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| That the proposed s.26A (in Item 98J) not be adopted. |
6.5 The Government has also proposed that the right to negotiate be removed in respect of all renewals and regrants of mining and exploration tenements. [9] However, the Act already excludes many renewals of mining leases and exploration leases from the right to negotiate. [10] The further exclusion of renewals from the right to negotiate would be an unacceptable additional erosion of the right to negotiate.
| That the proposed s.26B (in Item 98J) not be adopted, s.26(2)(c) not be repealed (Item 98D), and the proposed s.25(1B) (in Item 112) not be adopted. |
6.6 Further, the Government seeks to amend the Act to provide for a 'once only' right to negotiate that may cover both mining and exploration (where exploration has not already been excluded by the Commonwealth Minister under the proposed new exclusion mechanism). [11] At present the right to negotiate may apply several times in the tenement sequence; eg at each exploration and mining licence stage and possibly in relation to the renewal thereof. This is beneficial in that in most cases it allows the parties to focus their negotiations on one set of activities at a time; it is also convenient when Indigenous negotiators are seeking instructions regarding an act from native title holders. If a government did cover both exploration and mining in a s.29 notice the result would be potentially unworkable; to paraphrase Father Frank Brennan SJ, it could lead to 'mega-negotiations' attempting to deal with all future contingencies at exploration stage. This might actually deter exploration:
. . . you create a situation where you set up an expectation, particularly among Aboriginal claimants, that any prospective exploration could be a 'Century Zinc' at the end of the process. [12]
| That the proposed Item 98W (s.29(5)) not be adopted. |
6.7 The Government also proposes to enable the Commonwealth Minister to exempt from the right to negotiate procedure compulsory acquisitions of native title rights to enable private companies to build public infrastructure. [13] However, the Act already exempts compulsory acquisitions where such infrastructure is to be built by a government. [14] That is a significant concession on the part of Indigenous people, and no case has been shown for extending it to privately-built infrastructure. The Government needs to provide evidence of the need for this amendment.
6.8 The current negotiation period under the right to negotiate in respect of a proposed right to mine is six months from the date of the relevant s.29 notice [15]: if negotiations do not produce a resolution and the matter is referred to an arbitral body that body must take all reasonable steps to make a determination in relation to the act within six months. [16]
6.9 The Government proposes to reduce each period to four months. [17] It would not be desirable to reduce the negotiation period to four months. Native title parties often go into negotiations over future acts without a clear or firm agenda regarding the land. This places them at a disadvantage relative to developers (which would be compounded if, as the Government proposes, the negotiations covered an entire project rather than a discrete tenement). It is often the case that negotiations do not start until at least two months from the issue of a s.29 notice as native title claimants have been required to prepare and lodge a claim in order to gain the right to negotiate. [18] The arbitration period should not be reduced to four months unless this would be realistic given the resources and workload of the Tribunal. The onus is on the Government to show that this would be the case.
| That the proposed Item 98ZE (s.35) be amended to substitute 6 for 4 at (a). |
6.10 The expedited procedure enables acts not involving major disturbance (such as some kinds of exploration) to go ahead without the need for negotiation. It only applies if the act 'does not directly interfere with community life'. [19] This has been interpreted to include non-physical interference:
Section 237(a), in stating the first requirement of an act attracting the expedited procedure, requires that the act does not directly interfere with the community life of the native title holders. It does not say that such direct interference has to be of a physical type. "Community life" might include all sorts of spiritual and the like activities which might be directly interfered with without any physical interference. For example, the very thought of intensive exploration activities, perhaps involving vehicles, bulldozers and other heavy equipment and the setting up of seismic lines on hunting grounds ten kilometres away, could upset an Aboriginal community and directly interfere with its community life without any physical interference with that life. Members of that community might well be very distressed by the thought of such activities. The spiritual part of life falls quite readily, as a matter of ordinary language, into what is encompassed by "community life". [20]
6.11 In order to overcome this court decision, the Government proposes to amend the Act so that the interference has to be physical in order for the expedited procedure not to apply. [21] This proposed amendment cannot be accepted; as was noted by Miss Lois O'Donoghue in evidence before the Committee on 28 October 1996 [22], it clearly fails to appreciate the spiritual nature of Indigenous links to land.
