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Only some fourteen months after its commencement, the Native Title
Act 1993 stood in need of significant amendment as a consequence of
Brandy's case. Like the Human Rights and Equal Opportunity Commission,
the National Native Title Tribunal under the Act purported to exercise
the powers of a court; the High Court held that this was contrary to Chapter
III of the Constitution and invalid.
The Brandy problem and some miscellaneous matters were the subject
of the Keating Government's Native Title Amendment Bill 1995. The lapse
of that bill with the dissolution of the House of Representatives in January
this year meant that the problems with which it dealt remained to be addressed
by the incoming Coalition Government.
By the time the Howard Government assumed office, the Native Title Act
had been in operation for more than two years. In that period it became
clear that there were many more problems confronting the Act than those
presented by Brandy's case. First, numerous native title claims
were either ambit in nature, competing with other claims to the same 'country',
or were clearly unsubstantiated. Nevertheless, virtually all claims were
registered by the Tribunal following the decision by O'Loughlin J. in
August 1995; this provided that virtually all claims gained the 'right
to negotiate' but gave rise to complaint by Indigenous and other interests
alike. Second, the 'future act' process was unmanageable, in particular
for those States with the most mining activity: the Tribunal, the State
Government and Indigenous interests have struggled to handle the volume
of future act notices - for Indigenous interests, in many instances their
resources were unable to cope with the volume of notices necessitating
that they were unable to address many future act proposals and exercise
their 'right to negotiate'. Third, the process of mediation to resolve
native title claims was not working; no determinations of native title
had been made under the Act.
The Coalition Government discussed these problems in the first Outline
document of May 1996 Towards a More Workable Native Title Act.
This was followed by the tabling of the Native Title Amendment Bill 1996
on 27 June, the release on 8 October of the second Outline document, Outline
of Proposed Amendments to the Native Title Amendment Bill 1996, and
the tabling of the further Exposure Draft amendments on 17 October. Both
the amendment bill and the Exposure Draft were referred for inquiry and
report to the committee that I chair, the Parliamentary Joint Committee
on Native Title and the Aboriginal and Torres Strait Islander Land Fund.
In order to inquire into these matters the Committee conducted fourteen
days of public hearings across Australia and received numerous submissions.
While many submissions criticised the Government's approach to amending
the legislation, there was widespread agreement about the problems caused
by various provisions of the Act. The Committee has carefully considered
all of this material and it is taken into account in the report that I
table today.
The amendment bill, like the Keating Government's Native Title Amendment
Bill 1995, contains proposals to overcome problems emanating from Brandy.
Native title claims would be filed in the Federal Court. There has been
no criticism of this general approach which is endorsed by the Committee.
Further, the Committee's report supports the overall position taken by
the Government to make the Native Title Act more workable. A reasonable
registration test is proposed which would sift out those claims
which are unsustainable or which would be confronted by significant obstacles
were they to progress to mediation or were they to become part of 'future
act' negotiations. There is general acceptance of the need for a registration
test from Indigenous interests and industry alike. Importantly, although
unregistered claims would not qualify for the 'right to negotiate' concerning
development proposals, they would remain filed in the Federal Court and
mediation could proceed so that the claims could be settled.
In regard to mediation, that process has experienced difficulties
that require attention. If mediation is to be preferred to the protracted
adversarial context of courts, then it needs to produce results in an
efficient and fair manner. While the Tribunal appears to have been operating
as well as might be expected under the Act, the legislation is in need
of amendment in the interests of all parties to native title claims. In
reforming the Act to provide that native title is the focus of mediation
and that mediation be pursued where there is prospect of success but not
otherwise, the proposed amendments to the native title mediation process
are overdue.
Another significant issue that the proposed amendments address is the
'future act' regime. Not only did the Committee hear evidence that
this regime was a disincentive to development, but Indigenous people confirmed
that it could be contrary to their interests as a result. The proposed
amendments will allow the legitimate interests of native title holders
to be protected yet minimise unnecessary delays in the negotiating process.
The Committee heard evidence that it was highly desirable for the future
act process to contain triggers that progressed the matter. This is achieved
under the amendment proposals whereby:
- development activity with minimal impact (such as exploring/ prospecting/fossicking)
could proceed directly by Ministerial determination (s.26A);
- time limits on negotiation and arbitration would be shortened from
six to four months after the issue of a future act notice (s.35); and
- subject to conditions, the Minister could intervene in the negotiation
process and make a determination that the development can or cannot
proceed (s.34A).
