Burke, Paul --- "The Native Title Amendment Bill: what Happened in the Senate" [1998] IndigLawB 14; (1998) 4(9) Indigenous Law Bulletin 4

The Native Title Amendment Bill: What Happened in the Senate

By Paul Burke

Note: any opinions expressed in this article do not necessarily represent the views of ATSIC or the ATSIC Wik Team. However, I would like to acknowledge the assistance of Greg Marks, Assistant Coordinator of the ATSIC Wik Team.

The Committee stage of the Senate’s deliberations on amendments to the Government’s Native Title Amendment Bill began in earnest on Friday 28 November. Several days before, the Government, Australian Labor Party (the ‘ALP’), Democrats and Greens (WA) had tabled their proposed amendments. The Government proposed 93 of its own amendments some of which involved significant concessions to indigenous interests but revealed no change in the fundamentals of the 10 Point Plan. Fairly wild media reports of 800 to 900 opposition amendments were somewhat misconceived. The opposition parties did table three sets of amendment packages, each containing about 350 amendments. But there was a great deal of overlap between these packages, all having been based to varying degrees on the amendments drafted and circulated by the National Indigenous Working Group (NIWG). Senator Harradine publicly released his crucial amendments (54 in all) in the course of the committee stage debate on 2 December.

This mass of confusing detail was made slightly more manageable by the Senate basically adopting the 21 groupings of the ALP’s amendments in its explanatory memorandum. These groups of amendments and the outcomes of the Senate deliberations are as follows:[1]

Racial Discrimination Act

The Opposition amendment which provides that the Racial Discrimination Act 1975 (Cth) (the ‘RDA’) prevails over the Native Title Act 1993 (Cth) (the ‘NTA’)’ (except for validation of past and intermediate period acts) was passed with the support of Senator Harradine.[2] If the Bill is ultimately enacted in this form it means that the NTA will not impliedly repeal the RDA. The RDA will continue to determine the proper interpretation of the NTA should any of its provisions apply in a racially discriminatory way.

Validation

The Government's validation of intermediate period acts (that is, from the 1/1/94 to 23/12/96) was passed with Senator Harradine's support. The ALP proposals for a gazettal mechanism to ensure proper notification and for fast–tracking compensation were defeated. The Government's own amendments were passed and these include a notification obligation on governments of all potentially validated acts within six months, but failure to notify does not affect the validation.[3]

Legislative extinguishment

The Government's original proposal, including the schedule of extinguishing interests, was passed but with some major improvements:

• Government amendments to address the issue of historic tenures (ghost leases) were passed.[4] These provide for disregarding prior extinguishment in native title claims over reserves and vacant Crown land provided it is occupied at the time of the application. This means that native title holders will be able to obtain the full range of native title rights when claiming reserves and vacant Crown land which had in the past been subject to a grant which extinguished some native title rights.
• Senator Harradine's amendments which ensure that inconsistent native title rights on pastoral leases are only suspended (not permanently extinguished) were passed.[5]
• Opposition amendments reducing the scope of extinguishing interests were passed with Senator Harradine's support. The amendments exclude grants of Aboriginal land and grants on Aboriginal land and Crown to Crown grants (including Crown to statutory authority).[6]
• Similarly Senator Harradine supported Opposition amendments to remove the power to add to the schedule of extinguishing interests by regulation and supported other amendments to ensure that references to State/Territory laws in the schedule refer only to current laws not future laws.[7] This means that if the Government wants to put further items in the schedule of extinguishing interests in the future, it must do so by an amending Act.

Indigenous Land Use Agreements (ILUAs)

In summary, the provisions about ILUAs in the Government's Bill, which were based on proposals developed by the NIWG, were passed.

The Government’s own amendments to its Bill provided clarification that ILUAs could include conditions about procedural matters.[8] All of the initial Opposition amendments, which related to allowing validation of intermediate period acts by agreement and an enhanced role for representative bodies in all agreement processes, were defeated.[9] However, a compromise proposal on the issue of validation by agreement was passed with Senator Harradine’s support. It simply stated that ILUAs could cover past acts and intermediate period acts.[10] It is arguable that this also covers validation.

