CHAPTER 2
CHAPTER 2
2.1 Although in points of detail some amendments proposed
in the Native Title Amendment Bill 1997 may not be fully supported by
all commentators, in essence several matters enjoy general agreement.
They are:
- the 'Brandy' amendments;
- amendments concerning indigenous land use agreements (ILUAs);
- those amendments affecting the operations of Representative Bodies;
and
- an increased threshold test for claim applications.
2.2 The ATSIC submission (p.2) confirms this view, at least in part:
There are some things about the Act which we all know need modification
now. We should focus on these. There is no need for this massive legislative
rewrite. For example, there is consensus that following the Brandy High
Court decision there was a need to redefine the roles of the Federal
Court and the National Native Title Tribunal in handling native title
claims. There is also consensus that following certain Court decisions
there was a need to restore a workable threshold test for registration
of claims, and in particular to sort out multiple and overlapping claims.
Notably, many of the Bill's most strident critics make no reference to
their views on these matters.[1]
2.3 Only some fourteen months after the passing of the Native Title
Act 1993 (NTA), the High Court handed down the Brandy decision
in which a statutory device for the registration and enforcement of determinations
of a non-court (the Human Rights and Equal Opportunity Commission) with
the Federal Court was held to be unconstitutional. This cast doubt on
the enforceability of native title and compensation determinations by
the National Native Title Tribunal (NNTT). The Explanatory Memorandum
has described this problem as follows:
The Brandy case decided that the process for making determinations
by the Human Rights and Equal Opportunity Commission involved an invalid
exercise of judicial power, which under the Constitution is vested in
the courts. The decision casts doubt on the validity of the NTA processes
under which the NNTT, which is not a court, can make certain determinations
of native title and compensation. Under the current scheme in the NTA,
applications for a determination of native title or compensation are
lodged with the NNTT and the NNTT has the function of making determinations
for unopposed or agreed applications, with opposed applications being
referred to the Federal Court.[2]
2.4 The Native Title Amendment Bill 1997 provides amendments entailing
that the Federal Court will decide all applications for a determination
of native title or compensation. Many of these amendments were included
in the Native Title Amendment Bill 1995, introduced by the Keating Government
on 29 November 1995.
2.5 In its sixth report (The Native Title Amendment Bill 1996)
this Committee agreed with the proposal to provide for all native title
applications to be filed in the Federal Court. Not only does the Committee
endorse that judgement, it notes that there have been no dissenting submissions
concerning the proposal.
2.6 The Commonwealth submission (p.63) has noted the widespread support
for the enhanced agreements process in the Bill. On 17 October 1997 the
Special Minister of State confirmed that the agreements provisions were
developed in close consultation with Indigenous interests.[3]
Nevertheless, some witnesses have argued that the right to negotiate is
a desirable conjunct to ILUAs.
2.7 The Committee concurs with the Commonwealth that there appears to
be no reason to suppose that the tendency for general agreements will
not continue to increase. Further, and as noted by the Commonwealth, the
mining and seafood industries have indicated that they will continue to
seek agreements about resource use. The Commonwealth has concluded (Submission,
p.63):
There is widespread support for the enhanced agreements process
in the Bill. Most interest groups recognise the potential for such agreements
to provide a lasting and workable resolution to native title, land use
and co-existence issues at a local or regional level, either with or
without government participation. One inhibiting factor, addressed by
the amendments, has been the need to ensure that agreements are concluded
with the appropriate indigenous people for an area and that once concluded,
an agreement can be binding and can provide certainty in relation to
acts done in conformity with their provisions. The range of matters
that can be covered is very wide, and includes the relationship between
native title rights and interests and other rights and interests and
the manner of their respective exercise, the doing of future acts, and
the settlement of claims.
2.8 In its sixth report (p.69ff) this Committee considered proposed changes
to the operation of Representative Bodies. For that report some concerns
were expressed about the proposed reforms, and some of those concerns
have been raised again with the Committee in the course of its examination
of the Native Title Amendment Bill 1997.
2.9 The particular continuing concern is that when native title holders
have difficulties with their nominated Representative Body, it may be
difficult to achieve assistance from that Representative Body. Mr Woosup
of the Ankamuthi people stated:
To summarise my support of Mr Charlie and the Dingaal people,
I am opposed to ATSIC being the sole source of resource funding for
native title claimants and I am opposed to ATSIC being an external review
body. I support the continued role of the Attorney-General's Department
in funding claimants who have problems with the land councils and being
an external review body when those problems with the council arise.
