Future Acts
Parallel Processing of Mining and Exploration Tenements
6.1 There are suggestions in the Native Title Act (although it is not
clear) that the right to negotiate process can only begin once a government
has decided that it will issue a mining or exploration tenement. [1] However, a government may not be able to make
a firm decision to issue a tenement until it has completed processes such
as environmental impact studies or warden's court hearings. Clearly, time
would be wasted if the right to negotiate and these other procedures are
unable to operate at the same time. The Government's proposal [2]
to amend the Act to allow for parallel processing is accordingly supported.
Restriction of the Right to Negotiate
6.2 Amendments which directly or indirectly tend to limit the right to
negotiate have been discussed above in relation to the registration test.
The right to negotiate was integral to the over-arching bargain represented
in the Native Title Act 1993. As has been noted, the restriction of the
right to negotiate may offend the principles in the RDA and adversely
affect remnant native title rights relating to the control of country.
[3] It would also upset the balance between
interests enshrined in the Native Title Act.
Proposed New Exclusion Mechanism
6.3 As well as seeking to impose an unconscionable fifteen part registration
test to limit access to the right to negotiate, the Government proposes
a mechanism by which exploration activities might be excluded from the
right to negotiate. [4] This would apply to acts or classes of acts
that are deemed unlikely to have a significant impact on the land or waters
concerned, including rights to explore, prospect or quarry. It is questionable
whether an intrusive activity such as quarrying should be exempted from
the right to negotiate.
6.4 As has been noted by the Social Justice Commissioner, the proposed
exclusion mechanism may result in native title holders having fewer rights
in relation to exploration than ordinary title holders. [5]
This may breach the RDA, even on a conservative interpretation of that
Act. [6] Accordingly, the amendment is opposed. It
is not good enough for the Committee report to give advice that the right
to negotiate should apply to mining activity under exploration licences
(para 5.12). If this amendment is aimed at expediting 'low impact' future
acts, it is notable that the Act already contains a procedure by which
the Commonwealth Minister may exclude acts having minimal effect from
the right to negotiate. [7] Further,
there is an expedited procedure [8] which
has enabled over 90 per cent of exploration tenements processed under
the Act to be granted without the need for negotiation and arbitration.
Minority Recommendation 7
| That the proposed s.26A (in Item 98J) not be adopted.
|
Renewals of Mining Leases
6.5 The Government has also proposed that the right to negotiate be removed
in respect of all renewals and regrants of mining and exploration tenements.
[9] However, the Act already excludes many renewals
of mining leases and exploration leases from the right to negotiate. [10] The further exclusion of renewals from the
right to negotiate would be an unacceptable additional erosion of the
right to negotiate.
Minority Recommendation 8
| That the proposed s.26B (in Item 98J) not be adopted,
s.26(2)(c) not be repealed (Item 98D), and the proposed s.25(1B) (in
Item 112) not be adopted. |
Proposed 'Once Only' Right to Negotiate
6.6 Further, the Government seeks to amend the Act to provide for a 'once
only' right to negotiate that may cover both mining and exploration (where
exploration has not already been excluded by the Commonwealth Minister
under the proposed new exclusion mechanism). [11]
At present the right to negotiate may apply several times in the tenement
sequence; eg at each exploration and mining licence stage and possibly
in relation to the renewal thereof. This is beneficial in that in most
cases it allows the parties to focus their negotiations on one set of
activities at a time; it is also convenient when Indigenous negotiators
are seeking instructions regarding an act from native title holders. If
a government did cover both exploration and mining in a s.29 notice the
result would be potentially unworkable; to paraphrase Father Frank Brennan
SJ, it could lead to 'mega-negotiations' attempting to deal with all future
contingencies at exploration stage. This might actually deter exploration:
. . . you create a situation where you set up an expectation,
particularly among Aboriginal claimants, that any prospective exploration
could be a 'Century Zinc' at the end of the process. [12]
Minority Recommendation 9
| That the proposed Item 98W (s.29(5)) not be adopted.
|
Proposed Exemption for Privately-Built Public Infrastructure
6.7 The Government also proposes to enable the Commonwealth Minister
to exempt from the right to negotiate procedure compulsory acquisitions
of native title rights to enable private companies to build public infrastructure.
