Bills Digest No.171 1997-98
Native Title Amendment Bill 1997 [No.2]
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage History
Re-introduction
Purpose
Main Provisions
Endnotes
Contact Officer and Copyright Details
Native Title Amendment Bill 1997 [No.2]
Date Introduced: 9 March
1998
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 the transitional period) commences 12 months and
one day after the commencement of Part 1-unless a later day is fixed by
Proclamation.
Note: For a detailed commentary on the Bill as first
presented in 1997, readers are referred to Bills Digest No. 51 of 1997-98.
On 4 September 1997, the Native Title Amendment Bill
1997 (the Bill) was introduced into the House of Representatives. Two
Parliamentary Committees inquired into the Bill. These were the Parliamentary
Joint Committee on Native Title and the Aboriginal and Torres Strait Islander
Land Fund(1) and the Senate Legal and Constitutional Legislation Committee.(2)
The Bill passed the House of Representatives on 29 October 1997. The Senate
made 217 amendments to the Bill before passing the Bill on 5 December
1997. On 6 December 1997, the House of Representatives laid the Bill aside
after agreeing to 125 of those amendments and rejecting the rest.
The Bill has now been re-introduced into the House of
Representatives and incorporates 107 of those 125 amendments agreed to
by the House. In relation to the 18 amendments not included in the re-introduced
Bill, the Explanatory Memorandum says:
Upon further examination, some non-Government amendments accepted by the
House on 6 December 1997, may have technical or other deficiencies and
therefore have not been incorporated into the Bill. It is anticipated
that some will, in an amended form, be moved as Government amendments
when the Bill is debated in the Senate. Further, where there is any doubt
about whether the Senate 'made' a particular amendment, that amendment
has also not been incorporated: where appropriate, that amendment will
also be moved as a Government amendment in the Senate.(3)
Subject to the requirements of section 57 of the Constitution,
the Bill will become a double dissolution trigger if the Senate again
rejects the Bill, fails to pass it or passes it with amendments to which
the House of Representatives will not agree.(4)
The Bill contains extensive amendments to the Native
Title Act 1993 (NTA). Some of these are the Government's response to the
High Court's decision in Brandy v. Human Rights and Equal Opportunity
Commission,(5) some re-visit the Government's Native Title Amendment Bill
1996 and others implement the Ten Point Plan developed in response to
the High Court's decision in Wik Peoples v. Queensland.(6)
The scheme adopted in this Digest is to group the Bill's
provisions according to the headings used by the Senate in its consideration
of the Bill in November and December 1997. The focus is therefore on proposals
for amendment to the Bill. More detailed descriptions of the original
Bill can be found in Bills Digest No. 51 of 1997-98.
References to Senate amendments by number refer to the
numbering found in the Schedule of Amendments made by the Senate dated
5 December 1997.
Right to negotiate
The right to negotiate (RTN) is one of the major battlegrounds
between the House of Representatives and the Senate. Under that heading
there were about a dozen areas of significant policy disagreement between
the two Houses of Parliament.
The Government has said that the current RTN provisions
are an unacceptable burden on development. Indigenous interests have identified
the RTN as a vital part of the negotiated compromise between stakeholder
interests struck in 1993. They regard the RTN as codifying a native title
right, and essential to the protection of their culture and their participation
in economic activity.(7)
What does the 1993 Act say about the right to
negotiate?
An outline of the right to negotiate and its place in
the wider future act regime can be found at pages 17-18 and 29-30 of Bills
Digest No. 51 of 1997-98. What follows is a brief overview of the Act's
provisions.
In general terms, the future act regime regulates activities
on native title land and water which occur after 1 January 1994. It is
designed to strike a balance between the protection of native title and
economic development. Generally, most future acts may proceed on the same
basis that they would proceed if the land was instead freehold.
Because of their significant impact on native title,
two categories of future act have been singled out for more stringent
procedures: mining activity, and compulsory acquisition of native title
rights in order to grant interests to a third party. These are the only
future acts to which the right to negotiate applies.
To ensure validity under the NTA, where a government
intends to grant a mining tenement or to compulsorily acquire native title
rights for the benefit of a third party it issues a section 29 notice.
If there are no registered native title claims for the area at the end
of a 2 month period, the mining grant or compulsory acquisition can proceed
without further native title complications.
But if there are registered native title claimants on
the record at the end of the notice period, then the government party
and the grantee must negotiate with them. Time limits apply so that if
no agreement is reached, a party can seek arbitration. The arbitral body
must decide if the act can proceed and if so, on what conditions. At the
end of the day, if a government does not like the outcome of an arbitration,
it can over-ride the result and make its own decision about the proposed
mine or compulsory acquisition.
What does the 1997 Amendment Bill say about the
right to negotiate?
A summary of the significant changes to the right to
negotiate proposed by the Government can be found at page 30 of Bills
Digest No. 51 of 1997-98. More detail is provided at pages 31-44. It should
be noted that limited changes to the Bill made by Government amendment
in the Senate have been maintained in the re-submitted Bill. The most
important changes relate to time limits: the minimum period for negotiations
over mining production is restored to 6 months,(8) and the Tribunal has
an extra month to consider registration of a claim which was lodged within
the 3 month notice period. (9)
Overall, the substantial changes to the right to negotiate
proposed in the Bill may be grouped into 4 major categories:
- restricting access to the RTN through a much higher registration test;
- widening the range of acts which are excluded from the RTN;
- altering the mechanics of the RTN process itself; and
- enabling States and Territories to displace the national RTN scheme
with their own procedures on pastoral leases and some other categories
of land.
Major issues of contention
Restricting access to the RTN
This is dealt with separately under the heading 'Registration
Test'.
Exclusions from the RTN
The two Houses are in disagreement over the application
of the RTN to private infrastructure projects. The Government wants to
exclude compulsory acquisitions of native title rights from the RTN where
the land is intended for private developers of infrastructure. Non-Government
Senators opposed this exemption and also sought to prevent private developers
riding on the back of the exemption available for government acquisitions.(10)
The Senate also voted not to exclude land or waters within
a town or city from the RTN.(11) The House disagreed.
The RTN currently applies to both the exploration and
production stages of a mining project. The Government sought through proposed
section 26A to exempt 'approved exploration acts' from the RTN, if
certain alternative procedures applied. The Senate voted to remove proposed
section 26A from the Bill. The Government has sponsored a number of measures
including this one because it believes there should be only one right
to negotiate per project. It also argued that its procedure would protect
native title interests in all exploration tenements, whereas the RTN is
currently bypassed altogether in over 80% of cases, through use of the
expedited procedure.
But non-Government Senators supported the preservation
of the RTN at exploration for several reasons:
- the invasive nature of exploration in relation to certain minerals;
- the productive and enduring relationships which can form during early
face to face negotiations;
- the potential for conjunctive arrangements to be negotiated that would
smooth the path for subsequent mineral production; and
- the need to protect sites and other areas of cultural heritage.
The House and the Senate also disagree over whether the
RTN should apply to mining renewals.(12) The Government favours one RTN
per project so as to reduce delays from a process which it regards as
'a significant brake on mining and public and private development activity'.(13)
The main argument in favour of subjecting mining renewals to the RTN is
that mining leases can endure for decades and over their life the nature
of their impacts can vary dramatically. For mining leases granted before
the NTA, a renewal may be the one and only opportunity for local native
title holders to negotiate over social, environmental and other impacts.
The two Houses also disagree over the threshold at which
the expedited procedure should apply to exploration tenements.(14)
The mechanics of the RTN process
Under the Bill, Ministers are given two opportunities
to intervene in the RTN process and take the matter out of the hands of
the negotiating parties and/or arbitral body. It is reasonable to assume
that in most cases the relevant Minister would be the State or Territory
Minister for Mines. The Senate voted to remove the first provision for
early Ministerial intervention [Harradine (26)/Opposition (137)/Dems-GWA
(127)] and to preserve the second, but only permit interventions in the
national interest by a Minister of the Commonwealth. The House disagreed
with both Senate amendments. It also disagreed with a Senate amendment
that allowed the negotiating parties to override a Ministerial intervention
if they were able to achieve belated agreement on the proposed government
action.(15)
Because future act arbitrations may contemplate a number
of matters some of which will only crystallise down the track, the Senate
amended the Bill so that such matters could be left to future negotiation
or arbitration.(16) The House disagreed with this amendment, as well as
another two which sought to facilitate conjunctive agreements and determinations.(17)
Alternative State and Territory provisions for leased or reserved
land
The current NTA enables States and Territories to set
up their own right to negotiate regime if certain national guidelines
are met. That provision is largely re-enacted by proposed section 43.
However the Bill creates an additional opportunity in proposed section
43A for States and Territories to devise alternative procedures to
the right to negotiate. These would apply to 'leased or reserved land'.
The Senate voted to remove proposed section 43A
and thus preserve the right to negotiate on pastoral leases, national
parks etc.(18) This remains a fundamental difference between the two Houses.
The Government maintains that it was never envisaged
the RTN would operate on pastoral leases and that as a matter of equity
native title holders should have only the same rights in respect of mining
and compulsory acquisitions as the holder of a coexisting title, such
as a pastoral lessee.
Non-Government Senators expressed their opposition to
proposed section 43A in a number of ways. It was described as 'a
denial of native title holders' substantive equality protected under the
Racial Discrimination Act'.(19) It was also portrayed as undermining the
trade-off between the RTN and the certainty offered to non-indigenous
interests by various provisions in the Act adverse to indigenous interests.(20)
Senator Harradine, in the following passage, emphasised the distinct and
different nature of native title rights and questioned the justice of
differentiating amongst native title holders and their rights depending
on whether their country was vacant Crown land or had been subject to
pastoral lease:
Native title has been recognised as a common law right. It is title based
on prior possession and ownership. It is not just another leasehold. It
therefore follows that to treat Aboriginal people as equivalent to miners
or pastoralists is to effectively downgrade them and their property rights.
If a right to negotiate with a mining company is to be enjoyed by native
title holders whose country is vacant crown land, that right should not
be taken away from native title holders who suffer the added disadvantage
of having their land subject to a pastoral lease without their consent.
I ask the government to look at it from that point of view, that justice
point of view.(21)
Racial Discrimination Act
Another amendment made by the Senate and not agreed to
by the House of Representatives concerns the Racial Discrimination Act
1975. An Opp/Dems-GWA/AG amendment inserted new section 2A into
the Bill. The purpose of this amendment was to repeal subsection 7(1)(22)
of the NTA and substitute the following:
This Act is intended to be read and construed subject to the provisions
of the Racial Discrimination Act 1975.
