APPENDIX 3
Submission No 84 from Mr John Basten QC
JOHN BASTEN QC
Frederick Jordan Chambers
53 Martin Place
Sydney NSW 2000
Tel: (02) 9229 7303
Fax: (02) 221 5747/6994
DX 450 SYDNEY
6 December 1996
Mr Peter C Grundy
Secretary
Parliamentary Joint Committee on Native Title
Parliament House
Canberra ACT 2600
Fax 06 277 5706
Dear Mr Grundy
PUBLIC HEARING 22 NOVEMBER 1996 - FURTHER SUBMISSION
I refer to our previous correspondence and my evidence provided orally
to the Joint Committee on the evening of Wednesday 27 November 1996.
I now enclose a further submission dealing with a number of additional
points of concern arising from the proposed amendments to the Native
Title Act.
I appreciate the tight schedule to which the Committee is working and
am grateful to Senator Abetz and members of the Committee for this opportunity
to make a further submission. I apologise to all of you for the
burden imposed by its timing.
Yours sincerely,
John Basten QC
COMMENTS ON 1996 AMENDMENT TO THE NATIVE TITLE ACT
1. BACKGROUND
1.1 My comments relate in part to of the Native Title Amendment Bill
1996 introduced on 27 June 1996, but also to the "exposure draft"
tabled in the Senate on 8 October 1996. The main issue which I have considered
is the consistency of the proposed amendments in relation to the rights
to negotiate with the Racial Discrimination Act 1975 (Cth).
1.2 Conceptually, the proposed amendments to the right to negotiate provisions
can be considered under the following topics:
(1) registration of claims;
(2) coverage of the right to negotiate;
(3) power to provide for exclusions;
(4) content of negotiations;
(5) ministerial intervention.
1.3 Future acts are dealt with in Part 2, Division 3 of the Native Title
Act. Subdivision B, entitled "Right to Negotiate" applies to
certain "permissible future acts". It does not provide Indigenous
people with a right of veto over all or any developments on their land:
it provides, in identified circumstances, a right to negotiate with respect
to proposed developments. The precise coverage of the right need not be
identified for present purposes: however, it may be noted that the definition
of "permissible future act" covers legislation which applies
"in the same way to the native title holders ... as it would if they
instead hold ordinary title", or at least does not cause them to
be more disadvantaged at law than they would be if they held ordinary
title, and applies to non-legislative acts which could be done in relation
to the land if the native title holders instead held ordinary title to
it: s.235(2) and (5). Thus, it is clear that an act is not a permissible
future act if its application or effect is to disadvantage native title
holders as compared with ordinary title holders. Because the comparisons
made by s.235 require that consideration be given to the application or
effect of acts if "native title holders instead held ordinary title"
it appears that the drafter intended that the acts reflect formal equality,
rather than substantive equality. The definition does not recognise the
possibility that spiritual or cultural aspects of native title may demand
different treatment from that accorded to holders of ordinary title.
1.4 Against this background, it is clear that the right to negotiate
provisions were intended to have at least two areas of operation. In relation
to persons whose native title had been the subject of a determination,
the right to negotiate should appropriately have been seen as a recognition
of the importance to native title holders of the power to control access
to and activities on their land. Consistently with this approach, the
right to negotiate will not necessarily apply in relation to a future
act done in accordance with a registered Indigenous land use agreement
see proposed s.25F.
1.5 In addition, the right to negotiate reflects a second purpose, namely
to permit those who may be native title holders to negotiate the terms
of access to land before the opportunity to determine their claims has
been fulfilled.
1.6 In considering whether the right to negotiate, if amended as proposed,
would provide substantive equality, it would be legitimate to test the
legislation by a standard of strict scrutiny. In other words, given the
absolute inappropriateness of discrimination on the basis of race, the
Government should not be allowed a wide discretion in determining what
protection is necessary for native title holders. Similarly, if the legislation
is to be justified as a "special measure the Government has limited
room to amend the Act given the historical treatment of native title and
given the fact the NTA itself constitutes a balance between recognition
of native title and validation of past intrusions upon that title.
