Future Acts
The Right to Negotiate Regime
5.1 Aboriginal and Torres Strait Islander people are recognised as having
a strong relationship to their land. For this reason the Aboriginal Land
Rights (Northern Territory) Act 1976 provides a right of veto over mining
to holders of aboriginal freehold.
5.2 Father Frank Brennan advised the Committee that the Keating Government
did not agree to provide a veto in the Native Title Bill, but allowed
a right to negotiate:
The Aborigines wore that as being a just and proper settlement.
I think they conceded a hell of a lot in doing that ... [1]
The Native Title Act 1993 provides at s.26(2) that the 'right
to negotiate' applies at each stage of the creation, variation or extension
of mining and exploration tenements.
5.3 The mining industry has argued that to negotiate with native title
holders at the prospecting, exploration and mining stages of a project
is a disincentive to industry. Mediation and arbitration can apply at
each stage (s.31). The first Outline document accepted this argument:
When a project involves more than one act attracting the right
to negotiate, the relevant notification, negotiation and arbitration
steps associated with those acts may be combined so that it is a 'once-only'
process. The renewal of mining titles that have gone through the right
to negotiate would not have to go through the process again. [2]
5.4 Father Brennan has presented two difficulties for this proposal.
First, if the right to negotiate can only be exercised once, it would
be at the phase of application for prospecting/exploration or at the mining
stage. In the earlier phase Indigenous people could have unrealistic expectations
of the benefits available:
Therefore, you have a mega-negotiation over every access for
exploration, which, of course, is ridiculous. [3]
5.5 Second, if the right to negotiate were exercisable at the mining
stage, Aboriginal and Torres Strait Islander people may not register their
native title interest at an early stage in the project:
If it is not there at the exploration stage, then we are going
to be confronted with the situation where there will not be a move to
a wholesale registration of native title interests throughout the country.
Secondly, it will only be on the discovery of a major ore body that
there will be agitation about who the native title holders are. The
registration processes will then take place in the midst of the anxieties
about the major royalty payments or pay-offs that might be expected
out of something of that sort. [4]
5.6 There are two comments to be made on Father Brennan's argument. First,
under the Government's Exposure Draft proposal the right to negotiate
could be confined to the mining stage only by Ministerial determination
(item 98J of the Exposure Draft); otherwise the amendments provide that
a government issuing a s.29 notice may give notice of two or more acts
relevant to the project (item 98W of the Exposure Draft). While this would
not allow native title claimants to participate as of right in the process
of granting prospecting/exploration licences, their rights would be preserved
in regard to the overall mining project. Whether the mega-negotiations
that Father Brennan has cautioned against would be avoided remains to
be seen. It is important to note the advice of the second Outline document
(p.3) that large and diverse projects will not have to be treated as one
project, particularly if the native title parties are likely to have different
interests in different parts of the project. It would be up to the government
issuing the notice to determine the acts to be covered in a notice; a
government anticipating the possibility of a mega-negotiation could choose
to issue a separate s.29 notice for the exploration stage.
5.7 Second, under the present arrangements, Indigenous people are not
being drawn into the 'registration' system endorsed by Father Brennan.
Western Australia has the most mining activity in Australia. In that jurisdiction
as at 21 June 1996 ninety-nine per cent of prospecting licences submitted
to the future act process under the Act were cleared without response
from native title claimants; ninety-one per cent of exploration licences
similarly drew no response. If the present regime is designed to entice
'registration' then it is failing; an argument for its retention on these
grounds cannot be sustained.
5.8 A possible rejoinder to the proposed amendment is to claim that the
removal of the right to negotiate at each project stage would amount to
the removal of a native title right. An argument of this kind has been
put by the Social Justice Commissioner. [5]
There are, however, some difficulties with this position.
5.9 First, it has not been established that a 'right to negotiate' is
a native title right. There is, of course, an acknowledged right of Indigenous
people to 'speak for country'. The nature of their right, however, is
unclear. Those who speak for country do not necessarily possess native
title. [6] And the possession of native
title and its content needs to be ascertained case by case. Only in that
way will it ever be discovered whether a particular native title right
might include the concept of 'right to negotiate'.
5.10 Second, if it is agreed that native title includes the concept of
right to negotiate, the question arises what the limits of that right
are. The Social Justice Commissioner quotes an Australian Heritage Commission
publication:
Ownership of country and knowledge is manifested through rights
to be asked. While Aboriginal people rarely say 'no', provided that
the request is in keeping with what is appropriate for a given place
or use, they insist upon the right to be asked, and hence upon their
right to say either 'yes' or 'no'. [7]
Now if this is the content of the right, it encompasses a right of veto,
not just a right to negotiate. And if the right extends to veto, what
is the threshold of 'country' over which the right might prevail? Conceptually
it covers all elements including airspace.