This means you will need to amend sections 203C, 203B(1), 203FB and
203FA.[4]
2.10 The Commonwealth's response to this concern (Submission, p.72) is
that representative bodies do not presently, and will not under the amendments,
have a monopoly on representing native title clients in their areas:
Claimants are able if they so choose to seek representation elsewhere.
There is no requirement that all claims must be endorsed by representative
bodies in order to be registered. If a claimant is either refused assistance
by a representative body, or does not want to use such a body, in some
circumstances ATSIC may be able to make a grant to enable that claimant
to be assisted by some other person or body.
The benefits of the proposed amendments to the Representative Body regime
were carefully considered in the Committee's sixth report and its overall
conclusions on this matter stand.
2.11 Nevertheless, one particular matter deserves attention. The Bill
contains a provision requiring a representative body to use a 'bank' (new
s.203CB). The provision defines 'bank' as 'a person who carries on the
business of banking, either in Australia or outside Australia'. The submission
from the Credit Union Services Corporation noted that this definition
is inconsistent with October 1997 amendments which broadened the definition
of 'bank' in other legislation. The amendments were designed to
remove what credit unions saw as discrimination against them, and the
Corporation asked that the definition in the Bill be altered in a similar
way.
2.12 The Committee was told by the Commonwealth Government that the definition
used in the Bill reflected the position at the time it was initially drafted,
rather than any in-principle opposition to using the newer, broader, definition.[5] The Committee recommends that
the Government consider whether the definition of 'bank' in the proposed
s.203CB should be broadened to include credit unions.
2.13 The Act provides for a Register of Native Title Claims to be kept
by the NNTT. Entry of a native title claim on the register is a pre-condition
for the claimant obtaining access to a number of special benefits under
the Act. The most important of these is that a registered native title
claimant may be a party to negotiations in relation to future acts covered
by the right to negotiate.[6]
2.14 While there is some debate about where to set the threshold standard
for native title applications, there is virtually no debate that (post
- Waanyi) the application threshold needs to be restored:
There is also consensus that following certain Court decisions
there was a need to restore a workable threshold test for registration
of claims, and in particular to sort out multiple and overlapping claims.[7]
Indeed as pointed out by the Special Minister of State, Indigenous representatives
such as Mr Sugar Ray Robinson have stressed the inadequate nature of the
threshold test for the registration of claims.[8] In August 1996 as acting chair of ATSIC, Mr Robinson
called for a more stringent test, saying that:
Anyone can go along to the registrar [of the NNTT] and stick
in a claim: like we have individuals sticking in a claim for half of
Queensland. ... What good does it do Aboriginal people to have a whole
heap of claims in when the rightful owners are not really getting their
right say in court because these vexatious ambit claims are being put
in and the whole process stuffs up?[9]
2.15 In his Second Reading speech, the Leader of the Opposition, the
Hon Kim Beazley MP, said that Labor supports the government in seeking
to deal with the registration and determination of claims and the resolving
of competing interests in an expeditious and effective regime. He said
that these objectives may be advanced by the proper and appropriate adjustment
of the registration test.[10]
2.16 The NIWG provided several pages of comment on the proposed threshold
test, and also gave the following critique (Submission, p.62):
Although the primary purpose of the registration test, as discussed
above, is in relation to the right to negotiate, it also has application
in relation to ILUAs and to the statutory access right. The requirements
in relation to an application to the Federal Court involve some tightening
of the present test, but principally in relation to the question of
authority to lodge a claim. In relation to current claims on the Register,
which have been accepted pursuant to s.63, it appears that these will
be referred to the Federal Court, whether or not they stay on the Register.
The NIWG assessed the threshold test as 'onerous'.[11] However, the Committee notes that
the proposed threshold test is no more onerous than the requirements that
would have to be met by a native title claimant who elected to proceed
at common law, and in many respects reflects the original understanding
and intention of the 1993 Act.
