Aboriginal Law Bulletin
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On 27 June 1996 the new Federal Attorney-General, the Hon Daryl Williams QC, introduced into the House of Representatives the Coalition's proposed amendments to the Native Title Act 1993 (Cth) (`the NTA'). The Native Title Amendment Bill 1996 (`the Bill') followed the release in May 1996 of a discussion paper of proposed amendments entitled Towards A More Workable Native Title Act. Interested parties were given the opportunity to make comments on the discussion paper. However, it is clear that drafting was substantially complete before the comments were received, as the Bill was introduced nine days after the closing date for comments.
The amendments have already attracted considerable criticism from Indigenous groups. Ostensibly concerned with the `workability' of the NTA, the Bill actually significantly reduces the rights and protection of native title holders under the Act. It may also be questioned whether the Bill meets the principles of the Racial Discrimination Act 1975 (Cth) (`the RDA').
The Bill is likely to receive a rocky passage through the Senate in November when the minor parties and independents have their say. Interested parties are anxiously waiting to see which way the newest independent Senator Mal Colston will cast his vote. Meanwhile, Indigenous representatives and industry groups have been debating the Government's proposed changes to the NTA in a Council for Aboriginal Reconciliation-sponsored process. Any agreement brokered by the Council for Aboriginal Reconciliation is likely to strongly affect the future of the Bill.
This article looks at the major elements of what is a lengthy and detailed Bill. Two important areas not included in the Bill are representative bodies' powers, and changes to the right to negotiate. The Attorney-General has foreshadowed their inclusion in amendments to the Bill during the Budget Session of Parliament after `further discussions' with interested parties.
The Bill picks up many of the changes proposed by the last Government in its Native Title Amendment Bill 1995, following from the High Court decision in Brandy v HREOC.[1] The most important of these is the change of venues. Applications for determinations of native title or compensation can no longer be made to the Registrar of the National Native Title Tribunal (`the NNTT'), but must be filed in the Federal Court (new ss13 and 61). The new s63 requires the Federal Court to give the application to the Native Title Registrar, who is then bound to consider the application and apply a new test before accepting the claim for registration.
The Government proposes to restructure and significantly toughen the registration test. Applicants may be able to successfully lodge a claim in the Federal Court, but to gain the right to negotiate and other protections against future acts (notably mining titles) they must, under the Bill, jump a higher hurdle. The Federal Government argues that the new registration test achieves a balance between `the interests of native title holders and the need to ensure that economic development is not unduly impeded'.[2] The new and higher hurdle reveals that the balance has shifted decidedly against native title holders.
Section 63(1) of the NTA requires the Registrar to accept an application for the determination of native title unless the application is `frivolous or vexatious' or `prima facie the claim cannot be made out' (emphasis added). Last year's Native Title Amendment Bill 1995 allowed for applications to be lodged in the Federal Court but maintained the registration test. The new Bill reverses the prima facie test and inserts four conditions which must be satisfied before acceptance by the Registrar. The first condition of the proposed s190A requires that the native title claimants can establish prima facie each of the native title rights and interests claimed.
The second condition is broken down into a long list of requirements which the applicant must satisfy. Those requirements include: the claim's boundaries; details of all land tenure searches and reasons for not conducting certain searches; the native title rights and interests claimed; the `factual basis' upon which the claimant asserts association with the area, customary laws and the holding of native title in accordance with those laws; and the basis upon which all of the claimants hold common rights.
The third condition is that all relevant searches have been carried out, and the fourth is that the application shall not include land that is or was subject to ordinary title or a commercial or residential lease (not including pastoral or agricultural leases, or leases to Indigenous people under land rights legislation).
It is difficult to describe the new requirements as anything less than draconian. Whereas, currently, applicants may lodge a relatively simple application form, under the Bill they must gather sufficient material to lodge a prima facie case. Some of the requirements are exceptionally onerous: detailed anthropological evidence will be needed before one can assert what the `factual basis' is of associations, customary laws and adherence to them(s190A(8)(f)). Similarly detailed genealogical information will be needed before asserting membership of groups holding native title rights (s190A(8)(h)). Two decades of claims under the Aboriginal Land Rights (NT)Act 1976 (Cth) (`the ALRA') show that such details would not become available until well after the three months allotted for this process in the Bill.