5.11 Father Brennan has claimed that the right of veto was conceded by
Indigenous people in 1993. The right to negotiate, then, would be a limited
remnant right; provided that it can be exercised, any native title right
associated with it will be preserved. And the proposed amendment preserves
the right to negotiate.
5.12 It may be useful to record in this context that the extent of mining
activity under various forms of licence depends in large part on the regime
established in each State and Territory. That is, bulk samples which significantly
affect the environment, are possible in some States under exploration
licences because of the State legislation. The right to negotiate should
usually apply for such activity; that is, for the purposes of this part
of the proposed amendment, prospecting and exploration are acts included
in the project to which the right to negotiate can still apply.
[Table of Contents]
Section 21 Agreements
5.13 The first Outline document (p.19) explains that the development
of native title land is facilitated by s.21 of the Act: by agreement with
Government native title holders may convert their title or authorise future
acts affecting the title. Importantly, s.21 agreements allow for native
title holders to agree to extinguishment.
5.14 It has been unclear whether future acts covered by s.21 agreements
would be subject to the future act provisions (ss.26 to 44) of the Act.
The first Outline document confirms that the proposed amendments make
it clear that future acts covered by s.21 agreements would not be subject
to the right to negotiate process and would protect future acts done under
s.21 agreements in the event that there was a subsequent variation to
a native title determination. To give effect to these proposals, the Native
Title Amendment Bill 1996 (Part 3):
- at item 99 inserts a new section (21A) providing for
- the validity of acts agreed with determined native title holders
prior to a further native title determination that identifies any
additional native title holders;
- compensation to affected parties; and
- at item 100 inserts a new subsection making it clear that for an act
authorised by a s.21 agreement, the right to negotiate provisions do
not apply.
5.15 These amendments are supported. They ensure the validity of future
acts in the unlikely event that a native title claimant other than a party
to the s.21 agreement is subsequently determined to be a native title
holder for that area; they also confirm that in those circumstances the
right to negotiate does not apply. This increases the confidence with
which industry can reach future act agreements and preserves the rights
of native title holders, including the right to compensation from the
Crown.
Future Act Procedure
Non-Claimant Applications
5.16 Under the Act s.24 provides that, where a non-claimant application
is taken to be unopposed pursuant to s.67(4), any future act done prior
to a determination that native title exists is valid; this is known as
's.24 protection', allowing developers to proceed in the absence of a
response to a non-claimant application. Future acts done prior to a native
title determination in such circumstances are valid.
5.17 The Government has outlined reasons for proceeding with amendments
to the non-claimant process and s.24 in paragraphs 54 to 61 of the first
Outline document. In essence those reasons and their effects are:
- part of the response to the Brandy judgement required an amendment
to the acceptance procedure;
- only claims made before or within the notification period and which
are subsequently registered would be able to defeat s.24 protection;
- s.24 protection would apply to any future act that takes place before
there is a positive determination that native title exists over the
area;
- acts to which s.24 protection applies would remain valid after a native
title determination;
- acts validated with s.24 protection would attract compensation following
a native title determination;
- the amendments also clarify the situation where a native title application
is adjourned, withdrawn or otherwise dismissed; and
- the time in which a claimant application can be made is proposed to
be extended from two to three months so as to prevent s.24 protection
from arising if the claim is subsequently registered.
[Table of Contents]
Lease Conversions
5.18 Part 6 of Schedule 1 to the Amendment Bill has been proposed to
facilitate certain acts on pastoral leases currently problematic due to
the uncertainty about native title extinguishment on pastoral leases.
The Explanatory Memorandum advises that the amendments:
will clarify the circumstances in which certain leases and other
interests originally granted before 1 January 1994 may be renewed, regranted
or extended, and in which pastoral leases can be varied or non-pastoral
lease activities carried out on the land. (p.3)
The first Outline document (para 62) explains that the facilitation of
acts under this proposal includes the conversion of pastoral leases from
term to perpetual leases; other acts included would be those that allow
pastoralists to engage in different activities under the lease (such as
agricultural, commercial or tourism activities) without changing the character
of the lease as 'pastoral'.
5.19 Father Brennan argued against this amendment on two grounds: first,
that it was unnecessary from the leaseholders' perspective and, second,
that it is inappropriate to propose the amendment prior to a judgment
by the High Court in the Wik matter.