2 - REGISTRATION OF CLAIM
2.1 The most important right given to native title claimants is the right
to negotiate. Notice must be given to a registered native title claimant
(s.29(2)(b)) and any person who becomes a registered native title claimant
within three months after the notice is given is a native title party
for the purpose of the negotiations: s.30(l). The registration of claims
has been proceeding since the introduction of the Act, although claims
made since July 1996 will be subject to the Transitional Provisions proposed
by the amendments to which I refer below. As time passes, no doubt it
is reasonable to assume that more and more plausible claims will be registered
prior to the need to consider future acts. However, that process will
be a slow one for various reasons. First, the preparation of a claim requires
advice and resources which are limited and are likely to remain limited.
Secondly, as with all human activity, there will be room for disagreement
and disputation between Indigenous people in relation to claims. As with
non-Indigenous people, disagreements take time to resolve. Accordingly,
for some years hence, it will be important that there be a reasonably
flexible scheme for the registration of claims, or else procedural fairness
will require that the right to negotiate process may need to be delayed.
Given the need to balance the interest of possible native title holders
against the interests of continued development where native title may
not exist, the proposedd principle should be to allow ready registration
of claims with power to deregister where it can be demonstrated that the
claims are frivolous or vexatious.
2.2 The proposed scheme does not reflect these principles. In order to
participate in s.24A agreements or in the right to negotiate, claimants
must satisfy quite onerous requirements: proposed s. 190A. There are a
number of problems with this approach. First, unless by chance a representative
body has anticipated the future act (and realistically, very few representative
bodies currently have the resources to undertake this kind of exercise)
it is most unlikely that the formulation of a claim would be sufficiently
advanced for it to be lodged much inside a period of three months. However,
what is to be required is not merely that the claim be lodged within that
period, but that it be considered by the Registrar and a decision be made
within that period if a relevant notice has been given. Surely it is quite
wrong to make substantive rights of native title claimants depend not
only upon the resources and priorities representative bodies (on whom
they will rely, but over whom they will have no ultimate control) and
on the resources, allocation of priorities and competence of a bureaucratic
procedure to be conducted by the Registrar. In what other area do the
rights of citizens depend upon the prompt action of bureaucrats in order
to avoid extinguishment? This is a particularly unacceptable situation
where government itself will usually have an interest in short-cutting
or avoiding the right to negotiate.
2.3 Secondly, any disruption of the process, even that for which the
claimant is not responsible and cannot control, may lead to the expiration
of the prescribed three month period and the loss of the right to negotiate.
For example, the Government party may well supply extensive material a
week or two (or even a day or two) before the end of the period. The Registrar
must consider that material: Subsection (4). Further, one of the non-native
title parties may consider that the Registrar is carrying out his or her
functions improperly and may seek relief from the Federal Court especially
in the initial stages of the new legislative scheme, the obligations of
the Registrar may well be subject to legitimate doubts and therefore frequent
court challenges. The Registrar may quite properly think it inappropriate
to continue consideration in the face of a Court challenge or may restrained
by interlocutory injunction. Again, the three month period will expire
and the claimants will lose their rights. Finally, the Registrar will,
inevitably, make mistakes, whether of law or on the merits of the claim.
Even if that is later judicially established, the claimant will suffer
unavoidable loss because the three month period will have expired without
a proper decision having been made.
2.4 There is no simple solution to these problems, other than to revert
to a simple, registration process as under the present law. If protection
is needed for non-native title parties, they should be given a right to
challenge the registration as being frivolous or vexatious.
