CHAPTER 1
CHAPTER 1
1.1 The High Court decision known as Mabo (No 2)
was given on 3 June 1992. Mabo (No 2) raised uncertainties over
the management of land and land titles in that common law native title
rights were recognised and could continue (in largely unspecified circumstances)
where not extinguished. Prior to Mabo there was no such uncertainty.
1.2 The Commonwealth approached the question of certainty in three ways.
First, the Native Title Bill was developed in 1993 as part of the Commonwealth
response to Mabo (No 2). The Native Title Act 1993 (the
Act) received Assent on 24 December 1993. In part, this Act provided a
('future act') process for development proposals on native title land.
1.3 Second, the Keating Government advised State and Territory governments,
peak industry organisations and other interested parties that the High
Court had held that native title was extinguished by freehold and leasehold
land grants. Importantly, this was asserted in the Preamble to the
Act to which Prime Minister Keating drew attention in his Second Reading
Speech on 16 November 1993. As a consequence of this view that
surviving native title rights would be relatively limited, the Commonwealth
undertook to create a statutory land fund which would allow dispossessed
Indigenous people to acquire land which could be converted to include
native title.
1.4 Third, however, the Commonwealth confirmed that it was for the courts
to decide the circumstances under which native title had been extinguished.
For this reason the Act did not provide for the extinguishment of native
title on pastoral leaseholds.
1.5 Ironically, for many the situation was reasonably clear. For those
who relied mainly on the Preamble to the Act, it was considered that pastoral
leaseholds extinguished native title. For others who relied on the Commonwealth's
reference to the courts, however, native title had the potential to exist
on pastoral leases at least until the courts decided otherwise.
1.6 Some State governments relied on the first understanding and managed
the State's land administration functions accordingly; for example, given
its particular relevant statute, Queensland found it unnecessary to comply
with the 'future act' provisions of the Act where it considered that native
title had been extinguished. Other State governments with different land
tenure statutes (such as Western Australia), considered it prudent to
observe the 'future act' provisions in that the courts had yet to decide
the extinguishment question. The States and Territories, then, had clear
(but different) approaches to their land administration functions in the
face of native title.
1.7 Because different State and Territory administrations relied on different
approaches, a degree of confusion prevailed across the nation. This was
particularly the case for peak industry organisations who were managing
their interests in various jurisdictions. Importantly, it must also have
been confusing for various indigenous interests despite the fact that
some indigenous leaders believed that the Preamble to the Act was questionable
if not incorrect, and that the continuation of native title on many pastoral
leases would ultimately be confirmed in the courts. Clearly, the issue
of certainty required resolution either by the legislature or by the courts
in the interests of all concerned.
1.8 On 29 November 1995 the Keating Government introduced the Native
Title Amendment Bill 1995; it proposed amendments to deal with a significant
High Court judgment (Brandy)[1] and some
miscellaneous matters. That amendment bill lapsed with the dissolution
of the House of Representatives on 29 January 1996.
1.9 Following its commencement in March 1996, the Howard Government developed
the Native Title Amendment Bill 1996. That bill was introduced into the
House of Representatives on 27 June and referred for an advisory report
to the Parliamentary Joint Committee on Native Title and the Aboriginal
and Torres Strait Islander Land Fund (the Committee). On 17 October 1996
the Government introduced into the House of Representatives a second round
of amendments (called the 'Exposure Draft'); the House resolved to refer
them to the Committee for report, together with the original bill, by
18 November 1996.
1.10 The Committee fulfilled its reporting duty by tabling its sixth
report on 18 November 1996. That report recommended (Recommendation 6):
That the Native Title Amendment Bill 1996 and Exposure Draft
proposals be referred to this Committee for further consideration and
report by 13 December 1996.
On 19 November 1996 the Senate agreed to this recommendation and referred
the amendment proposals to the Committee for further report by 13 December
1996.
1.11 In its seventh report tabled on 12 December 1996, the Committee
considered several questions concerning the extinguishment of native title
and the Racial Discrimination Act 1975 (RDA). In particular, the
report considered whether the modification of some existing rights under
the Act would offend the RDA. The report accepted the advice of the Attorney-General's
Department that the amendments proposed in the Native Title Amendment
Bill 1996 were consistent with the RDA.
