The Native Title Amendment Bill 1997 - TENTH REPORT
Table of Contents

FURTHER RESPONSE TO NATIVE TITLE AMENDMENT BILL 1996

CHAPTER 1 EXECUTIVE SUMMARY

The Mabo decision was a watershed in Australian history. Through it, Australia became the last of the new world nations still working within their inherited British common law tradition to recognise the existence of the title to land enjoyed by its indigenous people.

As in New Zealand, Canada and The United States, this title - native title- was found to be rooted in the pre European laws , customs and traditions of Australia's indigenous peoples. The Court found that validly issued post settlement titles took precedence over native title, but that native title may have survived in some places to this day. It also raised questions as to the validity of titles issued after the proclamation of the Racial Discrimination Act 1975.

Drafted pursuant to the Commonwealth's external affairs power provided in the Constitution, and subject to the so called "race power ", the Native Title Act 1993 was a proper and timely legislative response to the Mabo decision. It gave certainty through legislated validation to all holders of post settlement titles, including those issued after 1975. It further provided a means by which native title issues could be determined without recourse to court actions based on the common law, with all the time, complexity and expense that such a course entails. To have left all the issues that could emerge in a myriad of different circumstances across Australia to be determined by the courts with a single court decision and no legislative framework for guidance would have been irresponsible.

The government of the day and the Australian Democrats drafted the legislation in open and direct consultation with all the stakeholders. The Act passed by the parliament represented a willingness to compromise by all interest groups, but particularly by indigenous Australians. In return for accepting the validation of all existing post settlement titles they received very little. They received the Right to Negotiate about future development where native title survived in limited and defined circumstances, they received a Land Fund to address the aspirations of those indigenous people with limited chance of establishing any surviving native title, and the promise of a Social Justice funding package that has never been delivered.

The National Native Title Tribunal established under the Act moved forward steadily in a new and difficult legal environment. It was inevitable that those directly affected by the Act would experience difficulties emerging from misunderstanding of new concepts and new processes. It is true to say, however, that vested interests have promoted misinformation, and sometimes near hysteria on the native title issue. Their denigration of the Act, the Tribunal and the courts, seems to flow in part from their refusal to accept the native title concept and to deny the existence of such a common law right.

Since the beginning of 1994 hundreds of exploration, mining and other development proposals have been dealt with under the provisions of the Act. Those States prepared to work within the Act have seen many of the Tribunal's processes work remarkably well. In misunderstanding, or misrepresenting the Tribunal's role, critics have made much of the fact that there have few determinations of native title. As a mediating body, the Tribunal cannot compel recalcitrant state governments or other parties to give consent to an agreement. In the meantime, the number of regional and project agreement reached with the aid of the Tribunal and under the Act is growing as parties become familiar with the process.

The Mabo decision was silent on a number of critical issues such as native title over inland or coastal waters and pastoral leases. Furthermore, that decision left open the question whether all post settlement titles necessarily extinguished native title, or merely had the effect of suppressing it during the life of the later form of tenure. Just as the Wik decision addressed the question of native title on pastoral leases, the seventeen native title claims currently before the courts are likely to clarify most of the other issues. The Native Title Act 1993 left these matters for the courts to decide.

The Minority report accepts the fact that the Native Title Act 1993 is in need of amendment. The Brandy, Waanyi and Northern Territory v. Lane decisions require a response that clarifies the respective roles of the Tribunal and the Federal Court and re-establishes a useful and rigorous registration test. Practical experience has shown that there are adjustments needed to enhance the workability of the processes carried out under the Act. The hysteria that has followed the Wik decision has determined an essentially political need to legislatively affirm the primacy of pastoral leases as found in that decision.

The Native Title Amendment Bill 1997 goes well beyond such requirements. In the name of certainty and workability it sets out to systematically wind back the Right to Negotiate. It declares wholesale extinguishment, with consequent massive entitlement to compensation and threats to the Bill's constitutionality, where the common law might easily provide for mere suppression.

It rides roughshod over issues currently before the courts and provides resolutions that uniformly favour the respondents in those cases.

It denies procedural fairness to indigenous people who proceed to a court resolution of their claims.

It makes wholesale assertions about permanent extinguishment by a complex range of legislative and regulatory instruments where analysis of the Fourth Schedule to the Bill turns up numerous instances where no such extinguishment can be sustained by reference to the facts.

The Bill is incompatible with both the spirit and the letter of the Racial Discrimination Act 1975. It makes a mockery of Australia's responsibilities as a signatory to the Convention on the Elimination of All forms of Racial Discrimination.

The Sunset clause in the Bill in concert with the proposed blanket validation of so called intermediate period past acts has the potential to deprive native title holders of their title rights without their knowledge and therefore their capacity to seek compensation. Accordingly, these provisions are likely to amount to acquisition of property by the government on unjust terms and thus leave the Bill open to constitutional challenge.

In short, this Bill is an abrogation of the agreement reached with indigenous people that gave us the Native Title Act 1993. It provides for a significant diminution of their statutory and common law rights.

It is unduly complex, and places onerous burdens on the Tribunal, the Federal Court, and their Registrars in particular, with no commitment on the part of the government to resource these institutions to cope with the increased load.

The Bill offers certainty and workability to no-one. Just as the 1993 legislation sought to offer a less complex , more accessible and cost effective alternative to common law remedies, the 1997 Bill will turn claimants back to the common law. It offers them nothing but the incentive to challenge the constitutionality of the amended legislation in the High Court.

This Bill a recipe for uncertainty. It is a blueprint for anyone seeking to halt development and tie up all interested parties in the courts for the indefinite future.

The minority report recommends that the Bill be substantially amended, on the basis of genuine consultations with the affected parties.

MINORITY RECOMMENDATIONS

1. The Minority is concerned about the complexity of the terms of the Bill and the timeframe set by the Government to consider the Bill.

2. In these circumstances, the recommendations set out below are not exhaustive. The Minority is of the view that further amendments will be necessary as the Bill is subjected to further scrutiny.

