Balgi, Teena --- "The Right to Negotiate and Queensland's Alternative Native Title Regime" [2000] IndigLawB 76; (2000) 5(4) Indigenous Law Bulletin 22

• The Right To Negotiate And Queensland’s Alternative Native Title Regime

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The Right to Negotiate and Queensland’s Alternative Native Title Regime

By Teena Balgi

30 August 2000 saw the resignation of Daryl Melham MP, then Shadow Minister for Aboriginal Affairs. His resigned because the Federal ALP failed to disallow Queensland’s Alternative Native Title regime in the Senate. The Native Title Act 1993 (Cth) (‘the NTA’) generally gives ‘registered native title bodies corporate’ and ‘registered native title claimants’ the right to negotiate (‘the RTN’) with respect to certain mining grants and compulsory acquisitions.[1] The RTN can be replaced by lesser rights if the Attorney General makes a determination that approves a State or Territory’s alternative provisions.[2] These determinations by the Attorney General are disallowable instruments,[3] meaning that they can be disallowed by either house of Parliament.[4]

Last year the Queensland Labor Premier, Peter Beattie, sought 13 determinations from the Attorney General under sections 26A, 26B, 43 and 43A of the NTA. After the statutory consultation process[5] was complete, the Attorney General made the determinations approving the proposed State provisions on 31 May 2000. The Queensland Labor government and the Federal Opposition reached a deal that resulted in 7 of the 13 determinations not being disallowed by the Senate.

Some of the determinations passed were made under section 43 of the NTA.[6] This section was part of the original NTA and was retained in substantially the same form. Under section 43 the State or Territory provisions should provide rights equivalent to the federal RTN.

The more controversial determinations passed were made under section 26A of the NTA. This provision was inserted by the 1998 amendments.[7] The determination classified certain low impact exploration activities as ‘approved exploration’. The RTN does not necessarily apply to ‘approved exploration’. Rather, under section 26A, the RTN can be replaced with the lesser rights to consult and object. Part of the deal between Queensland and the Federal Labor party was Peter Beattie’s unconditional undertaking to amend the Low Impact Exploration Scheme for the benefit of native title claimants before 31 December 2000.

The Native Title Resolution Act 2000 (Qld) (‘the NTRA’) was passed on 8 September 2000. The NTRA both implemented the AG’s determinations allowed by the Senate and adjusted the section 26A scheme to provide substantive rights, procedural rights and acceptable definitions of low impact exploration similar to those in the NSW scheme.[8] Peter Beattie also promised to never derogate from these improved provisions.

The determinations relating to provisions based on section 43A, a highly contentious part of the Wik amendments, and section 26B of the Act were disallowed in the Senate. The section 43A determinations provided for an alternative scheme for mining and high impact exploration on pastoral leases.[9] Such a scheme would have replaced the RTN with lesser rights including the right to object, the right of consultation and the right to have the objection heard by an independent body. The section 26B determinations that were also disallowed related to an alternative regime for alluvial gold and tin mining.[10]

So why did Daryl Melham resign? He was concerned about the security of the section 26A determinations. Under Beattie’s promises, the rights afforded to native title claimants would be as good as those provided for under the New South Wales scheme. However, there is nothing in the NTA nor Beattie’s promises, preventing future governments from changing the rights and procedures available to native title claimants under the Queensland Low Impact Exploration Scheme. Once approved by Parliament, subsequent changes to section 26A determinations do not need to be scrutinised by either house of Parliament. Under section 26A(8) the Minister is required to act if he or she considers that circumstances have changed and the determination would not have been made in the new circumstances. However, there is no mechanism for scrutinising the Minister’s response to the changes and no independent examination of the changes. Mr Melham was concerned that such an insecure scheme was not compatible with what he had promised indigenous people, and resigned.

Any further implications of the alternative scheme in Queensland are as yet uncertain. It was the first alternative scheme under s26A to be allowed by the Senate since the commencement of the 1998 amendments. Prior to this, the Attorney General had made three determinations that related to the alternative provisions in Northern Territory mining, petroleum and land acquisition laws.[11] The Senate disallowed these on 30 June 1999.[12]

Since the Queensland provisions, the Attorney General has made five more determinations. Two approve a NSW scheme in relation to low impact mineral exploration under section 26A of the Act.[13] Another two determinations under section 26C declare two areas around Lightening Ridge as ‘approved opal or gem mining areas’.[14] The RTN does not apply to the grant of certain opal or gem mining tenements in these areas. These four determinations have been tabled in both houses of Parliament and have not been disallowed. They were more favourable to the interests of indigenous people than the scheme originally prosed by the Queensland government.

