural leases not covered under [Point] 2 above would be permanently extinguished to the extent that those rights are inconsistent with those of the pastoralist.(30)

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:

This Division confirms the effect on native title of various types of Commonwealth acts done on or before 23 December 1996 and seeks to reflect the Government's understanding of the common law of native title after the Wik decision. It also permits the States and Territories to confirm the effect of acts they have done on or before 23 December 1996.(34)

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 issue of a licence, permit or authority to clear land and excavate an earthworks dam in connection with the keeping of livestock is an example of a future act covered by proposed section 24GB.(50)

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:

... probably not 'future acts' as defined in section 233. However, the provisions dealing with them are included in Subdivision G so as to remove any legal possibility that they can be prevented by native title.(51)

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:

A government proposes to allow mining and restrict fishing in a particular area offshore. Native title holders with native title fishing rights for the area have the same rights (if any) as the holder of fishing licences have, under the relevant legislation or administration, to be notified etc. of the proposed action.(55)

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:

... in recognition of the special attachment that Aboriginal peoples and Torres Strait Islanders have to their land, the [Native Title] Act provides that for certain 'permissible future acts', registered native title holders and registered native title claimants will also have a right to negotiate before such an act ...[can take place].(57)

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 Minis