Constitution

1. The Minority believes that to achieve absolute certainty the amendment Bill must be beneficial to indigenous Australians. A principal test of its beneficial nature is full and adequate negotiation with the supposed beneficiaries.

Racial Discrimination Act

1. The Minority proposes amendment similar to the proposal contained in Chapter 2 of the First Minority Report and Chapter 3 of the Second Minority Report of the Committee in relation to the Native Title Amendment Bill 1996, to include in the Bill a clause with the purpose of ensuring that amendments effected by that Bill would be subject to the Racial Discrimination Act 1975, be adopted in respect of the current Bill.

2. The proposal is designed to confirm Australia's determination to uphold its obligation under the Convention for the Elimination of all forms of Racial Discrimination (CERD) and to reflect the Government's commitment not to impair or diminish the operation of the Racial Discrimination Act 1975 in any amendment of the Native Title Act 1993. If the Bill is a special measure it will be effective.

The clause proposed for adoption would:

2.1 Without limiting the general operation of the Racial Discrimination Act 1975 in relation to the provisions of the Native Title Act 1993, provide that the Racial Discrimination Act 1975 is intended to prevail over the provisions of the amending Act.

2.2 Provide that the provisions of the amending Act do not authorise conduct that is inconsistent with the provisions of the Racial Discrimination Act 1975.

Validation of Intermediate Period Acts

1. As a general principle, only those intermediate period acts directly justifiable having regard to the Wik decision should be validated.

2. Consistent with the general principle at (1), only intermediate period acts associated with pastoral leases and which do not have the effect of causing impairment of the enjoyment of native rights or disturbance of sites of significance should be automatically validated.

3. The Minority recognises that there are categories of intermediate period acts where automatic validation cannot be justified. In those cases, measures including notice to Representative Bodies and an appropriate negotiation period should be adopted for the purpose of retrospective validation of the acts.

4. Consistent with the principle at (1), the Minority rejects the automatic validation of intermediate period acts where those acts were or authorised grants of interest from the Crown in one capacity to the Crown in another; grants of interest on or of Aboriginal land; and grants in respect of leases containing reservations in favour of Aboriginal people.

5. In respect of all validations of intermediate period acts, the Commonwealth must guarantee compensation to affected native titleholders on just terms.

Confirmation of Extinguishment

1. Because the question whether native title is permanently extinguished or merely suppressed is not yet conclusively determined by the High Court, the Government must not assume that the common law provides for more than the suppression of native title during the term of an inconsistent grant of interest.

2. Consistent with the principle at (1), delete Division 2B, Part 2 of the Native Title Amendment Bill 1997 including Schedule 4.

3. The Minority notes that in respect of grants of interest from the Crown in one capacity to the Crown in another, where the High Court has indicated that native title may continue to survive, it is particularly erroneous to assume the permanent extinguishment of native title.

Indigenous Land Use Agreements

1. The Minority notes that the Government has largely accepted the amendments to include Indigenous Land Use Agreements.

2. The Minority supports these amendments as a means of addressing the concerns of stakeholders and to remedy certain classes of possibly invalid intermediate period acts.

Future Acts

1. The Minority rejects the use of the modified Income Tax Assessment Act 1936 definition of 'primary production activity' for the purposes of classifying valid future acts.

2. The Minority proposes an alternative definition derived from the definition of "pastoral purposes" in the Pastoral Land Act (NT). The definition includes pasturing of stock, associated agricultural uses and farmstay tourism.

3. The extension of the 'primary production' definition to 'off farm' activities as a basis for denying access to the right to negotiate should be deleted, except so far as State laws allow for bona fide 'off farm' activities for the purposes of access to water and grazing during periods of drought, flood, fire and other natural disasters.

4. In respect of the wider classes of future acts contained in Division 3, Part 2 of the Native Title Amendment Bill 1997 listed below, there should be an obligation upon the relevant government to notify and consult with registered native title bodies corporate, registered native title claimants and relevant Representative Bodies in respect of impact mitigation and continuing access for native titleholders. This Recommendation applies to;

* Subdivision G (primary production)

* Subdivision H (water and air management)

* Subdivision I (renewals)

* Subdivision J (reserved land)

* Subdivision K (facilities for services to the public)

* Subdivision L (low impact acts) and

* Subdivision M (freehold test).

5. Subdivision J, Division 3, Part 2, Native Title Amendment Bill should not apply to reserved land to prevent negotiation over future use.

6. The Minority rejects the proposed expansion of renewals of interest in land where such expansion will allow upgrade to non-primary production activity if associated with or incidental to primary production.

7. Consistent with the Minority Recommendations at Chapter 6, the amendments should ensure that the non-extinguishment principle applies to all upgrades and renewals under this subdivision.

8. Subdivision K, (facilities for services to the public) should be amended to ensure that it applies only to existing facilities, and to provide adequate procedural rights to native titleholders.

Seas, Water and Airspace

1. The Minority notes the importance of distinguishing between offshore waters and inland waters.

2. In respect of offshore waters, the Minority recommends deletion of the exclusion of future acts from the right to negotiate.

3. In respect of inland waters;

3.1 provision should be made or protect the procedural rights of registered native title bodies corporate and registered claimants in respect of ordinary regulatory acts; and

3.2 the right to negotiate should apply where the proposed act involves major alterations to water quality or quantity, for example acts permitting damming of rivers, alterations to aquifers, flooding and so on.

4. In respect of airspace, provision should be made for consultation with registered native title bodies corporate registered claimants and Representative Bodies in relation to regulatory acts likely to cause significant disturbance to the enjoyment of native title rights.

The Right to Negotiate

1. The Minority takes the view that an effective right to negotiate must remain in place for matters addressed in Chapter 10.

2. The Government's inflexible approach to the right to negotiate is rejected. The right to negotiate procedures must be sufficiently flexible to take into account the circumstances in which they are intended to apply.

3. The right to negotiate in respect of mining related activities should not be excluded from areas subject to pastoral lease grants, past or present.