There are a number of arguments that can be advanced
in favour of and against the insertion of such a clause. Those favouring
the clause might say that:
- the clause ensures Australia observes the international standards
of non-discrimination that are contained in treaties to which Australia
is a signatory;
- strong concerns have been expressed that many provisions in the Native
Title Amendment Bill are discriminatory. The RDA clause ensures that
the principle of non-discrimination applies;
- the effect of the RDA clause would not be to invalidate any Commonwealth
law but 'to offer and confer on persons who have been discriminated
against on the grounds of race, colour or national or ethnic origin
the same rights as are enjoyed by persons of another race, colour or
national or ethnic origin on whom there are conferred superior rights.'(23)
- the clause does not impact upon the validation of past and intermediate
period acts (proposed subsection 7(2));
- the clause will ensure that State laws are formulated in accordance
with non-discrimination principles by virtue of section 109 of the Constitution.
Such safeguards are particularly important given the devolution of power
to the States which is contained in the Bill(24) and the need for uniformity
in decision-making;(25)
- if the Bill is non-discriminatory then there is no reason not to support
the RDA clause;(26)
- there is a strong case that the races power in the Commonwealth Constitution
which forms the principal basis of native title legislation only supports
legislation which is beneficial for indigenous people. The presence
of an RDA clause may be important in safeguarding the legislation in
the event of a constitutional challenge;
- the proposed amendment protects the Racial Discrimination Act itself
from invalidity;
- the clause encapsulates in law the Government's 1996 election promise
to 'respect the provisions of the Racial Discrimination Act';
- a clause making the NTA subject to the Racial Discrimination Act 1975
was unnecessary because the NTA was beneficial legislation negotiated
with indigenous agreement.
Those arguing against the inclusion of the RDA clause
might say that:
- it introduces further uncertainty and the potential for considerable,
expensive and socially divisive litigation over native title;
- it will not prevent a constitutional challenge being made to the legislation;
- it is unnecessary because the NTA as amended by the Bill will be beneficial
legislation for indigenous people;
- the RDA clause may have unintended consequences-putting at risk what
appear to be unexceptional provisions in the NTA;
- such an amendment indicates that Parliament does not know what the
relationship is between native title and racial discrimination legislation.
It is up to the Parliament to make this relationship clear by legislating
appropriately.
- the Opposition, which was then in Government, rejected the inclusion
of such a clause in the NTA.(27)
Registration test
Introduction
There appears to be widespread support for changes to
the registration test-for example, to reduce the number of overlapping
and competing claims. Disagreement exists about how far and in what way
the test should be tightened.
What does the 1997 Amendment Bill say about the
registration test?
Under the Bill, a native title claim must satisfy a number
of technical and substantive requirements before it is registered. The
substantive requirements which must be met are set out in proposed
section 190B. For example, the claim must, prima facie, establish
that each of the native title rights and interests claimed can be established
and that at least one member of the native title claim group has or had
a traditional physical connection with the claimed area.
Under amendments proposed in the Bill, the registration
test does not operate as a barrier to the pursuit of a native title claim.
An application for a native title determination which fails the registration
test may continue to be pressed in the Federal Court. Instead, the registration
test determines which claimants have the right to negotiate over compulsory
acquisitions and mining acts and which claimants have a right to be notified
about certain proposed future acts. The registration test will also affect
other statutory entitlements proposed in the Bill-such as access rights
to a pastoral lease under proposed Subdivision Q in Part 2 Division
3. The Bill inserts a registration test with multiple conditions, each
of which must be satisfied before registration can occur.
Further details about the registration test can be found
at pages 60-62 and 73-74 of Bills Digest No. 51 of 1997-98.
Senate amendments
Four Government amendments relating to the registration
test [(66)-(69)] were agreed to by the Senate in December 1997. These
are largely technical amendments. For example, Government amendment (66)
obliges the Registrar of the Federal Court to advise the Native Title
Registrar when a native title application is withdrawn-irrespective of
whether the application has been registered or is unregistered. This will
ensure that the register is kept up-to-date.(28)
A major Senate amendment not accepted by the House of
Representatives concerns the physical connection requirement in the registration
test [Opp(267)[as amended by Harradine amt]]. The Senate voted to omit
proposed subsections 190B(6)-(9). Instead of the physical connection
test contained in proposed subsection 190B(7) the Senate amendment provided
that the factual basis of a native title claim must include an assertion:
- either that a member of the claim group has or had a traditional
physical connection with the relevant land or waters;
- or that a member of the claim group would have had such access
had he or she not been prevented from maintaining their traditional
physical connection by the action of the Crown, a statutory authority
or another person.
It was argued in the Senate that these amendments recognise
the historical facts of dispossession-that indigenous people have been
and in some cases, continue to be, barred from access to their land.(29)
Instances of lock-outs occurred, for example, after the equal wage decisions
of the 1960s.(30) It was also argued that the Government's amendments
would obliterate the common law test enunciated by the High Court in Mabo
[No.2] that the existence of native title depends, not on traditional
physical connection but on continuing to observe traditional laws and
customs so far as it is practicable to do so.(31) It was further argued
that the Senate amendments recognised the nature of indigenous attachment
to land-that is, the importance of spiritual and cultural connections.(32)
The Government contends that there was a lay presumption
that the High Court in Mabo [No.2] was talking about physical connection.
Senator Minchin also said in the Senate that the physical connection criterion
does not impact on Federal Court determinations of native title only on
whether the registration test imposed by the NTA is satisfied.(33) As
stated earlier, the registration test must be satisfied before benefits
such as the right to negotiate or statutory access rights to pastoral
lease land can be obtained.
Senate amendments also required the Registrar to show
native title claimants material adverse to their claim and give them an
opportunity to supply further material. If the Registrar is then satisfied
that a genuine factual or legal dispute exists over the adverse material,
the Registrar must not consider the adverse material further. These amendments
were not accepted by the House of Representatives.
Claims process and the sunset clause
The sunset clause
There is no sunset clause in the NTA. The Bill contains
two sunset clauses.
Proposed subsection 13(1A) provides that no application
for a native title determination can be made to the Federal Court more
than 6 years after the commencement of the subsection. The result of this
provision is that after the sunset period expires, native title claims
will have to be made using the common law and applicants who have not
been registered will not be able to access the NTA right to negotiate.
In the Senate, concern was expressed that the sunset
clause would not create certainty of outcome or process. Native title
holders, it was said, would still pursue common law claims-so that certainty
for industry, especially miners could not be guaranteed.(34) The Government
responded that the sunset clause did not prevent common law native title
claims from being made and that six years was a reasonable period in which
to expect that claims could be submitted.(35)
The sunset clause on claims was rejected by the Senate
in 1997 [Opp(223)/Dems-GWA(190)/Harradine(1)] but its deletion was not
agreed to by the House of Representatives.
Proposed subsection 50(2A) in the Bill provided
that compensation applications could not be made more than 6 years after
the commencement of the subsection or 6 years after the future act was
done (whichever occurred later).
Government amendment (58) replaced proposed subsection
50(2A) to provide instead that an application for compensation cannot
be made more than 6 years after:
- the commencement of the subsection; or
- notification of the compensable act to relevant registered native
title bodies corporate and registered native title claimants and representative
bodies
whichever occurred later.
The Federal Court's way of operating
What does the NTA say about the Federal Court's way of operating?
Existing section 82 of the NTA deals with the Federal
Court's way of operating. It provides that the Court must operate in an
informal, just and economical manner and take account of indigenous cultural
and customary concerns when conducting proceedings. It is not bound by
technicalities or rules of evidence.
What does the 1997 Amendment Bill say about the Federal Court's way
of operating?
The Bill provides that the Court:
- is bound by the rules of evidence-except to the extent that it otherwise
determines [proposed subsection 82(1)];
- may take account of the cultural and customary concerns of indigenous
people but 'not so as to prejudice any other party to the proceedings'
[proposed section 82(2)].
Senate amendments
Government amendment (61) amends proposed subsection
82(2) to provide that the Court may take account of indigenous cultural
and customary concerns but not so as to unduly prejudice any other
party to the proceedings.
Government amendment (62) inserts the word 'unduly' into
a similar provision relating to the operation of the National Native Title
Tribunal [proposed subsection 109(2)].
Harradine amendment (1) was made by the Senate but rejected
by the House of Representatives. This amendment would have required the
Federal Court to take account of indigenous cultural and customary concerns.
The need for the Federal Court to continue to operate
in a flexible and non-adversarial fashion and in a way that ensures that
indigenous culture is taken into account was raised by speakers in the
Senate opposing provisions in the legislation about the Federal Court's
way of operating. For example, Senator Bolkus said the effect of the Bill
would be to reduce the ability of native title claimants to put their
case.(36) The Government's view was that while the amendments require
the Court to abide by the rules of evidence, these rules can be relaxed
at the Court's discretion. Senator Minchin also said that because the
rights of non-native title holders are likely to be affected by a native
title determination, it is reasonable and fair for normal Court procedures
to be followed-with the proviso that these can be relaxed and indigenous
cultural concerns recognised so long as the interests of other title holders
are not unduly prejudiced.(37)
The qualifications of presidential members of
the NNTT
What does the NTA say about the qualifications of presidential members
of the NNTT?
Under the NTA, presidential members (ie the President
or Deputy Presidents) of the NNTT must be judges of the Federal Court
or former judges.(38)
Senate amendments
Government amendment (63) which was passed by the Senate
deals with the qualifications of presidential members of the NNTT. It
expands the eligibility criteria for presidential membership to include
people who have been enrolled as legal practitioners for at least 5 years.
A provision to this effect was included in the Native
Title Amendment (Tribunal Appointments) Bill 1997. In the Second Reading
Speech for the Native Title Amendment (Tribunal Appointments) Bill, the
Government emphasised the need to expand the pool of eligible, experienced
and qualified people who could become presidential members of the NNTT.
In 1997, the Senate rejected these arguments and passed the Tribunal Appointments
Bill without the presidential qualifications amendments.(39)
These matters were re-visited and others raised during
debate on Government amendment (63). For example, the amendment was commended
by the Government as a way of relieving pressures on the Federal Court
and as appropriate because the NNTT will no longer be acting judicially.
It was suggested by Senator Harradine that non-judicial appointments might
be less daunting to those using the Tribunal.(40) It was also remarked
that the previous Government had proposed an identical amendment to the
NTA.(41) In response it was said that the amendment would downgrade the
status of NNTT members, undermine the NNTT's credibility and was not supported
by indigenous people. It was also said that judicial appointments ensured
that presidential members would act independently of the Executive Government.(42)
Other
A group of Opposition amendments(43) were made by the
Senate and agreed to by the House of Representatives but do not appear
in the re-introduced Bill. Opposition amendments (247)-(249) deal with
the parties to native title and compensation applications. The Opposition
view was that the provisions in the Bill which enable any person whose
interests may be affected by a determination to be a party are too wide.