In short, the Bill radically changes the nature of the registration test. No longer will it be an ex parte proceeding as examined by the High Court in the Waanyi case.[3] The Registrar will be able to consider such other information as he or she `considers appropriate' (s190A(4)), and accordingly the High Court's prediction will follow: `Third persons seeking to defeat an application [will] be able to procure an administrative determination of the application before those persons [become] entitled to be parties to the application.'[4]
A failure to pass the registration test will result in the denial of fundamental rights of native title holders. They will be denied the right to negotiate. They will be unable to properly assert their title against either a non-claimant application or the new future act procedure under proposed s24B (see below). The higher registration test will also effectively mean that the protections provided to ordinary title holders can be denied to native title claimants.
The amendments will apply retrospectively. Any claims lodged and accepted by the NNTT on or after 27 June 1996 will be subject to the new registration test.
The NTA's right to negotiate procedures establish a reasonably clear process for dealing with certain acts, mainly mining. However, there are no procedures for making agreements for other future acts, and the procedure is unclear for s21 agreements.[5] For example, a future act concerning mining authorised under a s21 agreement is not valid unless it has also been through the right to negotiate procedure. The Government has attempted to address these issues in the Bill.
A new s21A will establish an agreement mechanism for areas where native title has been determined. Where the agreement concerns surrender of native title, all future acts will be valid. Where the agreement only covers certain acts, then only those acts will be valid. Both situations will cover the period until there is a later determination of native title. Unlike the situation for ordinary title holders, notice of a new claim of native title will not be sufficient to defeat future acts made after such notice.
Proposed sections 24A and 24B set up an agreement and future act mechanism where there has (generally) been no determination of native title, and the act is not one to which the right to negotiate applies. The Government has chosen to establish a `claim based' approach to agreements over future acts where the native title holders are not known. The mechanism is similar to that for non-claimant applications but is more flexible. Section 24B allows future acts to proceed if there are no registered native title holders or claimants, and none come forward and are registered within three months.
Validity for a future act can also be achieved through an agreement under s24A. The parties to the agreement are the Government, and may also include the grantee party, any registered native title holders or claimants, and any claimants that are registered within three months from the notice of the future act. The Aboriginal or Torres Strait Islander representative body for the area is notified under s24A (and s24B), but they are not able to become parties to the agreement.
The most important aspect of the operation of ss24A and 24B is their interaction with the proposed registration test (s190A). Due to the novelty of the NTA mechanism it can be expected that these sections will operate principally by native title claimants reacting to future acts notices. The ability of the sections to protect native title is therefore dependent on the claimants becoming registered within the three months allotted. The onerous nature of the registration test will mean that many native title holders will be unable to oppose future acts the subject of this mechanism.
Proposed amendments to ss22 and 23 mean that new ss24A and 24B are excluded from the `permissible future act' test, which ensures that native title holders are afforded the same protections as ordinary title holders (s235(5)). A useful comparison may be made between the ease with which an ordinary title holder can access such protections with the onerous nature of the registration test for native title holders. Clearly there are significant implications here for consistency with the principles of the RDA.
It is difficult to envisage ss24A and 24B working without properly empowered and operating native title representative bodies. The strength and effectiveness of agreements with native title holders will be undermined unless there is a commitment to properly identify, consult and obtain the consent of native title holders. The requirement for Land Councils under s19(5) of the ALRA to perform this function has meant that agreements with native title holders deliver the commercial certainty so prized by industry.
Soon after coming into office it became clear to the Coalition Government that it could not extinguish native title on pastoral leases, as demanded by the pastoral lobby, without obviously amending the RDA. The Prime Minister specifically stated that the Government would `respect the provisions' of the RDA.
However, the amendments proposed attempt to achieve the same effect as extinguishment: they allow pastoralists to have their leases extended in perpetuity, and to expand the activities allowable under their leases without having to consult or negotiate with native title holders. The amendments pre-empt the decision of the High Court in Wik Peoples v State of Queensland,[6] which is expected to rule on whether (certain) pastoral leases extinguish native title, or the two titles co-exist.
