Libesman, Terri --- "How They Measure Up: The States and Native Title Legislation" [1994] AboriginalLawB 40; (1994) 3(69) Aboriginal Law Bulletin 7

• How They Measure Up: The States And Native Title Legislation
• Western Australia
• New South Wales
• Queensland
• Northern Territory
• Australian Capital Territory
• South Australia
• Tasmania
• Victoria

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How They Measure Up:
The States and Native Title Legislation

by Terri Libesman

Western Australia

The Land (Titles and Traditional Usage) Act 1993 (WA) was passed before the Native Title Act 1993 (Cth) was enacted and it is inconsistent with the Commonwealth Act. The WA Act extinguishes and diminishes Aboriginal common law rights and is probably in breach of the Race Discrimination Act 1975 (Cth). This legislation is currently under challenge. (See this issue pp8-ll & AboriginalLB 65/7&67/8).

New South Wales

The Native Title Act 1994 (NSW) is consistent with the federal legislation. The Act has been passed but has not yet been proclaimed.

Queensland

The Native Title (Queensland) Act 1993 was passed before the Commonwealth Native Title Act was passed. This legislation has not yet been proclaimed and will need to be amended to be made consistent with the federal legislation.

Northern Territory

The Northern Territory Parliament has passed simple validating legislation which is consistent with the Commonwealth Act. The NT Government will use the Commonwealth legislation, tribunals etc.

Australian Capital Territory

The ACT Parliament like the NT Parliament has drafted a simple bill which validates past acts in a manner consistent with the Commonwealth legislation. The Commonwealth legislation will operate in the ACT for other purposes.

South Australia

The South Australian Government has taken a different approach to other jurisdictions. Instead of passing native title legislation they are amending general legislation to take native title into account. Four amendment bills are currently before Parliament. A proposed amendment to the Acts Interpretation Act 1915 (SA) will define native title in a way which extinguishes native title on pastoral leases. This is problematic because pastoral leases in SA as in other jurisdictions, for example the NT and WA, have included reservations recognising Aboriginal peoples' rights to forage, hunt, and conduct traditional activities. It is possible that these rights were not extinguished before 1975. The three other proposed bills are, the Mining (Native Title ) Amendment Bill (1994), the Land Acquisition (NT) Amendment Bill (1994) and a bill which amends the Environment Resource and Development Court (NT) Act 1993 to enable this Court to deal with native title issues. The Government plans to amend all legislation which impacts on native title issues.

As with other jurisdictions the Commonwealth legislation operates where no valid state legislation has been passed. Another aspect of the proposed legislation which is controversial is the procedure pertaining to a right to negotiate with miners. The federal legislation requires the government to notify parties of plans to mine, while under the Mining Native Title Amendment Bill (1994) this is left to the mining company.

A third aspect of the proposed amendments which is being debated is the procedure following a challenge to a non claimant application. Under the federal legislation non-claimant applications which are objected to are not immediately taken to the Federal Court, there is provision for initial negotiation and arbitration. Under the SA scheme native title claimants might find that when they respond to a non-claimant application they are in effect having their native title claim heard. This may preclude the opportunity for them to prepare for their case. While these problems exist with the bills most aspects of the proposed amendments are consistent with the federal legislation.

Tasmania

A bill validating past acts which is consistent with the federal legislation is being debated in the Tasmanian lower house.

Victoria

The Land Titles Validation Act 1993 (Vic) which has not yet been proclaimed was enacted before the Native Title Act 1993 (Cth) was passed. (See AboriginalLB 64/22.) It is inconsistent with the Commonwealth legislation. It is likely that the Act will be amended in the spring session of parliament to make it consistent with the federal legislation.

(Extracted from Mabo and Native Title Speakers’ Kit, available from Cath Duff, ph [phone], $4/$5 with postage, send cheque payable to Aboriginal Law Centre.)