First Minority Report
Executive Summary
The Native Title Act 1993 has been in need of amendment to address
the High Court's Brandy decision and some other matters. Twelve
months ago the Keating Government introduced the Native Title Amendment
Bill 1995 for this purpose. That bill lapsed with the dissolution of the
House of Representatives in January 1996. The Coalition Government has,
since then, developed and introduced (in two stages) proposed amendments
to the Act.
The Act is a finely balanced statute encompassing the interests of various
parties: a compromise was reached and some significant concessions were
made by Indigenous people. Amendments need to preserve that balance. Even
more importantly, the amendments must not depreciate the common law native
title rights of Indigenous people. Extinguishment of native title, either
inadvertently or by stealth, must be resisted. The Act will not in fact
be more 'workable' if native title holders are forced to resort to the
courts in defence of their rights; the most 'workable' arrangement is
the process of mediation by which reasonable claims can be settled.
Accordingly, although the proposed Brandy amendments are accepted,
others which appear to depreciate native title rights or make access to
the mediation process difficult cannot be endorsed.
In order to protect native title rights, this minority report respects
the Racial Discrimination Act 1975 by giving it primacy. That Act,
effectively our bill of rights, was a cornerstone of the Mabo decision.
Amendments to the Native Title Act, which has as an objective the protection
of native title, must not be inconsistent with the Racial Discrimination
Act. A number of the Government's proposed amendments are vulnerable to
such scrutiny.
This minority report is founded on two crucial elements; they are:
- the acceptance and preservation of the common law on native title
(extinguishment must not be further effected by statute and where there
is doubt about the extinguishment of native title the courts must decide);
and
- the Racial Discrimination Act must prevail over any amendments to
the Native Title Act.
On this basis the following recommendations are made:
Minority Recommendation 1
- That the following be adopted:
(1) Without limiting the general operation of the Racial Discrimination
Act 1975 in relation to the provisions of the Native Title Act
1993, the provisions of the Racial Discrimination Act 1975 are
intended to prevail over the provisions of this Act.
(2) The provisions of this Act do not authorise conduct that is inconsistent
with the provisions of the Racial Discrimination Act 1975.
Minority Recommendation 2
- That appropriate amendments be made to the Federal Court of Australia
Act 1976 to ensure that a native title claimant application cannot
be summarily dismissed or stayed upon the application of a person other
than the applicant until mediation pursuant to s.86A has been bypassed
or terminated.
Minority Recommendation 3
- That no amendments to the Native Title Act 1993 be adopted
that would preempt the common law on the extinguishment of native title.
Minority Recommendation 4
- That the registration test proposed in Items 96, 114A and 114B (s.190A)
of the Amendment Bill and Exposure Draft not be adopted. That the registration
test proposed at s.190A of the Native Title Amendment Bill 1995 be considered
for adoption. This would be on the basis that there would be no discretion
allowing consideration of material extrinsic to that found in, or accompanying,
a native title application.
Minority Recommendation 5
- That the proposed Item 39 (s.86A) of the Amendment Bill 1996 not be
adopted. That s.86A as proposed in the Native Title Amendment Bill 1995
be considered for adoption.
Minority Recommendation 6
- That Recommendation 9 of the majority report not be adopted.
Minority Recommendation 7
- That the proposed s.26A (in Item 98J) not be adopted.
Minority Recommendation 8
- That the proposed s.26B (in Item 98J) not be adopted, s.26(2)(c) not
be repealed (Item 98D), and the proposed s.25(1B) (in Item 112) not
be adopted.
Minority Recommendation 9
- That the proposed Item 98W (s.29(5)) not be adopted.
Minority Recommendation 10
- That the proposed Item 98ZE (s.35) be amended to substitute 6 for
4 at (a).
Minority Recommendation 11
- That the proposed Item 98ZZY (para 237(a)) not be adopted.
Minority Recommendation 12
- That the proposed Item 98ZW (s.39(1A)) not be adopted.
Minority Recommendation 13
- That the amendment in Item 98ZB (s.31(1A)) not be adopted.
- That Item 98ZG be amended so that the proposed s.36(1A) provides that
an arbitral body cannot make a future act determination unless both
the government and grantee parties have acted in good faith pursuant
to s.31(1)(b).
Minority Recommendation 14
- That the proposed s.34A (in Item 98ZE) permitting ministerial intervention
prior to a future act determination not be adopted.
Minority Recommendation 15
- That the proposed s.203AH(3) in Item 114K not be adopted.
Minority Recommendation 16
- That the proposed s.203BB in Item 114 ZD refer to assistance for Indigenous
Land Use Agreements. That the proposed s.203BF in Item 114 ZD refer
to dispute resolution functions concerning Indigenous Land Use Agreements.
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