1.12 On 23 December 1996 the High Court handed down its decision in Wik.[2] A majority held in Wik that the grant of
certain pastoral leases by the Crown in Queensland did not confer exclusive
possession and therefore did not necessarily extinguish any native title
that might be found to exist; coexistence of titles remained a possibility.
The question as to whether native title (and its extent) in fact exists
on the Wik leases is yet to be determined by the Federal Court.
1.13 Where there had been either uncertainty or erroneous certainty about
the extinguishment of native title, Wik provided an indication
of the direction that the common law could take. The matter was by no
means fully resolved in that decision as it only related to particular
kinds of leases under one State jurisdiction. Nevertheless, in holding
that certain leases did not confer exclusive possession on the grantees,
and therefore did not necessarily extinguish native title rights, the
Attorney-General's Department has concluded from Wik that:
...in some cases, native title rights and interests may have
survived the grant of pastoral leases like those in Wik and may
co-exist with the rights conferred on the grantee by the lease and the
Act under which the lease was granted.[3]
1.14 Although in Mabo (No 2) Brennan J expressed the categorical
view that the valid grant of freehold and leasehold title extinguished
native title, he was in the minority in Wik. For the overwhelming
majority of observers of native title, the High Court's Wik decision
was unanticipated. The Commonwealth had consistently maintained that a
native title claim was unlikely to succeed over any valid pastoral lease.
And the National Native Title Tribunal had originally determined that
native title applications over pastoral leases not containing a 'reservation'
in favour of Aboriginal access would 'not ordinarily' be accepted.
1.15 Even under the approach taken by the Commonwealth in 1993, this
situation now required attention from a legislative perspective. Following
Wik the time had come either to confirm the assertion of the Preamble
to the 1993 Act, and thereby to extinguish native title on pastoral leases,
or to ignore the Preamble and continue to provide for the determination
of native title on pastoral leases pursuant to the Act. Such an approach
would, however, entail the need for extensive amendment to the Act.
1.16 The Wik decision undermined important and fundamental assumptions
upon which the 1993 Act was drafted. One was that native title on mainland
Australia would exist mainly in relation to vacant crown land, that is,
the approximately 36 per cent of Australia where there has been no significant
grant of private rights, or public reservation or use. The effect of the
Wik decision was to add another 42 per cent or so of the Australian
land mass to the area on which native title might be found to exist. On
the original assumption, the issues arising from native title claims were
expected to be primarily between the claimants and governments. The addition
of pastoral lease land confirmed that the rights and interests of pastoralists
were included in the equation.
1.17 The Act does not deal in any comprehensive way with the situation
in which native title rights coexist with those of pastoralists. As a
result of this and of the very broad definition in the Act of an 'act
affecting native title' (s.227), uncertainties have arisen since the Wik
decision over what acts and activities can be carried out on pastoral
leases without having to follow the 'future act' provisions of the Act.
1.18 Another assumption made in 1993 was that the rights of native title
holders in relation to the crown land could be significant, approximating
to ownership of the land. The Act therefore provided to native title holders
the same protection and the same procedural rights as freeholders, as
well as a special right to negotiate in some circumstances. The Wik
decision, in allowing the possibility of coexisting titles with the native
title rights yielding to the pastoral lease rights in the event of conflict,
recognises that native title may often be much less than rights approximating
to full ownership.
1.19 The Wik decision also put in doubt the validity of grants
by governments and actions by others taken from 1 January 1994, when the
Act came into operation, and the date of the Wik decision, 23 December
1996. The grants and actions are those done on the assumption that no
native title could exist on pastoral lease land as had been clearly indicated
by the Keating Government on many occasions, and therefore there was no
need for the grants and actions to comply with the 'future act' provisions
of the Act in order to be valid.
