CHAPTER 5
CHAPTER 5
5.1 In presenting the Native Title Amendment Bill 1997 on 4 September
1997 the Attorney-General confirmed that the amendments in the Bill put
in place a more appropriate regime to deal with native title rights on
pastoral lease land and other non-exclusive areas. They continue to protect
any surviving native title rights but, in relation to pastoral lease land,
they recognise that these can only be at most coexisting rights:
Consistent with this philosophy of finding a balance among the
rights of different parties, the amendments allow for the introduction
of new processes for reaching land use decisions over pastoral lease
land which give equivalent procedural rights to all parties with an
interest in the land, including the pastoral leaseholder and the native
title holder.[1]
The Commonwealth considers that the amendments protect the legal rights
of pastoral lessees, and enable them to carry on their legitimate activities.
The Committee notes that pastoralists can experience strong spiritual
attachment to land on which they may have lived for generations.[2]
5.2 The Explanatory Memorandum advised that (p.15):
The NTA provided that for certain 'permissible future acts',
registered native title holders and registered native title claimants
would have a right to negotiate before such an act could be undertaken.
The acts to which the right to negotiate would apply were essentially
acts relating to mining, the compulsory acquisition of native title
for the purpose of making a grant to a third party, and any other acts
approved by the Commonwealth Minister.
Further the Explanatory Memorandum (p.59) confirmed:
The Bill clarifies the effect on native title of activities undertaken
in accordance with a valid lease, licence, permit or authority [Schedule
1, item 10, section 44H]. Following the Wik decision
there was concern raised that pastoral lessees may need to obtain the
agreement of native title holders in order to conduct activities under
their lease, such as construct a dam. These provisions are intended
to ensure that, provided the lease is valid in accordance with the NTA,
the lessee is able to carry on activities under the lease notwithstanding
native title.
5.3 In its submission (p.7) the National Indigenous Working Group (NIWG)
proposed that the maintenance of the existing right to negotiate over
native title land that coexists with pastoral leases and within the boundaries
of towns and cities is essential if any semblance of balance and fairness
is to remain. The NIWG holds (p.7) that:
It is not fair to say that native title holders should have the
same 'rights' as pastoralists as native title is not a crown lease to
run cattle or sheep. It is based on the laws and customs of the various
Indigenous peoples around Australia and the legal rights that protect
it should be based on those facts. Native Title includes the right to
possess, occupy use and enjoy the land as well as the right to fish,
hunt, camp, conduct ceremony and exclude others. As is the case with
any form of title in Australia, the nature of the title determines the
legal protection that it has for example, freehold titles often include
a veto or partial veto. Clearly native title and pastoral leases are
not comparable nor equal when viewed properly.
5.4 The NIWG advised that, in relation to pastoralists' activities, it
is prepared to negotiate amendments that confirm the legitimate rights
of pastoralists to the extent that there is any perceived uncertainty
from the Wik High Court decision:
This must of course, be based upon the principle that co-existence
is the way forward.[3]
Particular concern was expressed by the NIWG concerning Subdivision G
of the Bill:
Although the section does not apply to an act which 'has the
effect of converting' a non-exclusive agricultural or pastoral lease
'into a lease conferring rights of exclusive possession or into a freehold
estate, over any of the land or waters covered by the lease', it will
nevertheless involve the grant of permission to carry out more intensive
activities than are permitted under the terms of the lease. There will
be difficult questions as to whether the permissible upgrade has crossed
the prohibited boundary and resulted in a conferral of rights of exclusive
possession. This danger (and the accompanying uncertainty) would not
arise with the NIWG proposal that is limited to confirming the right
to carry on 'pastoral lease related acts', which might involve activities
requiring a permission or grant of authority, but which were contemplated
by the grant of the lease.[4]
5.5 According to its submission (p.45), the NIWG considers that a proper
interpretation of the International Convention on the Elimination of All
Forms of Racial Discrimination (CERD) and the RDA requires that native
title holders be accorded substantive or effective equality, rather than
formal equity. On the basis of that test, the NIWG argues that the right
to negotiate may be a necessary element of legislation recognising native
title, if that legislation is not to be inconsistent with the principles
underpinning the Racial Discrimination Act. If, on the other hand, formal
equity is sufficient, both elements of the right to negotiate will nevertheless
be seen as special measures justified by the past refusal to recognise
native title rights and interests.