In brief, the Opposition's amendments sought to restrict the people who
could become parties to those who have an interest in the land. The amendments
also provided for public interest representation.
Validation
What does the 1993 Act say about the validation
of past acts?
The NTA validates certain Commonwealth acts that would
otherwise be invalid due to the existence of native title. It also 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.
In general, 'past acts' are dealings in land done prior
to 1 January 1994 which were invalid due to the existence of native title.
In the main, such invalidity would have arisen because of the operation
of the Racial Discrimination Act 1975.(44) 'Past acts' are time-limited
ie they generally occurred between the commencement of the Racial Discrimination
Act 1975 and 1 January 1994 (the commencement date of the NTA). The 'past
acts' regime in the NTA recognises four categories of 'past act'-A to
D. The effect of validation on native title-for example, whether native
title is extinguished or is subject to the 'non-extinguishment principle'-depends
on the category of 'past act' involved.
What does the 1997 Amendment Bill say about validation
of intermediate period acts?
The purpose of the 'intermediate period acts' regime
is to validate certain acts which were done after 1 January 1994 and were
invalid because of the existence of native title. An example of an invalid
act might be the grant by a Government of a mining lease on pastoral lease
land without following the future act regime of the NTA.
This 'second round' of validation arises because certain
governments assumed that native title was extinguished on pastoral leases,
and therefore disregarded the future act regime when dealing with former
or existing pastoral leases. The High Court's decision in Wik demonstrated
this assumption to be false.
A more detailed description of the 'intermediate period
acts' regime and its purpose can be found in Bills Digest No. 51 1997-98
at pages 9-13.
The Bill validates intermediate period acts which are
attributable to the Commonwealth and enables the States and Territories
to legislate along the same lines. The effect of validation upon native
title is determined by how an intermediate period act is categorised.
While the Explanatory Memorandum says that this categorisation is based
on the 'past acts' regime, there are some differences-see Bills Digest
No. 51 1997-98 at page 10.
The Bill also defines extinguishment to mean permanent
extinguishment. In the Wik case, the majority High Court judges expressly
left open the question of whether native title could revive upon the expiry
of a grant. The Explanatory Memorandum cites a recent decision of the
Federal Court in Larrakia People v. Northern Territory of Australia &
Oilnet (NT) Pty Ltd where O'Loughlin J said 'My conclusion is that once
native title has been extinguished, the issue has come to an end and there
can be no revival of that title under common law.'(45) However, it should
be noted that this was a single judge decision and may be the subject
of an appeal.
Senate amendments
A number of Government amendments were made to the Bill
in the Senate. Some of these-for example, Government amendment (1)-are
technical.
Amendments relating to national parks
Government amendment (2) removes a reference to proposed
subsection 232B(6) contained in proposed paragraph 22B(a).
Proposed paragraph 22B(a) provides that certain category A intermediate
period acts extinguish all native title on the relevant land or waters.
In the original Bill, these category A intermediate period acts included
acts to which proposed subsection 232B(6) applied. The Government's concern
was that this proposed subsection together with proposed subsection
232B(5) might have 'resulted in the creation of some national parks
being included in the definition of ''Category A intermediate period act.''
This was never the intention behind section 232B ...'(46) Government amendment
(51) is a related amendment which omits proposed subsections 232B(5)
and (6) which were contained in the original Bill from the
definition of Category A intermediate period acts.
Amendments relating to compensation
Compensation is payable to native title holders as a
result of the validation of intermediate period acts.
There has been considerable debate about how legislative
extinguishment of native title can be effected without breaching section
51(xxxi) of the Constitution.(47) Section 51(xxxi) limits the legislative
power of the Commonwealth to acquire property to situations where the
legislation is supported by another head of power and requires the Commonwealth,
when it so acquires property to do so on just terms. Several witnesses
gave evidence to the Senate Legal and Constitutional Legislation Committee
that section 51(xxxi) requires a fair process in addition to a fair amount
of compensation.(48)
Government members of the Committee preferred the view
of some witnesses that just terms concerns were easily remedied and subsequently
the Government has inserted notification provisions in the 1997 Amendment
Bill. In the Senate, the ALP argued that these measures are inadequate
and thus endanger the constitutionality of the validation regime. The
ALP also claimed delays in native title holders obtaining compensation
for upfront validation meant the provisions fell short of just terms requirements.
The ALP's proposed scheme combined notification of native title parties
by gazettal and a process for fast-track compensation, but was defeated
in the Senate.
Government amendments (3) and (4) insert notification
procedures when mining rights have been granted by Commonwealth or State/Territory
Governments during the intermediate period over certain land or waters(49)
(proposed sections 22EA and 22H respectively). Notice must
be given to relevant registered native title bodies corporate, registered
native title claimants, representative bodies and the public within 6
months of the commencement of validating legislation. The notification
must include the date of the act, the kind of mining involved, sufficient
information to enable the area to be identified and information about
how to obtain more details [proposed subsections 22EA(2) and 22H(2)].
However, failure to notify does not affect the validation of intermediate
period acts.
Government amendment (52) removes proposed subsection
232B(8) and replaces it with a new subsection to provide that Category
A intermediate period acts exclude not only statutory acts for the benefit
of indigenous people but also grants to trustees for the benefit of indigenous
people. An amendment [Government amendment (53)] to proposed section
232C has a similar effect in relation to leases that are Category
B intermediate period acts.
Confirmation of extinguishment
The provisions of proposed Division 2B dealing
with the legislative extinguishment of native title were the subject of
considerable controversy and lengthy debate in the Committee stage of
the Senate debate. The Government argues that proposed Division 2B does
no more than clarify and confirm the common law position on extinguishment.
The potential that instead the provisions travel beyond the common law
is discussed at page 14 of Bills Digest No. 51 of 1997-98. Some commentators
have also suggested the 'confirmation' provisions are racially discriminatory(50)
and may entail constitutional problems over the issue of just terms compensation.(51)
What does the 1993 Act say about extinguishment?
The NTA essentially left the effect of various past acts
on native title to be determined by the courts. Thus it was that the High
Court was called upon in Wik to determine at common law the effect on
native title of the grant of a pastoral lease. There was an exception
to this general proposition-'validated past acts', generally understood
to be acts which occurred in the window between late 1975 and the end
of 1993. These were validated by the NTA and their effect on native title
was determined by which of the statutory Categories A to D they fell within.
What does the 1997 Amendment Bill say about extinguishment?
The Government believes that leaving extinguishment issues
to be clarified by the courts on a case by case basis creates too much
uncertainty. As a result, its proposed Division 2B 'confirms' extinguishment
on 21% of the Australian land mass-13% freehold and 7.7% subject to leases
which, in the Government's assessment, confer exclusive possession. Senator
Minchin indicated that over 60,000 leases were involved.(52)
In addition, the Bill treats those native title rights
which are inconsistent with the grant of non-exclusive tenures as having
been extinguished, rather than suspended.(53) And finally, it defines
all extinguishment to mean permanent extinction.(54)
Division 2B is analysed in more detail at pages 14-17
of Bills Digest No. 51 of 1997-98.
The Bill was the subject of numerous successful Government
amendments in the Senate. Many of these were technical or non-controversial
but one is particularly worthy of comment. Government amendment (45R)
has the effect of relaxing the legal requirements of proof for native
title applications over certain tenures. A group occupying Aboriginal
land which is subject to a trust or reserve etc. can press their claim
unhindered by the normal concerns about prior extinguishment by various
land grants. Such prior extinguishment will also be disregarded where
a claim is pressed over vacant Crown land where the group again is in
occupation of that land [proposed sections 47A and 47B].
Major issues of contention
Various non-Government Senators sought to make substantial
changes to the extinguishment provisions. Indeed, there was an unsuccessful
attempt to delete proposed Division 2B entirely. The arguments put to
counter the Government's case for greater certainty related to both methodology
and disagreement over the state of the common law. It was argued that
in several instances the Division went beyond the existing law most recently
explored in the Wik decision-for example in the extinguishment of inconsistent
rights on non-exclusive tenures and in the general definition of extinguishment
as meaning permanent extinction.
The methodology of drawing up the Schedule which contains
categories of grant giving rise to 'previous exclusive possession acts'
was both defended and criticised in the course of the Senate debate. The
Government argued that it had been drawn up on a conservative basis in
reliance on legal principles to be discerned in the Wik and Mabo [No.
2] decisions.(55) The Opposition insisted that by looking only at legislation
authorising grants, and not at the terms of individual leases nor at the
extent of native title rights asserted over the same land, the Government
had disregarded the methodology insisted upon by the High Court majority
in the Wik case.(56)
Government amendment (5) was passed by the Senate and
purported to prevent some national parks and other protected areas from
coming within the definition of a previous exclusive possession act. Concern
was expressed, however, that while that amendment removed subsections
(4) and (5) from proposed section 23B, the same consequence may
still flow from subsection (3) which was left intact.(57)
The definitions of a Scheduled interest and a previous
exclusive possession act (and more particularly the list of exceptions)
were the subject of vigorous debate in the Senate. Senator Margetts, for
example drew attention to the treatment of Crown to Crown grants under
the Bill as extinguishing acts whereas the 1993 Act applied the non-extinguishment
principle.(58) Senators Bolkus and Harradine criticised the capacity for
additions to the schedule of extinguishing interests to be made by regulation
rather than parliamentary legislation.(59) A Democrats-Green amendment
which addressed some of these criticisms passed the Senate but was not
agreed to by the House.(60)
The Government is not proceeding with one amended version
of the definition of a 'Scheduled interest', despite the House having
agreed to it in December 1997.(61) Another amended version which passed
the Senate but altered the Government's original definition more substantially
was not agreed to by the House.(62)
Senator Harradine succeeded in amending the provision
dealing with native title rights inconsistent with the grant of a non-exclusive
lease. The term extinguish was replaced by 'suspend' in three relevant
places. The House has also disagreed with these changes to the Bill.(63)
Compensation
References to compensation recur throughout the NTA and
NTAB. This is due to three main factors:
- several parts of the Act and Bill authorise or validate activities
which have an adverse impact on native title;
- the Constitution requires Commonwealth laws dealing with the acquisition
of property to provide 'just terms';
- the law proceeds on a general assumption that infringements of property
interests will not go uncompensated.(64)
What does the 1993 Act say about compensation?
The NTA created a compensation regime for the extinguishment
and impairment of native title with the following basic features:
- compensation is available for 'validated' past acts-ie official acts,
usually pre-1994, which were legally dubious in light of the Mabo [No.
