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Burke, Paul --- "Stirrings: Update on the Native Title Amendment Act 1998" [1998] IndigLawB 74; (1998) 4(15) Indigenous Law Bulletin 16

Update on the Native Title Amendment Act 1998

by Paul Burke

The commencement of the Native Title Amendment Act 1998 ('the NTAA) was not delayed by the Federal election. Prior to the calling of the election, the Governor-General had already signed a proclamation fixing the commencement dates. Most of the provisions of the NTAA commenced on 30 September and the provisions relating to the new recognition process for representative bodies will commence on 30 October 1998.[1] The Government had also taken other administrative action in preparation for commencement:

State and Territory governments have been actively anticipating the commencement of the NTAA and some jurisdictions have already passed complementary legislation. The scope of the complementary legisltion and the approach to negotiation with indigenous interests varies considerably from jurisdiction to juridiction.

It seems likely that the Northern Territory and Western Australia had been planning their proposed legislation well before it was clear that the NTAA would be passed. With virtually no consultation, the Northern Territory passed a package of seven Bills on 19 August 1998 as its response to the NTAA.[2] The enactment of these Bills validated intermediate period acts and confirmed extinguishment of native title in areas affected by these acts. A new Lands and Mining Tribunal was established to be the independent body under the Territory's alternative to the Right to Negotiate on pastoral leases and matters relating to compulsory acquisition of native tide rights by third parties. In contrast to the approach adopted during the development of legislation, the Chief Minister promised further consultation after the Bills were passed. Concerns have already been raised about tight time frames, limitations on judicial review and a time limit on compensation claims.

The WA Government released two Bills for comment on 18 August 1998.[3] These Bills revealed the most comprehensive response to the NTAA of all jurisdictions so far. As expected, these covered validation and confirmation of extinguishment and also proposed setting up a Native Tide Commission of Western Australia which would deal with all aspects of native title possible under the amended Native Title Act, alternative procedures to replace the Right to Negotiate on pastoral leases, alternative procedures for compulsory acquisition of native title for third parties, administration of the new registration test, a mediation body to replace the National Native Title Tribunal, and State Right to Negotiate procedures for vacant Crown land, and a State arbitral body for its Right to Negotiate procedures. The Government allowed four weeks for public submissions.

Much to the disappointment of indigenous interests, the new Queensland Labor Government passed legislation on 26 August 1998 validating past acts and confirming extinguishment of native title on pastoral leases in terms which reflect exactly the terms of the NTAA.[4] This included the controversial extinguishment of native title on Grazing Homestead Perpetual Leases that cover about 10% of the State and may not extinguish native title at common law. There is a possibility that this legislation will be challenged in the courts. The Queensland Government is, however, consulting with the Queensland Indigenous Working Group as it develops the rest of its response.

It is expected that other jurisdictions will legislate for validation and confirmation ofextinguishment but it is currently unclear what further legislation will be developed in South Australia and New South Wales. The NSW Government parliament on 23 September 1998 passes an Act which covers validation of past acts, confirmation of extinguishment and a few other matters.[5] But it does not address the issue of an alternative State scheme for the Right to Negotiate. Apparently the Government is still considering its response on this issue. In South Australia there is already a State Right to Negotiate regime approved under the old, and it will be interesting to see whether this is retained. New South Wales will be interesting to watch, since the Labor Party at the Federal level has given a commitment to preserving the Right to Negotiate on pastoral leases.

Paul Burke was formerly legal adviser to the ATSIC Wik Team.

[1] See Commonwealth of Australia, Special Gazette No. S428, Friday 28 August 1998.

[2] Lands Acquisition Amendment Act (No. 2) 1998, Mining Amendment Act 1998, Petroleum Amendment Act 1998, Petroleum (Submerged Lands) Amendment Act 1998, Lands and Mining Tribunal Act 1998, Energy Pipelines Amendment Act 1998, and Validation of Titles and Actions Amendment Act 1998.

[3] Titles Validation Amendment Bill 1998, Native Title (State Provisions) Bill 1998.

[4] Native Title (Queensland) State Provisions Act 1998.

[5] Native Title (New South Wales) Amendment Act 1998.

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