Indigenous Law Bulletin
A Bill to amend the Native Title Act 1993 (Cth) (‘the NTA’) was introduced into Parliament on 4 September (‘the Bill’). This commentary addresses some of the more controversial aspects of the Bill governing the relationship between native title and other (proposed) titles and land uses, and the making of native title claims. More particularly, it shows how the Government’s proposed inroads into native title go well beyond a response to the Wik decision.
The Bill’s ‘solution’ to ‘uncertainty’ about pastoralists’ ability to extend their rights in future involves expanded extinguishment and extensive suppression of co–existing native title on pastoral leasehold, at significant public expense. Permitted uses of pastoral and agricultural leasehold (and native title land adjacent to ‘farms’) will be expanded well beyond farming and grazing uses to encompass ‘primary production’, broadly defined. These expanded uses will be permitted without native title holder consent. The Bill therefore derogates from the principle of non–discrimination law which insists that native title be treated like freehold. Besides their political motivations, these provisions reflect the government’s view thatco–existing native title on pastoral leases4 is less than freehold.
The Bill also responds to the invalidity of mining tenements granted over co–existing native title on pastoral leasehold in contravention of the NTA ‘future acts’ regime. It validates those tenements (it calls them ‘intermediate period acts’). The Bill thus places state governments which made these illegal grants (eg Queensland) in the same position as state governments (eg Western Australia) which observed the NTA in granting tenements after 1995.
Many aspects of the Bill have nothing to do with post–Wik ‘uncertainty’. This is not simply because the Bill contains overdue amendments relating to the constitution and functions of the National Native Title Tribunal, or because it responds to a widely perceived need to ‘tighten up’ the test for native title claims which attract the ‘right to negotiate’. It is also because the Bill embodies a more general policy of ensuring that land development proceeds ‘unimpeded’ by native title. It does so by partly re–instituting the position prior to the Racial Discrimination Act 1975 (Cth)5: that governments—not Aborigines—control use of land and resources, particularly in remote areas, and that some Crown–granted titles enjoy a position of privilege over native titles.
Expansion of extinguishment
The Bill employs an expanded definition of ‘extinguishment’ which cuts off the possibility that, at common law, native title might be capable of reviving upon the expiry of a pastoral lease or other non–exclusive title. Extinguishment is permanent (Proposed s237A).
The Bill ‘confirms’ that native title is completely and permanently extinguished if a ‘previous exclusive possession act’ has been done to the land (or waters) to which it relates (Prop. ss23C and 23E). ‘Previous exclusive possession acts’ encompass land dealings at any time in history before the Wik decision.6 The definition includes land dealings which confer exclusive possession (eg freehold titles), dealings which may or may not confer exclusive possession, depending on their terms (eg ‘community purpose leases’) (Prop. s249A), and land dealings which manifestly do not confer exclusive possession (eg stock routes, wells, ‘memorials’7 and reserves vested in statutory authorities—for example, parks vested in the Northern Territory Conservation Land Corporation) (Prop. ss23B(3) and (4)). That is, the Bill extinguishes native titles which presently co–exist with these titles and land uses. The government is aware that the Bill does more than merely ‘confirm’ prior extinguishment: compensation is payable for extinguishment by the ‘previous exclusive possession act’ provisions to the extent that native title was not already extinguished (Prop. s23J).
Parallel provisions ensure permanent partial extinguishment of native title by ‘previous non–exclusive possession acts’—grants of ‘non–exclusive’ agricultural and pastoral leases (Prop. ss23F–23I and 23J).
‘Previous exclusive possession acts’ include pre–Wik ‘Scheduled interests’.8 An amendment to the Bill adds a new 39–page Schedule 1 to the Act. It lists leases and similar titles to be treated as conferring exclusive possession, whether or not they actually do.9 These include leases granted under State or Northern Territory law since as early as 1829. A number of factors (terms and obligations, as defined by statute, purpose, area, history, location, rights granted to third parties and capacity to upgrade) have governed whether or not a lease was Scheduled. Pastoral leases are not included. However, titles are capable of being added to the Schedule by regulation (Prop. s249C). Present debates within the government apparently centre around defining the Schedule’s contents by legislation (in particular, around whether Western Lands Act 1901 (NSW) grazing leases should be included), but those leases could be added quietly by regulation after the Bill is enacted.
