Behrendt, Jason --- "Book Review - Mabo: The Native Title Legislation -- A Legislative Response to the High Court's Decision" [1995] AboriginalLawB 48; (1995) 3(75) Aboriginal Law Bulletin 14

• Book Review-Mabo: The Native Title Legislation – A Legislative Response To The High Court’s Decision

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Book Review -

Mabo: The Native Title Legislation –
A Legislative Response to the High Court’s Decision

Edited by M.A. Stephenson

University of Queensland Press, 1995

Reviewed by Jason Behrendt

Following on from Mabo: A Judicial Revolution by M. A. Stephenson and Suri Ratnapala (eds) (reviewed Vol 3 62 AboriginalLB 21), this publication consists of 12 essays explaining and analysing the Commonwealth's legislative response to Mabo (No. 2), the Native Title Act 1993 (Cth) ('the NTA'). As with the previous publication, Mabo: The Native Title Legislation provides a useful and timely discussion of an important development in the legal recognition of indigenous land ownership.

The objects of the NTA are:

(a) to provide for the recognition and protection of native title;
(b) to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings;
(c) to establish a mechanism for determining claims to native title; and
(d) to provide for, or permit, the validation of past acts invalidated because of the existence of native title[1].

There would be very few people who would challenge the merits of these aims. There is, however, on-going debate over whether these aims have been achieved by the NTA, and whether they have been approached in the most appropriate manner. The essays that comprise Mabo: The Native Title Legislation contribute, from a number of viewpoints, to that debate.

The contributors to this publication include Frank Brennan, ('Parliamentary Responses to the Mabo Decision'), R.D. Lumb ('Constitutional Issues and the Native Title Act, 1993 (Cth)'), Garth Nettheim ('Native Title and International Law' and 'The Relationship Between Native Title and Statutory Title under Land Rights Legislation'), J.R.S. Forbes, ('Mabo and the Miners - ad infinitum?'), Hugh Fraser ('Native Title Legislation and Mining'), B.A. Keon-Cohen ('Applications for a Determination of Native Title to the National Native Title Tribunal'), P.D. Connolly ('The Commonwealth Native Title Act 1993: A Critique'), M.A. Stephenson (Tastoral Leases and Reservations Clauses' and 'Compensation and Valuation of Native Title'), Dominic McGann and David Yarrow ('The Relationship Between the National Native Title Tribunal and the Queensland Native Title Tribunal'), and Richard Bartlett ('The Land (Titles and Traditional Usage) Act 1993 Western Australia').

The contributors provide a variety of opinion which makes it impossible to agree with all of their perspectives. The majority of the articles are excellent, and provide a good introduction to the legislation. All the contributions are interesting, and identify many of the key issues that will arise in future discussion of the legislation. These include the process of granting future interests affecting native title, the effect of leases on native title, and the efficacy of the claims procedure.

While not detracting from the publication as a whole, a couple of points need to be made in response to suggestions made in some contributions.

Firstly, doubts raised as to the constitutional validity of the NTA have already been disposed of by the High Court in Western Australia v The Connnonwealth[2]. The contributions in this book were written prior to that decision. With hindsight, we can see that of all the doubts voiced by Peter Connolly and R.D. Lumb only one provision of the NTA (section 12) was found to be invalid, and that finding is said to be inconsequential to the validity of the NTA. At the same time, Richard Bartlett's discussion of the discriminatory nature of the Western Australian legislation has been proven a correct analysis.

Secondly, a particularly annoying aspect of the debates surrounding the NTA has been the over-emphasis on the 'new rights' supposedly secured to native title holders by the legislation. These 'new rights' have in my opinion been exaggerated. Sonic of the articles in Mabo: The Native Title Legislation make a similar error. For example, the Introduction describes the treatment of native title as the same as freehold as a 'new right' (p xvi). This concept would appear to be similarly confusing to Peter Connolly, who writes (on p 132):

Now on any fair view, native title is a far more limited interest than freehold or leasehold, involving, at the most, intermittent use by a nomadic people.

Leaving aside the gratuitous devaluing of native title to an 'intermittent use' and the misrepresentation of Indigenous people as 'nomadic', it is simply erroneous to attribute the equating of native title to a freehold interest solely to the NTA. As Garth Nettheim points out (pp 38-40), such a requirement is necessary as a result of the Racial Discrimination Act 1975 (Cth), Mabo (No.2)[3], and Australia's international obligations in accordance with numerous international instruments and customary international law. This has been affirmed in Western Australia v The Commonwealth:

'The Racial Discrimination Act does not alter the characteristics of native title, but it confers on protected persons rights or immunities which, being recognised by "the tribunals and all other organs administering justice", allow protected persons security in the enjoyment of their title to property to the same extent as the holders of titles granted by the Crown are secure in the enjoyment of their titles'.[4]

In my opinion, the majority of the provisions in the NTA do not provide 'new rights' to Indigenous people. The possible exceptions are the right to negotiate, and the options to assert property rights before a tribunal. The extent of the benefits which flow to Indigenous people as a result of these are themselves debatable.

Finally, as to the concerns raised by J.R.S. Forbes (p 64) and P.D. Connolly (pp 130-132) over delays, costs or inconvenience to State Governments that may arise from the introduction of the NTA, I think the following passage from Western Australia v The Commonwealth provides an appropriate answer:

'Such practical difficulty as there may be in the administration of the legislation of Western Australia governing land, minerals and the pipeline transportation of petroleum products can be attributed to the realisation that land subject to native title is not the unburdened property of the State to use or to dispose of as though it were the beneficial owner. The notion that the wastelands of the Crown could be administered as the "patrimony of the nation" and that the traditional rights of the holders of native title could be ignored was said to be erroneous in Mabo [No.2] and the effect of the Native Title Act on State administration must be seen in that light'[5].

In addition, J.R.S. Forbes should be reminded that Indigenous people are also 'taxpayers' (p 63), and grossly over-represented in the number of 'taxpayers' who have been arbitrarily deprived of property by the Governments they fund and are supposedly represented by. Indigenous people are entitled to be compensated for the taking of their property as are all other 'taxpayers' and indeed all Australians.

There are other aspects of these contributions with which I would strongly disagree. They are nonetheless worth reading, even if it is only to be informed of another point of view.

If there is any general criticism of Mabo: The Native Title Legislation, it is that it conspicuously lacks Indigenous authors. It is perhaps unfortunate that a publication which attempts to analyse, discuss and critique the NTA does not have any contribution from the only people whose existing property interests are interfered with by this legislation. The bulk of the provisions of the NTA have been said to be for the benefit of Indigenous people. In my opinion, the book would be more complete if it contained at least one Indigenous perspective.

Despite this one general criticism, Mabo: The Native Title Legislation is well worth the modest purchase price. As a collection, these essays provide a useful introduction to the background and content of the NTA, opinions on its practical operation, and the issues left unresolved by its passage. It will be useful to lawyers, students, academics, and anyone who is interested in the operation of this important piece of legislation.

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[1] Section 3, Native Title Act 1993 (Cth).

[2] (1995) ALJR 309.

[3] [1992] HCA 23; (1992) 175 CLR 1.

[4] Per Mason CJ, Brennan, Deane, Gaudron and McHugh JJ, p322.

[5] Page 350.