CHAPTER 3
3.1 In Submission No 82 the Commonwealth Departments listed eight proposed
amendments to the NTA which were said to raise RDA issues:
- Ministerial intervention in the right to negotiate process
(proposed ss.34A, 36A);
- a process for excluding 'approved scheme' acts (such as exploration)
which do not have a significant impact on land or waters from the right
to negotiate (proposed s.26A);
- a 'once-only' right to negotiate option for 'project acts'
(proposed ss.29(5) - (7) and 42A);
- a heightened registration test, which screens access to the right
to negotiate, and some other protections under the NTA (proposed
s.190A);
- the renewal of pre 1 January 1994 mining leases (proposed s.25(1B));
- the renewal of mining leases which have already gone through the RTN
or been the subject of an agreement between the parties or arbitral
determination (proposed s.26B);
- the inclusion of an express reference to 'physical aspects of community
life' in the factors relevant to a decision whether an act attracts
the expedited procedure (proposed amendment to s.237 (a)); and
- the permissible diversification of activities and creation of new
or greater proprietary interests in relation to pastoral leases (proposed
ss.25(1C) - 25(1F).
The Departments' view of each of these issues is summarised as follows:
(a) Ministerial Intervention
3.2 The proposed amendments provide the Minister with the opportunity
to intervene at two stages of the right to negotiate (RTN):
- under the proposed s.34A the Minister would have the power of intervention
after three months of notice of the government party's intention to
do a RTN act: in conformity with strict conditions the Minister may
make a determination that the act may proceed; and
- under the proposed s.36A the Minister would have power to intervene
where the arbitral body determination is unreasonably delayed: the Minister
would be able to intervene if in the State/Territory/national interest
(as appropriate).
Both of these amendments would not require a Minister to intervene but
provide a discretionary power. Importantly, Ministerial intervention pursuant
to ss.34A and 36A is subject to the conditions laid down in s.36B. They
include notification and the opportunity to make a submission; that is,
consultation is preserved.
3.3 The Committee has noted the opinion of Mr John Basten QC to the effect
that the Minister under s.34A would not be required to consider possible
detriment to native title interests. Mr Basten's view was that a court
could consider that the Minister could not have regard to such an issue.
[1] The Attorney-General's Department,
however, has advised against Mr Basten's opinion:
It is difficult to see how a Minister could consider that the
condition had been satisfied without having regard to any detriment
likely to be suffered by native title holders, and balancing that detriment
against any benefits. In a case where there were benefits but these
were outweighed by a detriment, or where the benefits and the detriment
might be regarded as equal (and therefore might be seen as cancelling
each other out), I do not consider that a court would say that the Minister
was compelled to disregard the detriment and to conclude that the net
result was that native title holders would enjoy significant benefits
if the act were done. [2]
(b) Exclusion of Categories from the RTN Process
3.4 The proposed s.26A would adjust the current power of the Minister
to exclude from the RTN certain acts ('approved scheme acts') which are
unlikely to have a significant impact on land or waters. Again, this action
may be taken only in conformity with several conditions (including notification
of native title holders and an invitation for submissions).
3.5 The Departments have noted that:
The proposal in the amendments is very similar to the provisions currently
contained in the NTA (s.26(4)). The proposal ensures that in key respects
formal equality is provided, and that in particular in relation to access
matters, native title holders are ensured of procedures, even if these
are not provided to other title holders. [3]
(c) 'Once only' RTN for Project Acts
3.6 Under the current system, all permissible future acts attracting
the RTN have to proceed separately through the RTN. The proposal is to
permit two or more acts involved in a project to be included (and identified
as such) in the one s.29 notice, and for the RTN to apply as if the project
acts were one act (proposed s.29(5) and (6)). The acts which would otherwise
have individually attracted the RTN must be identified. The expedited
procedure cannot be applied to any of the project acts.
(d) Heightened Registration Test
3.7 The proposed s.190A is designed to ensure an 'acceptable' standard
of claims within the RTN system. It is proposed that this test apply to
claims in applications made after 27 June 1996, and also to apply to pre-27
June 1996 claims when a s.29 notice is issued after commencement of the
amendments.