Under s235(7) of the NTA, governments can renew pastoral leases as long they do not try to expand the pastoralists' proprietory interest. If they wish to do so, they have to follow the future act procedures of the NTA and afford native title holders the same rights as ordinary title holders. On the presumption that native title still exists on pastoral leases, governments have to seek the permission of the native title holders.
The new provisions allow governments to bypass the future act procedures. The new ss25(1A) and 25(1D) allow governments to validly renew, re-grant or extend a pastoral lease even though:
In short, the changes allow for the expansion of pastoral leases to include commercial and agricultural purposes. In this way, rural Australia can continue to be gradually settled without reference to the native title holders of those areas of land.
The Bill seeks to clarify the mediation provisions of the NTA. Subsections 86A (1) and(2) set out the purposes of mediation for proceedings both `involving' and `not involving' compensation. The purposes are not exclusive and other matters may be included as part of a mediation. Section 86A also specifies when mediation can be avoided and the proceedings referred to the Federal Court. There is some small danger (see s86A(6)) that intransigent parties will be able to avoid mediation by refusing `point blank' to mediate. Section 86B is useful and allows the Federal Court to request a report on mediation from the NNTT.
Importantly, the proposed s136E allows for a question of law to be referred by the presiding member to the Federal Court whilst mediation is under way. This is a two-edged sword. Due to the novelty of many of the legal issues associated with native title, mediations are often stalled while one of the parties takes a particular stance on a legal issue--s136E will resolve such deadlocks. However, legal ambiguities are commonplace in any negotiations or mediation, and the ability to refer matters to the Federal Court will only avoid mediation and an expeditious outcome.
Tucked into the `Miscellaneous Amendments' section of the Bill is a major change to native title rights over the inter-tidal zone. The effect of the changes to its definition in s253 is to make it clear that the inter-tidal zone is water and not land. The protections under s235(5) for native title over water are far less than those for land. Given the well recognised[7] importance of the inter-tidal zone for Indigenous people in terms of sustenance and ceremonial purposes, the redefinition will result in great hardship.
Finally, the Bill removes the right of claimants (under s183) to apply to the Attorney-General for funding when refused by other sources. The effect of this amendment will be to increase the power of representative bodies to direct claim funding. However, the full operation of this amendment will not be apparent until the Government reveals its proposed changes for representative bodies.
It is hard to avoid the conclusion that the Bill is aimed squarely at increasing access to native title land for developers at the expense of Indigenous peoples' rights. Those parts of the Bill which raise issues of consistency with the RDA are likely to be strongly opposed by Indigenous groups and in the Senate. But the final shape of the NTA will depend much on the Government's willingness to accept changes sought by Indigenous groups.
[2] The Hon Daryl Williams QC, Second Reading Speech to the Native Title Amendment Bill 1996, Weekly Hansard (House of Representatives), No 6, 24-28 June 1996, page 3056.
[3] North Ganalanja & Bindanggu Aboriginal Corporation for the Waanyi People v Queensland & CRA (1996) 135 ALR 225. (See `Pastoral lease issues before the High Court: North Ganalanja & Bindanggu Aboriginal Corporation for the Waanyi People v Queensland & CRA' by LKennedy in Vol 3, 79 Aboriginal Law Bulletin 15.)
[4] North Ganalanja & Bindanggu Aboriginal Corporation for the Waanyi People v Queensland & CRA (1996) 135 ALR 225 at 239.
[5] That is, an agreement between native title holders and the Commonwealth, State or Territory Government, as the case may be, that native title may be extinguished over a parcel of land, or that future acts may be performed which may affect native title.
[6] Currently the subject of a reserved judgment of the High Court from a decision of the Queensland Supreme Court; see (1996) 134 ALR 637.
[7] See, for example, the Resource Assessment Commission's Coastal Zone Inquiry: Final Report 1993, Canberra, AGPS, 1993, pp166 and 168.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1996/60.html