18 November 1996
Report: of Parliamentary Joint Committee on Native Title on Native Title
Amendment Bill 1996
Native title now is an established aspect of the legal and cultural landscape
of Australia. Mabo [No2] was handed down in June 1992 and the Native
Title Act 1993 commenced from January 1994.
Today the Parliamentary Joint Committee on Native Title and the Aboriginal
and Torres Strait Islander Land Fund tabled its report on the Native Title
Amendment Bill 1996. By virtue of that bill the Howard Government purports
to make the Act more 'workable'.
The Committee's majority report essentially agrees with the Government's
proposals to amend the Native Title Act. Nevertheless, two significant
aspects of the Committee report can be endorsed:
- support for the proposed amendments to address the Brandy problem
(where a Tribunal, such as the National Native Title Tribunal, purports
to exercise the power of a court by making determinations; and
- the deferment of consideration of the Government's proposal to permit
the renewal of pastoral leases on terms more favourable to lessees,
including in perpetuity, to the possible detriment of native title claimants.
That said, the overall thrust of the Government's proposed amendments
to the Act, and the Committee's endorsement of them, are contrary to the
interests of the Indigenous people whose native title rights were proclaimed
by the High Court little more than four years ago. For this reason, the
non-Government members of the Native Title Committee dissent from the
Committee report and have presented their own minority report.
The minority report analyses the Government's proposed amendments and
the Committee's approval of them. It does so resting on the conviction
that the Native Title 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.
In addition to its regard for the original Native Title Act, the minority
report respects the Racial Discrimination Act 1975 by giving it
primacy over the Native Title Amendment Bill 1996. The Racial Discrimination
Act 1975, is effectively our bill of rights by making us all equal. It
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.
Accordingly, the 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
- to avoid any doubt, it is imperative that the provisions of the amendment
bill make it clear that the intention of the Parliament is that the
terms of the Racial Discrimination Act 1975 shall prevail over all provisions
amending the Native Title Act 1993.
Consistent with these principles, the minority report has recommended
against numerous proposals to amend the Native Title Act. In essence,
those proposals would:
- instal what would amount to a fifteen part registration test for native
title applications that would be onerous for the Tribunal to administer
and Draconian in its effect on applicants;
- deny access to the 'right to negotiate' over development proposals
to those whose applications do not pass the unreasonable registration
test;
- provide for a 'once only' right to negotiate over developments, potentially
covering both exploration and mining, and denying native title holders
what is one of their rights - to negotiate entry to their 'country'
for a range of purposes;
- allow intervention by the Minister at any stage once a 'future act'
notice had been issued for three months; this would effectively deny
the 'right to negotiate' in such circumstances;
- prior to any consideration by an arbitral body, permit the Minister
to allow a development on what could be native title 'country';
- limit mediation to a narrow scope: it would effectively be limited
to matters that would be litigated in a court;
- limit all negotiations under the 'right to negotiate' to four months:
at present six months are allowed before arbitration concerning mining
can begin;
- limit to physical, and not include spiritual in the kind of interference
that could prevent use of the 'expedited procedure' for developments;
and
- the Minister may make decisions to recognise or derecognise native
title representative bodies on quite inadequate grounds.
The minority report regards these proposals by the Government to be self-evidently
unacceptable: they are grossly unfair, do not respect the provisions of
the Racial Discrimination Act and could result in increased delays to
development approvals as Indigenous people pursue their common law rights
through the courts. In any event, the Government has not shown that the
Act as it is being administered requires anything like these amendments
in order for it to be 'workable'.
The Native Title Act is 127 pages. The Government's Amendment Bill and
Exposure Draft amount to 161 pages. Given the significance of the issues,
the complexity of the bill and the length of the associated documentation,
further consideration of the proposed amendments is necessary. The Opposition
endorses the recommendation to request a continuing referral to the Native
Title Committee until 13 December 1996.
It is important, especially in the current climate, that all political
parties and stakeholders work in a constructive manner in an effort to
achieve consensus on the proposed amendments. Prime Minister Howard promised
that the amendments were 'not some kind of Trojan Horse to gut the Act'.
He also expressed the hope that he would draw the support of the Opposition
and the Australian Democrats for the amendments. There is still some way
to go to ensure that this comes to fruition.
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