Obliteration of native title removes the need to be concerned about it in future. However, obliteration brings its own ‘uncertainties’. Since compensation is payable for every extinguishment effected by the Bill, and since its extinguishing impact potentially stretches back to 1788, the Federal Court10 will be faced with compensation claims by Aboriginal people whose ancestors’ land was affected in the 1800s by leases of picnic reserves, Crown leases to churches, stock routes and road reserves now disused. Records of these types of titles and uses are likely to be more incomplete than registers of pastoral leases.11 Unless government or industry produces evidence of such records, native title holders might presume that their titles are intact and fail to make compensation claims. Native title may still become an issue only when a third party seeks to use land. While the Court will no longer be required to make delicate judgments about consistency between other land uses and native title, it will need to judge whether past land dealings were ‘previous exclusive possession acts’—or even whether they occurred.
The Bill purports to cap compensation at the freehold value (Prop. s51A), but this cap is subject to the constitutional requirement that compensation be on ‘just terms’.12 What ‘just terms’ constitutes in the native title context is not clear, but is likely to be substantial, given the religious and cultural significance of land to many indigenous people. The Bill does not address the difficult question of whether interest should be paid on extinguishment compensation. Interest on compensation for extinguishment by a ‘previous exclusive possession act’ in the 1800s is also likely to be substantial.
Overlapping categories of past land dealings
Under the Bill, the first question one should ask about any pre–Wik land dealing is: ‘is it a previous exclusive possession act?’ If so, there is no need to consider native title at all, even if the dealing was illegal when done. There is no need to apply complex provisions relating to the impact of different types of ‘past acts’ and ‘intermediate period acts’13 on native title.14 From the industry point of view, compensation is not a concern, because compensation for statutory obliteration of native title is payable by governments (Prop. s23J(2) and (3)).
Under the present Act, pastoral leases are ‘category A past acts’ (s229(3) NTA), that is, they extinguish native title completely (s15(1)(a) NTA), regardless of the common law relationship between these types of leases and native title. The Bill reproduces this anomaly. Pastoral leases granted between 1975 and 1994 extinguish native title completely (Prop. s23G(2)). But pre–1975 pastoral leases and any leases granted for the first time after 1994 extinguish native title to the extent of their inconsistency with it because they are ‘previous non–exclusive possession acts’.15 Preservation of this anomaly benefits those pastoralists granted leases between 1975 and 1994 and is of considerable significance to native title holders in the Northern Territory, where all pastoral leases were re–issued on perpetual tenure in 1992.16
Treatment of existing ‘future act’ standards
The Bill continues to allow governments to deal with land (including in an extinguishing manner) where no native title claimants respond with a registrable claim to a ‘non–claimant application’ aimed at flushing them out (Part 2, Division 3, Subdivision F). It allows governments to deal with the offshore without regard to native title, except by paying the kind of compensation paid for acquisition of ‘corresponding’ rights (Part 2, Division 3, Subdivision N). It continues in part the present Act’s ‘freehold standard’ for treatment of native title—a standard which allows compulsory acquisition of, and the grant of mining tenements over, native title (Part 2, Division 3, Subdivision M). But even this standard has been run down to allow some activities which typically occur only on Crown land: such as grants of opal or gem licences (Prop. s24MB(2)).
Indigenous land use agreements
The Bill contains extensive provision for authorisation of ‘future acts’ on native title land under registrable, enforceable (see Part 8A, and Prop. s24EA) ‘indigenous land use agreements’ (‘ILUAs’) (Prop. Part 2, Division 3, Subdivision B, C and D). In an improvement on the present Act, not all of these agreements need involve governments—they can be made with industry. Some types of agreements may only be made by people who have proven and registered their native title,17 but others may be made by claimants (including, in some cases, unregistered claimants) and representative bodies (eg land councils) (Subdivision C).
The Bill creates an incentive for use of ILUAs: they can limit the compensation payable to native title holders (Prop. s24EB(4), (5), (6)). However, the attractiveness of ILUAs for industry is undermined by the fact that other provisions permit many future land dealings without agreement—dealings for which governments will pick up the compensation bill.