2] decision before the NTA retrospectively validated them;
- compensation is also available for 'permissible future acts'-ie official
acts after 1 January 1994 which adversely affect native title but can
find authorisation somewhere in Part 2 Division 3 of the Act;
- past act compensation is payable by the relevant tier of government
rather than eg the third party beneficiary of an individual land grant,
whereas future act provisions open up the possibility for recovery from
third parties;
- just terms compensation is payable for extinguishment of native title
while impairment generally attracts the compensation scheme which applies
to freeholders in the same jurisdiction;
- compensation will not flow to native title holders until a Court has
confirmed their pre-existing legal rights in a native title determination,
which may involve several years of litigation-pre-determination sums
(eg decided on in a future act arbitration) are held in trust; and
- where specific compensation provisions fall short of just terms and
the Constitution would require just terms, a safety net provision in
section 53 seeks to ensure that just terms compensation is recoverable.
What does the 1997 Amendment Bill say about compensation?
The Bill generally maintains the above framework and
elaborates upon it.
Compensation is not treated as a separate topic in the
Bill. Rather it arises in several parts of the Bill, because native title
is adversely affected by a number of the Government's proposals, such
as:
- far-reaching changes to the future act regime, which authorise considerably
more impairment and extinguishment of native title than is currently
the case;
- validation of 'intermediate period acts' - that is, acts done in breach
of the future act regime after 1994 based on the incorrect assumption
that native title was extinguished on pastoral leases; and
- 'confirmation' of extinguishment by past land grants said to confer
exclusive possession.
The Government sought by amendments in the Senate to
extend the just terms safety net provisions. Government amendment (93)
provided that if the Amendment Bill itself effects 'a paragraph 51(xxxi)
acquisition of property' on other than just terms, and no other provision
of the NTA fills the void, then a just terms 'top-up' is available. The
top-up applies to future acts attributable to a State or Territory, as
well as for Commonwealth future acts.
Government amendment (46) inserted a similar top-up provision
for the Act in general.(65) The Government asserts in the Explanatory
Memorandum that section 53 now applies 'to all future acts'.(66) This
proceeds on the assumption that a future act by a State which involves
an acquisition is 'a paragraph 51(xxxi) acquisition of property'. That
is ultimately a constitutional issue to which the answer is not necessarily
clear at this point. What is clear is that the Government has expressed
its intention that States and Territories should be bound by the requirement
of just terms wherever the Commonwealth is so bound.(67)
Both Government amendments were passed by the Senate
and appear in the re-submitted Bill.(68)
Major issues of contention
Two Senate amendments from the Opposition about compensation
secured Government agreement when the House of Representatives sat on
6 December 1997, but do not appear in the Bill re-submitted in 1998. The
first(69) inserted changes which apply just terms requirements to impairment
of native title as well as acquisitions, and does so regardless of whether
the offending acts were valid or invalid. However, the Government has
now indicated(70) it does not support this amendment for 'substantial
policy reasons'. It appears likely that the Government will support the
second amendment(71) with modified wording during the Senate debate.
A major difference emerged during the Senate debate over
a fast-track process for small compensation claims. Obtaining the native
title determination which is necessary for any compensation funds to flow
may exhaust enormous time and resources in litigation, potentially making
compensation claims uneconomic to pursue and leaving native title holders
uncompensated.
An Opposition amendment proposed a low cost and informal
tribunal process under Court supervision, where the cost of court proceedings
was likely to exceed 50% of the final compensation award or the final
amount was unlikely to exceed $50 000.(72) During Senate debate, the Government
called the small claims proposal 'well intentioned'(73) and an idea that
'could be looked at down the track' but asserted there were constitutional
question marks over the scheme.(74) The amendment passed the Senate but
is opposed by the Government and does not appear in any form in the re-submitted
Bill.
The Senate approved that part of the Bill which imposes
a freehold cap on compensation, subject to ultimate constitutional requirements.(75)
It has been said in the High Court that native title is unique or sui
generis and that comparisons to Western property concepts are hazardous.(76)
The National Native Title Tribunal, sitting as an arbitral body, called
percentage comparisons to freehold 'artificial and arbitrary' and others
have emphasised the dangers of assimilating native title to Western property
concepts.(77) In addition, it is clear that a statutory freehold cap cannot
constrain the courts from ordering 'freehold-plus' compensation if that
is how they see just terms as applying to the distinctive rights and responsibilities
for land embedded in indigenous traditional law and custom.
The Opposition questioned the motive behind the freehold
cap in light of the constitutional situation. The Government's position
was that freehold is 'the highest estate in our law'(78) and that taxpayers
are entitled to see an expression of the Parliament's view on the appropriate
level of compensation.(79) The ALP amendment which sought to remove the
freehold cap was defeated in the Senate.
Freehold test
What does the 1993 Act say about the freehold
test?
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 position than ordinary title
holders is basically valid. Non-legislative acts which could have been
done if the native title holders were, instead, freeholders are also valid.
What does the 1997 Amendment Bill say about the
freehold test?
Under the Bill many more categories are introduced whereby
future acts can secure validity without necessarily complying with the
freehold test. The validity of some future acts will, however, 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 right to negotiate provisions or substitute
provisions 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 to particular forms of mining activity set out in proposed
sections 26A (approved exploration acts), 26B (approved gold or tin mining
acts) and 26C (opal or gem mining).
Under the Bill, if an act is covered by proposed Subdivision
M (acts that pass the freehold test), then the non-extinguishment
principle applies unless the act is a compulsory acquisition which satisfies
the criteria in proposed paragraphs 24MD(2)(a) & (b).(80)
Senate amendments
Government amendment (28) which was made by the Senate
inserts new paragraph (ba) into proposed subsection 24MD(2). This
paragraph adds to the criteria that must be satisfied before native title
can be extinguished by certain compulsory acquisitions. The addition is
that the practices and procedures adopted in acquiring the native title
must not cause native title holders 'any greater disadvantage' than holders
of non-native title rights and interests who have their rights and interests
acquired.
Government amendment (29) amends the compensation provisions
relating to compulsory acquisitions of native title contained in proposed
sub-paragraph 24MD(4)(a)(i). The amendment clarifies that if, under
Commonwealth law, a third party is liable to pay the compensation, then
that third party and not the Commonwealth will be liable. Government amendment
(30) contains a similar amendment in relation to the States or Territories
[proposed sub-paragraph 24MD(4)(b)(i)].
Harradine amendment (18) was made by the Senate and agreed
to by the House of Representatives on 6 December 1997 but does not appear
in the re-introduced Bill. Senator Harradine's amendment related to proposed
paragraph 24MD(2)(b). As stated above, if an act passes the freehold
test, the non-extinguishment principle applies unless the act is a compulsory
acquisition which satisfies the criteria in proposed paragraphs 24MD(2)(a)
& (b).(81) One of these criteria is that, in addition to the acquisition
of native title rights, non-native title rights must also be acquired
'whether compulsorily or otherwise.' Senator Harradine's amendment removed
these words and substituted the word 'compulsorily' in their place. He
explained the amendment in this way:
... it would be racially discriminatory to allow the compulsory acquisition
of proven native title rights not for public purpose but simply for the
grant of right of exclusive possession to a lessee who has voluntarily
surrendered a non-exclusive tenure.(82)
Harradine amendment (21) was also passed by the Senate.
Like Harradine amendment (18) it removes '(whether compulsorily or otherwise)'
and substitutes 'compulsorily'-this time in relation to the extinguishment
of native title by compulsory acquisition by acts affecting offshore places
[proposed paragraph 24NA(3)(b)]. This Senate amendment was agreed
to by the House of Representatives but is not contained in the re-introduced
Bill.
Pastoral activities
What does the 1993 Act say about pastoral activities?
Under the NTA, the consent of native title holders would
be required before diversification could be authorised on pastoral lease
land.(83)
What does the 1997 Amendment Bill say about pastoral
activities?
One purpose of the Bill's provisions dealing with primary
production activities 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.'(84) Future act provisions-including
the right to negotiate-which might otherwise apply to this expansion of
leaseholder's rights have no application under the Bill.
Primary production activities are defined in proposed
section 24GA to include cultivation, forestry, horticulture, and aquaculture.
Post-Wik acts which permit farmstay tourism can also occur on valid non-exclusive
pastoral or agricultural leases if the lease was granted on or before
23 December 1996. This provision did not apply to an act permitting farmstay
tourism involving the observation of indigenous activities or cultural
works.
In its submission to the Parliamentary Joint Committee
on Native Title and the Aboriginal and Torres Strait Islander Land Fund,
the Commonwealth Government said of the primary production amendments
(which include primary production and off-farm activities):
The management of pastoral leases remains a matter for the relevant State
and Territory government, as it always has been. The effect of the NTA,
once it became apparent that native title may continue to exist on pastoral
leases, was to (unintentionally) prevent the States and Territories from
fulfilling that management task by making the grant of future rights,
and even activities, 'impermissible' under the NTA. The effect of Subdivision
G is restricted to ensuring that these activities are not invalid under
the NTA ...(85)
Another view is:
Post-Wik acts permitting primary production and associated activities
on pre-Wik 'non-exclusive' agricultural or pastoral leases (and their
renewals) are valid and suppress co-existing native title for their duration.
State governments may now authorise pastoralists to engage in those activities,
even if the leases do not presently allow it. ... The 'primary production'
amendments potentially expand the rights of people other than 'non-exclusive'
agricultural and pastoral lessees. ... A State government may grant a
farmer the right to take water from nearby land subject to full native
title, even though a farmer would not be granted such rights over neighbouring
freehold (or even a neighbouring pastoral lease) except consensually by
its owner. The only constraint on the grant of such rights is a requirement
that the taking of water 'does not prevent native title holders ... from
having reasonable access to the area' ... Native title is thus stereotyped
as a set of rights to roam around land.(86)
For more detail on the primary production amendments,
readers are referred to pages 20-22 of Bills Digest No. 51 of 1997-98.
Senate amendments
A number of amendments to the pastoral activities provisions
were passed in the Senate. Government amendments (19)-(24), (24A) &
(24B) are included in the re-introduced Bill. Amendments made in the Senate
which were sponsored by the Opposition and by Senator Harradine are not
included.
Government amendments (19) & (20) replace the word
'farmstay' which originally appeared in proposed subsections 24GB(2)
& (3) with the word 'farm.' 'Farm tourism' is not defined in the
Bill. The Explanatory Memorandum says that the change is meant to emphasise
that 'paragraph 24GB(2)(b) is not confined to farmstay tourism but extends
to any tourism that takes place in relation to a farm operation. 'Farm
tourism' would include, for example, day tours of a farming operation,
as well as overnight stays.'(87)
Government amendment (21) removes proposed subsection
24GB(4) as it appeared in the original Bill and replaces it. The effect
of the replacement subsection is that a future act will not be valid if:
- as a result of the act, the majority of the area covered by a non-exclusive
pastoral lease of more than 5,000 hectares would be used for non-pastoral
purposes; or
- the act changes a non-exclusive pastoral lease or a non-exclusive
agricultural lease to an exclusive lease or a freehold estate.