2.5 As noted above, there is a further aspect to the proposed amendments,
contained in the Transitional Provisions, which is thoroughly objectionable
in principle. It is that the new registration test will apply to all claims
lodged on or after 27 June 1996: Schedule 3, part 2, cl.7(4). Further,
where an application was made before 27 June 1996, and s.29 notice is
given for the first time under the new Act, again, the registration must
be reconsidered under s.19OA: cl.7(3). This latter provision provides
a mechanism whereby almost every claim which has not yet proceeded to
a determination of native title (and none have) may in effect be challenged
by invoking the s.29 procedure with respect to some part of the land claimed-
(27 June 1996 is treated as the date on which effective notice was given
by the Government of the proposed amendments to the Native Title Act,
including the inclusion of s.190A.) To reopen claims accepted prior to
the amendment of the legislation has its own problems: to reopen claims
lodged and accepted prior to the date on which the amendment was proposed
is retrospective legislation, taking away a form of property right, and
would simply not be tolerated were it applicable to the wider community.
If there is evidence of abuse of the registration process, that can be
dealt with in an appropriate manner to give carte blanche to retrospective
reconsideration according to new standards, in the absence of any hint
of abuse, is surely objectionable.
2.6 Apart from such objections of principle, there are also practical
considerations which militate strongly against the Transitional Provisions.
The unfairness of imposing a rigid time limit, which can only be fulfilled
if the Registrar is able to act expeditiously and determine applications
with great speed, has already been discussed. The Transitional Provisions
give rise to a potential for increasing exponentially the work load of
the Registrar. Any government or mining industry body which stands to
benefit from avoiding the right to negotiate will surely have identified
this potentiality already. To publish a flood of s.29 notices upon the
enactment of s.190A will inevitably render the Registrar's task impossible
and the provisions unworkable. The only people to suffering (apart from
the Registrar and his or her staff) will be native title claimants. It
is disingenuous to put forward these provisions in the supposed interest
of improving "workability" of the procedures.
2.7 I have not stayed to consider various aspects of the tests imposed
by s.19OA. These are, I understand, dealt with in a number of other submissions
and publications which the Committee has received, including those of
the Social Justice Commissioner and various Land Councils.
3. COVERAGE OF THE RIGHT TO NEGOTIATE
3.1 The present coverage of the right to negotiate is sought to be limited
in two ways. First, it is proposed that, in relation to mining interests,
renewals, regrants and extensions will not be the subject of the right
to negotiate if the original title had been subject to the right: s.26B.
There are three issues which need to be addressed in relation to this
amendment.
3.2 First, it is presumably intended that the nature of the acts covered
by subsection (a) are not intended to permit the grant of any more extensive
interest than that which had been created by the earlier right to mine.
The point could be clarified as in other provisions in the NTA, by making
it clear that no larger interest was created by the new act.
3.3 Secondly, an issue arises as to the operation of the proposal. It
might not be unfair to permit once only negotiation in circumstances where
the possibility of a future negotiation was anticipated, should the right
be extended or renewed. However, the present terminology would prevent
further recognition in relation to an earlier right which had been covered
by s.25(2) prior to the amendment. Thus, in theory, a short exploration
licence, which had been subject to the right to negotiate, could be extended
for a lengthy period without any further negotiation, even though that
possibility had not been within the contemplation of the parties at the
time the earlier right was the subject of negotiation.
3.4 Thirdly there is a restriction on the scope of the right to negotiate,
where the later act is not merely the renewal or regrant or extension
of the term of an earlier act, but is an act preceded by an act "consisting
of the creation of a right to explore or prospect": proposed s.26B
(2)(a). Whilst it appears that the later act could be further exploration,
it is not so limited: accordingly, the later act could, as the explanatory
memorandum recognises, involve mining. No further right to negotiate would
arise where the negotiation had anticipated a possible grant of a mining
right and that matter had been dealt with in the conditions of the resulting
determination. In practical terms there appears to be no obligation on
the parties to negotiate over such future acts and they will not, presumably,
have failed to negotiate in good faith if a party declines to negotiate
in relation to such later acts: cf. proposed s.31 (1)(a). Given the speculative
nature of the process, it would seem undesirable to allow one party to
force another to negotiate in relation to the possible interests in a
mine, when all that is at stake is proposed exploration. That uncertainty
must be increased in circumstances where the period of exploration may
not be defined by the original grant or a right to explore, but may be
extended without any further negotiation in accordance with the other
part of s.26B.