Pastoral leases and diversification

The Government's primary production definition was intended to be qualified in a major way by Senator Harradine's amendments which sought to limit permissible activity to those activities which could be lawfully performed (with or without further government permission) before the Wik decision.[11] There are some doubts about whether the amendment as drafted achieves its purpose. If it does, the effect of this will depend on the particular laws in each State/Territory. In some States it will mean limited diversification is permitted without involving native title holders. In other States it appears to allow almost unlimited diversification without involving native title holders. However, this may be limited by the Government’s own amendment which restricts diversification under the primary production definition to 50% of the area of leases (for leases greater than 5,000 hectares).[12] It should be noted that this restriction only applies where additional Government permission is required for diversification.

The extension of permissible pastoral activities to adjacent areas (‘off–farm’ activities) was passed with minor amendments. Senator Harradine originally indicated his support for the opposition parties’ position of complete removal of this provision but was convinced by the Government to retain it with a minor amendment.

Management of water and airspace

The Government's proposals were supported by Senator Harradine with minor Government amendments.[13] This means that there will be no requirement for governments to negotiate with native title holders before they grant interests in water, such as for commercial fishing licences. The Government amendments add some procedural rights for indigenous interests, that is, notification and opportunity to present submissions. If the Bill was enacted in this form native title claims could still be made over water but any native title rights would be subject to water management laws and grants of interests under those laws. However, traditional fishing for private domestic purposes is still protected, but with wider exceptions (see ‘Miscellaneous’, below).

Renewals and extensions

The Government's proposals to allow an upgrade of pastoral leases from a fixed term lease to a longer term lease and from a term lease to a perpetual lease without negotiations with native title holders were defeated (Senator Harradine voting with the opposition parties).[14]

Use of reserved lands

Opposition efforts to remove the provisions in the Bill relating to reserved land (Subdivision J) were unsuccessful. Thus if the Bill is enacted governments will not have to negotiate with native title holders about the management of national parks or forest reserves declared before the Wik decision or the use of any reserves declared before the Wik decision. Native title holders’ rights are reduced to a right of notification[15], compensation and the non–extinguishment principle.

Facilities for services to the public

Comprehensive opposition amendments to these provisions were not supported. Consequently, governments will not have to compulsorily acquire native title rights before repairing or constructing any new facility for services to the public (the types of facilities being listed in s24KA(2)). This will take away an incentive to negotiate with native title holders.

Some additional procedural rights in relation to facilities for services to the public were added by opposition amendment, that is, the same procedural rights as ordinary title holders (including where the facility is on pastoral leases or other coexisting tenures).[16]

Freehold test

Minor amendments (from the Government and Senator Harradine) were passed to ensure that there is formal equality with freehold title in the procedures used for the compulsorily acquisition of native title rights.[17]

Offshore places

The Democrats/Greens’ amendment to extend the Right to Negotiate to offshore areas was defeated. The ALP amendment to specify procedural rights for native title holders offshore was also defeated. This means that the provisions in the current NTA apply, that is, native title holders will only have procedural rights if others have them. Some minor Government improvements to the offshore provisions ensure that if compulsory acquisition of native title occurs offshore it is done on a on–discriminatory basis.[18]

Heritage protection

There will be no additional heritage protection measures in the NTA as the Opposition heritage protection amendments were defeated. The proposed amendments would have inserted an obligation to consult about indigenous heritage protection in relation to all future acts under Primary Production, Renewals and Extensions and all acts to which the Freehold Test applies. This means that indigenous heritage protection will largely be governed by existing State and Commonwealth indigenous heritage protection laws rather than through the NTA.

Right to negotiate[19]

The Government's proposals to exclude the Right to Negotiate from infrastructure projects and towns and cities were defeated. The exclusion of opal and gem mining was passed with a proviso that it be limited to current opal/gem fields.

The Government proposal to limit the Right to Negotiate to being exercised once, either at the exploration stage or at the production stage (one Right to Negotiate) was defeated (Senator Harradine going beyond his previously announced amendments and voting with the opposition parties on this issue). This means that the Right to Negotiate will also apply at the exploration stage, as at present. It has been important in securing adequate protection of indigenous heritage from mineral exploration activities.