Expansion of ‘primary production’
The definition of ‘primary production’, although borrowed from the Income Tax Assessment Act 1936 (Cth), is not identical.18 ‘Primary production activity’ includes cultivating land, maintaining, breeding or agisting animals, taking or catching fish or shellfish, forest operations, horticultural activities (Items 53 and 55 of Schedule 1), aquacultural activities and leaving fallow or de–stocking land in connection with another primary production activity. It does not include mining (Prop. s24GA).
Post–Wik acts permitting primary production and associated activities on pre–Wik ‘non–exclusive’ agricultural or pastoral leases (and their renewals) are valid and suppress co–existing native title for their duration (Prop. s24GB). State governments may authorise pastoralists to engage in those activities, even if the leases do not presently allow it. The Bill expressly states that native title is no obstacle to a leaseholder engaging in ‘primary production’ (Prop. s24GC). ‘Farmstay tourism’ may also be authorised, as long as it is incidental to other primary production and does not involve tourists ‘observing activities or cultural works of Aboriginal peoples or Torres Strait Islanders’ (Prop. s24GB(2) and (3)).19 A lease may not be converted to exclusive possession or freehold under these provisions (Prop. s24GB(4)), although the nature of the title may not matter much where extensive land uses are permitted.
The ‘primary production’ amendments potentially expand the rights of people other than ‘non–exclusive’ agricultural and pastoral lessees. Governments may grant farmers (people on pre–Wik freehold titles, pastoral and agricultural leases) leasehold rights to engage in ‘off–farm’ activities ‘directly connected to’ primary production within their boundaries. A State government may grant a farmer the right to take water from nearby land subject to full native title, even though a farmer would not be granted such rights over neighbouring freehold (or even a neighbouring pastoral lease) except consensually by its owner. Native title is thus stereotyped as a set of rights to roam around land. Governments (and lessees) may also grant third parties rights to take timber and extractive minerals from land held under pre–Wik ‘non–exclusive’ pastoral and agricultural leases. The only constraint on the grant of such rights is a requirement to notify Aboriginal representative bodies (Prop. s24GE).
Compensation is payable by the government authorising the expanded pastoral use or other activity. It is not proposed that State governments recoup this compensation from lessees.
Other permitted acts which do not meet the freehold standard
Provisions relating to ‘management of water and airspace’ (Proposed Part 2, Division 3, Subdivision H) are concerned with privileging Crown–granted irrigation and fishing rights, and the right of governments to grant them in a discriminatory manner, over native title. Governments can already manage these resources: they have complete control over the offshore, and the same control onshore as over airspace above freehold, waters adjacent to freehold and other landowners’ (or public) rights to fish.20 These provisions seek to secure governmental control and the titles it gives rise to, even in circumstances of racial discrimination.21
Provisions allowing construction of ‘facilities for services to the public’ over native title (Proposed Part 2, Division 3, Subdivision K) are in a similar position: governments can already authorise these things if they do so in a non–discriminatory manner. However, these provisions redefine the comparator by which ‘discrimination’ is measured. In pastoral areas, native title holders’ rights regarding construction of these facilities will be limited to ‘reasonable access’ (Prop. s24KA(1)(c)) and the ‘procedural rights’ of pastoral lessees, not freeholders (seeProp. s24KA(7)).
Provisions relating to ‘renewals and extensions etc’ (Part 2, Division 3, Subdivision I) of pastoral leases create considerable scope for extinguishment. For example, a Queensland pre–Wik right to upgrade a pastoral lease to freehold would allow the lease to be freeholded under this provision, without the State using its compulsory acquisition powers. Native title would be extinguished by the freehold grant, although it would be suppressed by grant of a title which did not confer exclusive possession.
Changes to the ‘right to negotiate’
This right applies to grants of exploration and mining tenements and to compulsory acquisitions of native title which benefit third parties. Many of the Bill’s changes were foreshadowed in 1996 and limit heavily the availability of the right to negotiate.
For example, the right will not apply to tenement renewals and to most exploration, and apply only once to exploration and subsequent mining and to acts forming part of the same project (Prop. ss29(9) and 42A). The Minister will be able to intervene in negotiations or arbitration on national interest grounds to decide that the act may be done if it is ‘likely to be of substantial economic benefit to Australia’ (Prop. s34A). The Minister will also be able to intervene in the national (State or Territory) interest, in arbitration if a decision has not been made within four months and ‘is unlikely to be made within a period that is reasonable having regard to all the circumstances’ (Prop. s36A).