4. EXCLUSION - BY MINISTERS
4.1 The Commonwealth Minister has always had the power to exclude an
act from the coverage of the right to negotiate: s.26(3)(b). However,
the criteria which must be satisfied include notification of a relevant
representative body and of the public and the taking of submissions concerning
the proposed exclusion, satisfaction of the Minister that appropriate
consultation will take place with native title holders and, significantly,
satisfaction that "the act will have minimal effect on any native
title concerned": s.26(4). This limited right of exclusion has been
extended in two ways. The first is the provision for "approved scheme
acts" under proposed s.26A. This provision provides for the exclusion
of acts or classes of act subject to a weaker criterion than that presently
in s.26(4)(a), namely that, "the act is unlikely to have a significant
impact on the particular land ...": s.26A(2)(b). Secondly, the nature
of the Minister's satisfaction in relation to processes of consultation
is spelled out in more detail. Where any other person (not a native title
holder) would have a right to be heard by an independent body about the
doing of the act, any person holding native title in relation to the land
must have a right to be notified and to be heard by such body. Similarly,
at least one of the people responsible for doing the act must have a legal
obligation to consult (or there must be procedures in place under which
such consultation will be required) "for the purpose of minimising
the impact of the act of the exercise on the person's native title rights
and interests ... ": s.26A(4)(c). In relation to the process of consultation,
the amendments contained in the new Bill provide greater clarity and probably
greater protection to native title holders. Both the present Act and the
proposed amendments are deficient in failing to ensure that native title
claimants are covered by the criteria.
4.2 There are four problems with this proposal. First, the broadening
of the test for exclusion is apparent in the change from "will have
minimal effect" to "is unlikely to have significant impact".
However, the new provision also emphasises that the impact is impact on
the "particular land". Consistently with the change to the test
of an act attracting the expedited procedure, this test ignores impact
on spiritual and cultural aspects of community life. This will seriously
undermine the protection provided by the negotiation process.
4.3 Secondly, the third condition may not provide for effective consultation
with persons holding native title: see s.26A(4)(c). Controlling access
to and use of land is well recognised as central to protection of native
title interests. This criterion does not ensure that the standards of
negotiation provided in the NTA will be available from other sources,
being presumably State and Territory laws.
4.4 Thirdly, the condition that persons holding native title be accorded
the same rights as others holding an interest in the land is ambiguous
and unsatisfactory. If the "interest" must have been established
in accordance with legal procedures, even native title claimants will
be ignored with impunity. If it means those who may hold native title,
it is unlikely to be satisfied unless there is a provision in the other
law equivalent to s.23(7).
4.5 Fourthly, this amendment must be read with an amendment to s.23(6)
which excludes the protections contained in that subsection from approved
scheme acts: see cl.98A. Exclusion from that guarantee of procedural equality
should not be countenanced unless equal or better protection is provided
elsewhere. The scheme of s.23(6) and (7) is designed to cater for the
difficulties arising from the failure of our legal system to recognise
native title in the past. It recognises that interference with native
title will continue for some time unless particular measures are provided
to deal with a period of continuing uncertainly. Accordingly, in my view
these amendments, if passed, would mean that the NTA will fail to provide
a minimum guarantee of substantive equality.
4.6 The second procedure by which acts can be excluded from the right
to negotiate concerns the area of compulsory acquisition. The present
Act permits the negotiation process to occur where compulsory acquisition
is contemplated for the purpose of conferring rights or interests on persons
other than "the Government party." (For this purpose, "the
Government party" is the Commonwealth, a State or Territory s.26(l))
The new proposals allow the Commonwealth Minister to determine that the
reason for the acquisition is to provide "a public infrastructure
facility:" proposed s.26(2)(d)(i). That phrase is defined to include
highways, railways, dams, electricity and water transmission facilities
and "any other facility of a similar nature": proposed s.253.