The two extra provisions for ministerial intervention in Right to Negotiate procedures (for urgent cases in the national interest and for delay in arbitration) were removed. The current ministerial override at the end of the process is retained as in the current NTA.

The Right to Negotiate will apply on pastoral leases and national parks.

The current time limits for negotiation were restored. The Government had intended to shorten them.

In considering whether the expedited procedure should apply (that is, to avoid the Right to Negotiate for low impact exploration which does not interfere with native title community life and is unlikely to interfere with significant indigenous sites) the Tribunal can take into account spiritual affiliation of the community. The Government intended to limit consideration to physical interference with community life.

Opposition amendments to ensure that the Right to Negotiate would apply to the intertidal zone were defeated, as were other amendments aimed at allowing share of profits/royalties to be included in an arbitrated agreement. This means that the position in the current NTA, which restricts share of profits/royalties to negotiated agreements, would continue to apply.

Access rights

The Government's proposal for access rights was passed with two important amendments:

• The regular physical access test (confining the benefit of the statutory access right to those registered claimants who can establish that they regularly had physical access to the area as at the end of 23 December 1996 or are a descendant of someone who did have such access) will not apply if access was denied by the pastoralist or access had not occurred because of an act of government.[20]
• There will be no suspension of common law native title rights while the interim statutory access rights are exercised prior to a formal determination of native title.[21]

However, most elements of the Government's proposal still remain. That is, indigenous people who want to take advantage of the interim statutory access rights will have to pass two tests (the registration test to become registered claimants and the regular physical access test) and access is limited to the scope of any previous access.

Compensation

A simplified procedure for small compensation claims was adopted with the support of Senator Harradine.[22]

A Government amendment clarifies that just terms compensation for the acquisition of native title rights also applies to acquisition by States and Territories.[23] However, as in the current NTA, just terms compensation by a State/Territory is confined to formal procedures for the acquisition of native title rights such as through compulsory acquisition legislation. For other State/Territory acts which impair native title the starting point for compensation is the comparison with the compensation a holder of freehold title would receive.

Amendments to remove the cap on compensation were defeated. This may not be much of a loss as the requirement for just terms compensation overrides it. However, it may have some effect on compensation for impairment of native title.

Applications

The Government's own amendments require additional information in an application describing the activities undertaken in exercise of native title rights.[24] The two Opposition amendments that the Government supported were relatively minor: one relating to providing details of denial of access and the other ensuring that representative bodies receive copies of all applications.[25] The defeated Opposition amendments were aimed at improving the workability of the applications provisions in various ways. There was little debate on these amendments.

The debate focused on the proposed removal of the Government's proposed s61A(2) and (3). Those provisions state that a claim cannot be made over land on which the Government considers native title to have been extinguished (that is, by an ‘exclusive possession act’) and that a claim for exclusive native title rights cannot be made on co–existing tenures (such as pastoral leases). Ultimately the proposed s61A(2) and (3) were passed with Senator Harradine’s support.

Claims process and sunset clause

The main points were:

• The removal of the sunset clause on claims. Had this Government proposal not been rejected, all claims under the NTA would have to be made within 6 years. The consequence of this would have been that only common law claims could have been made after 6 years and any claimant not registered within the 6 year period would miss out on the Right to Negotiate.
• In claim hearings in the Federal Court, indigenous cultural concerns must be taken into account. The Government had intended to leave this to the discretion of the Court. However, the rules of evidence will now apply in claim hearings unless the Court orders otherwise (this reverses the position in the current NTA).
• A Government amendment was made to the time limit on compensation claims so that the time limit only commences running when registered native title bodies corporate, registered native title claimants and the representative body are notified of the compensable act.[26] This represents a slight amelioration of the Government’s position on this issue. The NIWG sought the complete removal of the time limit.
• Removal of the requirement that the President of the NNTT must be a judge.[27]
• The Opposition amendments supported by the Government related to the limitation on the number of parties to an application.[28]

Registration test

The main points were:

• Effective removal of the physical connection test by ensuring that it is not required to be applied if loss of physical connection was caused by denial of access or removal from the land or the applicants intend to prove traditional connection.[29]
• Most claims registered in response to the impending grant of an exploration licence (or any other act to which the Right to Negotiate provisions apply) will have to go through the new registration test.