4. There is no justification for Ministerial intervention in the right to negotiate process before conclusion of the arbitration phase.

5. It is an unsatisfactory policy precedent to exclude from the right to negotiate compulsory acquisitions for the benefit of any third party interests. Accordingly, the right to negotiate should apply in such cases.

6. Representative Bodies should be adequately resourced to carry out more clearly defined functions and responsibilities in the right to negotiate process.

7. The Minority recommends that the Commonwealth ensure that the net royalty and tax regime applicable to mining and exploration operations the subject of regional or other agreements between miners and indigenous people be adjusted, if necessary, to acknowledge at least in part mining companies' ongoing payments to the indigenous communities involved, and essential expenses incurred in reaching such agreements.

Statutory Access to Pastoral Leases

1. The registration test for native title applications will provide adequate verification of the bona fides of native title applicants. The statutory confirmation of native title rights of access to areas subject to pastoral lease grants should not be subject to ongoing physical connection requirements.

2. The statutory right of access should not preclude other native title applicants from exercising native title rights.

3. The Minority notes that issues of access to pastoral leases and the terms of such access are matters suitable for determination by Indigenous Land Use Agreements.

Sunset Clause

1. The Minority rejects the 'sunset clause' amendments in their entirety.

Management of Applications

1. The Brandy amendments are supported.

2. The existence and continuing central role of the National Native Title Tribunal must be confirmed. The Tribunal must be adequately resourced to perform its functions efficiently.

3. The Minority supports the re-establishment of a registration test for access to the right to negotiate and other statutory purposes. The registration test should not exclude bona fide claimants with reasonable prospects of success in establishing native title from access to the right to negotiate provisions.

4. The Minority rejects proposed simplistic suggestions for dealing with the extensive backlog of claims, particularly of a conflicting nature. There is a need for a measured consideration of pre-June 1996 registrations.

5. The Federal Court and the Native Title Tribunal must be provided with discretion in the administration of applications to prevent possible injustice.

6. In hearings of native title cases, Federal Court judges need not follow formal rules of evidence. The Minority supports the maintenance of the existing provision contained in the Native Title Act 1993. The court should still be obliged to take account of custom and tradition in conducting hearings.

Representative Bodies

1. The Minority acknowledges the central role Representative Bodies play in native title recognition and protection processes under the Native Title Act 1993.

2. Representative Bodies should be adequately resourced and assisted to carry out more clearly defined representative functions and responsibilities in the native title recognition and protection processes.

3. Representative Bodies must be accountable to constituents and to ATSIC in the performance of clearly defined responsibilities.

4. Ministerial powers of oversight of Representative Bodies are a duplication and unnecessary. The amendments concerning Ministerial (as opposed to ATSIC) intervention into the affairs and control of Representative Bodies are opposed.

5. There should be a power in representative bodies to nominate vacant crown land and land occupied by Aboriginal interests for "fast-track" recognition as under the Northern Territory Land Rights Act.

Additional Recommendations

CHAPTER 2 INTRODUCTION

"It would be a tragedy for the nation if Aborigines were to be worse off, having won the Wik Case".

Reverend David Gill, General Secretary, National Council of Churches in Australia[1].

Background

The Mabo[2] [No.2] decision brought Australia into line as the last Commonwealth nation to recognise the traditional laws of its indigenous people in the form of native title. The recognition of native title under Australian law is a fundamental step in Australia's development as a fair and just society.

There can be no retreat from that recognition. The challenge which now falls on Australians is to integrate native title with non-indigenous laws and society, to develop a new understanding, and to create a new era of openness, cooperation and prosperity for present and future generations.

This challenge cannot be achieved without broad community consensus. It is therefore critical that all Australians, regardless of political conviction, rise above partisan positions and share responsibility, not for the past, but for the resolution of the issues all of us now face.

2.1 Mabo v. Queensland [No. 2]

The Mabo [No. 2] decision is authority for the principle that at the time of European arrival Australia was not 'terra nullius', or practically uninhabited. Accordingly, the common law recognises indigenous law unless there has been an exercise of Crown sovereignty in the form of a grant of interest or legislative act over land or waters which is inconsistent with the traditional law, or native title.

The Mabo [No.2] decision raised complex issues about the validity and administration of land titles throughout Australia. The recognition of native title created the urgent need for a legislative response to these issues.

2.2 The Native Title Act 1993

In October 1992, the then Government announced that it would commence consultations with stakeholders and established an interdepartmental committee to carry out the consultations and report to the responsible Ministers. In January 1993, the then Prime Minister announced his intention to introduce national native title legislation[3]. The Native Title Act 1993 was enacted in order to provide a statutory framework for deciding questions left unanswered by the Mabo [No.2] decision.

The main objects of the Act are:

* to provide for, or permit, the validation of past acts invalidated because of the existence of native title;

* to provide for the recognition and protection of native title;

* to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings; and

* to establish a mechanism for determining claims to native title[4].

The validation provisions of the Act were a necessary response to the possible invalidity of grants of interests in land after 1975 which affected native title following the enactment of the Racial Discrimination Act 1975 (Cth).

The Racial Discrimination Act prohibits discrimination based on race in relation to the holding of property. The High Court held in the case of Mabo v Queensland [No.1][5] that it was a breach of the Racial Discrimination Act to single out the legal rights of native titleholders for extinguishment while leaving the legal rights of other people in the Murray Islands intact.

In October 1994, the High Court held in the Brandy[6] case that, generally speaking, judicial power could not be exercised by non-judicial bodies. The decision had implications for the recently formed National Native Title Tribunal because some of the Tribunal's functions have been identified as judicial in their nature. As an interim measure, the Tribunal developed new procedures to ensure that the Federal Court exercised those judicial functions.

In 1995  the previous Government introduced into parliament amendments to the Native Title Act 1993 to provide that native title determination and compensation applications will be dealt with by the Federal Court. Those amendments were not enacted before the change of Government in March 1996. The so-called Brandy amendments are contained in the Native Title Amendment Bill 1997.

