Registration of Claims
4.1 It is agreed in principle that a native title claim should receive
some scrutiny before the claimant becomes eligible to negotiate under
the right to negotiate provisions, or eligible to prevent future acts
gaining s.24 protection under the non-claimant procedure. However, the
registration test proposed in s.190A is manifestly unjust. The Tribunal
Registrar has pointed out that the seven conditions for registration contained
in the June Amendment Bill and the Exposure Draft in fact amount to fifteen.
[1] This would impose a considerable burden on
a claimant and on the Registrar (who would be obliged to apply the test).
It would be difficult enough to prepare a claim within the requisite three
months in response to a proposed development on native title land, let
alone have it registered. The test could deny Indigenous people their
right to negotiate altogether. [2] The
Social Justice Commissioner is of the view that the right to negotiate
is an intrinsic aspect of native title. [3]
No amendments to the Act should preempt court determinations concerning
the extinguishment of native title.
Minority Recommendation 3
| That no amendments to the Native Title Act 1993
be adopted that would preempt the common law on the extinguishment
of native title. |
4.2 There is a number of proposed conditions for registration which are
of profound concern. These include:
- Section 190A(7) requires a positive prima facie case to be
established (in contrast with s.190A(3) of the former Government's Native
Title Amendment Bill 1995, which was satisfied unless the Registrar
considered that prima facie the claim could not be made out).
This, and the requirement that a prima facie case be shown in
relation to each right claimed, raises the prospect of substantially
plausible claims not being registered because of doubt - in the Registrar's
mind - about one single element.
- Meeting the condition in s.190A(8)(f) [4]
(that a claim contain a general description of the factual basis upon
which it is asserted that the claimants and their predecessors are associated
with the area and the basis upon which it is asserted that there are
continuing traditional laws and customs giving rise to native title)
may necessitate considerable anthropological investigation. This is
not appropriate for an administrative screening process. [5]
- Section 190A(10) prevents registration if an application discloses,
or the Registrar is otherwise aware, that it relates to land which at
any time has been covered by freehold or a residential, commercial or
perpetual lease (but not grants under Aboriginal land rights legislation
or a pastoral or mining lease). [6] However, it is yet to be confirmed that
all such grants extinguish native title. The provision could preempt
common law determination of the circumstances under which native title
is extinguished by various kinds of leases.
4.3 As has been noted, a claimant must satisfy the registration test
in order to gain the right to negotiate or otherwise respond to a notice
of a proposed development. In potentially denying many claimants timely
access to the right to negotiate the proposed registration test may in
effect extinguish or impair a native title right - namely, the right to
be consulted about entry onto and use of land. It is not at all clear
that the right to negotiate is purely a statutory right granted by Parliament.
[7]
4.4 The withdrawal or restriction of the right to negotiate may breach
the Racial Discrimination Act (RDA). The Government appears to hold the
view that the right to negotiate is merely a discretionary 'special measure'
which can be given and taken away by political fiat provided that there
is basic formal equality at law. [8] On this view, provided native title holders
and ordinary title holders have the same procedural rights in relation
to proposed developments, the requirements of the RDA are satisfied. This
argument assumes that the RDA and the International Convention on the
Elimination of All Forms of Racial Discrimination only require formal
equality rather than substantial equality or equality of outcome by way
of respect for rights. However, recent legal authority and opinion support
the view that equality of outcome is required by the RDA. [9] Although the right to negotiate is not provided
to ordinary title holders as such, it is a measure directed towards ameliorating
Aboriginal social and economic conditions to achieve an equality of outcome.
[10] As such, its removal may offend the principles
in the RDA and the Convention.