According to the explanatory memorandum, the justification for this area
of exclusion is that such public infrastructure projects would "formerly
have been constructed and operated by Government agencies" but are
now being contracted out to third parties. A determination of the Minister
under this provision is expressly provided to be a "disallowable
instrument under the provisions of the Acts Interpretation Act: NTA(s.214-see
cl.98 ZZW).
5. EXCLUSION - BY GOVERNMENT PARTY
5.1 The Act has always provided a means by which a Government party can
exclude a future act from the negotiation process. It can do so by giving
notice that it considers the act is "an act attracting the expedited
procedure": s.29(4) and s.31 (1). In the case of an objection lodged
by a native title party, the Act provided that the Tribunal should determine
whether the claim by the Government was justified or not: s.32. In determining
whether an act does attract the expedited procedure, the Tribunal is required
to determine that three specific tests are satisfied: s.237. In particular,
the first test is that the act "does not directly interfere with
the community life of" native title holders: s.237(a).
5.2 It is proposed that this test, and the other limbs of s.237, be amended
by substituting for "does not" the phrase "is not likely
to" and, in relation to the third test concerning major disturbance
to land or waters, the test of creation of rights "whose exercise
will create major disturbance" is to be amended to "whose
exercise is likely to involve major disturbance". The present formulation
of the three tests in s237 is curious, as only the third test acknowledges
that the act may not itself have the prohibited effect, but may create
rights whose exercise will have that effect. A similar dichotomy would
be desirable to clarify the operation of the first two tests. That having
been said, it is logical to change the phraseology in relation to the
exercise of rights by conceding that a prediction is required. So much
has already been accepted and approved by the Federal Court: see Ward
v. Western Australia (1996) 136 ALR 557.
5.3 More importantly, the test of direct interference with the community
life of native title holders is to be amended to refer to direct interference
"with the physical aspects of the community life" of native
title holders. This is in my view, a significant diminution of the protections
provided by the negotiation process. While it is not necessarily the case
that native title entails maintenance of close spiritual links with land,
in many cases there will be strong spiritual attachment to land and the
maintenance of traditional laws and customs will also involve important
cultural continuities. The preservation of Indigenous spirituality and
culture must be at the heart of the rationale for recognising native title.
Failure to accept that the negotiation process should apply where spirituality
or cultural matters are directly threatened is inconsistent with this
rationale. The important purpose of the negotiation process where spiritual
aspects of community life are subject to interference was recognised in
Ward v. State of Western Australia (1996) 136 ALR 557. There, Carr J expressly
held that direct interference with community life is not confined to physical
interference. In interpreting s.237(a), His Honour held that "there
is no justification for requiring a direct interference with community
life also to be a physical interference": see p.572(40)-573(15).
The proposal to amend the Act so as to exclude such considerations seriously
compromises the protection given by the negotiation process, particularly
in relation to remote communities which may suffer most seriously from
the development of a mine or similar activity, even if not in immediate
proximity to their settlements.
6. CONTENT OF NEGOTIATION
6.1 In Wal!ey v. Western Australia (unrep 20 June 1996) Carr J held that
the jurisdiction of the Tribunal to arbitrate did not arise unless the
Government party had fulfilled its obligation to "negotiate in good
faith with the native title parties ...": s.31 (1)(b). Thus the Federal
Court held that negotiation in good faith by the Government party was
a precondition to the exercise by the Tribunal of its arbitral function
under s.36. The proposed new s.36(1A) would require the Tribunal to arbitrate
even if not all parties have complied with the requirements of s.31(l)(b).
However, by inference the amendment confirms that the party who applied
for the determination (presumably under s.35) must have negotiated in
good faith.
6.2 The content of the obligation clearly has importance in this context.
The amendments to that provision are designed to ensure that all parties
must negotiate in good faith pursuant to that section: see cll. 98Y-ZA.