2.3 Amending the Native Title Act 1993

There has been consideration of amendments aimed at improving the operation of the Native Title Act 1993 since early in the Act's operation.

In March 1995 the President of the Tribunal, Justice Robert French, circulated a Discussion Paper on Proposed Changes to the Native Title Act 1993.

In September 1995, the Department of the Prime Minister and Cabinet and the Attorney-General's Department circulated a document entitled Outline of Proposed Amendments to the Native Title Act 1993. Many of the proposals detailed in the document were included in the then Government's response to the High Court's Brandy decision.

The Outline was followed in November 1995 by the introduction of the Native Title Amendment Bill 1995 into Parliament. This Bill lapsed due to the calling of the 1996 General Election.

In May 1996, the present Government released a paper entitled Towards a More Workable Native Title Act: An Outline of Proposed Amendments. Some of the matters foreshadowed in the Outline Paper were contained in the Native Title Amendment Bill 1996. Others were contained in an Exposure Draft tabled in the Parliament in October 1996. The High Court's Wik[7] decision led the Government to put the 1996 Bill and Exposure Draft aside and develop a package of amendments in the form of the Native Title Amendment Bill 1997[8].

2.4 The Wik Peoples v. The State of Queensland & Ors

The Wik Peoples of Western Cape York Peninsula, Queensland, commenced action in the Federal court claiming native title in June 1993, six months before the enactment of the Native Title Act 1993. Part of their claim is over current and former pastoral leases.

Before the Wik people could fully argue their case, Justice Drummond ordered that certain "preliminary questions of law" be determined by the court. Some of those questions concerned whether the grant of specific pastoral leases in Cape York Peninsula necessarily extinguished all elements of native title. The questions were framed in such a way that they only provided a comprehensive and conclusive answer if the answer was, in paraphrase, "yes, all elements of native title are necessarily extinguished by the grant of the particular pastoral leases". Justice Drummond made a decision in those terms.

In December 1996, in an appeal from Justice Drummond's decision, the High Court answered the questions in the negative: all elements of native title are not necessarily extinguished by the grant of the particular pastoral leases.

Importantly, however, the Court found that where there is held to be an inconsistency between rights granted under a pastoral lease and native title rights, the rights under the pastoral lease must prevail[9].

The High Court's decision was based upon common law principles. After considering the words of the lease documents and the factual circumstances, including the size of the lease areas (almost 3000 square kilometres in one case), the majority of the Court concluded that the pastoral leases in question did not confer exclusive possession on the lessees, and so on the principles of Mabo [No.2] all elements of native title are not necessarily extinguished. However, as noted above, the Court confirmed that the lessees' rights under the pastoral leases were valid, and that the rights granted under a valid pastoral lease would prevail over any native title rights in the event of inconsistency between them.

The question was left open whether native title might revive after an inconsistent grant like a pastoral lease had expired[10].

The High Court was not given the opportunity to provide a more comprehensive treatment of the issues because the preliminary questions of law upon which the Court's decision was based were, as their title implies, ordered to be heard by Justice Drummond in the Federal Court before all evidence was heard in the Wik peoples case.

The nub of the High Court's decision is that no one's rights are diminished.

2.5 Implications of the Wik Decision

The main implication of the High Court's decision in Wik is that native title may have survived on the estimated 42 per cent[11] of the Australian land mass covered by pastoral leases.

While the High Court confirmed that pastoral lease rights prevail over native title rights, in some states it is not entirely clear from the terms of the leases what specific rights are granted under pastoral leases. The decision also has implications for diversification of pastoral and agricultural activities under existing State and Territory policies and laws.

In addition, certain States and Territories failed or refused to follow the "future act" processes of the Native Title Act 1993 to ensure the validity of fresh grants of interest in land and waters made after the commencement of the Act on 1 January 1994. Evidence presented to the Committee is that where the future act processes were followed, over 90 per cent of grants have proceeded without objection[12].

2.6 The Aftermath of the Wik Decision

Within a month of the Wik decision Cape York Land Council, the Aboriginal Representative Body of the area covered by the Wik peoples claim, held a summit with all major stakeholders to identify the implications of the decision, and to commence a process of resolving the issues by agreement[13]. The Cape York Land Council had been instrumental in the Cape York Land Use Heads of Agreement among pastoralists, Aboriginal people and environmental groups.

By way of contrast, Queensland Premier Rob Borbidge commenced an ungainly attack on the High Court, describing the court as an embarrassment which had to be brought under control;

"These Judges form themselves into a legal magic circle and begin inventing laws..."[14]

Deputy Prime Minister Tim Fisher followed suit, calling for the appointment of "capital C" Conservative judges.[15]

Neither Mr Borbidge nor Mr Fisher issued a comprehensive and considered criticism of the reasons of the High Court's decision. They only criticised the result.

It is a matter of shame on those detractors and on the Government that in the weeks following the High Court's decision the only leadership shown, the only attempt to resolve issues, was by an Aboriginal Land Council.

2.7 Revisiting 1993

The Prime Minister's early contribution to the debate following Wik was to allege that under a "deal" struck between Government, pastoral and Aboriginal stakeholders in 1993, native title was extinguished in areas covered by pastoral leases[16]. Pastoralists and others followed the Prime Minister's lead[17].

If such a "deal" existed and was "broken", it may provide some limited justification for the Government's draconian and unnecessary proposals to extinguish native title permanently on areas covered by a pastoral lease, current or expired[18].

There is however incontrovertible evidence that no such "deal" extinguishing native title in pastoral lease areas was ever made.

The current President of the National Farmers Federation has conceded that no such "deal" existed.

In the course of an exchange between Mr Daryl Melham and Messrs Donald McGauchie, President, and John McKenzie, Chairman of the "Aboriginal Affairs Task Force" of the National Farmers Federation, about the existence or otherwise of such an agreement, Mr McGauchie made the following frank admissions;

"The fact of the matter was that we had what we thought was an understanding. Clearly, in law, that understanding was not there. Now we can go over this and over this and over this. The fact of the matter is we were dudded by the fine print, and we acknowledge that...