4.5 Further, the proposed test is complex and would lead to extensive
litigation, which flies in the face of the original intention that the
Act minimise costly argument in the courts. The Tribunal could become
involved in contested, quasi-judicial decisionmaking, which would detract
from its mediation functions. If the Tribunal were to become closely identified
with contentious decisions affecting important rights it would be difficult
for it to win the confidence of all the parties in a mediation. [11]
4.6 Finally, the Government's proposal that the test apply in relation
to any claim where a s.29 notice is issued after the new test comes into
effect, is objectionable, as is the proposal that all claims lodged on
or after 27 June 1996 and before the registration test comes into force
would be subjected to the new test. [12] The following observations can be made:
- This would effectively widen the net of an unjust registration test
which, for the reasons given above, is potentially in breach of the
principles in the RDA, and may have the effect of impairing a native
title right. [13]
- Although on 27 June 1996 the Government gave notice that a registration
test would apply in relation to claims lodged after that date, the test
now proposed includes additional conditions of registration that
were not in the test announced on 27 June [14]
- it is possible that claims lodged after 27 June may have satisfied
the test then proposed but would not satisfy the test now proposed,
with its additional conditions.
- The proposal to apply the test to claims lodged before 27 June (upon
the first s.29 notice being issued in relation to the claimed area after
the registration test has come into effect) [15]
also has difficulties: prior to 27 June, claims were prepared, lodged
and referred to mediation on the basis of the current law - to prepare
for the new test they may need to be amended, possibly to include additional
or different parties, which could be disruptive of mediation.
Minority Recommendation 4
| That the registration test proposed in Items 96, 114A
and 114B (s.190A) of the Amendment Bill and Exposure Draft not be
adopted. That the registration test proposed at s.190A of the Native
Title Amendment Bill 1995 be considered for adoption. This would be
on the basis that there would be no discretion allowing consideration
of material extrinsic to that found in, or accompanying, a native
title application. |
[Table of Contents]
Footnotes
[1] Evidence, p.3241
[2] In this regard, it is important to note
that a claimant would only gain the right to negotiate if the claim is
both lodged and registered within the three month notification
period in the s.29 notice. Compare the provisions relating to non-claimant
applications and Indigenous Land Use Agreements where, for the native
title claimant to gain certain rights, it is only essential for the claim
to be lodged within the three month period; registration may take
place outside the period.
[3] Native Title Report July 1995 - June
1996, pp. 18-20
[4] As amended by clauses 33 to 36 on p.7 of
the Exposure Draft.
[5] Dodson M, op. cit., p.115.
[6] Clause 38 on p.7 of the Exposure Draft seeks
to amend s.190A(10) to include perpetual leases.
[7] Woodward, A.E., Aboriginal Land Rights
Commission: 2nd Report April 1974, p.108.
[8] Towards a More Workable Native Title
Act: An Outline of Proposed Amendments (May 1996), par.42; Evidence,
pp.3213-3214; see also s.8 of the Racial Discrimination Act 1975
(C'th) and Article 1(4) of the International Convention on the
Elimination of All Forms of Racial Discrimination.
[9] Opinion of Mr John Basten QC as quoted in
Dodson M op. cit. at pp.23 to 25 and Western Australia v. The Commonwealth
(1995) 183 CLR 373 at 483-484.
[10] Indeed ordinary title holders may have
veto rights; for example, in Victoria property holders have veto rights
over land within 100 metres of a house, farm building, church or cemetery.
Evidence, p.3110.
[11] See Chapter 3 of the Committee's Fourth
Report.
[12] Outline of Proposed Amendments to the
Native Title Amendment Bill 1996, pp.17 and 18; Exposure Draft, Part
2, Division 2, Item 7(3) and (4) (p.76).
[13] In this regard, the right to negotiate
is more than a mere 'administrative benefit'.
[14] Under the transitional provisions, two
additional conditions of registration would apply: conditions six and
seven (the fifth condition of registration would not apply by reason of
Part 2, Division 2, Item 6(b)). The sixth condition is that it appears
from the application that the persons who claim, or with whom persons
claim, in the application to hold native title include all persons who
hold the common or group rights comprising native title (Exposure Draft,
p.8). The seventh condition is that a representative body has certified,
or it appears to the Registrar, that (1) the claimants have authority
of the persons whom it is claimed hold common rights, and (2) that all
reasonable efforts have been made to ensure that the application describes
or identifies the persons holding those common rights (Exposure Draft,
p.32). Further, the fourth condition of registration would be amended
so that if the Registrar becomes aware of a perpetual lease over the claim
area, that would prevent a claim from being registered.
[15] Exposure Draft, Part 2, Division 2, Item
7(3).
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