These amendments do not appear to be controversial. However, the addition
of s.36(1A) is a matter of concern. It is plausible to assume that the
Government and grantee parties will share a common interest in having
the act go ahead. It is not satisfactory that one could stall negotiations
while the other presses ahead in apparent good faith and makes application
to the Tribunal. It would be more appropriate if the amendment in cl.98ZG
read:
(1A) The arbitral body shall not make a determination that the act
may be done unless satisfied that the Government and grantee parties
each negotiated in good faith as required by s.31(1)(b).
The absence of such protection, particularly in combination with the
Ministerial intervention power provided by s.36A, could allow the complete
subversion of the negotiating process. The mere existence of such a power
would affect the perceived bargaining positions in an unacceptable manner.
6.3 The proposals also seek to define good faith negotiation by providing
that there will be no refusal or failure to negotiate if the refusal or
failure is concerned with matters unrelated to the effect of the act on
the determined or claimed native title rights and interests ...":
proposed s.31(1A)-cl.98ZB. The insertion of the proposed s.31(1A) is curious.
On the one hand, it would seem obvious that failure to negotiate about
matters unrelated to the proposed future act could not be said to indicate
a failure to negotiate in good faith. However, the scope of negotiation
is to be limited by the requirement that negotiation must be as to "the
effect" of the act on "native title rights and interests".
At the very least, there is a danger that the terminology adopted will
discourage imaginative solutions to disputes. It is quite plausible and
appropriate that, if the proposed act is the establishment of a mine,
Indigenous people might wish to negotiate a level of employment. Arguably,
such issues are unrelated to affect of the mine on native title as such,
and hence would not be part of the good faith negotiation process under
the proposed amendment. Surely such a result cannot have been intended?
6.4 Furthermore, the phraseology directs attention away from a pragmatic
resolution of differences and directs it towards that very matter which
cannot be resolved before a determination of native title has been made,
namely the precise native title rights and interests existing. The same
inappropriate change of focus is reflected in the proposed s.33(2). Even
without reference to that proposal, the new s.31 (1A) seems inconsistent
with s.33, which permits a far more extended scope for negotiations. A
further question arises as to the inter-relationship of s.31(1A) and the
criteria appropriately set out in s.39, with which, again, it seems inconsistent.
6.5 The idea behind s.33(2) is understandable. That proposal is apparently
designed to permit negotiations to take into account the effect of "existing
rights and interests in relation to the land concerned and "existing
use of" the land concerned and the "practical effect" of
the exercise of such rights and interests on the exercise of native title
rights and interests". However, the present draft does not seek to
distinguish between rights and interests which arose before the NTA, and
may therefore be valid, and those which may not. Further, this proposal
may unduly encourage parties in the course of negotiations to assess the
validity and possible extinguishment of the native title claims, which
would be inappropriate in this context.
7. INTERVENTION - BY MINISTER
7.1 The proposals seek to provide new powers of Ministerial intervention
in two separate sets of circumstances. First, the relevant Minister may
intervene and make a determination that the act may be done if certain
conditions are satisfied, including a condition that the act is likely
to be of "substantial economic benefit to Australia": see proposed
s.34A(3). This power is vested in "Relevant Ministers" who may
be Commonwealth or State or Territory Ministers.
7.2 The power given to Ministers under s.34A can only be exercised if
three months have passed since the giving of a s.29 notice. That period
is the period required for a native title claimant to register his or
her claim, but one month less than the period for negotiation prior to
the entitlement of a party to take the matter to the Tribunal. The Minister
must be satisfied that if the determination is not made at that time,
the substantial economic; benefit to Australia will at least be substantially
reduced. Apart from anything else, it seems curious that a State or Territory
Minister should be given the right to make such decisions.
7.3 There is provision that each negotiation party be given written notice
that the Minister is considering making a determination and is entitled
to 14 days within which to put written material before the Minister s.36B(l)
and (2). They are also entitled to receive materials supplied by other
negotiation parties within the period and have a further seven days to
respond. Although any determination made by the relevant Minister must
be laid before Parliament, it is not proposed, even in relation to the
Commonwealth, that such an instrument be a disallowable instrument: see
cl.98ZZW, which makes no relevant amendment to s.214.
