CO - NTLF - Report 6 - Minority Report

Native Title and the Aboriginal and Torres Strait Islander Land Fund Committee

SIXTH REPORT OF THE PARLIAMENTARY JOINT COMMITTEE ON NATIVE TITLE AND THE ABORIGINAL AND TORRES STRAIT ISLANDER LAND FUND The Native Title Amendment Bill 1996
TABLE OF CONTENTS

CHAPTER 4

Registration of Claims

4.1 It is agreed in principle that a native title claim should receive some scrutiny before the claimant becomes eligible to negotiate under the right to negotiate provisions, or eligible to prevent future acts gaining s.24 protection under the non-claimant procedure. However, the registration test proposed in s.190A is manifestly unjust. The Tribunal Registrar has pointed out that the seven conditions for registration contained in the June Amendment Bill and the Exposure Draft in fact amount to fifteen. [1] This would impose a considerable burden on a claimant and on the Registrar (who would be obliged to apply the test). It would be difficult enough to prepare a claim within the requisite three months in response to a proposed development on native title land, let alone have it registered. The test could deny Indigenous people their right to negotiate altogether. [2] The Social Justice Commissioner is of the view that the right to negotiate is an intrinsic aspect of native title. [3] No amendments to the Act should preempt court determinations concerning the extinguishment of native title.

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.

4.2 There is a number of proposed conditions for registration which are of profound concern. These include:

Section 190A(7) requires a positive prima facie case to be established (in contrast with s.190A(3) of the former Government's Native Title Amendment Bill 1995, which was satisfied unless the Registrar considered that prima facie the claim could not be made out). This, and the requirement that a prima facie case be shown in relation to each right claimed, raises the prospect of substantially plausible claims not being registered because of doubt - in the Registrar's mind - about one single element.
Meeting the condition in s.190A(8)(f) [4] (that a claim contain a general description of the factual basis upon which it is asserted that the claimants and their predecessors are associated with the area and the basis upon which it is asserted that there are continuing traditional laws and customs giving rise to native title) may necessitate considerable anthropological investigation. This is not appropriate for an administrative screening process. [5]
Section 190A(10) prevents registration if an application discloses, or the Registrar is otherwise aware, that it relates to land which at any time has been covered by freehold or a residential, commercial or perpetual lease (but not grants under Aboriginal land rights legislation or a pastoral or mining lease). [6] However, it is yet to be confirmed that all such grants extinguish native title. The provision could preempt common law determination of the circumstances under which native title is extinguished by various kinds of leases.

4.3 As has been noted, a claimant must satisfy the registration test in order to gain the right to negotiate or otherwise respond to a notice of a proposed development. In potentially denying many claimants timely access to the right to negotiate the proposed registration test may in effect extinguish or impair a native title right - namely, the right to be consulted about entry onto and use of land. It is not at all clear that the right to negotiate is purely a statutory right granted by Parliament. [7]

4.4 The withdrawal or restriction of the right to negotiate may breach the Racial Discrimination Act (RDA). The Government appears to hold the view that the right to negotiate is merely a discretionary 'special measure' which can be given and taken away by political fiat provided that there is basic formal equality at law. [8] On this view, provided native title holders and ordinary title holders have the same procedural rights in relation to proposed developments, the requirements of the RDA are satisfied. This argument assumes that the RDA and the International Convention on the Elimination of All Forms of Racial Discrimination only require formal equality rather than substantial equality or equality of outcome by way of respect for rights. However, recent legal authority and opinion support the view that equality of outcome is required by the RDA. [9] Although the right to negotiate is not provided to ordinary title holders as such, it is a measure directed towards ameliorating Aboriginal social and economic conditions to achieve an equality of outcome. [10] As such, its removal may offend the principles in the RDA and the Convention.