I accept we were wrong. You can spend the rest of the day, Daryl, telling us we were wrong. Don't bother, because I tell you that I understand we were wrong. We were done by the fine print, and that is that, but I will tell you we are not going to be that dumb again..."[19]

Further evidence of the absence of a concluded agreement is available, if any more be required;

* The current Attorney-General has described as "general assumption"[20] the view that pastoral lease grants extinguished native title at law;

* It is a matter of public record that the question whether pastoral leases extinguish native title was not settled at the time the Native Title Act 1993 was negotiated. Mabo [No. 2] did not deal with pastoral leases;

* It is also a matter of public record that the Wik peoples case, which deals with pastoral leases, was on foot at the time of the negotiation of the Native Title Act 1993. Neither the State of Queensland, pastoralists (with the assistance of the National Farmers' Federation) nor any other respondent applied to the Court to have the Wik peoples claim discontinued so far as it related to pastoral leases on the basis of any "deal" or because of the enactment of the Native Title Act 1993;

* Against the background of uncertainty about the effect of a pastoral lease grant in 1993, pastoralists negotiated into the Native Title Act 1993 a guaranteed renewal of their leases without the need to refer to native titleholders.[21]

Accordingly, the Government's defence of its plan under the Bill to extinguish and otherwise confine the enjoyment and protection of native title rights in pastoral lease areas is illusory.

The Government now proposes to pass legislation based, in part, upon its "10 Point Plan".

2.8 The Native Title Amendment Bill 1997 ("the Bill")

There is broad consensus that certain aspects of the Act require improvement[22]:

* The Brandy amendments are necessary;

* A workable registration test needs to be reintroduced following court decisions reading it down[23];

* Provision should be made to address overlapping and multiple native title determination applications;

* Pastoralists' rights need to be particularised and confirmed; and

* The right to negotiate process may be improved by limited amendment which has proper regard to native title and the rights of native titleholders.

The Bill far overreaches the amendments necessary to address these matters.

The Bill will provide neither certainty nor workability to the process of recognition, integration and protection of native title in this country.

The Bill will unnecessarily extinguish native title throughout Australia and expose Australian taxpayers to potentially enormous, and currently unquantified, liability to pay compensation for the loss of those rights[24]. The Bill in its present form demonstrates the financial and social irresponsibility of a Government the captive of its own backbench.

2.8.1 Unnecessary and Unworkable Complexity

The Government proposes to replace the existing 127 page Act with the 293 page Bill and a 385 page Explanatory Memorandum.

There has been substantial criticism of the Bill's complexity.

From the National Farmers' Federation;

"The sheer complexity of the legislation...means that lawyers and farmers will be grappling for clarity for a long time to come"[25].

From the Minerals Council of Australia;

"The minerals industry is concerned that the legislative response remains very legalistic and complex, and will encourage litigation and arbitrated outcomes"[26].

And from ATSIC;

"Instead of producing certainty and workability the amendments will result in increased confusion, uncertainty and litigation for years"[27].

In light of objections from all quarters about the complexity of the Bill, it is difficult to devine the logic, if any, behind the Government's plan. The answer may lie in an observation by Mr Wells of the Minerals Council of Australia [28];

"In the early part of the [future acts] process, very few people objected to [Exploration Licences] in Western Australia and about 2000 went through without any objections being raised. The fact is that once people started to learn about the process, objections started to flow" (emphasis added).

The Bill in its current form is of little utility to any of the major stakeholders.

2.8.2 Poor Process

The lack of real negotiation will all major stakeholders in the formulation of the Bill is perhaps its most fatal inherent defect.

In the absence of proper and considered negotiation of its terms the Bill suffers the dual weakness that it proceeds upon wrong assumptions and does not enjoy even a moderate level of support from key stakeholders[29].

The Government describes the process of formulating the Bill as "open and participatory", involving an "intensive series of consultations with all interested parties"[30].

Others have described the consultation process as 'an absolute sham'[31].

Comparing the negotiation process of the Native Title Act 1993 with the current process, Father Frank Brennan commented;

"In 1993, for the first time ever, Aboriginal Australians...sat down and they negotiated, not only with the government but with all parties in the Senate, to ensure an outcome on legislation that they could own. In my 15 years experience in this game...I have never known that before. Of course, there are some who are critics of that process, but I think it was a very maturing process for this nation. I readily concede that something of that has been lost in this process"[32].

Numerous submissions were made to the Committee about the lack of proper process and negotiation in the formulation of the Bill[33].

The Minority are particularly concerned that Coalition members of the Committee, with the Chairman using his casting vote, voted against inviting the Australian Law Reform Commission (ALRC) to make a submission to the Committee. Appendix 1 to the Minority report contains correspondence between the Committee and the ALRC concerning this sorry episode.

It is apparent from the appended correspondence that the ALRC had a valuable contribution to make to the Committee's investigations. In the event, the ALRC's draft written comments were provided to the Committee by other witnesses. A copy of the written comments is Appendix 2 to the Minority report. The ALRC did not make oral submissions to the Committee.

As a process issue, it is deeply disturbing that the Majority of the Committee sought to exclude valuable evidence on matters directly related to the Committee's terms of reference.

The Bill will make bad law because it will not facilitate a consensual approach to future development. Rather, it will provoke acrimony among affected parties. As law, it will be bad for the economy, bad for reconciliation and bad for Australia.

2.9 Misunderstanding, Misinformation and the Need for Education

A significant issue which has emerged in the course of the Committee's proceedings is the level of misunderstanding and misinformation about native title in the community at large and even among those with interests directly affected by native title.

For example, Justice French, President of the Tribunal, referred in his evidence to the mayor of an unidentified North Queensland shire who believed that a native title claim over a pastoral property would require the lessee to quit the property[34].

Even among some peak mining bodies there appears to be a failure to understand that the Native Title Act 1993 concerns the recognition and protection of existing legal rights, not the award or grant of rights[35].