Representative bodies

There was fairly broad support for those parts of the Government’s Bill which sought to enhance the role of representative bodies by providing mandatory statutory functions for them in the NTA. The disagreement centered on whether there is a need for all existing representative bodies to be re–assessed by the Minister (a re–recognition process) and the extent of the extra accountability provisions. Senator Harradine basically supported the Government on this issue so the Bill still contains a re–recognition process which means that the Minister will have the ultimate discretion (within certain limits) to decide whether current representative bodies continue.

In addition to other regulatory schemes applying to representative bodies, the Minister will have power to order investigation/audit of representative bodies for serious irregularities.

Fast–tracking

The Opposition (and NIWG) proposal for the fast track recognition of native title on Aboriginal reserves and other areas was defeated. This would have allowed the representative bodies to identify the relevant native title holders for particular areas and submit a finding to the Federal Court for formal determination, thus avoiding a long and expensive formal claim hearing. The Government argued that there were constitutional problems with the proposed scheme.

Miscellaneous

Equivalent State/Territory bodies

The Bill as introduced into the Senate would have allowed States and Territories to set up their own tribunals with the exclusive jurisdiction to mediate claims. In preference to the opposition proposal to scrap these provisions the Government supported Senator Harradine's compromise amendment.[30] This states that if States/Territories set up their own tribunals to mediate claims instead of the NNTT, their tribunal must have one member from the NNTT on it.

If equivalent State/Territory bodies are set up for mediation of claims instead of the NNTT, the same judicial review rights as apply in the Federal jurisdiction must also apply in the State/Territory jurisdiction.[31] This could be an important safeguard for indigenous interests.

Indigenous hunting/fishing rights

Currently traditional hunting and fishing rights for personal and domestic needs override Government restrictions. The amendments now also make an exception for licences for research, environmental protection, public health and public safety purposes. Licences for those purposes will now prevail over traditional rights. Depending on the scope of such licences, this could allow a significant reduction in indigenous rights.

Conclusion

The majority of the amendments proposed by the Opposition parties were rejected. Of the 463 amendments proposed by the Opposition parties or by Senator Harradine, the Senate passed 113 (ie approximately 24%). Nevertheless, significant amendments were passed by the Senate which improve the legislation by removing some of the proposals which would have significantly diminished native title rights. These amendments include:

• removal of the sunset clause on claims under the NTA;
• ensuring that the RDA prevails over all the provisions of the NTA (except for the validation provisions);
• rejection of physical connection test for native title claims, and limitations on physical connection test for access to leases;
• retention of the Right to Negotiate on pastoral leases, in national parks, in urban areas, and for private infrastructure projects;
• rejection of early ministerial intervention in Right to Negotiate processes, and restoring of current time limits for negotiation;
• native title rights on pastoral leases to be suspended, not permanently extinguished, as proposed by the Government; and
• full claims can be made to vacant crown land and Aboriginal reserves irrespective of previous lease history.

On the other hand a number of important amendments sought by the NIWG were not passed by the Senate.These include:

• notification by gazettal of acts to be validated and fast track compensation for validated acts;
• an alternative scheme for diversification on pastoral leases involving greater consultation with native title holders;
• additional heritage protection measures;
• the application of the Right to Negotiate to the intertidal zone and offshore areas;
• removal of the time limit on compensation;
• removal of the re–recognition process for existing representative bodies;
• removal of additional accountability requirements on representative bodies;
• fast–tracking the recognition of native title on Aboriginal reserves and other areas; and
• guaranteed access to the National Native Title Tribunal.

It is beyond the scope of this report to give a detailed evaluation or overall ‘scorecard’ on indigenous rights in the Bill as amended by the Senate. Obviously some major gains would outweigh many of the minor amendments which were not taken up by the Senate. It should be noted that the NIWG has not given any public endorsement of the Senate outcome. One can assume that there will be some careful weighing up of the pluses and minuses before a public position is announced.