Government amendment (22) inserts proposed subsection
24GB(9) into the Bill. This proposed subsection requires relevant
representative bodies, registered native title bodies corporate and registered
native title claimants to be notified before a future act is done which
permits horticulture, forestry or aquaculture or which permits agricultural
activities on non-exclusive pastoral leases. They must also be given an
opportunity to comment.
Government amendment (23) amends proposed paragraph
24GC(2)(a). Proposed subsection 24GC(2) provides that a primary production
activity or an activity incidental to primary production prevails over
any native title rights and interests. Government amendment (23) inserts
a point of clarification-that while these activities prevail over native
title they do not extinguish it.
Government amendments (24), (24A) & (24B) amend provisions
in the Bill permitting off-farm activities that are related to primary
production. These provisions would enable Governments to give people with
pre-Wik freeholds, agricultural or pastoral leases post-Wik rights to
engage in off-farm activities on land adjoining or near to their holding.(88)
Native title holders must not be prevented from having reasonable access
to these adjoining areas [proposed subparagraph 24GD(1)(e)(iv)].
Government amendment (24) provides that the off-farm
activities provisions do not apply when the future act is the grant of
a lease or if it confers a right of exclusive possession [proposed
paragraph 24GD(1)(d)]. In its original form, this paragraph only excluded
the former.
Government amendment (24A) limits the kind of activities
that a future act can permit under the off-farm activities provisions
to grazing or activities relating to gaining access to, or taking water
[proposed paragraph 24GD(1)(e)].
Government amendment (24B) inserts notification requirements
that must be followed before a future act can be done which permits off-farm
activities. Relevant representative bodies, native title bodies corporate
and registered native title claimants must be notified and given an opportunity
to comment [proposed subsection 24GD(6)].
Three other Senate amendments-one moved by the Opposition
and two by Senator Harradine-were not accepted by the House of Representatives
on 6 December 1997.
Opposition amendment (64) amended proposed section
24GE which deals with the granting of post-Wik rights to third parties
on pre-Wik non-exclusive agricultural or pastoral leases. Rights which
can be granted include rights to cut and remove timber, extract or remove
gravel, quarry rocks, or remove sand, soil or other resources (although
this cannot constitute mining). Future acts authorised by proposed section
24GE do not include the grant of a lease. Opposition amendment (64) provided
that, in addition, future acts permitted by proposed section 24GE exclude
the grant of a mining lease.
Harradine amendment (7) related to proposed section
24GB (future acts permitting primary production on non-exclusive agricultural
and pastoral leases). This amendment provided that a future act permitting
primary production on these types of lease could only occur if the future
act could have been performed lawfully on the lease with or without permission
prior to 23 December 1996. One commentator has remarked of this amendment:
[If the amendment does achieve its purpose], the effect ... will depend
on the particular laws in each State/Territory. In some States it will
mean limited diversification is permitted without involving native title
holders. In other States it appears to allow almost unlimited diversification
without involving native title holders. However, this may be limited by
the Government's own amendment which restricts diversification under the
primary production definition to 50% of the area of leases (for leases
greater than 5,000 hectares).(89)
Harradine amendment (R9) related to the off-farm activities
provision (proposed section 24GD). It provided that future acts
permitting off-farm activities will not be valid if they take place on
land which is the subject of a native title determination giving exclusive
possession to the native title holders. It appears that Senator Harradine's
intention was to create equivalence between native title holders with
rights of exclusive possession and freeholders (who would have to consent
before such activities could occur on their land).
Access rights
What does the 1997 Amendment Bill say about access
rights?
There is no provision for statutory access rights in
the NTA. Under the Bill as originally introduced, registered native title
claimants are given statutory access rights to non-exclusive agricultural
land and non-exclusive pastoral leases if a member of the native title
claim group or a descendant of such a person had regular physical access
to the area as at 23 December 1996 for the purpose of carrying out a traditional
activity (proposed section 44A). Such rights are interim in nature
and will exist pending the making of a native title determination. Under
proposed section 44A, such access rights are subject to the rights
of the lessee or any other person with non-native title rights. Proposed
section 44F of the Bill provides that the NNTT or a recognised State/Territory
body could be asked by anyone involved in a dispute about statutory access
rights to mediate in that dispute.
Senate amendments
Government amendment (43) adds a note to the foot
of proposed section 44F that confirms that Indigenous Land Use
Agreements can deal with access and that assistance for making such agreements
can be sought from the NNTT or a recognised State/Territory body.
In the Senate, other amendments to the access rights
provisions were made but were rejected by the House of Representatives
on 6 December 1997. For example, Senate amendment Opp(183)/Dems-GWA(151)
omitted proposed section 44C from the Bill.
Proposed subsection 44C(1) provides that native
title rights cannot be enforced by anyone in a native title claim group
so long as statutory access rights continue in force. (90)Proposed
subsection 44C(2) provides that rights conferred by the NTA are not affected
by proposed subsection 44C(1).
In the Senate, Senator Minchin said that proposed section
44C is merely intended to ensure that all native title claim groups participate
in Native Title Act claims processes.(91) However, this view was not taken
by a majority of Senators. Concern was expressed that the provision would
suspend common law rights and that it was discriminatory and constitutionally
deficient because it did not provide compensation for the suspension if
a native title determination was later made.(92)
A further amendment made by the Senate (Harradine R55)
which was not agreed to by the House provided that, for the purposes of
the requirement for regular physical access contained in proposed subsection
44A(3), physical access would be deemed to be regular if access had
been denied by an act of government or by the act of the lessee or someone
acting on behalf of the lessee. Like Senate amendment (267) which relates
to the registration test, this amendment addresses the situation of indigenous
people being forced off their land and thus being unable to satisfy the
requirement in the Bill for regular physical access. It was referred to
by Senator Harradine as the 'locked gate amendment' or the 'stolen generation
amendment'.(93)
Use of reserved land
In relation to reserved land, Brennan J said in Mabo
[No.2] 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.
What does the 1993 Act say about reserved land?
Existing subsection 228(9) of the NTA defines as 'past
acts' acts occurring after 1 January 1994 which are done under an earlier
reservation enabling the land or waters to be used at a later time for
a particular purpose-for example, a reservation for forestry purposes.
The future act regime does not stand in the way of subsequent uses of
land thus set aside. The crucial factor which brings a post-1993 act within
the extended definition of a 'past act' is that the original reservation
occurred before 1 January 1994.
What does the 1997 Amendment Bill say about reserved
land?
The Bill provides that an act on native title land is
valid ie development can occur, if it falls into one of 12 categories.
For example, 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 validates future acts on non-exclusive
pastoral leases where they fall within the definition of primary production.
Yet another category of future act which will be valid under the Bill,
is an act which involves reservations, leases etc (proposed Subdivision
Q).
Proposed Subdivision Q goes further than the present
provisions of the NTA. It extends the definition of an earlier reservation
to cover the intermediate period(94) and allows the later act to include
legislative action. It also allows subsequent use for a different purpose
where this would entail no greater impact on native title.
Under proposed Subdivision Q if the act which occurs
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.
Senate amendments
Government amendment (26) which was passed by the Senate
is included in the re-introduced Bill. The amendment, which adds proposed
subsection 24JB(6), provides that if the future act consists of the
construction or establishment of a public work, then prior to the act
being done, notification must be given to any representative bodies, registered
native title bodies corporate and registered native title claimants. There
must also be an opportunity for them to comment on the act.
Renewals and extensions
This part of the Bill takes an existing category of validity
for future acts and expands it so that a wider range of activities can
be done on native title land by non-indigenous land users.
What does the 1993 Act say about renewals and
extensions?
If a future act involves giving effect to a legally enforceable
right-eg a right to renew a 21 year mining lease for another 21 years,
which is written into the original lease-then the act is valid. The non-extinguishment
principle applies and compensation is payable.(95)
Even where there is no legally enforceable right to renewal,
the renewal, extension or re-grant of certain leases is guaranteed by
a separate provision of the NTA. The 'privileged' tenures in question
are commercial, agricultural, pastoral or residential leases. Restrictions
apply, the most important of which is that the renewal cannot enlarge
the nature of the original interest.(96)
What does the 1997 Amendment Bill say about renewals
and extensions?
An outline of proposed Subdivision I dealing with
renewals and extensions etc. can be found at pages 23-24 of Bills Digest
No. 51 of 1997-98.
The Bill consolidates the NTA provisions into a single
subdivision, but tilts the balance against native title interests in a
number of ways including the following:
- it allows the renewal to convert a term lease to a perpetual one;
- it allows the renewed lease to run for a longer term than its predecessor
lease;
- it permits the renewal of a pastoral or agricultural lease to expand
the range of authorised activities to encompass full primary production;
- it includes rights to renewal etc created in the intermediate period
(ie between early 1994 and late 1996).
A successful Government amendment in the Senate means
that relevant indigenous parties must be notified before a government
gives effect to a written offer to renew or extend under this provision.
They will have an opportunity to comment. But the Explanatory Memorandum
states that 'failure to notify will not affect the validity of the future
act'.(97)
Major issues of contention
The two Houses are divided over an amendment successfully
moved in the Senate by Senator Harradine.(98) It denied governments the
capacity to expand a term lease upon renewal to either a perpetual lease
or a lease for a longer term without regard for native title consequences.
Senator Harradine pointed out that the provision as amended provided certainty
to pastoralists-they can renew their leases on identical terms to their
current one without the need to negotiate. Unamended, he said the provision
could effect long term suppression of native title and that constituted
over-reach.(99) The Government sought to distinguish between the length
of a lease and the terms and conditions of what is authorised under it.(100)
The Senate also voted to exclude mining renewals from
this subdivision, so that they remain subject to the right to negotiate.(101)
It was argued that impacts can substantially change over the life of a
mine-in disturbance to the ground, the size of the workforce, changes
in technology, consequent social and environmental impacts such as larger
populations, liquor outlets and site destruction-and that the RTN was
essential to protect indigenous interests. The House disagreed with this
amendment-the Government's position on mining renewals is set out above
under the 'Right to Negotiate'.
Facilities for services to the public
This is a category of future acts which have been taken
out of the general coverage of the freehold test and placed in their own
category where lesser procedural rights apply on non-exclusive tenures.
Disagreement between the Houses centred on this recurrent question of
assimilating or differentiating the procedural rights of native title
holders and co-existing leaseholders-described by many as a question of
formal versus substantive equality.
What does the 1993 Act say about facilities for
services to the public?
The future construction, operation and repair of facilities
like roads, railways, bridges etc on native title land is basically governed
by the freehold test contained in subsection 23(6). In the face of such
future acts, native title holders have the same procedural rights as freeholders.