5.20 In regard to the first argument Father Brennan advised that, concerning
the Wik matter:
During the course of argument in the High Court, under questioning
from the bench, the QC for the pastoralists eventually had to admit
that pastoralists, under the Native Title Act, can renew their pastoral
leases on identical terms and conditions as their existing leases, without
ever having to negotiate with native title holders. Therefore, in terms
of renewal, there is no problem. [8]
It is certainly the case that, pursuant to s.25(1) of the Act, if a future
act consists in the renewal of any interest in relation to land or waters
in exercise of a legally enforceable right, the act is valid, the non-extinguishment
principle applies and compensation can be payable. [9]
The proposed amendment, then, is to enable lease conversions that go beyond
legally enforceable rights and provide variations to the lease purposes
originally specified.
5.21 The question then arises whether it is desirable to provide for
such variations and whether it is appropriate to allow that at this stage.
Father Brennan has commented:
The other claim of pastoralists has been that, where they want
to utilise their land in a way where they need rights additional to
the existing pastoral lease rights, they ought to be able to exercise
those rights. Of course, the amendment bill contains a series of provisions
for things like permissible pastoral lease related acts, which will
allow greater use of pastoral land, not just for pastoral purposes,
where there can be additional rights enjoyed by a pastoralist. If indeed
there is an interference with native title, the native title rights
to that extent will be reduced and compensation would be payable.
I have argued publicly on this that it is regrettable that government
has proposed this as an amendment at this stage, prior to the Wik decision:
clearly, if the Wik case were to determine that there were still native
title rights existing on pastoral leases, this expansion of pastoralists'
rights with a concomitant reduction in native title rights is undoubtedly
a breach of the principles of the Racial Discrimination Act. The problem
will then be, as we move into the debate of the substance of the amendments
of the Native title Act - for example, on the right to negotiate or
on the threshold test - that all of that will become coloured by an
undoubted breach of the principles of the Racial Discrimination Act
where there is an increase of the pastoralist's right with a concomitant
reduction of the rights of native title holders. [10]
5.22 It is important to note that subsection 25(1D) of the amended Act
would allow a pastoral lease renewal where the renewed, regranted or extended
lease created a proprietary interest where the previous lease created
only a non-proprietary interest. In addition, such a lease could be renewed,
regranted or extended as a perpetual lease. (Permissible pastoral lease
variations, however, cannot permit mining.) On this point the Aboriginal
and Torres Strait Islander Social Justice Commissioner has claimed:
It is a transparent breach of the Government's commitment to
respect the principles of the RDA. Under the thin veneer of refraining
from explicit statutory extinguishment, it is my firm view that a de
facto extinguishment is sought. The equal protection of native title
interests would be abandoned - Indigenous interests would be subordinated.
[11]
5.23 The RDA question aside, however, there is certainly an incentive
to defer this amendment until the High Court brings down its judgement
in the Wik matter. Some possible outcomes in that judgement could even
obviate the need for this amendment, either in certain classes or for
any lease. Accordingly, while it would be appropriate for the House of
Representatives to pass this amendment, given the timing of the bill's
introduction into the Senate that chamber is likely to have the benefit
of the High Court's judgement in Wik prior to considering the bill. It
would be desirable for the Senate to have the benefit of that judgement
before considering this particular amendment.
5.24 The amendment proposed in s.25(1B) falls into a different category.
The effect would be to remove an anomaly in the Act by ensuring that all
discretionary renewals of pre-1994 mining leases are valid and exempt
from the right to negotiate. This amendment is endorsed.
Recommendation 10
| That the Senate not consider the permissible pastoral
lease renewal provisions of the Native Title Amendment Bill 1996
at Part 6, item 112 Subsection 25 (1C) to (1F) until the High Court
has provided judgement in the Wik matter. |
[Table of Contents]
Footnotes
[1] Evidence, p.2018.
[2] Towards a More Workable Native Title
Act, p.15.
[3] Evidence, p.2013.
[4] Evidence, p.2014.
[5] Native Title Report July 1995 - June
1996, pp.18-23.
[6] French J, 'Pathways to Government' in The
Way Forward: Collaboration and Cooperation 'In Country' ed
by Gary D. Meyers, AGPS p.28.
[7] Native Title Report July 1995-June 1996,
p.22.
[8] Evidence, p.2014.
[9] See also ss.228(3) and (4) and 235(7).
[10] Evidence, p.2015.
[11] Native Title Report July 1995 - June
1996, p.6.
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