2.17 The Commonwealth (Submission, pp.67,68) has responded to this concern
by pointing out the advantages that flow to registered native title holders;
the claimants:
* have the right to negotiate (where the right to negotiate still
applies under the amendments) in relation to mining on, or the compulsory
acquisition for third party purposes of, the claimed land (see sections
29, 30, 30A, 31 and 32); * are entitled to be specifically notified,
heard and consulted in relation to the doing of an act that is an approved
scheme act (subsection 26A(6)) or an approved gold or tin mining act
(subsection 26B(7)); * are entitled to be specifically notified of a
State/Territory Minister's intention to request that the Commonwealth
Minister determine that an area be an approved opal or gem mining area
for the purposes of the right to negotiate regime, to make submissions
in this regard and to have those submissions considered (subsection
26C(4)); * are entitled to be specifically notified of, and object against,
acts in any alternative State/Territory 'right to negotiate' regime
under section 43 (paragraph 43(2)(a) and (d)), or equivalent State/Territory
regime under section 43A in relation to pastoral lease or reserved land
(paragraph 43A(4)(b)); * will qualify for the statutory access rights
provided by the Act (paragraph 44A(2)(a)); * are able to prevent what
could otherwise be impermissible future acts in relation to the claimed
land which is subject to a non-claimant application (sections 24FA to
24FE); * are entitled to notice of, and an opportunity to comment, in
relation to, a grant of a right to take natural resources from non-exclusive
agricultural or non-exclusive pastoral leasehold land under paragraph
24GE(1)(f); * are entitled to be specifically notified in some cases
of the provision of facilities for services for the public (subsections
24KA(7) and (8)), acts that pass the freehold test (subsections 24MD(6)
and (7)) and offshore acts (subsections 24NA(8) and (9)); * have the
right to be notified of other claims made in the area (subsection 66(3));
and * are required to be a party to an ILUA (area agreement) for that
agreement to be valid (section 24CD).
The clear implication (accepted by the Committee) is that, where these
valuable rights accrue, there needs to be a credible threshold test.
2.18 For the reasons discussed in paras.3.7 - 3.13 of the Committee's
sixth report, the interpretation given by the courts to some of
the criteria for registration in the Act deprives those criteria of any
meaningful effect in sifting out what Justice Robert French, President
of the National Native Title Tribunal, has described as 'patently hopeless'
applications.[12] Evidence to
the current inquiry was that native title claims are being lodged which
cover freehold land and which claim exclusive possession of land covered
by pastoral leases.[13] It was noted in the sixth report
that there was general agreement that claims should receive greater scrutiny
before being accepted for registration, but disagreement over how stringent
the criteria for acceptance should be.[14]
The submissions and evidence to the current inquiry was similar.
2.19 Mr John R Bannon, a consultant to the Kuyani Aboriginal Association
in South Australia, told the Committee that he had no problem with the
elevation of the threshold test: 'we think it is an entirely appropriate
process'.[15] He said that the native title claims
he was associated with would have no difficulty in meeting the proposed
test.
2.20 The Committee believes that the proposed registration test will
not create undue difficulties for justifiable claims. The new test will,
however, sift out the 'hopeless' applications, will allay the concerns
of those who at present have to become involved in the claims process
without good cause, and will up-grade and make more reputable the currency
of native title. It will also have the desired effect of preventing unrealistic
expectations among potential claimants, and inconvenience to non-claimants,
who in some cases include members of the Indigenous community.
Footnotes:
[1] See, for example, the submission
from the Aboriginal and Torres Strait Islander Social Justice Commissioner,
Mr Michael Dodson. Notably, in his submission, Mr Patrick Dodson, Chairperson
of the Council for Aboriginal Reconciliation described the Bill merely
as '293 pages of extinguishment' (p.6).
[2] Explanatory Memorandum, p.237.
[3] Evidence, p.2021.
[4] Evidence, p.1442.
[5] Evidence, p.2026.
[6] Note that a claim which fails
the registration test and hence is denied the special statutory benefits
may still proceed through the Federal Court to a determination unless
it is struck out, settled or withdrawn.
[7] ATSIC Submission, p.2.
[8] Evidence, p.2022.
[9] 'ATSIC chair calls for Mabo
tightening' The Australian, 2 August 1996, p.5.
[10] House of Representatives Daily
Hansard, 25 September 1997, p.8323.
[11] NIWG Submission, p.7.
[12] Justice RS French 'The National
Native Title Tribunal - Early Directions' (Paper delivered at a conference
Working with the Native Title Act, Sydney, 16 May 1994) p.23.
[13] See for example Evidence,
pp.658-60, 1471, 1593-94
[14] Sixth Report, November 1996,
para.3.15, and the Minority Report attached to that report, para.4.1.
[15] Evidence, p.363.
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