[13] However, the Act already exempts compulsory
acquisitions where such infrastructure is to be built by a government.
[14] That is a significant concession on the
part of Indigenous people, and no case has been shown for extending it
to privately-built infrastructure. The Government needs to provide evidence
of the need for this amendment.
Time Limits on Negotiation and Arbitration Under the Right to Negotiate
6.8 The current negotiation period under the right to negotiate in respect
of a proposed right to mine is six months from the date of the relevant
s.29 notice [15]: if negotiations do
not produce a resolution and the matter is referred to an arbitral body
that body must take all reasonable steps to make a determination in relation
to the act within six months. [16]
6.9 The Government proposes to reduce each period to four months. [17] It would not be desirable to reduce the
negotiation period to four months. Native title parties often go into
negotiations over future acts without a clear or firm agenda regarding
the land. This places them at a disadvantage relative to developers (which
would be compounded if, as the Government proposes, the negotiations covered
an entire project rather than a discrete tenement). It is often the case
that negotiations do not start until at least two months from the issue
of a s.29 notice as native title claimants have been required to prepare
and lodge a claim in order to gain the right to negotiate. [18]
The arbitration period should not be reduced to four months unless this
would be realistic given the resources and workload of the Tribunal. The
onus is on the Government to show that this would be the case.
Minority Recommendation 10
| That the proposed Item 98ZE (s.35) be amended to substitute
6 for 4 at (a). |
Modifying the Expedited Procedure
6.10 The expedited procedure enables acts not involving major disturbance
(such as some kinds of exploration) to go ahead without the need for negotiation.
It only applies if the act 'does not directly interfere with community
life'. [19] This has been interpreted
to include non-physical interference:
Section 237(a), in stating the first requirement of an act attracting
the expedited procedure, requires that the act does not directly interfere
with the community life of the native title holders. It does not say
that such direct interference has to be of a physical type. "Community
life" might include all sorts of spiritual and the like activities
which might be directly interfered with without any physical interference.
For example, the very thought of intensive exploration activities, perhaps
involving vehicles, bulldozers and other heavy equipment and the setting
up of seismic lines on hunting grounds ten kilometres away, could upset
an Aboriginal community and directly interfere with its community life
without any physical interference with that life. Members of that community
might well be very distressed by the thought of such activities. The
spiritual part of life falls quite readily, as a matter of ordinary
language, into what is encompassed by "community life". [20]
6.11 In order to overcome this court decision, the Government proposes
to amend the Act so that the interference has to be physical in order
for the expedited procedure not to apply. [21]
This proposed amendment cannot be accepted; as was noted by Miss Lois
O'Donoghue in evidence before the Committee on 28 October 1996 [22],
it clearly fails to appreciate the spiritual nature of Indigenous links
to land.
Minority Recommendation 11
| That the proposed Item 98ZZY (para 237(a)) not be adopted.
|
Relevance of Coexisting Rights
6.12 For future act negotiations the Government proposes to direct the
attention of the parties and the arbitral body to the effect of coexisting
interests such as pastoral leases on native title. [23]
The assumption would appear to be that any native title that survives
a pastoral lease would amount to something less than exclusive possession
and that that should be taken into account in the process of working out
whether the proposed act can be done and, if so, on what terms.
6.13 The amendments misunderstand the right to negotiate which is about
whether certain activity shall proceed which affects native title. The
right to negotiate arises when a native title right is claimed pursuant
to a s.29 notice. The determination of extinguishment issues should be
left to the hearing of the claim itself. It is inappropriate to bring
on this aspect of the claim prematurely.
Minority Recommendation 12
| That the proposed Item 98ZW (s.39(1A)) not be adopted.
|
Obligation to Negotiate in Good Faith
6.14 The Federal Court has held that the failure of a government party
to negotiate in good faith under the right to negotiate prevents the government
referring a matter to an arbitral body for a determination about the act.