4.5 Further, the proposed test is complex and would lead to extensive litigation, which flies in the face of the original intention that the Act minimise costly argument in the courts. The Tribunal could become involved in contested, quasi-judicial decisionmaking, which would detract from its mediation functions. If the Tribunal were to become closely identified with contentious decisions affecting important rights it would be difficult for it to win the confidence of all the parties in a mediation. [11]

4.6 Finally, the Government's proposal that the test apply in relation to any claim where a s.29 notice is issued after the new test comes into effect, is objectionable, as is the proposal that all claims lodged on or after 27 June 1996 and before the registration test comes into force would be subjected to the new test. [12] The following observations can be made:

This would effectively widen the net of an unjust registration test which, for the reasons given above, is potentially in breach of the principles in the RDA, and may have the effect of impairing a native title right. [13]
Although on 27 June 1996 the Government gave notice that a registration test would apply in relation to claims lodged after that date, the test now proposed includes additional conditions of registration that were not in the test announced on 27 June [14] - it is possible that claims lodged after 27 June may have satisfied the test then proposed but would not satisfy the test now proposed, with its additional conditions.
The proposal to apply the test to claims lodged before 27 June (upon the first s.29 notice being issued in relation to the claimed area after the registration test has come into effect) [15] also has difficulties: prior to 27 June, claims were prepared, lodged and referred to mediation on the basis of the current law - to prepare for the new test they may need to be amended, possibly to include additional or different parties, which could be disruptive of mediation.

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.

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Footnotes

[1] Evidence, p.3241

[2] In this regard, it is important to note that a claimant would only gain the right to negotiate if the claim is both lodged and registered within the three month notification period in the s.29 notice. Compare the provisions relating to non-claimant applications and Indigenous Land Use Agreements where, for the native title claimant to gain certain rights, it is only essential for the claim to be lodged within the three month period; registration may take place outside the period.

[3] Native Title Report July 1995 - June 1996, pp. 18-20

[4] As amended by clauses 33 to 36 on p.7 of the Exposure Draft.

[5] Dodson M, op. cit., p.115.

[6] Clause 38 on p.7 of the Exposure Draft seeks to amend s.190A(10) to include perpetual leases.

[7] Woodward, A.E., Aboriginal Land Rights Commission: 2nd Report April 1974, p.108.

[8] Towards a More Workable Native Title Act: An Outline of Proposed Amendments (May 1996), par.42; Evidence, pp.3213-3214; see also s.8 of the Racial Discrimination Act 1975 (C'th) and Article 1(4) of the International Convention on the Elimination of All Forms of Racial Discrimination.

[9] Opinion of Mr John Basten QC as quoted in Dodson M op. cit. at pp.23 to 25 and Western Australia v. The Commonwealth (1995) 183 CLR 373 at 483-484.

[10] Indeed ordinary title holders may have veto rights; for example, in Victoria property holders have veto rights over land within 100 metres of a house, farm building, church or cemetery. Evidence, p.3110.

[11] See Chapter 3 of the Committee's Fourth Report.

[12] Outline of Proposed Amendments to the Native Title Amendment Bill 1996, pp.17 and 18; Exposure Draft, Part 2, Division 2, Item 7(3) and (4) (p.76).

[13] In this regard, the right to negotiate is more than a mere 'administrative benefit'.

[14] Under the transitional provisions, two additional conditions of registration would apply: conditions six and seven (the fifth condition of registration would not apply by reason of Part 2, Division 2, Item 6(b)). The sixth condition is that it appears from the application that the persons who claim, or with whom persons claim, in the application to hold native title include all persons who hold the common or group rights comprising native title (Exposure Draft, p.8). The seventh condition is that a representative body has certified, or it appears to the Registrar, that (1) the claimants have authority of the persons whom it is claimed hold common rights, and (2) that all reasonable efforts have been made to ensure that the application describes or identifies the persons holding those common rights (Exposure Draft, p.32). Further, the fourth condition of registration would be amended so that if the Registrar becomes aware of a perpetual lease over the claim area, that would prevent a claim from being registered.

[15] Exposure Draft, Part 2, Division 2, Item 7(3).