Camilla Cowley, a pastoral landholder from Queensland said at the ANTaR rally in Canberra on Sunday October 1997:

"Months ago, I was angry and confused when a native title claim was made over land which included my property. I immediately looked into what it meant and what could be done. But the deeper I investigated, the more I realised that the property that had been in my family for over two decades was not actually under threat. There's too much confusion and misunderstanding around this whole debate. As a landholder, I am confident co-existence is not only possible, it's the only decent way forward for the stakeholders and for the nation as a whole".[36]

The Australian Local Government Association flagged the desirability of specific amendments to deal with public education, and to counter misinformation campaigns and false assumptions about the impact of native title[37]. For pastoralists, farmers and other rural people, lack of understanding about native title is a particularly acute strain[38].

There is little evidence that Governments have taken adequate, or in some cases any, steps to provide education and information to allay people's concerns, particularly in rural Australia, where the need is perhaps greatest[39].

Indeed the Prime Minister has demonstrated that he is not above taking advantage of ignorance of the issues to mislead the public about native title in advance of the passage of the Bill. On 4 September this year the Prime Minister appeared on ABC television's 7.30 Report, produced a coloured map of Australia and, referring to the right to negotiate, said:

"Let me just show your viewers that...this shows 78 per cent of the land mass of Australia - coloured brown on this map. Now, the Labor Party and the Democrats are effectively saying that the Aboriginal people of Australia should have the potential right of veto over further development of 78 per cent of the land mass of Australia"[40].

The right to negotiate, discussed in detail at Chapter 10, is a limited right of registered native titleholders and some claimants to negotiate the conditions under which mining development will proceed. It does not confer a right to prevent mining from proceeding. In contrast to the Prime Minister's statement, the Explanatory Memorandum to the Bill states;

"The right to negotiate was not a veto"[41].

The Prime Minister's statement is wrong and contradicts even the Government's own Explanatory Memorandum.

The Prime Minister's misleading and alarmist statement highlights the need for further scrutiny of the Bill, if for no other reason than that the Prime Minister has found it necessary to mislead Australians in order to secure its passage.

If, on the other hand, the Prime Minister himself is labouring under serious and fundamental misapprehensions about native title and the operation of the Native Title Act 1993, then the "10 Point Plan" and the Bill must be revisited in their entirety.

APPENDICES

Appendix 1 Correspondence between the Committee Secretariat and the Australian Law Reform Commission

CHAPTER 3 THE CONSTITUTION

The Races Power at Federation

Prior to its amendment as a result of the 1967 referendum, section 51(xxvi) of the Constitution gave the Commonwealth Parliament the power to make laws for peace, order and good government of the Commonwealth with respect to 'the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws.'

In the Convention Debates which preceded Federation, there was little discussion of the races power[42] and even less about Indigenous people. In the form in which it was proposed at the Australasian National Convention in 1891, the power would have been an exclusive Commonwealth power. One of the Founders, Sir Samuel Griffith, explained it in these terms:

"...the introduction of an alien race in considerable numbers into any part of the Commonwealth is a danger to the whole of the Commonwealth, and upon these matters the Commonwealth should speak, and the Commonwealth alone."[43]

The power as finally adopted was a concurrent power, but in our view, it was directed at 'minority, immigrant races within Australia.'[44] Early constitutional commentators like Harrison Moore and Quick and Garran are often quoted to explain the nature of the races power. In Harrison Moore's second edition of the Constitution of the Commonwealth of Australia he wrote that the races power:

"...recalls the various race problems which arise in different parts of Australia, and enables the Parliament to establish laws concerning the Indian, Afghan and Syrian hawkers; the Chinese miners, laundrymen, market gardeners, and furniture manufacturers; the Japanese settlers and Kanaka plantation labourers of Queensland, and the various coloured races employed in the pearl fisheries of Queensland and Western Australia."[45]

Similarly, Quick and Garran wrote in the Annotated Constitution of the Commonwealth of Australia, that section 51(xxvi):

"...enables the Parliament to deal with the people of any alien race after they have entered the Commonwealth; to localise them within defined areas, to restrict their migration, to confine them to certain occupations, or to give them special protections and secure their return after a certain period to the country whence they came."[46]

The Commonwealth Government's submission to the Parliamentary Joint Committee includes a Joint Opinion from two legal counsel. The Joint Opinion states, 'Harrison Moore did not refer specifically to the making of laws affecting a race adversely, but that was obviously within the range of laws which he contemplated.[47]

The Solicitor-General's opinion, also attached to the Commonwealth Government's submission, says that 'There was an intentionally racist cast to the power [at Federation].'[48]

We take the view that a strong argument can be made that the races power is a power to enact special beneficial laws--that it was fundamentally altered by and must now be interpreted in the light of the 1967 referendum. However, even if the power is interpreted in its original sense, we suggest that opinions such as those of Harrison Moore and Quick and Garran should be read as confining any special detrimental laws made under it to situations where a race constitutes a threat. There is no threat that supports the passage of the Native Title Amendment Bill 1997.

The 1967 Referendum

The movement to amend the Constitution to give the Commonwealth power to make special laws for Aboriginal people gained momentum in 1957. The Federal Council for Aboriginal Advancement was established in 1958. In 1962, the Australian Labor Party signalled that it would support the repeal of section 127 of the Constitution and the removal of the words 'other than the aboriginal race' in section 51(xxvi) of the Constitution.