| That the proposed Item 98ZZY (para 237(a)) not be adopted. |
6.12 For future act negotiations the Government proposes to direct the attention of the parties and the arbitral body to the effect of coexisting interests such as pastoral leases on native title. [23] The assumption would appear to be that any native title that survives a pastoral lease would amount to something less than exclusive possession and that that should be taken into account in the process of working out whether the proposed act can be done and, if so, on what terms.
6.13 The amendments misunderstand the right to negotiate which is about whether certain activity shall proceed which affects native title. The right to negotiate arises when a native title right is claimed pursuant to a s.29 notice. The determination of extinguishment issues should be left to the hearing of the claim itself. It is inappropriate to bring on this aspect of the claim prematurely.
| That the proposed Item 98ZW (s.39(1A)) not be adopted. |
6.14 The Federal Court has held that the failure of a government party to negotiate in good faith under the right to negotiate prevents the government referring a matter to an arbitral body for a determination about the act. [24] The Government proposes two responses:
6.15 We have reservations about the merits and practicality of the first of these proposals. Negotiations need not be confined to the strict legal or factual issues. And it may be difficult to identify whether a matter for negotiation is related to a proposed future act within the meaning of the proposal. For example, would an offer by a native title party to settle a matter on the basis of a royalty payment (something the Act encourages [27]) be unrelated to the effect of the act on the relevant native title interests?
6.16 The second of the proposals also gives rise to difficulty: it does not protect against the possibility of collusion between government and grantee parties whereby one might behave obstructively in a mediation and the other, having given the appearance of willingness to negotiate in good faith, is free to refer a matter for arbitration. [28]
| 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).
6.17 The Native Title Act already provides for ministerial override of future act determinations made by the Tribunal or other arbitral bodies where this is considered by the Minister to be in the national or State or Territory interest. [29] But a Minister can only intervene after the negotiations have been pursued in good faith without a resolution and the arbitral body has considered the matter and made a determination.
6.18 The Government proposes amendments permitting ministerial intervention in two additional situations:
The first of these amendments is unacceptable. A large mining project will normally take some years to plan. A well-organised miner should be expected to clear future tenements through the current right to negotiate procedure in advance of them being required. The use of the proposed power would be bound to lead to administrative law challenges.
6.19 Although the second amendment has some merit, the preference should always be for arbitral bodies to make future act decisions, and if they are not being made in a timely manner this would best be addressed by properly resourcing such bodies. In addition, it would be undesirable if the limited resources of arbitral bodies gave a Minister an excuse to bring future act determinations into his or her office.
That the proposed s.34A (in Item 98ZE) permitting ministerial intervention prior to a future act determination not be adopted.
6.20 The Act provides that native title rights may be compulsorily acquired on certain terms. The non-extinguishment principle would apply to the acquisition itself, although native title could be extinguished by the effect of the development that follows the acquisition. [32] The Government proposes an amendment to the effect that native title would be extinguished by the compulsory acquisition itself. [33] This amendment would entail an unnecessary impairment of native title rights.