The non-extinguishment principle applies (except for compulsory acquisitions)
and compensation is payable.
A precondition of validity under the NTA is government
observance of the procedural rights provisions.
What does the 1997 Amendment Bill say about facilities
for services to the public?
An outline of proposed Subdivision K dealing with
facilities for services to the public can be found at pages 25-26 of Bills
Digest No. 51 of 1997-98.
The proposed subdivision would validate future construction
and repair of infrastructure by governments or anyone else if native title
holders retain reasonable access and site protection laws apply. The procedural
rights of a freeholder would apply on eg vacant Crown land but for non-exclusive
tenures, the rights of a native title holder are limited to those possessed
by the co-existing leaseholder.
Validity will flow from this subdivision regardless of
whether governments comply with procedural rights in carrying out the
act.
Major issues of contention
There was a major disagreement between the two Houses
in this area, which related to procedural rights for native title holders
confronted by such a proposed future act. The Senate voted that native
title holders should enjoy the procedural rights of freeholders across
the board-this would be the situation under the current Act. The House,
however, insisted that where the land involved was a non-exclusive pastoral
or agricultural lease, the rights should be the same as those of the leaseholder.
Non-Government Senators pointed out that native title
holders hold an interest in land which is different to that held by leaseholders.
Senator Harradine, for example, stated that:
The fact is that native title rights and interests have a deeper foundation,
certainly in common law, than do the rights and interests of leaseholders
under statute.(102)
In addition, Senator Cooney pointed out:
So if you have a pipeline going across the state, different Aboriginal
groups are going to have different procedural rights, depending not upon
their title but depending upon the title that other people have in the
land.(103)
These viewpoints essentially adopt a substantive equality
framework. The Government argues a formal equality position-that co-existing
titleholders should have the same procedural rights. Senator Minchin stated:
We think it is a fundamental matter of equity that if the land has a lease
over it and the lessee has whatever procedural rights that pertain in
respect of an electricity facility going across that land, then the native
title holders must have the same procedural rights.(104)
The ALP, in addition, sought to make government compliance
with procedural requirements a condition of validity but this amendment
was defeated in the Senate.(105)
A number of other amendments were moved unsuccessfully
in the Senate. They mainly related to heritage protection, notification
and confining the proposed subdivision to existing facilities.
Management of water and air space
What does the 1993 Act say about the management
of water and air space?
The existence and content of native title rights in relation
to water on- and off-shore are currently being tested in the courts. These
issues were not decided by Mabo [No.2] and were left to judicial determination
by the NTA.(106)
However, section 212 of the NTA does enable the Commonwealth,
the States and the Territories to confirm certain existing rights in relationship
to natural resources and water and to confirm public access to waterways,
beaches etc.(107) All the States and Territories have enacted legislation
which provides for the confirmations authorised by section 212.
The NTA also sets out how future acts affecting native
title can take place over onshore waters. In brief, it gives native title
holders the same procedural rights as would be held by a freeholder of
adjoining or surrounding land. Unless such protections are accorded then
the future act will not be permissible. There are fewer protections under
the NTA in relation to the offshore. Any future act in relation
to the offshore is a permissible future act. There is no right to negotiate
in relation to the offshore-for example, no right to negotiate exists
in relation to the grant of fishing licences. For a discussion of 'Offshore
Places' see below.
What does the 1997 Amendment Bill say about the
management of water and air space?
Point 8 of the 10 Point Plan states:
The ability of governments to regulate and manage surface and subsurface
water, off-shore resources and airspace, and the rights of those with
interests under any such regulatory or management regime would be put
beyond doubt.(108)
Some commentators have taken a different view about the
necessity for these changes:
These amendments are not necessary for the 'management' of water and airspace-governments
already have complete control over the offshore. They have the same (non-discriminatory)
control over onshore native title to water, and airspace over native title,
as they have over waters adjacent to freehold and airspace above freehold.
They have the same control over native title rights to fish as they have
over other (landowner or public) rights to fish. All this amounts to considerable
control. ... the Bill's provisions seek to secure governmental control
and the titles it gives rise to, even in circumstances of racial discrimination.(109)
As stated above, native title rights over water are currently
being tested before the courts. Even if native title is proved to exist
in certain water, the Bill's provisions would mean that future acts could
validly occur without reference to native title holders other than entitling
them to compensation.
Proposed section 24HA of the Bill deals with future
legislative and non-legislative acts(110) relating to the management 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.
Senate amendments
The 1997 Amendment Bill did not contain notification
provisions if non-legislative acts such as the granting of leases or licences
were done in relation to water, living aquatic resources or airspace.
Government amendment (25) inserts proposed subsection
24HA(7) into the Bill. This requires that before a non-legislative
act is done notification must be given to relevant representative bodies,
registered native title bodies corporate and registered native title claimants
and they must be given an opportunity to comment on the proposed act.
Offshore places
Whether the common law will recognise native title in
offshore areas is an issue currently before the Federal Court in the Croker
Island case. The Native Title Act does not pre-empt that question but
it does draw a distinction between offshore and onshore places. Generally
speaking offshore native title rights enjoy less protection from future
acts than those located onshore. Debate in the Senate focussed on what
specific level of protection should apply.
What does the 1993 Act say about the offshore
places?
The first point to make is that the right to negotiate
does not apply to offshore future acts under the NTA. However, procedural
rights apply if anyone who holds 'corresponding rights and interests'
enjoys procedural rights. The frequently mentioned example is a native
title right to fish attracting the same procedural rights as the holder
of a fishing licence.
Offshore compulsory acquisitions do not of themselves
extinguish native title but consequent action may, and just terms compensation
is payable. All other offshore future acts attract the non-extinguishment
principle and again compensation is payable.
What does the 1997 Amendment Bill say about offshore
places?
A description of proposed section 24NA can be
found at page 29 of Bills Digest No. 51 of 1997-98. The Government has
said that the proposed section reaffirms the current NTA situation and
consolidates it in one section of the Bill to make it more 'user-friendly'.(111)
In addition, the Government successfully moved four amendments
in the Senate. The most significant one seeks to ensure non-discrimination
between native title and other title holders in the practical application
of compulsory acquisition legislation offshore.(112)
Major issues of contention
In the Senate, the minor parties proposed that the right
to negotiate apply offshore,(113) the ALP proposed spelling out the minimum
content of procedural rights where the Act says they apply,(114) and the
Government maintained a 'no change' position beyond their four Senate
amendments referred to above.
Senator Harradine voted with the Government's position,
although he indicated some interest in the Opposition amendments.(115)
Miscellaneous
A number of amendments moved during the Senate debate
were grouped under the heading 'Miscellaneous'. Most of the successful
ones were moved by the Government and were of a technical nature. Three
non-Government amendments were passed by the Senate and toughened the
criteria which 'equivalent State/Territory bodies' must satisfy before
they can displace the National Native Title Tribunal under proposed
section 207B.
What does the 1993 Act say about these miscellaneous
matters?
There is no counterpart provision for proposed section
207B in the Act-existing section 251 of the NTA finds its parallel
in the Bill at proposed section 207A. The section 207B checklist
offers the States an extra opportunity which does not currently exist,
to set up their own bodies and oust the federal tribunal.
What does the 1997 Amendment Bill say about these
miscellaneous matters?
The checklist for equivalent State/Territory bodies is
dealt with at page 62 of Bills Digest No. 51 of 1997-98.
Major issues of contention
Senator Harradine secured passage of an amendment which
required States to have a member of the NNTT as a member of its equivalent
body.(116) The House agreed to that amendment but it does not appear in
the re-submitted Bill. Senator Harradine himself cast doubt on whether
his amendment went far enough and secured the NNTT member against marginalisation
by the State or Territory government. He asked Senator Minchin to consider
this matter further.(117)
The Opposition failed in an attempt to guarantee the
option for parties to go to a national body for mediation services and
arbitrations under the RTN procedure.
The Senate passed two Greens (WA) amendments which required
equivalent bodies to be subject to ADJR-style review and to offer its
members no less security of tenure and independence from government than
is provided to NNTT members.(118) The House disagreed with these two amendments.
The Greens, Democrats and Opposition also sought to delete
items 31 to 33 of Schedule 1 to the Bill.(119) A primary objective was
to stave off a dilution of the protection given to traditional activities
in the face of licensing, permit and other regulatory schemes. The amendment
was, however, defeated in the Senate.
Indigenous land use agreements
What does the 1993 Act say about agreements?
The NTA says little about the making of enforceable agreements
about what can happen on native title land. Section 21 of the NTA makes
provision for native title holders to make agreements with governments
to surrender their native title rights and interests or to authorise any
future act which will affect their native title. Such agreements may be
given for any lawful consideration or subject to any conditions. Subsection
21(4) says that native title holders may make such agreements on a regional
or local basis.
What does the 1997 Amendment Bill say about agreements?
The concept of ILUAs was developed in discussions by
indigenous organisations with industry groups and incorporated into the
Government's amendment package. Many aspects of the ILUA amendments enjoy
widespread stakeholder support.
The Bill provides for three different types of ILUA.
These are body corporate agreements, area agreements and alternative procedure
agreements. An act done pursuant to an ILUA is one of the 12 categories
of valid future acts set out in proposed section 24AA. An ILUA
can, by consent, by-pass the right to negotiate process where it would
otherwise apply.
When an ILUA is registered it has contractual effect
on the parties to the agreement and also binds any native title holders
in the area covered by the agreement. Registration provisions for ILUAs
contained in the Bill set out requirements for notification and objection.
Among the matters that may be included in all three types
of ILUA are the doing of future acts, the relationship between native
title and non-native title rights and how those rights are to be exercised.
Alternative procedure agreements cannot include provisions about the extinguishment
of native title.
Readers are referred to pages 45-51 of Bills Digest No.
51 of 1997-98 for further information about the ILUA provisions.
Senate amendments
Four Government amendments (15)-(18) which were made
by the Senate are included in the re-introduced Bill. Amendments (15),
(16) & (18) alter provisions relating to body corporate agreements,
area agreements and alternative procedure agreements respectively.(120)
They make clear that the parties to these agreements can agree to include
procedural requirements about the doing of future acts.(121)
Government amendment (17) inserts subsection (4) into
proposed section 24CK which deals with the registration of area
agreements certified by representative bodies. The Registrar can only
register an area agreement if certain conditions are fulfilled. It is
possible for the Registrar to register an area agreement against which
objections have been lodged but not withdrawn [proposed paragraph 24CK(2)(c)].
Government amendment (17) states that in making a decision in this circumstance,
the Register must take into account information provided by the persons
making the objection and by the representative bodies which certified
the application and may take account of anything else.