In the 1960s, the Commonwealth Government led by Sir Robert Menzies gave consideration to the repeal of section 127 of the Constitution but it was not until early 1967 that the Government under Prime Minister Harold Holt agreed to introduce a Bill that would repeal section 127 and amend section 51(xxvi) of the Constitution by omitting the words 'other than the aboriginal race in any State' from the latter. Prime Minister Holt explained the Government's change of heart in the following way in his Second Reading Speech on the Constitution Alteration (Aboriginals) Bill 1967:

"Since the Government's earlier proposals for constitutional alterations were put before the Parliament, a great deal of thought has been given, both inside and outside the Parliament, to the constitutional provisions relating to the Aboriginal people and there has been much activity by Government private members and organisations concerned with the welfare of the Aboriginals. In the light of this activity and the many representations made, the Government has reviewed the position and has decided that an amendment of section 51(xxvi), as provided for in the Bill, should be put to the people .... In coming to this conclusion, the Government has been influenced by the popular impression that the words now proposed to be omitted from section 51(xxvi)) are discriminatory--a view which the Government believes to be erroneous but which, nevertheless, seems to be deep rooted..

... If the proposals relating to Aboriginals are approved by the people, the Government would regard it as desirable to hold discussions with the States to secure the widest measure of agreement with respect to Aboriginal advancement. "[49]

In the Second Reading debate on the Bill, EG Whitlam, the Leader of the Australian Labor Party, said that amending section 51(xxvi) would enable the Commonwealth Parliament:

"...for the first time to do something for Aboriginals-Aboriginals representing the greatest pockets of poverty and disease in this country. ...Hereafter it will be possible for the Commonwealth to do these things [such as provide health, education etc] directly itself. Hereafter it will be possible for the Commonwealth to provide Aboriginals with some of that social capital with which most other Australians are already endowed. ... The Commonwealth can at least bring the resources of the whole nation to bear in favour of the Aboriginals where they live,"[50] (emphasis added).

The Liberal Member for Mackellar, WC Wentworth, said 'I believe that these people [Aboriginal people] need some discriminatory legislation which is in their favour.'[51] In the Senate, Lionel Murphy remarked:

In this proposed law there is no suggestion of any intended discrimination in respect of Aboriginals except a discrimination in their favour.[52]

Senator Vince Gair, Leader of the Australian Democratic Labor Party, said that the Bill was:

"...a belated endeavour to correct a grave injustice that has existed in our Constitution for some years ... I have no doubt that the people of Australia, being fair and just and appreciative of the people of the Aboriginal race, will vote solidly for the amendment of the Constitution to permit these people to be counted and also to permit the Commonwealth Government to legislate for them."[53]

The Constitution Alteration (Aboriginals) Bill 1967 was passed unanimously by both Houses of Parliament with the result that only a 'Yes' case was put to the Australian public. That case was endorsed by the Prime Minister, the Leader of the Country Party and Deputy Prime Minister, John McEwen and by the Leader of the Opposition, EG Whitlam.

The 'Yes' Campaign documents informed the electorate that the proposed amendment to section 51(xxvi) would:

"...do two things. First, it will remove words from our Constitution that many people think are discriminatory against the Aboriginal people.

Second, it will make it possible for the Commonwealth Parliament to make special laws for the people of the Aboriginal race, wherever they may live, if the Parliament considers it necessary."[54]

Writing in Smoke Signals, the journal of the Aborigines Advancement League, Prime Minister Holt declared in May 1967:

"Nor is it, we believe, acceptable to the Australian people as a whole that the National Parliament should not have power to make special laws for the people of the Aboriginal race, where that is in their best interests.

Once the constitutional barrier is removed, I would hope that we could enter into discussions with the State Governments to ensure that together we act in the best interests of Aborigines. What precise measures we or they may decide upon it is not, of course, possible to forecast, but I am confident that acceptance of this referendum by the people will work only for the good of our Aborigines,"[55] (emphasis added).

The Leader of the Country Party, Doug Anthony, was similarly forthright:

"Words which can be read as discriminating against the Aboriginal race will be removed. This would give the Commonwealth Government for the first time, power to make special laws for the benefit of Aboriginal people throughout Australia,"[56] (emphasis added).

Letters to newspapers, articles and editorials were also generally supportive of the referendum and saw it in positive terms. For example, in an editorial on 26 May 1967, the Melbourne Age remarked 'A Yes vote will pave the way for improving their health, education and housing; it will give them opportunities to live normal lives. A No vote will frustrate any vigorous programme to end discrimination against Aborigines; it will be a brutal rebuff to the first Australians and bring this country into international disrepute.'

On 27 May 1967, the Sydney Morning Herald editorial 'Yes, yes' said, 'Today's vote will be a measure of the responsibility of our attitude towards Aborigines....By voting Yes to the question affecting them, we are at least taking this opportunity of supporting their cause. And it is their cause. Aboriginal leaders have made it plain that they want a referendum carried.'

The referendum was held on 27 May 1967. It obtained a majority in all six States and an overall majority of 4,656,106 votes.[57] The referendum resulted in the highest number of 'Yes' votes ever recorded--90.77% of all formal votes.

The High Court and the Races Power

The Commonwealth's Joint Opinion on the Bill states that 'The High Court's decisions on s.51(xxvi) are also against the view that s.51(xxvi) permits only laws which benefit a race.'[58] However, the Solicitor-General's Opinion remarks that 'Notwithstanding the clear authority of the Western Australian Case supporting the validity of the Bill under the races power, at the least it is possible some Judges could adopt a differential approach to the power,'[59] (emphasis added).

A different view of the Native Title Act Case (the Western Australian Case) can be sustained. A variety of opinions on the races power have been expressed by High Court judges which the Joint Opinion tends to 'gloss over.' Importantly, too, the High Court has not heard a case where the validity of a law has been impugned on the basis that it affects Aboriginal people detrimentally.