7.4 Finally, a determination may not be made under s.34A unless the relevant
Minister considers that "there will be significant benefits"
to the relevant native title holders. No reference is made to possible
detriments accruing to those native title holders, nor is any assessment
of relative benefit and detriment required. In short, it would arguably
be sufficient to satisfy this criterion if the Minister considered that
there were economic benefits (perhaps by way of royalties) which would
flow from the act, even though the community life of the native title
holders might be seriously interfered with, their sacred sites affected
and their cultural integrity lost. Although it is possible that a determination
could be made under s.34A in the case of an act which could attract the
expedited procedure, the power is very unlikely to be used in such a case
and, more importantly, is certainly not limited to such decisions.
7.5 Under the existing provisions, the Tribunal is required to take "all
reasonable steps" to make a determination, in the case of an exploration
licence, within four months of the application being made and, in any
other case, within six months. The new proposals would delete those periods
and simply require the Tribunal to make the determination as soon as practicable:
cl.98ZF. If the Tribunal does not make a determination within four months
of the application, it must notify the Commonwealth Minister. At any time
after a negotiation party has applied to the Tribunal, a relevant Minister
may request the Tribunal to make a determination within a period of not
less than four months after the application was made and, thereafter,
the Minister may intervene to make a determination in relation to the
act: proposed ss.36(3) and 36A. Again there are further criteria specified:
the Minister must consider that the Tribunal is "unlikely to make
its determination within a reasonable period" and that it is in the
interests of the State or Territory or in the national interest to make
a determination at that time. The consultation procedures referred to
in relation to intervention under s.34A also apply in relation to intervention
by a Minister pursuant to this provision.
7.6 This latter intervention power recognises (as does the present s.36)
that the Tribunal should not generally be forced to make a determination
within a particular time. However, instead of requiring the Tribunal to
make a determination by the completion of the period specified in the
written notice which may be given by the relevant Minister, the power
of determination is taken away from the Tribunal altogether. Although
the heading to the proposed new section states that it applies where the
arbitral body determination is "unreasonably delayed", in fact
it applies where the arbitral body is thought by the Minister to be unlikely
to make a determination within a period considered by the Minister to
be "reasonable". The criteria specified in s.36A are in substance
a Minister's concerns as to the time taken by the negotiation process.
The Minister's concerns need not be shared by any negotiating party, although
the Government party may be the Government of which the Minister is a
member. Further, the Minister is not required to take into consideration
the criteria specified in s.39 of the Act nor is the power of intervention
conditional upon negotiation in good faith.
7.7 The question of possible intervention by a Minister is one of importance.
Future acts will usually involve development activities in particular
States and Territories, which will often be treated as requiring expeditious
treatment by the government of the State or Territory concerned. That
government will also be a party to the negotiations. Giving a Minister
of such a government a power to intervene in circumstances which will
readily be fulfilled and a power to make a determination untrammelled
by the criteria to be considered by the Tribunal, ie to allow the negotiation
process to be sidestepped by one party. The role of the independent arbiter
is thus severely undermined. The possibility of such intervention will
have a chilling effect on all negotiations.
7.8 I conclude that the proposed power of Ministerial intervention is
likely to undermine to a significant extent the conduct of good faith
negotiations and the likelihood of fair agreements being reached. Any
party which believes its interests are more likely to be met by a relevant
Minister is likely to resist reaching a negotiated agreement on terms
less favourable than those it expects from the Minister. The attitudes
of relevant Ministers will clearly vary, depending on the Government of
the day and the geographical area. There is no means of ensuring that
a uniform approach is adopted, even at a given point in time, across the
country.