1.20 The Howard Government responded to the Wik decision by opting
not to proceed with the 1996 amendments in their original form, but instead
to formulate a comprehensive response which also dealt with the issues
raised by the decision. After extensive consultations it released a '10
Point Plan' on 1 May 1997. This plan was issued in a revised form on 8
May; in a press release Mr Howard confirmed that the only amendment was
to the wording of the second point (concerning extinguishment on exclusive
tenures). The amended 10 Point Plan is provided in this report at Appendix
1. The points covered are:
1. Validation of acts/grants between 1/1/94 and 23/12/96 2. Confirmation
of extinguishment of native title on 'exclusive' tenures 3. Provision
of government services 4. Native title and pastoral leases 5. Statutory
access rights 6. Future mining activity 7. Future government and commercial
development 8. Management of water resources and airspace 9. Management
of claims 10. Agreements
On 4 June 1997, Senator the Hon Nick Minchin, then Parliamentary Secretary
to the Prime Minister, issued a collection of documents explaining the
10 Point Plan and answering questions related to it.
1.21 A new Bill incorporating the response to the Wik decision
and many of the features of the 1996 amendment bill was developed. A Working
Draft dated 25 June was released with comments requested by 24 July. Following
further discussions and changes, the Native Title Amendment Bill 1997
was introduced into the House of Representatives on 4 September.
1.22 The Working Draft provided for, but did not include, a schedule
which was to contain a list of interests which would be taken to have
extinguished native title. A draft of Schedule 4 was made available to
key interest groups on 20 August.[4] On 23 September the Government publicly
released the version of the schedule it proposed to include in the Bill.
It consisted of 39 A4 pages and was accompanied by a 13-page supplementary
Explanatory Memorandum.
1.23 The Committee notes that the Government has rejected suggestions
that its Bill, in responding to the Wik decision, seeks to overturn
or override the judgment. The Government told the Committee that the Act,
as amended by the Bill, will recognise and protect native title in Australia,
including coexisting native title on pastoral lease land, by adopting
the conclusions and criteria set out in the decision.[5]
In this context the Committee notes the view of Senator the Hon Nick Minchin,
the Special Minister of State that many in the community believe that
Wik decided that all Aboriginal people have full native title rights on
every pastoral lease in the country. As the Minister pointed out, that
is not the case and, indeed, the claimants in that case have not yet had
a determination that they in fact hold native title.[6]
1.24 When the Bill was introduced into the House of Representatives on
4 September, the Attorney-General, the Hon Daryl Williams QC MP, proposed
and the House agreed that:
the proposed changes to the Native Title Act 1993 and other Acts
contained in the Native Title Amendment Bill 1997 presented to the House
this day be referred to the Parliamentary Joint Committee on Native
Title and the Aboriginal and Torres Strait Islander Land Fund for consideration
and report to the House by 27 October 1997 ...
1.25 The Committee held public hearings on the matter over twelve days.
The schedule of public hearings and the witnesses who provided evidence
is provided at Appendix 2 to this report. The Committee received more
than 1400 written submissions; they are listed at Appendix 3. The Committee
is most grateful for the advice that it has received by way of both oral
and written evidence. All submitters are thanked for their contributions.
Most submissions, of course, could not be referred to in this report,
although they were taken into account in the views formed by the Committee.
1.26 In this report the Committee has not attempted to address all the
details of the Bill. Rather its focus has been on those issues which appear
from submissions and evidence to be of most concern. Some matters dealt
with in the Bill have been carried over from the 1996 amendments, and
some of these were examined and reported on by the Committee in its sixth
report.
1.27 In addition, the Committee notes that on 2 October 1997 the Senate
agreed that the provisions of the Bill be referred to the Senate Legal
and Constitutional Legislation Committee for inquiry and report by 10
November 1997. The Senate Committee was expected to focus its inquiry
on the constitutionality and constitutional bases of the Bill. Accordingly,
the Committee did not consider it necessary to deal with these issues
comprehensively in this report. It does, however, comment on them in passing.
Footnotes:
[1] Brandy v Human Rights and Equal Opportunity
Commission (1995) 183 CLR 245.
[2] The Wik Peoples v The State of Queensland
& Ors (1996) 187 CLR 1.
[3] Attorney-General's Department
Legal Practice Briefing, 20 May 1997.
[4] Evidence, p.622.
[5] Submission from the Commonwealth
Government, pp.16-17.
[6] Evidence, p.2006.
Top
|