Indigenous Law Bulletin
by Garth Nettheim
The Australian States have always had the power to extinguish native title. So the High Court held in the 1992 Mabo (No.2) decision.
However, their power may be limited by Commonwealth laws. The Racial Discrimination Act 1975 (Cth) ('the RDA) invalidated Queensland and Western Australian laws designed to extinguish native title. The Native Title Act 1993 ('the NTA') provided additional Federal protection for native title as against the States.
State politicians have insisted that 'land management is a State prerogative'. This was accepted to some degree by the Keating Government in developing the NTA. It has been accepted to a larger extent by the Howard Government in developing the Native Title (Amendment) Bill 1998 ('the NTAB).
The NTA left a number of matters to the States. It authorised States to validate their 'past acts' since the commencement of the RDA which might otherwise have been invalid because of the existence of native title. The States did so. The NTA authorised States to confirm various existing Crown and public rights. The States did so.
The NTA authorised States to set up their own 'machinery' to decide applications for determinations of native title. Only South Australia did so. The NTA authorised States to establish their own "arbitral" bodies to decide whether mining should proceed on native title land, when the "right to negotiate" (RTN) procedures fail to achieve a negotiated agreement.
Section 43 of the NTA also provided for 'alternative provisions' at State or Territory level, provided that those procedures were similar in essence (if not in detail) to the NTA procedures, and provided that the Commonwealth Minister determined that they complied with the NTA criteria.
The NTAB, now finally enacted, retains section 43, with some modifications, but also adds a new section 43A. This section, as it emerged from the Howard-Harradine agreement, applies when the mining proposal in question applies to land in the State which is or was covered by a pastoral lease (or certain other interest) or was reserved for such public purposes as a national park. Some 42% of Australia is made up of public lands reserved for such purposes as national parks. Some 42% of Australia is currently covered by Crown leaseholds, mainly pastoral leases. Another 10.5% of Australia is represented by public lands reserved for such purposes as national parks
For such areas, States may, if they choose, establish procedures which now seem to be little different from those in section 43, or indeed, from the right to negotiate itself.
However, the Commonwealth Minister is authorised to endorse such alternative procedures as complying with the Act if the Minister is of the opinion that they make provision for compensation to native title holders, and that Commonwealth or State or Territory law provides for the preservation and protection of significant areas or sites. In other words, it appears that the focus is intended to be on compensation and issues of cultural heritage. By contrast, under the full 'right to negotiate' procedures, it would also be open to native title holders to raise a wider range of issues such as social impact, environmental protection, or socio-economic matters.
So it is not surprising that indigenous peoples regard these procedures, even as improved by Senator Harradine, as falling short of a real say as to developments on lands in which they may have residual native title interests.
But the States have options. They may choose not to set up their own procedures at all, in which case the full right to negotiate processes will continue to be available within their jurisdictions. Or they may choose to set up their own general processes under s43, but not to set up the more restricted processes under s43A. Or they could introduce alternative processes under s43 and/or s43A, but treat the legislation as laying down minimum standards, on which they may choose to improve.
Or States may elect to bypass the formal legislated processes altogether by negotiating regional agreements to fairly accommodate the interests of all stakeholders.
Ultimately, the choices that State and Territory political leaders make will probably depend on whether they choose to approach native title from the perspective of 'land administration' or from the perspective of human rights. The two perspectives are not incompatible, and the more far-sighted leaders have the opportunity to combine them in a negotiated framework which may bring people together, as distinct from dividing them.
Emeritus Professor Garth Nettheim is Chair of the Indigenous Law Centre at the University of NSW