8 CONCLUSIONS
8.1 The Government is to be congratulated on its reconsideration of the
original suggestion that the right to negotiate be limited to registered
native title holders. Further, a number of the amendments proposed are
commendable attempts to clarify and simplify the procedures provided with
respect to permissible future acts. I have not commented on these aspects
of the amendments.
8.2 The matters I have dealt with above are matters which, to varying
degrees impact adversely on the present entitlements of native title holders
or claimants under the right to negotiate procedures. Individually, the
most serious limitations on the right to negotiate are:
(a) the burdens imposed on claimants and the judgements required of
the Registrar, by the conditions with respect to registration of claims;
(b) the retrospective impact of these changes;
(c) the requirement that in assessing whether an act may be excluded
from the negotiation process, or attracts the expedited procedure and
thus avoids the negotiation process, it is necessary to ignore impact
on the spiritual or cultural life of the affected community,
(d) the power of a relevant Minister to intervene in relation to acts
which are likely to be of substantial economic - benefit to Australia,
and. in particular, the failure to require the Minister to consider
detrimental impacts on native title claimants or;
(e) the power of a relevant Minister to intervene once the matter has
reached the Tribunal or other arbitral body, simply on the basis that
he or she considers that no determination will be made within a reasonable
period.
8.3 The matters referred to above deserve careful reconsideration. At
the very least,
(a) The present regime for negotiation of claims should be maintained
with, if thought necessary, a right to challenge the registration of
frivolous, vexatious or misconceived claims;
(b) the power to exclude approved scheme acts and the expedited procedure
should not be available in relation to acts which themselves, or by
the exercise of rights they create, do or are likely to interfere to
any significant extent with the spiritual or cultural life of a community;
(c) the proposed amendment to s.23(6) should be abandoned; .
(d) a State or Territory Minister should not be able to intervene because
of an assessment of economic benefits to Australia:,-
(e) if any power of Ministerial intervention is to be extended, which
does not appear to me to be justified, it should at least be limited
to cases involving
(i) likelihood of serious consequences if negotiations fail;
(ii) good faith negotiations satisfying s.31 (1)(b) having occurred
on the part of the party seeking intervention and (if the applicant
seeks a determination that the act be done) any other party other
than native title parties;
(iii) a request from a negotiation party for intervention;
(iv) certification by the arbitral body that all of those who seek
intervention (and those who have a similar interest) have negotiated
in good faith;
(v) certification by the arbitral body as to the likelihood of an arbitrated
result within a reasonable time:
(f) in considering making a determination a Minister should be required
-
(i) to consider the matters identified in s.33;
(ii) to take into account the matters referred to in s.39, and
(iii) to give written reasons for his or her determination within
seven days of making the determination.
8.4 1 also suggest that the amendments in relation to public infrastructure
facilities, s.26B and the transitional arrangements, the scope of project
act notification, the content of good faith negotiations (s.31(1A) and
s.33(2)), and s.39(1A) require further consideration.
8.5 The cumulative effect of these amendments is undoubtedly to reduce
significantly the rights of native title parties in relation to negotiations
concerning permissible future acts. If the current elements of the right
to negotiate are considered appropriate in terms of consistency with the
principles underlying the Racial Discrimination Act (and they could certainly
be improved), any significant impairment of those elements will render
the procedures less adequate for their purpose. The amendments could thus
be seen as impairing the full effect and operation of the principles underlying
the Racial Discrimination Act and amounting to an implied repeal of that
Act to the extent to which they fail to provide an adequate negotiation
procedure. In my view, each of the individual matters referred to in the
preceding paragraph should be seen in this light. Both their individual
and cumulative effects are matters of degree and judgment They do, however,
lead to a serious curtailment of its effectiveness, so far as the protection
of native title rights and interests is concerned.
8.6 In relation to the interpretation of the principles of non-discrimination
established by the Racial Discrimination Act 1975 and the International
Convention on the Elimination of All Forms of Racial Discrimination, I
refer to my oral submissions to the Committee of 27 November 1996.
Frederick Jordan Chambers
6 December 1996 JOHN BASTEN, QC
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