CHAPTER 1
1.1 In its sixth report [1] this Committee
considered the Native Title Amendment Bill 1996 and Exposure Draft proposals.
[2] On 19 November 1996 the Senate referred
the amendment proposals to the Committee for further report by 13 December
1996; the Senate agreed to the motion of the Committee Chair moved pursuant
to Recommendation 6 of the sixth report.
1.2 Some existing rights under the Native Title Act 1993 (NTA) would
be modified by the amendment proposals. Whether this would offend the
Racial Discrimination Act 1975 (RDA) has arisen as a continuing question
out of the Government's submission (No. 82) dated 5 November 1996, and
the minority report's comments on the Committee's sixth report. The minority
report has expressed the view that no amendments to the NTA should be
made which would preempt the common law on the extinguishment of native
title. [3] It further considered that
the RDA should be given 'primacy'; that is, amendments to the NTA must
not be inconsistent with the RDA. [4]
1.3 The Committee's sixth report had identified a number of important
principles concerning native title and the manner in which it may be affected
or extinguished. In summary, those principles are as follows:
- The High Court found in Mabo (No2) [5]
that native title may be extinguished:
- by valid exercise of sovereign power;
- by clear and plain intent; and
- by inconsistent grant. (sixth report, paras 2.8 to 2.16)
- The Native Title Act 1993 extinguished native title:
- in regard to past acts. (sixth report, para 3.28)
It also provided for future extinguishment under the NTA in a range of
circumstances:
- voluntary (s.21 agreements; s31(1)(b) agreements); and
- involuntary (s.26(2)(d) permits Compulsory Acquisition Acts). (sixth
report, para 5.13)
- However, the NTA provided the 'right to negotiate' for native title
holders (ss.26 to 44):
- the 'right to negotiate' may not be a native title right (sixth report,
para 5.9); and
- its 'virtual removal' would become a significant prospect under a
proposal from the Queensland Government (sixth report, para. 3.22);
but
- in any case it should not be extinguished 'wholesale' without sound
reason (sixth report, para 3.29).
1.4 Given the significance of the extinguishment and RDA issues, this
report concentrates on those matters. The following questions would appear
to be central:
- In what ways does the RDA protect native title?
- What rights under the NTA are modified or extinguished by the amendment
proposals?
- Of those rights, which are native title in character and which are
not?
- Is the RDA inconsistent with the modification of either kind of right?
These questions define the content of this report.
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Footnotes
[1] The Native Title Amendment Bill 1996,
tabled 18 November 1996.
[2] Towards a More Workable Native Title
Act, May 1996
Native Title Amendment Bill 1996, introduced 27 June 1996
Outline of Proposed Amendments to the Native Title Amendment Bill
1996, 8 October 1996
Native Title Amendment Bill 1996 Exposure Draft, introduced 17 October
1996.
[3] Minority Recommendation 3.
[4] Executive Summary pp. i, ii ; Minority Recommendation
1.
[5] Mabo v Queensland (No2) (Mabo 2)
(1992) 175 CLR 1.
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