Aboriginal Law Bulletin
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by Garth Nettheim
The process of consultation announced by the Prime Minister, Paul Keating, on 27 October 1992, culminated on 16 November 1993 with the introduction into the House of Representatives of the Native Title Bill. (For previous AboriginalLB accounts of the process at various stages, see Vol 3 No. 62/4,63/4 and 64/18.)
The Bill comprises 238 clauses printed over 115 pages in the rather dense language of legislation. Some people (including amply resourced mining company executives) have reacted against the immediate difficulty of understanding the Bill by concluding that it is, therefore, unworkable.
The Bill is complex, because it needs to address a number of separate matters in responding to the decision of the High Court of Australia in Mabo v Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1. It also incorporates a number of trade-offs between various interests, and these complicate the legislation.
But it is comprehensible. And it can be made to work, provided that State and Territory governments and non-government interest groups are prepared to work co-operatively. Regrettably, some are not prepared to co-operate, notably the Premier of Western Australia, who has secured "go it alone" legislation for his State. (See this issue pp7-9.)
Clause 3 of the Bill identifies four major matters to be dealt with:
(1) Recognition and protection of native title
(2) Future dealings affecting native title land
(3) Determination of native title
(4) Validation of past ads.
One can add a fifth:
(5) A land acquisition Fund.
The National Aboriginal and Torres Strait Islander Land Fund is established by clause 192. It is a first instalment of a larger social justice/reconciliation package designed to benefit the 90% or more of indigenous Australians who have been dispossessed too thoroughly to be able to assert native title. The detail of the Fund is left to later delegated legislation.
The preamble to the Bill refers to the dispossession of the indigenous people of Australia, the consequences of that dispossession, Australia's obligations under International Law and the High Court's decision. It states that the law is intended as "a special law for the descendants of the original inhabitants of Australia" and that the Bill, together with other initiatives, is intended to be a 'special measure' within section 8 of the Racial Discrimination Act 1975 (Cth) (hereafter the 'RDA'). However the Bill itself scarcely mentions the RDA.
The recognition and protection provisions appear mainly in clauses 9-11: native title is to be recognised and protected in accordance with the Act. It is not able to be extinguished contrary to the Act. Subject to the Act the common law of Australia in respect of native title is to have, after 30 June 1993, the force of a law of the Commonwealth.
'Native Title' is defined in clause 208 in approximate accordance with the High Court judgments. The rights and interests include hunting, gathering or fishing rights or interests. They also include native title rights and interests which are compulsorily converted into, or replaced by, statutory rights and interests held by or on behalf of Aboriginal peoples or Torres Strait Islanders. This would seem to cover the statutory 'rights of traditional usage' which the WA Act substitutes for native title. The cut-off date of 30 June/I July 1993 in clause 11 and in the definitions of 'past acts' and 'future acts' in relation to legislation (clauses 213 and 218) would also be relevant in regard to the W A Act.
Applications to register claims to native title and to determine such claims are to be lodged with the Native Title Registrar. Claims can be determined either in Federal or State/Territory bodies. Non-claimant applicants may apply to either, but native title claimants, if any, have the ultimate right to decide which body makes such a determination. Only a 'recognised State/Territory body' may make an 'approved determination of native title'; recognition is given (or withdrawn) by the Commonwealth Minister based on criteria relating to processes set out in clause 236. Federal determinations are made by the new National Native Title Tribunal (NNTT) if unopposed, or if there is agreement. The NNTT can attempt to achieve agreement by mediation. Otherwise the determination is made by the Federal Court. There must be a body corporate to hold the rights and interests comprising the native title.
The Bill sets out to address the effects of past acts by governments, particularly grants of interests to others, affecting land that may at the time have been subject to native title.
The definition of 'past act' is given as one which took place prior to 1 July 1993 (in the case of legislation) or before 1 January 1994 (in the case of other acts) when native title existed in relation to particular land or waters and the act was invalid to any extent because of the existence of native title (clause 213).
The notion of 'past acts' which may be validated is extended to include acts after the cut-off date based on prior events such as options under contract or rights of renewal in leases.
Past acts attributable to the Commonwealth are validated by the Bill itself. The Bill authorises States and Territories to validate acts attributable to them provided their validating laws contain provisions to the same effect as are made for acts attributable to the Commonwealth.
Generally, the scheme is to validate only past acts which would have been invalid because of the existence at the time of native title. The effect, in particular, of the RDA might have been to make post-1975 acts invalid.
The consequence of validation on native title is spelled out to some extent by provisions which treat past acts in four categories. Category A includes grants of freehold and of certain types of leases (residential, commercial, agricultural, pastoral). It also includes 'public works' as defined. Category A past grants extinguish native title.
But there are notable exceptions. Extinguishment does not apply to grants made to the Crown or to a statutory authority of the Crown. It does not apply to grants of freehold or leasehold to Aboriginal peoples or Torres Strait Islanders under land rights legislation. It does not apply when there is a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders. And it does not arise in respect of rights which they may have under statute, common law or equity, or usage.
In addition, if a pastoral lease which did extinguish native title is acquired by or for Aboriginal people, the extinguishment is to be disregarded if they seek a determination that they hold native title. (Clause 45.)
Category C past acts are mining leases and do not extinguish native title. Category B past acts are grants of other kinds of leases (with exceptions) - native title is extinguished only to the extent of inconsistency. Past acts in the residual category, D, do not extinguish native title.
To the extent that validated past acts extinguish or impair native title, the native title holders are entitled to compensation.