5.6 This is a matter that the Committee considered extensively in its
seventh report entitled The Native Title Amendment Bill 1996 and
The Racial Discrimination Act. For the reasons advanced in that
report, the right to negotiate is a 'special measure' permitted but not
required by the RDA. Accordingly, it is not necessary that it be maintained
in its original form in the NTA. The Commonwealth Government advises (Submission,
p.15) that:
In amending the right to negotiate provisions, the Parliament
is exercising the discretion it has in relation to instituting, maintaining
and reformulating such special measures. To say that a special measure,
once implemented, can never be amended, is to deny the sovereignty of
Parliament, and to significantly overstate the requirements of the RDA
and CERD.
5.7 The Committee notes that in his Second Reading speech on the Bill,
the Leader of the Opposition, the Hon Kim Beazley, acknowledged that the
principal offsetting benefit to Indigenous people for the wholesale validation
of potentially invalid titles in the 1993 Act was the grant of a time-limited
right to negotiate. This counters the argument that the right to negotiate
is an inherent or necessary feature of native title.
5.8 One of the stated objects of the Native Title Act 1993 (NTA),
set out in section 3 is:
(b) to establish ways in which future dealings affecting native
title may proceed and to set standards for those dealings ...
In this regard the Commonwealth submission explains reasons for alterations
to the RTN regime. Although the NIWG asserts that the RTN must continue
to apply to its current extent, the following scenarios listed in the
Commonwealth's submission (p.6) demonstrate the limitations of the current
NTA in relation to future dealings in land which may be subject to native
title:
* a pastoralist who wishes to provide an additional dam or watering
point for stock on a pastoral lease which requires a permit under the
relevant State/Territory water resources legislation;
* the proprietor of a small industrial business situated
on a lease in a regional town who wishes to extend a building but requires
a building permit;
* the owner of a horticulture lease who wishes to
construct new infrastructure on the lease and needs an authority to
do so;
* a statutory authority wishing to build public
housing or to construct a community facility on land held by trustees
for the benefit of Aboriginal people;
* a State wishing to issue a residential
lease on freehold land owned by the State housing commission or to undertake
excavation work in relation to such land; or
* a State wishing to undertake
development work in a national park such as the grant of a lease for
a tourist cafe.
In each case, there is nothing in the NTA which prevents a native title
claim being made over this land and indeed claims have been made and registered
in relation to all of the kinds of land described:
The NTA as currently drafted cannot for all practical purposes
guarantee the validity of those proposals (whether or not there is a
native title claim over the land).[5]
5.9 This point is also made clearly in the Explanatory Memorandum (p.86):
More importantly, in relation to much of that area native title
will only be a 'co-existing right'. Justice Toohey said in Wik
(1996) 187 CLR 1 at 126-127 (quoting, in part, the judgement in Mabo
(No.2)):
"It is apparent that at one end of the spectrum
native title rights may 'approach the rights flowing from full ownership
at common law'. On the other hand they may be an entitlement 'to come
onto land for ceremonial purposes, all other rights in the land belonging
to another group'."
It is clear that in relation to pastoral lease land,
the native title rights cannot be the former, and may only be the latter.
The assumption in the NTA that all native title rights will be high
level rights is rendered false by the Wik decision. It is inappropriate
therefore that the NTA should continue to give effect to that false
assumption.
For this reason, the amendments to the future
act regime put in place more appropriate arrangements to deal with native
title rights on pastoral lease land ...
5.10 Subdivision G of the Bill deals with this matter in four ways as
explained in the Explanatory Memorandum (pp.85,86). First, Subdivision
G ensures that acts which permit or require primary production activities,
or activities incidental to primary production, can be validly done over
non-exclusive agricultural or non-exclusive pastoral leases in force on
23 December 1996. The non-extinguishment principle applies to these acts
and compensation is payable to native title holders.