Three Opposition amendments (48A)-(48C) were made by
the Senate but were rejected by the House of Representatives. These amendments
affected provisions relating to the coverage of body corporate agreements,
area agreements and alternative procedure agreements(122) by providing
that these agreements could cover past and intermediate period acts.
There was disagreement in the Senate about whether these
amendments would impinge on the validation regime in the Bill.(123)
The Government's view was that the amendments were inappropriate
because they could produce unintended consequences and unnecessary because,
by implication, provisions dealing with ILUAs already enabled agreements
to be made about validated past acts, their effect on native title and
about compensation.(124) The Government also said that the Opposition's
amendments were premised on it securing amendments which would undermine
the validation regime.(125)
The Opposition argued, successfully, that the amendments
would not affect the validation regime and that ILUAs could play a useful
role with respect to past acts and intermediate period acts '... because
they can provide not just a compensation regime but they can provide a
very healthy alternative to a validation regime which people may want
to contest, and they would contest it at common law.'(126) The Opposition
also took the view that it was necessary to make it clear that ILUAs could
cover past and intermediate period acts.(127)
Applications
What does the 1993 Act say about applications?
Under the NTA, the NNTT has the power to make determinations
about the existence (or non-existence) of native title. This power can
only be exercised where an application is unopposed or the parties agree.
A determination is registrable in the Federal Court and enforceable as
an order of the Court.
In the 1994 case of Brandy v. Human Rights and Equal
Opportunity Commission, the High Court held that the provisions of the
Racial Discrimination Act 1975 relating to the enforcement of determinations
by the Human Rights and Equal Opportunity Commission were invalid. This
invalidity occurred because the Act purported to make the Commission's
decisions binding and enforceable as orders of the Federal Court once
registered by the Court. This, said the Court, infringed the doctrine
of the separation of powers by reposing federal judicial power in an administrative
body (the Commission).(128) It was widely assumed that the Brandy decision
applied to a range of federal tribunals, including the NNTT. Recently,
in Fourmile v. Selpam(129), the Full Court of the Federal Court held that
sections of the NTA which deal with the registration of NNTT determinations
were indistinguishable from the scheme successfully challenged in Brandy.
What does the 1997 Amendment Bill say about applications?
The Bill repeals existing Part 3 of the NTA and replaces
it with provisions setting out rules for various applications to the Federal
Court and the National Native Title Tribunal. The rules prescribe who
may make applications, the content of applications, how applications can
be amended, when they cannot be made, how they are brought to the notice
of others, how overlapping claims are dealt with and what roles the NNTT
must or may fulfil. Some of the amendments proposed in the Native Title
Amendment Bill 1997 were a response to the High Court's decision in Brandy
v. Human Rights and Equal Opportunity Commission.
Like present section 62 of the NTA, proposed section
62 of the Bill sets out the information and other material that must
accompany a claimant application. Under proposed section 62, there
are new categories of information and material which must be provided.
Further details about proposed section 62 can be found
in Bills Digest No. 51 of 1997-98 at pages 54-55.
Senate amendments
Discussion in the Senate in 1997 about amendments grouped
under the heading 'Applications' concerned the application process and
what would provide a proper and fair process.(130) The Senate made three
amendments, all of which are contained in the re-introduced Bill.
Under Government amendment (60) information that must
accompany a claimant application will now include a description of any
activities conducted in the exercise of the claimed native title rights
and interests [proposed paragraph 62(2)(d)].
Under Opposition amendment (230) other information which
may be contained in a claimant application includes the circumstances
in which a claimant was denied access to the claimed area [proposed
subparagraph 62(1)(c)(ii)]. Previously, this subparagraph referred
both to the circumstances in which access was attempted and prevented.
Opposition amendment (239) relates to proposed section
66 (dealing with who must be notified of native title and compensation
applications and how notification is to occur). As a result of Opposition
amendment (239), the Native Title Registrar must give a copy of an application
and certain other documents to relevant representative bodies as soon
as is reasonably practicable [proposed subsection 66(2A)]. The
Registrar is thus obliged to notify representative bodies in the same
way that he or she is obliged to notify relevant State or Territory Ministers.
Heritage protection
What does the 1993 Act say about heritage protection?
The NTA does not contain a general set of provisions
dealing with heritage protection. The protection of sites of significance
is one of the criteria in section 39 by which an arbitral body is to determine
whether a proposed future act should proceed. The same issue is referred
to in the provision dealing with the expedited procedure.
What does the 1997 Amendment Bill say about heritage
protection?
The Amendment Bill includes reference to site protection
in three provisions excluding certain mining acts from the right to negotiate-proposed
sections 26A, 26B and 26C. But again there is no general provision
dealing with heritage protection in the Bill.
Major issues of contention
In the Senate, non-Government Senators moved amendments
which would have put a floor of heritage protection under large parts
of the expanded future act regime including subdivisions dealing with
primary production, renewals and extensions, acts passing the freehold
test and facilities for services to the public. The amendments essentially
provided for notification and consultation on site protection as prerequisites
of validity for various categories of future act.
The Government's response was that heritage and native
title are distinct matters and:
The proper place to deal with heritage issues is
in heritage legislation. The proper place to deal with native title
issues is in the Native Title Act.(131)
The amendments were defeated in the Senate.
Fast-tracking
Further amendments not passed by the Senate were moved
by the Opposition and the Greens (WA). These amendments sought to fast-track
native title claims on various land including Aboriginal reserves, national
parks and conservation reserves. It was proposed that representative bodies
would perform fast-track functions-for example, identifying native title
holders and indigenous people in the area. If the representative body
was satisfied that the native title holders wanted a finding made in relation
to the area, it would proceed to do so. It would also notify the Registrar.
The Registrar would then notify the public and if there was no appeal
against the finding, the finding would be entered onto the National Native
Title Register as an approved determination. The Government argued that
there were constitutional (Brandy) problems with the proposal.(132)
Representative bodies
Schedule 3 to the Bill contains detailed amendments relating
to Native Title Representative Bodies. The most contentious questions
are whether existing Representative Bodies should be required to undergo
a process of re-recognition by the Minister, and what restrictions apply
to sensitive documents when an investigator is appointed by the Minister
to scrutinise the operation of a particular Representative Body.
What does the 1993 Act say about Representative
Bodies?
Minimal guidance is given in Part 11 of the NTA about
the operation and functions of Representative Bodies.
What does the 1997 Amendment Bill say about Representative
Bodies?
By contrast, the Bill contains detailed provisions dealing
with re-recognition, de-recognition, functions, finances, accountability
and other matters. A detailed overview of the proposed changes, the background
from which they have emerged and some of the policy conflicts they have
generated can be found at pages 63-71 of Bills Digest No. 51 of 1997-98.
A number of relatively minor Government and Opposition
amendments were successfully moved in the Senate in December 1997. They
dealt with such things as mediation, triennial funding, reporting requirements
and protection of sensitive information in the context of an audit or
investigation.
An Opposition amendment which offered protection for
material the subject of privilege or copyright or the traditional knowledge
of indigenous people was agreed to by the Senate and House, but has not
been incorporated in the re-submitted Bill.(133)
Major issues of contention
Much of the Senate debate was devoted to the question
whether, regardless of current performance, existing Representative Bodies
should be made to undergo a process for re-recognition. Senator Bolkus,
for example, suggested that the broad discretion granted to a Minister
on the issue of recognition created the potential for interference by
the Government with organisations it may well be opposing in native title
court proceedings. He also claimed it undermined self-determination and
would divert resources to the re-recognition process and away from important
representative body services to their constituents. He argued other representative
organisations in receipt of government funding were not subject to the
same potential for Ministerial intervention.(134)
Senator Minchin replied that Representative Bodies receive
substantial taxpayer funding and that a re-recognition process would secure
accountability and public confidence in the system.(135)
The Government has withdrawn its original support for
an Opposition amendment which allowed resources to be taken into account
when determining if a Representative Body had fulfilled its function of
notifying native title parties.(136)
- Reference given to the Joint Committee on 4 September 1997. The Committee
reported on 27 October 1997.
- Reference given to the Committee on 2 October 1997. The Committee
reported on 10 November 1997.
- Page 4.
- There is some difference of opinion about whether the double dissolution
trigger has been primed in relation to the Native Title Amendment Bill
1997. See, for example, Williams, G 'The road to a double dissolution?'
Research Note No. 29, 1997-98, Department of the Parliamentary Library.
See also, various advices dated December 1997 and January 1998 from
the Clerk of the Senate, Harry Evans.
- (1995) 183 CLR 245.
- (1996) 187 CLR 1.
- See, for example, Aboriginal and Torres Strait Islander Social Justice
Commissioner, Native Title Report July 1995-June 1996, AGPS, Canberra,
1996: 17-31.
- Government amendment (42).
- Government amendment (39).
- Opposition amendment (113).
- Harradine amendments (23), (34) and (35).
- Opposition amendments (124) and (124A), Dems-GWA (106).
- Second Reading Speech, Native Title Amendment Bill 1997 [No. 2]: 12.
- Opposition amendments (R209) and (210).
- Democrats-GWA amendment (126).
- Opposition amendment (167).
- Opposition amendments (134) and (170).
- Harradine (31)/Opposition (178)/Dems-GWA (146).
- Senator Dee Margetts, Senate, Official Hansard, 4 December 1997, 10412.
- Senator Bob Collins, Senate, Official Hansard, 4 December 1997, 10415.
- Senator Brian Harradine, Senate, Official Hansard, 5 December 1997,
10420.
- Subsection 7(1) of the NTA provides that 'Nothing in this Act affects
the operation of the Racial Discrimination Act 1975.' In Western Australia
v. Commonwealth, the High Court said that subsection 7(1) did not mean
that the NTA should be interpreted subject to the Racial Discrimination
Act 1975. Rather, it said, that both Acts '... emanate from the same
legislature and must be construed so as to avoid absurdity and to give
to each of the provisions a scope for operation ... The general provisions
of the Racial Discrimination Act must yield to the specific provisions
of the Native Title Act in order to allow those provisions a scope for
operation.' [(1993) 183 CLR 373 at 484].
- Senator Nick Bolkus, Senate, Official Hansard, 5 December 1997, 10527.
- Senator Nick Bolkus, Senate, Official Hansard, 5 December 1997, 10536.
- Senator Brian Harradine, Senate, Official Hansard, 5 December 1997,
10549.
- Senator Dee Margetts, Senate, Official Hansard, 5 December 1997, 10534-5.
- Senator Nick Minchin, Senate, Official Hansard, 5 December 1997, 10531-2.
- See Senator Nick Minchin, Senate, Official Hansard, 1 December 1997,
9936.