The Attorney General has also made a determination in favour of Western Australian provisions made under section 43A of the NTA.[15] The determination was tabled in both houses of the Parliament and was disallowed by the Senate on 9 November 2000. As yet, no section 43A determinations have been allowed by the Senate.

Do the Queensland section 26A determinations set a precedent? Certainly it was the first scheme allowed by the Senate that reduces the rights and security of those rights. There is no reason why such a deal between a State government and its Federal Party could not happen again. The Queensland determinations demonstrate that State governments have greater control over the rights afforded to native title claimants than ever before. Given that State governments rely more heavily on mining royalties and revenue than the Federal government, Daryl Melham certainly perceived this distribution of power as a threat to native title.

Teena Balgi is a recent graduate from the University of New South Wales combined Bachelor of Science/Bachelor of Laws. She is currently an editor at the Indigenous Law Bulletin.

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^[1] Subdivision P of Division 3 of Part2 of NTA.

^[2] NTA s25, subdivision P.

^[3] NTA s214 which states that certain determinations are disallowable instruments for the purposes of s46A of the Acts Interpretation Act 1901

^[4] See Anne De Soyza, ‘The Northern Territory’s Alternative Native Title Scheme and the Senate’ (1999) 4(24) ILB 7.

^[5] NTA ss 26A(5), 26B(5), 43A(3).

^[6] Native Title (Right to Negotiate--Alternative Provisions) (Queensland Laws about Exploration Permits) Determination 2000; Native Title (Right to Negotiate--Alternative Provisions) (Queensland Laws about Mineral Development Licences) Determination 2000; Native Title (Right to Negotiate--Alternative Provisions) (Queensland Laws about Mining Claims) Determination 2000; Native Title (Right to Negotiate--Alternative Provisions) (Queensland Laws about Mining Leases) Determination 2000

^[7] Native Title (Approved Exploration Etc. Acts--Queensland) (Low Impact Exploration Permits) Determination 2000; Native Title (Approved Exploration Etc. Acts--Queensland) (Low Impact Mineral Development Licences) Determination 2000; Native Title (Approved Exploration Etc. Acts--Queensland) (Low Impact Prospecting Permits) Determination 2000.

^[8] Native Title Resolution Act 2000 (Qld) s19 and Schedule 2.

^[9] Native Title (Right to Negotiate--Alternative Provisions) (Queensland Laws about Exploration Permits for Alternative Provision Areas) Determination 2000; Native Title (Right to Negotiate--Alternative Provisions) (Queensland Laws about Mineral Development Licences for Alternative Provision Areas) Determination 2000; Native Title (Right to Negotiate--Alternative Provisions) (Queensland Laws about Mining Claims for Alternative Provision Areas) Determination 2000; Native Title (Right to Negotiate--Alternative Provisions) (Queensland Laws about Mining Leases for Alternative Provision Areas) Determination 2000

^[10] Native Title (Approved Gold or Tin Mining Acts--Queensland) (Surface Alluvium (Gold or Tin) Mining Claims) Determination 2000; Native Title (Approved Gold or Tin Mining Acts--Queensland) (Surface Alluvium (Gold or Tin) Mining Leases) Determination 2000.

^[11] Native Title (Right to Negotiate--Alternative Provisions) (Northern Territory Lands Acquisition Laws) Determination 1999; Native Title (Right to Negotiate--Alternative Provisions) (Northern Territory Mining Laws) Determination 1999; Native Title (Right to Negotiate--Alternative Provisions) (Northern Territory Petroleum Laws) Determination 1999.

^[12] See De Soyza, above n 4.

^[13] Native Title (Approved Exploration etc. Acts - New South Wales) (Mining) Determination 2000

Native Title (Approved Exploration etc. Acts - New South Wales) (Petroleum) Determination 2000

^[14] Native Title (Approved Opal or Gem Mining Area – Lightning Ridge (Area 1), New South Wales)

Determination 2000; Native Title (Approved Opal or Gem Mining Area – Lightning Ridge (Area 2), New South Wales) Determination 2000

^[15] Native Title (Right to Negotiate--Alternative Provisions) (Western Australia Laws about Alternative Provision Areas) Determination 2000.