Under the Bill, the right will not apply to third party compulsory acquisitions for ‘infrastructure facilities’ (Prop. s26(1)(c)(iii)(B)): roads, ports, airports, electricity generation and transmission facilities, oil, gas and mineral storage, transmission or transportation facilities, dams, pipelines and communication facilities (Prop. s253). Compulsory acquisition of the Century mine pipeline would not attract the right to negotiate under the Bill.
The right will not apply to the inter–tidal zone22 or in in a town or city (Prop. s26(2)(f)) as defined by State or Territory law (s251C). However, it appears that ‘town or city’ does not include all of the greatly enlarged city of Darwin.
A controversial change involves potential substitution of the ‘right to negotiate’ on current and former leased, ‘non–exclusive freehold’ (eg Aboriginal reserves) or public use reserves (eg national parks) by State and Territory ‘alternative provisions’ (Prop. s43A). These provisions reveal the government’s determination to treat native title like neighbouring rights to land.23 While full native title on vacant Crown land attracts the ‘right to negotiate’, similar native title in a national park attracts inferior objection rights.
As foreshadowed in 1996, under the Bill it will be possible to proceed with a claim in the Federal Court without registering it.24 However, registration will be essential for claimants to obtain the ‘right to negotiate’ (Prop. ss29 and 30) and access rights to pastoral land (see below). There will be tighter controls on what claims may be made and a tighter registration test. In particular, claimants will have to convince the Registrar that, prima facie, each right claimed can be established (Prop. ss190A(6) and 190B(6)), and satisfy the Registrar that at least one applicant has or had a traditional physical connection with the area (Prop. s190A(6) and 190B(7)).
Access rights to non–exclusive pastoral and agricultural leases
The Bill ‘guarantees’ claimants’ traditional access to ‘non–exclusive’ pastoral and agricultural leasehold (see Part 2, Division 3, Subdivision Q). ‘Traditional access rights’ exist independently of reservations in favour of Aboriginal people in Crown Lands Acts and site protection laws (Prop. s44D). However, narrowly defined ‘traditional access rights’ may prevent the exercise of fuller native title. A person has access rights if the person is a member of a native title group with a registered claim (Prop. s44A(2)) and, at 23 December 1996, the person (or her ancestor) had regular physical access to the land for the purposes of traditional activities (Prop. s44A(4)). The Bill freezes this factual access in time, giving it a new legal
status—subject to the rights of the lessee (Prop. s44B). However, Aboriginal people ‘locked out’ of pastoral leases at Wik will enjoy no such rights. Further, while a registered claim gives rise to access rights, no–one may enforce native title to the land (Prop. s44C).
The six year sunset clause applies to non–claimant and claimant applications for the determination of native title (Prop. s13(1A)). It does not apply to Federal Court determinations of native title (including determinations associated with compensation applications). A separate six year sunset clause applies to compensation claims arising out of ‘future acts’ (Prop. s50(2A)), requiring the making of compensation claims within six years of the commencement of the Bill or the doing of the ‘future act’, whichever is later.
The sunset clause on claims is out of step with provisions limiting other actions to establish property rights (eg provisions of Limitations Acts which allow a dispossessed landowner twelve years or more of protection against adverse possession claims). The clause will amount to an acquisition of property in the constitutional sense if the Act prevents common law claims to native title.25 However, if common law claims remain possible, as appears to be the case, the sunset clause will simply drive claims back to the State courts, where they will take longer, cost more and produce more unpredictable outcomes than they do now.
 A longer commentary will be available at:
Jennifer Clarke, ‘The Native Title Amendment Bill: a different order of uncertainty?’, CAEPR Discussion Paper, ANU, forthcoming.
 Wik Peoples v State of Queensland &Ors (1996) 187 CLR 1.
 Not only is that principle contained in the present Act, but it has also been applied by the High Court in Racial Discrimination Act cases: see Mabo v Queensland [No .1] (1988) 166 CLR 186, WA v Commonwealth  HCA 47; (1995) 183 CLR 373.
(Endnotes continued p 25)