- See, for example, Senator Nick Bolkus, Senate, Official Hansard, 1
December 1997, 9938; Senator Brian Harradine, Senate, Official Hansard,
1 December 1997, 9946.
- For example, in 1966, the Commonwealth Conciliation and Arbitration
Commission acting on an application from the Northern Australian Workers
Union removed discriminatory wage clauses from the Cattle Industry (NT)
Award. See Gardiner-Garden, J 'Aboriginality and Aboriginal Rights in
Australia,' in Mabo Papers, Department of the Parliamentary Library,
AGPS, Canberra, 1994.
- See, for example, Senator Dee Margetts, Senate, Official Hansard,
1 December 1997, 9943; Senator Brian Harradine, Senate, Official Hansard,
1 December 1997, 9946.
- See, for example, Senator Dee Margetts, Senate, Official Hansard,
1 December 1997, 9943.
- See Senator Nick Minchin, Senate, Official Hansard, 1 December 1997,
9947.
- Senator Nick Bolkus, Senate, Official Hansard, 1 December 1997, 9905.
- Senator Nick Minchin, Senate, Official Hansard, 1 December 1997, 9907-8.
- Senate, Official Hansard, 1 December 1997, 9905-6.
- Senate, Official Hansard, 1 December 1997, 9908.
- Section 110.
- See Native Title Amendment (Tribunal Appointments) Act 1997, No.170
of 1997.
- Senator Brian Harradine, Senate, Official Hansard, 1 December 1997,
9917.
- Senator Nick Minchin, Senate, Official Hansard, 1 December 1997, 9900.
- See Senator Dee Margetts, Senate, Official Hansard, 1 December 1997,
9902-3.
- Opposition (242) & (247)-(249).
- Clarke, J 'The Native Title Amendment Bill 1997: a different order
of uncertainty?' Centre for Aboriginal Economic Policy Research, Discussion
Paper No.144/97.
- Federal Court of Australia, 27 February 1998, unreported.
- See Explanatory Memorandum, Native Title Amendment Bill 1997, 41.
- See, for example, Senate Legal and Constitutional Affairs Legislation
Committee, Constitutional Aspects of the Native Title Amendment Bill
1997, November 1997.
- Senate Legal and Constitutional Legislation Committee, Constitutional
Aspects of the Native Title Amendment Bill 1997, November 1997, 39-42;
77-80.
- Land or waters that, at any time before the act was done, was under
freehold or leasehold or on which a public work was constructed.
- Clarke, J 'The Native Title Amendment Bill 1997: a different order
of uncertainty?' Centre for Aboriginal Economic Policy Research, Discussion
Paper No.144/97: 26; Aboriginal and Torres Strait Islander Social Justice
Commissioner, Native Title Report July 1996-June 1997, AGPS, Canberra,
1997: 158.
- Senate Legal and Constitutional Legislation Committee, Constitutional
Aspects of the Native Title Amendment Bill 1997, November 1997, 40-42.
- Senator Nick Minchin, Senate, Official Hansard, 4 December 1997, 10496.
- Proposed section 23G.
- Proposed section 237A.
- Senator Nick Minchin, Senate, Official Hansard, 4 December 1997, 10507.
- Senator Nick Bolkus, Senate, Official Hansard, 4 December 1997, 10508.
- Senator Nick Bolkus, Senate, Official Hansard, 4 December 1997, 10516.
- Senator Dee Margetts, Senate, Official Hansard, 4 December 1997, 10510.
- Senate, Official Hansard, 4 December 1997, 10518.
- Dem-GWA amendment re: proposed subsection 23B(9).
- Government amendment (54).
- Opposition amendment (216A) as amended by Government amendment (54A).
- Harradine amendments (2), (3) and (4).
- See for example Wik Peoples v Queensland (1996) 187 CLR 1 at 155 per
Gaudron J and at 250 per Kirby J, and also Mabo v Queensland (No. 2)
(1992) 175 CLR 1 at 111 per Deane and Gaudron JJ and cases cited there.
- It amended the existing safety net provision in section 53 to affirm
that the just terms requirement applies to future acts by State and
Territory governments, not just those attributable to the Commonwealth.
- Explanatory Memorandum, Native Title Amendment Bill 1997, 249.
- Senator Nick Minchin, Senate, Official Hansard, 3 December 1997, 10240.
- Native Title Amendment Bill 1997, Schedule 1 items 26A and 26B, and
Schedule 5 Part 6A.
- Opposition amendment (188).
- Second Reading Speech, Native Title Amendment Bill 1997 [No. 2]: 17.
- Opposition amendment (184) amends proposed section 44H so that grantees
avoid compensation liability for activities authorised by their grant
only where they stay strictly within their legal entitlements.
- Opposition amendment (192).
- Senator Nick Minchin, Senate, Official Hansard, 3 December 1997, 10232.
- Senator Nick Minchin, Senate, Official Hansard, 3 December 1997, 10239.
- Proposed section 51A.
- See Wik Peoples v Queensland (1996) 187 CLR 1 at 215 per Kirby J and
Canadian and other cases cited there, and Mabo v Queensland (No. 2)
(1992) 175 CLR 1 at 195 per Toohey J and cases discussed there.
- See references in speech by Senator Nick Bolkus, Senate, Official
Hansard, 3 December 1997, 10226.
- Senator Nick Minchin, Senate, Official Hansard, 3 December 1997, 10231.
- Ibid at 10235.
- Note, however, that the right to negotiate applies to some compulsory
acquisitions.
- Or the act is one to which the right to negotiate applies.
- Senator Brian Harradine, Senate, Official Hansard, 4 December 1997,
10483.
- Clarke, J 'The Native Title Amendment Bill 1997: a different order
of uncertainty?' Centre for Aboriginal Economic Policy Research, Discussion
Paper No.144/97, 2.
- Explanatory Memorandum, Native Title Amendment Bill 1997, 101.
- Commonwealth Government Submission on the Native Title Amendment Bill
1997 to the Parliamentary Joint Committee on Native Title and the Aboriginal
and Torres Strait Islander Land Fund, 16 October 1997, 40.
- Clarke, J 'The Native Title Amendment Bill 1997: a different order
of uncertainty?' Centre for Aboriginal Economic Policy Research, Discussion
Paper No.144/97, 12.
- Page 111.
- Clarke, J 'The Native Title Amendment Bill 1997: a different order
of uncertainty?' Centre for Aboriginal Economic Policy Research, Discussion
Paper No.144/97.
- Burke, P 'The Native Title Amendment Bill: what happened in the Senate,'
indigenous Law Bulletin, 4(9), February 1998, 4-5.
- Note, however, that any right provided under the NTA-for example,
the right to negotiate-continues to operate.
- Senate, Official Hansard, 4 December 1997, 10572.
- Senator Nick Bolkus, Senate, Official Hansard, 4 December 1997, 10567.
- Senate, Official Hansard, 4 December 1997, 10570.
- That is, between 1 January 1994 and 23 December 1996.
- NTA section 25.
- NTA subsection 235(7).
- Explanatory Memorandum, Native Title Amendment Bill 1997, 125.
- Harradine amendment (14).
- Senator Brian Harradine, Senate, Official Hansard, 4 December 1997,
10404.
- Senator Nick Minchin, Senate, Official Hansard, 4 December 1997, 10404.
- Opposition amendment (124A), see also (124).
- Senator Brian Harradine, Senate, Official Hansard, 2 December 1997,
10153.
- Senator Barney Cooney, Senate, Official Hansard, 2 December 1997,
10151.
- Senator Nick Minchin, Senate, Official Hansard, 2 December 1997, 10150.
- Opposition amendment (99).
- The Yorta Yorta and Croker Island cases are currently before the courts.
- Under section 212 of the NTA, a Commonwealth, State or Territory law
may confirm existing Crown ownership of natural resources, existing
Crown rights to use, control or regulate water flow, and that existing
fishing access rights prevail over any other public or private fishing
rights. The section also provides that a Commonwealth, State or Territory
law can confirm existing public access to and enjoyment of waterways,
beds, banks and foreshores or waters, coastal waters, beaches or area
that were public places at a 31 December 1993. See McRae, H; Nettheim,
G & Beacroft, L Indigenous Legal Issues. Commentary and Materials,
2nd ed, LBC Information Services, Sydney, 1997.
- See Senator Nick Minchin, Federal Government's Response to the Wik
Decision. The Ten Point Plan, 4 June 1997, 2.
- Clarke, J The Native Title Amendment Bill 1997: a different order
of certainty? Centre for Aboriginal Economic Policy Research, Discussion
Paper No.144/1997, 13.
- Non-legislative acts are the grant of leases, licences, permits or
authorities under certain legislation [proposed subsection 24HA(2)].
- Senator Nick Minchin, Senate, Official Hansard, 3 December 1997, 10206.
- Government amendment (32).
- Greens (WA) amendment (98).
- Opposition amendments (108) and (110).
- Senator Brian Harradine, Senate, Official Hansard, 3 December 1997,
10210.
- Harradine amendment (56).
- Senator Brian Harradine, Senate, Official Hansard, 3 December 1997,
10322.
- Greens (WA) amendments (1) and (2).
- Opposition amendment (165A).
- These amendments amend proposed paragraphs 24BB(a), 24CB(a) &
24DB(a) respectively.
- Senator Nick Minchin, Senate, Official Hansard, 28 November 1997,
9778.
- Proposed sections 24BB, 24CB & 24DB respectively.
- See, for example, Senate, Official Hansard, 28 November 1997, 9792.
- Senator Nick Minchin, Senate, Official Hansard, 28 November 1997,
9794.
- Senator Nick Minchin, Senate, Official Hansard, 28 November 1997,
9792.
- Senator Nick Bolkus, Senate, Official Hansard, 28 November 1997, 9793.
- Senator Nick Bolkus, Senate, Official Hansard, 28 November 1997, 9794.
- The primary separation rule of the separation of powers doctrine mandates
that the judicial power of the Commonwealth can only be exercised by
a Chapter III court.
- 13 February 1998, unreported.
- See, for example, Senator Nick Minchin, Senate, Official Hansard,
28 November 1997, 9803; Senator Nick Bolkus, Senate, Official Hansard,
28 November 1997, 9800.
- Senator Nick Minchin, Senate, Official Hansard, 3 December 1997, 10221.
- Senator Nick Minchin, Senate, Official Hansard, 2 December 1997, 10158.
The Opposition disagreed saying that the Registrar would be exercising
administrative, not judicial functions-see Senator Nick Bolkus, Senate,
Official Hansard, 2 December 1997, 10159.
- Opposition amendment (312).
- Senator Nick Bolkus, Senate, Official Hansard, 2 December 1997, 9997-10000,
10006-10008.
- Senator Nick Minchin, Senate, Official Hansard, 2 December 1997, 9996,
10002.
- Opposition amendment (332).
Sean Brennan and Jennifer Norberry
30 March 1998
Bills Digest Service
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