Apart from the categories noted, 'the non-extinguishment principle' applies for the past and for the future.
Future acts are defined as legislation after 1 July 1993 or other acts after 1 January 1994 which do not fall within the definition of 'past acts'.
Only certain future acts are 'permissible' in affecting native title - all others are invalid. Permissible future acts comprise (clause 220):
Clause 20 allows holders of native title, by agreement with Commonwealth, State or Territory, to surrender or extinguish their native title (possibly in exchange for freehold title) or authorise any future act that will affect native title. The clause also contemplates regional or local agreements.
Mostly, the permissible future acts will take the form of compulsory acquisitions, acts under clause 20 agreements, or grants of mining interests.
Compulsory acquisition will extinguish native titre; other acts will not. The native title holders will be entitled to compensation in any case.
Native title holders will be entitled to the same procedural rights as holders of 'ordinary title'. They may, in addition, have a right to negotiate (but not a veto) in respect of mining proposals or compulsory acquisitions of land for the purpose of conferring rights on others. The Commonwealth Minister may add (or subtract) other 'acts' to those covered by the right to negotiate.
If agreement is not reached within tight time frames (4 months for exploration or prospecting, 6 months for other acts), the proposal goes to an arbitral body. There is provision for an expedited procedure at the instance of a Government party but native title parties may object. (Clause 31.)
The arbitral body will be the 'recognised State/Territory body', if there is one. Otherwise it will be the NNTT. It will be the NNTT in respect of a future act proposed to be done by the Commonwealth, or in respect of acts in relation to a Commonwealth place, or any place outside the jurisdictional limits of a State or Territory.
The arbitral body is subject to similar time limits as apply to negotiation. It can attempt to mediate an agreement but, failing that, will make a decision. It is to take into account criteria based on those in the Pitjantjatjara Land Rights Act 1984 (SA). These criteria include (clause 37):
A determination by the arbitral body may be overruled. If it is a 'recognised State / Territory body' it may be overruled by the State or Territory Minister on the grounds of the 'interest of the State or Territory'; if it is the NNTT, it may be overruled by the Commonwealth in 'the national interest' or, if the act is attributable to a State or Territory, in 'the interest of the State or Territory'. (Clause 40.)
A State or Territory may make alternative provisions for negotiation, arbitration, etc., if the Commonwealth Minister determines that they comply with various requirements about processes, 'the Pitjantjatjara criteria', etc. (Clause 41.)
The 'recognised State/Territory body' for the purposes of determinations of native title, determinations of compensation, and decisions about permissible future acts may be existing bodies though some may need some modifications to comply with the requirements of the Bill. The Federal Court, of course, already exists though its Act is to be amended to provide for 'assessors' to assist. (Clause 76). Simplified processes are laid down for the court and tribunal.
Other new machinery include the National Native Title Tribunal, the Native Title Register, the Register of Native Title Claims and the National Native Title Register.
The Commonwealth Minister may determine that a body (existing or new) is a 'representative Aboriginal/Torres Strait Islander body for a specified area. Such a body's functions are to assist in the researching, preparation and making of claims for determinations of native title or for compensation for acts affecting native title; to assist in resolving disagreementss about such claims; and to assist, when requested, in negotiations. (Clause 193.) Such a body may apply to the Commonwealth Minister for legal or financial assistance. (Clause 194.)
A party (other than a Minister) to an inquiry by the NNTT or proceedings before the Federal Court may apply to the Attorney General for legal or financial assistance. (Clause 175.)
Subject to the Bill, a law of the Commonwealth, a State or Territory may confirm any existing ownership of natural resources by the Crown, or any existing right of the Crown to use, control and regulate the flow of water, or that any existing fishing access rights prevail over any other public or private fishing right. They may also confirm any existing public access to and enjoyment of waterways, bed and banks or foreshores of waterways, coastal waters, beaches or areas that were public places as at 31 December 1993; any such confirmation does not extinguish any of the native title rights and interests and does not affect any conferral of land or an interest in land under a law that confers benefits only on Aboriginal peoples or Torres Strait Islanders.
The Opposition have resolved to oppose the Native Title Bill. This makes its passage through the Senate dependent on the vote of Australian Democrat Senators, the two WA Green Senators and independent Senator Brian Harradine.
The Bill completed passage through the House of Representatives on 25 November. In the meantime the Opposition leader in the Senate, Senator Hill, proposed that it be referred to a Select Committee to report back by 1 February 1994. The WA Green Senators indicated that they'were inclined to support such a referral, and would decide their position on 6 December. Aboriginal groups and others expressed concern about the possible adverse effects of such a delay. One concern was the rush by the WA Government to complete passage of its own legislation.
On 25 November the Government and the Australian Democrat Senators agreed that the Bill should be referred, instead, to the Senate Standing Committee on Constitutional and Legal Affairs, to report back early in December. At the time of going to press, it is not clear whether the Bill will be enacted before the end of the year.
One concern expressed by the WA Green Senators is that many Aboriginal people have no information about the Bill. However, various efforts are underway to explain it to Aboriginal people and Torres Strait Islanders. The Coalition of Aboriginal Organisations has produced a Plain English Guide which it is distributing. ATSIC is also undertaking an information campaign.
In the meantime, of course, Aboriginal and Torres Strait Islander organisations would like to see some improvements in the Bill and will be suggesting amendments to Senators.
Enactment of the Bill will, however, not end the matter. The Premier of Western Australia has promised to challenge the validity of the legislation. And a challenge to the validity of his own Act seems inevitable.
The end of uncertainty is not yet at hand.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1993/55.html