3.8 The registration test does not need to be met in order for native
title to be claimed in the Federal Court or a recognised State/Territory
body. Passing the test provides access to specific statutory rights (including
participation in mediation conferences and, importantly, the RTN). Other
title holders are generally required to specify and provide support for
their interest in land, if not prove their interest, in order to obtain
rights under legislation. This provision requires that native title claimants
specify and provide some support for their claim in order to obtain specific
rights under the NTA. The specific obligations reflect the nature of native
title.
(e) Renewal of Mining Leases
3.9 The proposed s.25(1B) is to permit the renewal, regrant or extension
('renewals') of mining leases which were created before 1 January 1994
or where the creation of the lease was itself a permissible lease renewal.
The renewal must not create a new proprietary interest or a larger proprietary
interest, and any reservation or condition for the benefit of Aboriginal
peoples or Torres Strait Islanders must be preserved. If native title
has survived, the non-extinguishment principle applies, and compensation
may be payable. Ordinary title holders in general do not have rights in
relation to the renewal of mining licences. Under s.23(6), native title
holders will enjoy the same rights that ordinary title holders enjoy with
respect to renewals or regrants.
(f) Mining Renewals Already Through the RTN
3.10 Under the current regime, even if the grant of a right to mine may
have gone through the RTN process properly, any renewal, regrant or extension
of the term of that right to mine is regarded as a further grant of a
right to mine and has to proceed through the RTN again. Under the proposed
s.26B, such a renewal, regrant or extension will not have to go through
the process again, so long as there is no greater area covered by the
title in question. But in cases where the mining lease was granted because
at the end of the notification period there was no registered native title
claim made in response to the s.29 notification, the RTN will not have
been taken to have been satisfied for the purposes of the renewal etc.
3.11 Having removed the necessity for such acts to go through the RTN
process again, native title holders retain the same procedural rights
as ordinary title holders (s.23(6)). They will also have a right to compensation
if freeholders have such a right (s.23(4)). Thus native title holders
enjoy equal procedural and compensation rights as freeholders, maintaining
the standard of equality.
(g) 'Physical Aspects' and the Expedited Procedure
3.12 At s.237 the NTA sets out the circumstances in which an act (which
would otherwise attract the RTN) is to attract the expedited procedure.
The first factor is presently stated in terms of whether the act will
not directly interfere with the community life of the native title holders.
As a result of the decision of Carr J in Ward v Western Australia (1996)
136 ALR 557 the scope of this paragraph has become significantly wider
than originally intended. [4] The proposed
amendments clarify that the act must not be likely to directly interfere
with the physical aspects of community life. Given the RTN's status as
a special measure, it is open for the Commonwealth to set the appropriate
standards for the availability of the special measure. The Departments
advise that this is not an amendment of the definition of 'native title'
in s.223, which reflects the common law position that native title is
rooted in the traditions and customs of the holders.
(h) Renewal of Pastoral Leases
3.13 In addition to confirming the NTA's existing provision for the renewal,
regrant and extensions of pre-1994 pastoral, agricultural residential
or commercial leases, the amendments proposed extend the range of valid
future acts in relation to pre-1994 pastoral leases. Under the amendments
(proposed s.25(1C) - (1E)), the renewal may permit non-pastoral activities
(other than mining) to be carried out, may create a proprietary interest
where none previously existed or enlarge the proprietary interest involved,
and may permit a perpetual lease to be created through the renewal. There
is also provision for the variation of pastoral leases to allow for non-pastoral
lease activities (other than mining). The Departments have advised that
the Government has resisted calls for the legislative extinguishment of
native title over pastoral leasehold, but has chosen to deal with the
current uncertainty by undertaking these reforms.
Footnotes
[1] Evidence, pp.3624, 3625.
[2] Submission No 83, p.2.
[3] Submission No 82, op.cit., p.17.
[4] Native Title Act 1993:
Act attracting the expedited procedure
237. A future act is an "act attracting the expedited
procedure" if:
(a) the act does not directly interfere with the community life of
the persons who are the holders (disregarding any trust created under
Division 6 of Part 2) of native title in relation to the land or waters
concerned; and
b) the act does not interfere with areas or sites of particular significance,
in accordance with their traditions, to the persons who are the holders
(disregarding any trust created under Division 6 of Part 2) of the native
title in relation to the land or waters concerned; and
(c) the act does not involve major disturbance to any land or waters
concerned or create rights whose exercise will involve major disturbance
to any land or waters concerned.
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