[24] The Government proposes two responses:
- to ensure that if any of the negotiation parties refuses or fails
to negotiate about matters unrelated to the effect of the act
on the actual or claimed native title, this does not mean the negotiation
party has not negotiated in good faith; [25]
- to ensure that an arbitral body can determine a matter provided the
person who referred it for arbitration negotiated in good faith - it
would not matter if someone other than the referring party failed to
do so. [26]
6.15 We have reservations about the merits and practicality of the first
of these proposals. Negotiations need not be confined to the strict legal
or factual issues. And it may be difficult to identify whether a matter
for negotiation is related to a proposed future act within the meaning
of the proposal. For example, would an offer by a native title party to
settle a matter on the basis of a royalty payment (something the Act encourages
[27]) be unrelated to the effect of
the act on the relevant native title interests?
6.16 The second of the proposals also gives rise to difficulty: it does
not protect against the possibility of collusion between government and
grantee parties whereby one might behave obstructively in a mediation
and the other, having given the appearance of willingness to negotiate
in good faith, is free to refer a matter for arbitration. [28]
Minority Recommendation 13
| That the amendment in Item 98ZB (s.31(1A)) not be adopted.
|
That Item 98ZG be amended so that the proposed s.36(1A) provides that
an arbitral body cannot make a future act determination unless both the
government and grantee parties have acted in good faith pursuant to s.31(1)(b).
Ministerial Intervention in the Right to Negotiate
6.17 The Native Title Act already provides for ministerial override of
future act determinations made by the Tribunal or other arbitral bodies
where this is considered by the Minister to be in the national or State
or Territory interest. [29] But a Minister can only intervene after
the negotiations have been pursued in good faith without a resolution
and the arbitral body has considered the matter and made a determination.
6.18 The Government proposes amendments permitting ministerial intervention
in two additional situations:
- First, at any time after the three month notification period upon
a s.29 notice has expired in order to prevent or approve a development
on the basis of economic and national interest considerations. [30]
- Second, there is provision for a Minister to request that the arbitral
body expedite a future act determination and for the Minister to make
a determination if the arbitral body has not done so within four months
of the matter being referred. [31]
The first of these amendments is unacceptable. A large mining project
will normally take some years to plan. A well-organised miner should be
expected to clear future tenements through the current right to negotiate
procedure in advance of them being required. The use of the proposed power
would be bound to lead to administrative law challenges.
6.19 Although the second amendment has some merit, the preference should
always be for arbitral bodies to make future act decisions, and if they
are not being made in a timely manner this would best be addressed by
properly resourcing such bodies. In addition, it would be undesirable
if the limited resources of arbitral bodies gave a Minister an excuse
to bring future act determinations into his or her office.
Minority Recommendation 14
That the proposed s.34A (in Item 98ZE) permitting ministerial intervention
prior to a future act determination not be adopted.
The Effect of Compulsory Acquisitions on Native Title
6.20 The Act provides that native title rights may be compulsorily acquired
on certain terms. The non-extinguishment principle would apply to the
acquisition itself, although native title could be extinguished by the
effect of the development that follows the acquisition. [32]
The Government proposes an amendment to the effect that native title would
be extinguished by the compulsory acquisition itself. [33]
This amendment would entail an unnecessary impairment of native title
rights.
Pastoral Lease Conversions
6.21 As the majority report recommends, consideration of the pastoral
lease conversion amendments [34] should
be deferred until (at least) such time as the Wik case has been determined
by the High Court. Until that decision is handed down it is arguable that
native title may have survived at least some pastoral leases. [35]
If it has, the conversion of a lease to authorise non-pastoral activities,
or to a stronger form of tenure, may result in the de facto extinguishment
of native title. The Government claims that there would be no such extinguishment
because the 'non-extinguishment principle' would apply. But under the
non-extinguishment principle [36] native
title would still be suspended to the extent of inconsistency with the
new purpose of the lease. That purpose may be entirely incompatible with
the enjoyment of native title. If the varied lease is a perpetual lease
native title may be perpetually suspended. There is no difference between
that and extinguishment. We agree with Miss O'Donoghue's view that this
would amount to extinguishment by stealth. [37]
6.22 Although the Government's amendments carry out the charade of preserving
any reservation in favour of continued Indigenous use, such a reservation
may be of little use if under the new purposes of the lease access is
physically impossible. Accordingly, the majority report's comments on
this matter are supported and Recommendation 10 is endorsed.