Importantly, these proposals preserve for native title holders the 'right
to negotiate' in regard to overall development projects in normal circumstances.
The Government's amendment proposals contained in the Exposure Draft
of 8 October cover an additional two matters - indigenous land use
agreements (ILUA) and representative bodies. The Committee
believes that ILUAs require acknowledgment and registration for the benefit
of all parties; the amendment proposals are accordingly endorsed.
Similarly, there has been a clear need for representative bodies to be
subject to a statutory regime to ensure that the needs of native title
holders are met. The Committee has found that, in general, the proposed
regime is desirable.
In summary, then, the Committee report accepts the proposed amendments
in regard to Brandy, registration of claims, mediation, the 'future
act' regime and, in general, the statutory scheme for representative bodies.
This does not mean, however, that the Committee has endorsed the Native
Title Amendment Bill 1996 and the Exposure Draft amendments in their entirety.
The Committee does not believe it desirable to consider the proposed amendment
(Item 112) that would permit a pastoral lease renewal where the new lease
granted more extensive interests including a perpetual term until the
High Court's imminent decision in the Wik matter is handed down. The decision
may well obviate the need for this amendment.
Further, the Committee considers that, where a native title applicant
has been denied assistance by a representative body, ATSIC should not
be involved in conducting a review of the representative body's original
decision (so that the Minister may determine the matter). It needs to
be ensured that the confidence of native title claimants is maintained
in the appeal process. For this reason the proposed amendment at Item
114ZE is recommended to be itself amended.
Moreover, three other amendments are recommended as a result of the Committee's
deliberations. They are:
- that a native title application should be registered if it is 'reasonably
arguable' and that reference to 'prima facie'' examination should be
deleted;
- that reference to judges should be removed from the required qualifications
for appointment as President of the National Native Title Tribunal;
and
- that persons conducting consultancies in native title are not eligible
for appointment as Tribunal members, or must cease such activity upon
appointment.
This report that I table today is the sixth prepared by the Committee;
to this point the Committee has been able to arrive at consensus positions
and unanimous reports. Although the Chair's draft of this report was prepared
with that same objective, it has drawn a minority report from non-Government
members. That is a matter for genuine regret to me as Chair. (The Senate
should note that Senator Reynolds has not been able to sign the minority
report today, but I am assured that she wishes to subscribe to it.)
The committee cooperated well at public hearings and attendance was conscientious
in the main. Accordingly, it is disappointing that there was no attempt
by the minority to discuss their report with the full committee. The Democrat
member, who is a signatory to the minority report, did not attend any
of the public hearings held outside Canberra and did not participate in
any committee deliberations concerning the report. For the committee system
to operate effectively, there needs to be genuine involvement and cooperation.
Regretably, this did not occur. This does not keep faith with those who
are anxious to see the Native Title Act finally deliver benefits to Indigenous
people.
Given the advantages enjoyed by minority reports, in particular that
a clear target is presented by the majority view, I should outline the
most significant fallacies contained in the dissent to the Committee's
report.
First, the minority report claims to give 'primacy' to the Racial
Discrimination Act 1975 (RDA). This is a somewhat convenient approach
for non-Government members to take. They did not take it in 1993 when
the Native Title Act was being developed and passed through the Parliament.
May I remind the Senate that, pursuant to ss.14 and 19 of the Native Title
Act, native title was actually extinguished on a limited number of leases.
This legislative action was contrary to the RDA but is valid as a later
and specific act. What has provoked the present concern for the 'primacy'
of the RDA when that did not prevail only three years ago?
Further, however, it is the majority view that the amendments currently
proposed would not offend the RDA. In evidence to the Committee the Attorney-General's
Department confirmed that the 'right to negotiate' under the Native Title
Act is a 'special measure' pursuant to s.8 of the RDA. As such it is a
right not enjoyed by other Australians and may be affected by legislation
without overriding the RDA. And, as I have already explained, the proposed
amendment permitting pastoral lease renewals on more favourable grounds,
which the Social Justice Commissioner has suggested would override the
RDA, is the subject of a recommendation by the Committee that it not be
considered by the Parliament until the High Court has delivered judgement
in the Wik matter.