5.11 Second, against the possibility that activities such as those normally
conducted on pastoral leases may be 'future acts' for the purpose of the
NTA, Subdivision G also ensures the validity of any primary production
activities or incidental activities carried out on these non-exclusive
leases. Native title holders have no right to be compensated when these
activities are performed but they may be entitled to compensation for
the grant of the right to carry on the activities. There is no need for
the NTA to deal with primary production activities on leases with exclusive
possession or freehold because these have extinguished native title and
have been confirmed as doing so under new Division 2B.
5.12 Third, Subdivision G also ensures the validity of certain 'off-farm'
activities which take place on areas adjoining or near the area used for
primary production. It applies whether or not the land used for primary
production is freehold, exclusive leasehold or non-exclusive leasehold.
Future acts connected to primary production can take place validly on
the adjoining or near areas so long as the acts do not stop any native
title holders for those areas from having reasonable access to them. The
non-extinguishment principle applies to these acts and native title holders
are entitled to compensation from the relevant government.
5.13 Fourth, Subdivision G permits some future acts on non-exclusive
pastoral leases which allow people to take and remove timber, gravel and
other natural resources from land and waters. Any native title holders
for the land need to be notified and given an opportunity to comment before
the act takes place, and the act cannot involve mining (which is dealt
with in Subdivision P). The non-extinguishment principle applies to these
acts and native title holders are entitled to compensation from the relevant
government.
5.14 In its submission (p.40) the Commonwealth reminded the Committee
that the provision included in the current NTA to ensure that pastoral
leases could be renewed (against the possibility that native title may
not be extinguished by the grant of a pastoral lease) contained:
* no right to negotiate for native title holders in the event
of such a renewal;
* no other procedural rights in those circumstances;
* no right to compensation should there be impairment
of native title by such a renewal; and
* no statement about the impact
of the renewal on native title.
In contrast, the Commonwealth points out (Submission, p.41) that provisions
in Subdivision G:
* ensure that exclusive possession cannot be granted under the
guise of additional primary production rights (subsection 24GB(4));
* protect the exercise of native title rights in particular
circumstances (see subsection 24GB(3), subparagraph 24GD(e)(iii) and
paragraph 24GE(1)(f));
* ensure that native title rights are only 'suppressed'
while the activities are carried out by applying the non-extinguishment
principle (subsections 24GB(6), 24GD(3) and 24GE(3)); and
* provide for compensation in the
event of any impact on native title rights of the grant of additional
rights to carry on other activities (subsection 24GB(7), 24GD(4) and
24GE(4)).
5.15 It is also most important to record that these provisions do not
confer on the pastoralist or any other person any right to do the activities
in question. Only the relevant State or Territory can confer such a right.
As the Commonwealth has advised (Submission, p.40):
The management of pastoral leases remains a matter for the relevant
State and Territory government, as it always has been. The effect of
the NTA, once it became apparent that native title may continue to exist
on pastoral leases, was to (unintentionally) prevent the States and
Territories from fulfilling that management task by making the grant
of future rights, and even activities, 'impermissible' under the NTA.
The effect of Subdivision G is restricted to ensuring that these activities
are not invalid under the NTA (see Subdivision O) - it says nothing
about their validity or lawfulness under the applicable legislation
of the State and Territory.
5.16 The Committee accepts the Government's advice (Submission, p.9)
that continuation of the current RTN is not possible in regard to pastoral
leases. In so doing it is also mindful of ATSIC's in-principle support
(Submission, p.2):
It may also be desirable to streamline the Right to Negotiate
processes to an extent. And, we have always recognised that there is
a need to confirm in legislation that pastoralists can carry on activities
associated with pastoralism without having to negotiate with native
[Return to table of Contents]
Footnotes:
[1] House of Representatives Daily
Hansard 4 September 1997, p.7527.
[2] See for example
Evidence, p.571.
[3] NIWG Submission, p.7.
[4] NIWG Submission, pp.29-30.
[5] Commonwealth Government Submission,
p.6. titleholders.
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