[Table of Contents]
Footnotes
[1] For example, the opening words of s.26 suggest
that a government must 'propose' to issue a tenement before the right
to negotiate procedure becomes relevant.
[2] Outline of Proposed Amendments to the
Native Title Amendment Bill 1996, p.2.
[3] See also the submission of Cape York Land
Council at Evidence, p.1826, which takes the view that the right
to negotiate as currently framed offers slim protection, in any event,
for remnant native title rights after 200 years.
[4] Exposure Draft, cl.40, item 98J, proposed
s.26A (p.9).
[5] The right to negotiate would not apply,
nor would the s.26(3) guarantee that native title holders have equivalent
procedural rights to holders of ordinary title: Exposure Draft, cl.40,
item 98G. Instead there would be potentially weaker procedural rights:
Exposure Draft, cl.40, item 98J (proposed s.26A(4)) (p.9 of the Exposure
Draft).
[6] Evidence p.3266
[7] Section 26(3)(b) and (4).
[8] Sections 32 and 237.
[9] See Outline of Proposed Amendments to
the Native Title Amendment Bill 1996 at pp.2-3; Exposure Draft, cl.40;
item 98D (proposed repeal of s.26(2)(c)); item 98J (proposed s.26B); see
also Native Title Amendment Bill 1996, sched.1, item 112, proposed s.25(1B).
[10] Sections 25, 26(2)(c) (second limb) and
228(3) and (4).
[11] Outline of Proposed Amendments to the
Native Title Amendment Bill 1996, pp.2-3 and 8.
[12] Evidence, p.2013.
[13] Items 98E and 98ZZB of the Exposure Draft.
[14] Section 26(2)(d).
[15] Section 35.
[16] Section 36.
[17] Outline of Proposed Amendments to the
Native Title Amendment Bill 1996, pp.3-4.
[18] Dodson M Native Title Report: July
1994 - June 1995 pp.42-43. This will extend to three months under
the Government's proposals; effectively this will give one month for what
could be very complex negotiations. This is utterly unrealistic.
[19] Section 237(a). (There are other conditions
in s.237(b) and (c).)
[20] Per Carr J in Ward v. Western Australia,
CLS 1996 FED 198 at p.43 (9 May 1996).
[21] Outline of Proposed Amendments to the
Native Title Amendment Bill 1996, pp.4-5.
[22] Evidence, p. 3508.
[23] Outline of Proposed Amendments to the
Native Title Amendment Bill 1996, p.5; Exposure Draft, item 98ZW (p.20).
[24] Walley v. Western Australia, (Carr
J, unreported, WAG 6004 of 1996)
[25] Outline of Proposed Amendments to the
Native Title Amendment Bill 1996, pp.7 and 8; Exposure Draft, Item
98ZB (p.13).
[26] Exposure Draft, Item 98ZG (p.16).
[27] Section 33.
[28] Submission of Aboriginal and Torres Strait
Islander Social Justice Commissioner, dated 5 November 1996, p.6.
[29] Section 42.
[30] Government's Outline of Proposed Amendments
to the Native Title Amendment Bill 1996, p.3.
[31] Ibid., p.6.
[32] Section 23(3).
[33] Item 115A of the Exposure Draft.
[34] Proposed sections 25(1C) to 25(1F).
[35] And the Wik case may not resolve
the question of extinguishment where a pastoral lease contains a reservation
in favour of Indigenous access.
[36] Section 238.
[37] Evidence, p.3508.
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