6.21 As the majority report recommends, consideration of the pastoral lease conversion amendments [34] should be deferred until (at least) such time as the Wik case has been determined by the High Court. Until that decision is handed down it is arguable that native title may have survived at least some pastoral leases. [35] If it has, the conversion of a lease to authorise non-pastoral activities, or to a stronger form of tenure, may result in the de facto extinguishment of native title. The Government claims that there would be no such extinguishment because the 'non-extinguishment principle' would apply. But under the non-extinguishment principle [36] native title would still be suspended to the extent of inconsistency with the new purpose of the lease. That purpose may be entirely incompatible with the enjoyment of native title. If the varied lease is a perpetual lease native title may be perpetually suspended. There is no difference between that and extinguishment. We agree with Miss O'Donoghue's view that this would amount to extinguishment by stealth. [37]
6.22 Although the Government's amendments carry out the charade of preserving any reservation in favour of continued Indigenous use, such a reservation may be of little use if under the new purposes of the lease access is physically impossible. Accordingly, the majority report's comments on this matter are supported and Recommendation 10 is endorsed.
[1] For example, the opening words of s.26 suggest that a government must 'propose' to issue a tenement before the right to negotiate procedure becomes relevant.
[2] Outline of Proposed Amendments to the Native Title Amendment Bill 1996, p.2.
[3] See also the submission of Cape York Land Council at Evidence, p.1826, which takes the view that the right to negotiate as currently framed offers slim protection, in any event, for remnant native title rights after 200 years.
[4] Exposure Draft, cl.40, item 98J, proposed s.26A (p.9).
[5] The right to negotiate would not apply, nor would the s.26(3) guarantee that native title holders have equivalent procedural rights to holders of ordinary title: Exposure Draft, cl.40, item 98G. Instead there would be potentially weaker procedural rights: Exposure Draft, cl.40, item 98J (proposed s.26A(4)) (p.9 of the Exposure Draft).
[6] Evidence p.3266
[7] Section 26(3)(b) and (4).
[8] Sections 32 and 237.
[9] See Outline of Proposed Amendments to the Native Title Amendment Bill 1996 at pp.2-3; Exposure Draft, cl.40; item 98D (proposed repeal of s.26(2)(c)); item 98J (proposed s.26B); see also Native Title Amendment Bill 1996, sched.1, item 112, proposed s.25(1B).
[10] Sections 25, 26(2)(c) (second limb) and 228(3) and (4).
[11] Outline of Proposed Amendments to the Native Title Amendment Bill 1996, pp.2-3 and 8.
[12] Evidence, p.2013.
[13] Items 98E and 98ZZB of the Exposure Draft.
[14] Section 26(2)(d).
[15] Section 35.
[16] Section 36.
[17] Outline of Proposed Amendments to the Native Title Amendment Bill 1996, pp.3-4.
[18] Dodson M Native Title Report: July 1994 - June 1995 pp.42-43. This will extend to three months under the Government's proposals; effectively this will give one month for what could be very complex negotiations. This is utterly unrealistic.
[19] Section 237(a). (There are other conditions in s.237(b) and (c).)
[20] Per Carr J in Ward v. Western Australia, CLS 1996 FED 198 at p.43 (9 May 1996).
[21] Outline of Proposed Amendments to the Native Title Amendment Bill 1996, pp.4-5.
[22] Evidence, p. 3508.
[23] Outline of Proposed Amendments to the Native Title Amendment Bill 1996, p.5; Exposure Draft, item 98ZW (p.20).
[24] Walley v. Western Australia, (Carr J, unreported, WAG 6004 of 1996)
[25] Outline of Proposed Amendments to the Native Title Amendment Bill 1996, pp.7 and 8; Exposure Draft, Item 98ZB (p.13).
[26] Exposure Draft, Item 98ZG (p.16).
[27] Section 33.
[28] Submission of Aboriginal and Torres Strait Islander Social Justice Commissioner, dated 5 November 1996, p.6.
[29] Section 42.
[30] Government's Outline of Proposed Amendments to the Native Title Amendment Bill 1996, p.3.
[31] Ibid., p.6.
[32] Section 23(3).
[33] Item 115A of the Exposure Draft.
[34] Proposed sections 25(1C) to 25(1F).
[35] And the Wik case may not resolve the question of extinguishment where a pastoral lease contains a reservation in favour of Indigenous access.
[36] Section 238.
[37] Evidence, p.3508.