Towards a double dissolution

The Senate concluded its deliberations on the Bill on the evening of Friday 5 December 1997 passing the Bill as amended in the Committee stage. The next morning the amended Bill was returned to the House of Representatives for its consideration of the Senate amendments at an unusual Saturday session. The Prime Minister moved a motion rejecting most of the Senate amendments citing four main sticking points:

• The registration test;
• The Right to Negotiate;
• The proposal to make the NTA subject to the provisions of the RDA;
• The sunset clause.[32]

After a lively but relatively short debate the Government’s motion was passed. Another motion listing the amendments which were acceptable to the Government was also passed. Among these were the Government’s own amendments, which included some valuable concessions to indigenous interests, plus other minor Opposition and Harradine amendments which it agreed to in the course of the Senate debate.

Although some aspects of the operation of the double dissolution provisions in s57 of the Commonwealth Constitution remain open to interpretation,[33] the Government appears to be proceeding on the assumption that the rejection of most of the Senate amendments by the House of Representatives on 6 December fulfils the first of two conditions for a double dissolution. The relevant first condition is the Senate passing a proposed law with amendments to which the House of Representatives will not agree. The second condition is that after three months the House of Representatives again passes the proposed law and the Senate again rejects or fails to pass it or passes it with amendments to which the House of Representatives will not agree. If the Government’s assumptions are correct the second precondition for a double dissolution could be fulfilled sometime in March.

Paul Burke is Legal Adviser on the ATSIC Wik Team.

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[1] Note: other amendments were circulated at various points during the debate. Requests for copies of amendments tabled should be made to the Tabling Office of the Senate. A useful compilation is the Schedule of amendments made by the Senate (35pp) produced by the Clerk of the Senate on 5 December 1997. References in this article will use the same references as that document. Note: ‘Opp’ refers to the ALP amendments.

[2] Opp/Dem-GWA / AG

[3] Gov(1)–(3), (50)–(53).

[4] Gov(5)–(11), (11A), (12), (12A), (12B), (44R), (48), (54), (56), (57), (59), (86)–(91).

[5] Harradine (2)–(4).

[6] Opp (216A)[as amended by Govt (54A)], Dems–GWA amendments under the heading ‘Validation’ in the Schedule of amendments made by the Senate.

[7] Dems–GWA amendments under the heading ‘Validation’ in the Schedule of amendments made by the Senate.

[8] Gov (15–18).

[9] Opp (16, 21–48, 193–195).

[10] Opp (48A), (48B) and (48C).

[11] Harradine (7), (R9).

[12] Govt (19)–(23), (24A), (24B).

[13] Govt (25).

[14] Govt (25A), (25B); Harradine (14), (15).

[15] Govt (26).

[16] Opp (100).

[17] Govt (28)–(30); Harradine (18), (21).

[18] Govt (31)–(34).

[19] Gov (35)–(42), (55); Opp (112), (113), (R114), (R115), (118), Opp (120)/Dems–GWA (110), Opp (124)–(127), (129)–(131), (134), (135), (139)–(141), (143)–(167), (167), (170), (172)–(177), (R197), (198), (201), (R202), (203), (R209), (210), Opp (221)/Dems–GWA (188), Opp (287), (355), Dems–GWA (126), (132)[as amended by Opp (R142)]; Harradine (23), (25)–(28), (31), (33)–(35).

[20] Harradine (R55).

[21] Opp (183)/Dems–GWA (151).

[22] Opp (192).

[23] Gov (46), (92), (93).

[24] Gov (60).

[25] Opp (230) and (239).

[26] Gov (58).

[27] Gov (63).

[28] Opp (242), (247–249).

[29] Opp (267)[as amended by Harradine amt].

[30] Harradine (56)

[31] GWA (1) and also see GWA (2).

[32] The Government’s views on the sticking points were further elaborated in an ‘Information Paper’ titled Native Title Made Easy which was released by the Deputy Prime Minister, Tim Fischer, on 11 January 1998.

[33] The opinion of the Clerk of the Senate is that one rejection of the Senate amendments by the House of Representatives may not be enough to clearly demonstrate disagreement and that the House of Representatives should make a further request for the Senate to reconsider its amendments. See Harry Evans (ed) Odgers’ Australian Senate Practice, 8th Ed, 1997, Ch 3 and the Clerk of the Senate’s letter to Senators dated 10 December 1997.