Moreover, the minority report's approach to the RDA is, in principle,
bad law. To purport to make all provisions amending the Native Title Act
subject to the RDA is to create a further wide range of legal uncertainties.
Finally, the minority report has overlooked the fact that the Native Title
Act already makes an early reference to the RDA in s.7:
7(1) Nothing in this Act affects the operation of the Racial Discrimination
Act 1975.
_(2) Subsection (1) does not affect the validation of past acts by
or in accordance with this Act.
In summary, the approach of the minority report to give 'primacy' to
the RDA is, in addition to being grossly hypocritical, addressing a problem
which has not been shown to exist, is bad law, and is unnecessary. It
is a sentiment that is superficially attractive, but will not bear any
kind of analysis. The Prime Minister's assurance that the Government would
respect the principles of the RDA remains uncontradicted by the amendment
proposals that the Committee has endorsed.
Second, the minority report is critical of the proposed registration
test for native title applications. It should be borne in mind that the
registration test is not the doorway to mediation for claims; under the
proposed amendments claims would be filed in the Federal Court and could
proceed to mediation whether registered or not. Rather, registration is
the threshold test for access to the 'right to negotiate' regime for 'future
acts'.
Not all applications should have access to the 'right to negotiate'.
Indigenous leaders have confirmed that some native title claims are ambit
claims and vexatious. For such claims to be excluded from the 'right to
negotiate' regime a reasonable test is required. The Government has proposed
such a test in seven parts.
The minority report makes the mistake of arguing that the withdrawal
or restriction of the 'right to negotiate' may breach the RDA. This assertion
is unsustainable on several grounds:
- it has not been shown that the 'right to negotiate' is a right subject
to the RDA;
- the 'right to negotiate' is a 'special measure' which may be modified
without offending the RDA; and
- the 'right to negotiate' cannot in any case be shown properly to apply
to all claims (although that has virtually been the case as a practical
fact since the decision of O'Loughlin J. in August 1995).
While the threshold regime for access to the 'right to negotiate' is
a matter requiring judgement as to what is fair and workable, the minority
report avoids serious consideration of the extent of difficulties for
project development where unsubstantiated claims are involved. The majority
does not seek to avoid the fact that the test is demanding; were it not
so, the present circumstance where unjustifiable claims seriously hinder
the 'future act' process would remain. It should be remembered in this
context that project developments provide real and genuine economic benefits
to the local Indigenous communities. To delay projects or frustrate them
from commencing is to deny Indigenous people the opportunity to share
in the wealth created by such projects.
Third, and in regard to mediation, the minority report is critical
of the fact that the proposed s.86A concentrates mediation on native title.
In the view of the minority, mediation should seek to reconcile the interests
of the parties rather than concentrate on their perceived rights.
This is a most questionable proposal. The National Native Title Tribunal
was established in part to facilitate mediation pursuant to Part 3 of
the Act; and the Act has as its first object the recognition and protection
of native title. Where mediation ranges too far beyond the question of
native title the process exceeds its proper purpose. Further, applications
waiting for mediation are disadvantaged by time consuming mediation of
other claims not directed towards native title. This is a most undesirable
outcome from the perspective of applicants who are exercising their rights
under the Act to participate in mediation about native title.
Fourth, the minority report criticises various 'future act' amendment
proposals: they include the possible exclusion of exploration from the
'right to negotiate', a 'once only right to negotiate', a reduction in
the 'right to negotiate' negotiation period and ministerial intervention
in the right to negotiate.
Again, these are all matters where judgement must be exercised: the fairness
of the process for native title applicants must be balanced against the
rights of other Australians to the development of enterprises; the national
good must also be kept in perspective. Provided that the interests of
native title claimants are preserved in this process, a flexible regime
that facilitates development is to be endorsed. The Government appears
to have formulated amendment proposals complying with this objective that
will address the current significant difficulties. The provision for indigenous
land use agreements to be registered will assist this process considerably.
The presentation of the minority report and its contents indicate that
the proposed amendments to the Native Title Act will be a major issue
for the Senate early in the Autumn sittings. This, together with the fact
that submissions are still being provided, necessitates that the matter
should continue before the Native Title Committee for another month and
for further report. The majority report makes this recommendation, which
I will be moving in this chamber shortly. I commend that recommendation
and this report to the Senate.
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