CHAPTER 2
The Right to Negotiate as a Native Title Right
2.1 In paragraph 4.1 of the First Minority Report we noted the view of
the Aboriginal and Torres Strait Islander Social Justice Commissioner
that the right to negotiate is an intrinsic native title right. This approach
is consistent with the findings of the Woodward Royal Commission into
Aboriginal land rights. [1] And in Ward v. Western Australia Lee J
of the Federal Court noted that the right to negotiate is an incident
of native title. [2] On the other hand, Mr Jeffrey of the Attorney-General's
Department told the Committee:
. . . I think there is the possibility that particular groups may have
something that might loosely be described as a right to negotiate, a right
to be consulted, that derives from their traditions. If they do, that
right is accorded the full protection of the Native Title Act . . . It
is like any other incident. But that is quite different from the right
to negotiate, which is a formal process involving notice, negotiation,
an arbitral body and perhaps ministerial override which is well beyond
any traditional laws or customs. [3]
2.2 It may be, as Mr Jeffrey suggests, that the right to negotiate in
its statutory form is not precisely the same as the common law native
title right to be consulted over access to land. However, the statutory
right to negotiate has operated to protect the common law right to be
consulted. Nothing else in the Native Title Act could be guaranteed to
adequately protect that right. [4]
Without the continuation of the right to negotiate so that it continues
to provide the current level of protection, there would be a most unacceptable
risk of impairing the use of a native title right. This also requires
that further hurdles are not erected, preventing access of native title
holders to the right to negotiate. The Government's proposed registration
test (Items 96, 114A and 114B (s.190A).) of the Amendment Bill and Exposure
Draft would create an unacceptable hurdle to the access of native title
rights. In line with Minority Recommendations 4 this test should not be
adopted.
2.3 The right to negotiate needs to be retained to provide its current
level of protection to ensure that native title holders' rights are given
the same degree of respect that the law gives to freehold property rights.
This does not mean that native title rights and freehold rights should
be treated in exactly the same way; they cannot be, because they are different
kinds of rights. To treat different situations in the same way can amount
to discrimination; it can arise where different kinds of property rights
- native title and freehold - are treated in exactly the same way. It
is not enough for the Government to argue that, apart from the right to
negotiate, the rules regarding access to native title land would be the
same as those regarding freehold land. [5] Consultation about access is clearly of
particular importance with native title. It should be appropriately accommodated
in relation to native title rights so that, overall, native title retains
its integrity and is afforded a similar level of respect in comparison
with freehold rights. [6]
2.4 The disadvantaged social and economic position of Indigenous people
compared with the wider community is well known. An aspect of this disadvantage
is that prior to the Mabo decision in 1992, the law did not provide for
the recognition of native title. Our international treaty obligations
require Australia to take special measures to alleviate this state of
affairs. The right to negotiate constitutes such a measure and, importantly,
it appears to have the broad support and acceptance of Indigenous people.
The right to negotiate must remain in place so that native title claimants
continue to be afforded effective equality.
2.5 In summary:
- the right to negotiate is a native title right;
- the statutory form of the right to negotiate protects that native
title right;
- to diminish the right to negotiate under the NTA will impair the native
title right; and
- the right to negotiate is required under the substantive equality
approach to the RDA and the Convention.
Footnotes
[1] Woodward, A.E., Aboriginal Land Rights
Commission: 2nd Report April 1974, p.108.
[2] Unreported, 18/11/1996, p.30.
[3] Evidence, pp.3627 to 3628.
[4] Without the right to negotiate, the permissible
future act provisions in s.235 (and s.23(6)) would nullify the right to
be consulted if ordinary title holders had no similar right.
[5] Section 235 and 23(6) of the Native Title
Act.
[6] Dodson M, Native Title Report July 1995
- June 1996, pp.21-23.
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