In Koowarta v. Bjelke-Petersen, Gibbs CJ said about section 51(xxvi):

"It would be a mistake to suppose that s.51(xxvi) was included in the Constitution only for the purpose of enabling Parliament to make laws for the special protection of people of particular races. Quick and Garran, in their Annotated Constitution of the Australian Commonwealth (1901), correctly observed, at p.623, that "by sub-sec. xxvi the Federal Parliament will have power to pass special and discriminating laws relating to 'the people of any race.'" Such laws might validly discriminate against, as well as in favour of, the people of a particular race."[60]

Other dicta in Koowarta quoted in the Joint Opinion attached to the Commonwealth Government's submission are those of Justices Wilson, Brennan and Stephen. Wilson J said in Koowarta:

"In these days, one would not readily contemplate the use of the power to the detriment of the people of a race; nevertheless it is basic to an understanding of the scope of the power to recognise that even when it is used for wholly benevolent and laudable purposes it remains a power to discriminate with respect to such a people. The paragraph recognises that there may be occasions when the circumstances touching the people of a particular race will call for special attention resulting in legislative activity in relation to those people. These laws will be special because they will address a problem that is peculiar to the people of that race."[61]

Justice Stephen said:

"I regard the reference to special laws as confining what may be enacted under this paragraph to laws which are of their nature special to the people of a particular race. It must be because of their special needs or because of the special threat or problem which they present that the necessity for the law arises..."[62]

The words of Justices Wilson and Stephen do not indicate to us that the power must be interpreted to support special detrimental laws in any general sense--rather they suggest to us that if a view is taken that the races power supports detrimental laws, it will only support laws which respond to the special threats or problems that the people of a race present. It is difficult to see what special threats or problems are posed by Aboriginal people or Torres Strait Islanders that justify the enactment of the Native Title Amendment Bill 1997.

Murphy J said in Koowarta:

"In par. (xxvi) "for" means "for the benefit of." It does not mean "with respect to", so as to enable laws intended to affect adversely the people of any race. If "with respect to" or some similar expression were intended, it would have been used, as it is in other parts of s.51 (see the opening words and pars. (xxxi) and (xxxvi)."[63]

The races power was next considered in the Tasmanian Dam Case in 1983. Gibbs CJ said in that case:

"History strongly supports the view that 'for' in par. (xxvi) means "with reference to" rather than "for the benefit of" - it expresses purpose rather than advantage - but that is not particularly relevant in the present case."[64]

In his judgment, Mason J seems to have echoed the thoughts of Stephen J when he said that the power in section 51(xxvi) was:

"...wide enough to enable the Parliament (a) to regulate and control the people of any race in the event that they constitute a threat or problem to the general community, and (b) to protect the people of a race in the event that there is a need to protect them."[65]

Deane J said:

"...the architects of the Constitution paid no attention at all to the position of the Aboriginal people of Australia. Their express exclusion from the provisions of s.51(xxvi) could not be attacked as adversely discriminatory since that grant of power was primarily seen as a power to permit adverse discrimination against the people of a particular race rather than as a power to pass a law for the benefit or protection of such people...As it became increasingly clear that Australia, as a nation, must be diminished until acceptable laws be enacted to mitigate the effects of past barbarism, the exclusion of the people of the Aboriginal race from the provisions of s.51(xxvi) came to be seen as a fetter upon the legislative competence of the Commonwealth Parliament to pass necessary special laws for their benefit. The referendum of 27th May 1967, deleting the reference in s.51(xxvi) and deleting s.127 altogether, was carried by an overwhelming majority of the voters in every State of the Commonwealth. The power conferred by s.51(xxvi) remains a general power to past laws discriminating against or benefiting the people of any race. Since 1967, that power has included a power to make laws benefiting the people of the Aboriginal race."[66]

Deane J's views are somewhat ambiguous, but as the Joint Opinion obtained by the Commonwealth Government states '... it may well be that Deane J intended the penultimate sentence to be qualified by the last sentence.' In other words, the power in section 51(xxvi) as it applies to Aboriginal people may only be a power to make special laws for their benefit.

Brennan J (who is now the Chief Justice of the High Court) commented in the Tasmanian Dams Case:

"No doubt par.(xxvi) in its original form was thought to authorise the making of laws discriminating adversely against particular racial groups ... The approval of the proposed law for the amendment of par.(xxvi) by deleting the words "other than the aboriginal race" was an affirmation of the will of the Australian people that the odious policies of oppression and neglect of Aboriginal citizens were to be at an end, and that the primary object of the power is beneficial. The passing of the Racial Discrimination Act manifested Parliament's intention that the power will hereafter be used only for the purpose of discriminatorily conferring benefits upon the people of a race for whom it is deemed necessary to make special laws."[67]

This judgment is important in a number of respects. It may suggest that the power as originally framed is to be interpreted differently to the power as amended by the 1967 referendum. While, as the Commonwealth's Joint Opinion states, 'The reference to "primary" suggests that there are other, different objects of the power'[68], we maintain that the Native Title Amendment Bill or the Native Title Act as amended by it are not primarily laws for the benefit of Aboriginal people.

In two later cases, Chu Kheng Lim v. Minister for Immigration[69] and Kruger v. Commonwealth[70], Gaudron J referred to section 51(xxvi). In the first case she said that the view that section 51(xxvi) grounds beneficial only laws had 'much to commend it.'[71]

In Kruger, Dawson J quoted with approval an excerpt from the judgment of Deane J in the Tasmanian Dam Case that section 51(xxvi):

"remains a general power to pass laws discriminating against or benefiting the people of any race."[72]

Toohey J in Kruger, referring to section 51(xxvi) before its amendment, quoted the following words of Professor Sawer:

"The exclusion of aborigines may not necessarily have been against their interests in accordance with the ideas of the time; while they might have lost the possibility of Commonwealth laws for their protection and advancement, so far as such laws had to depend on (xxvi), they were also saved from the sort of laws against their interests which were uppermost in the minds of the delegates as likely to be passed pursuant to the placitum."[73]

Lastly, Gaudron J remarked:

"It is however arguable that that power [the race power] only authorises laws for the benefit of "the people of [a] race for whom it is deemed necessary to make special laws." "[74]

Finally, it is necessary to turn to Western Australia v. Commonwealth (the Native Title Act Case). The Joint Opinion referred to by the Commonwealth makes much of the references to the power in the joint judgment of six members of the Court.

A number of points need to be made about that judgment. First, the joint majority said that '"Special" qualifies "law". It does not relate to necessity.'[75] Their Honours indicated that the High Court may retain and exercise some supervisory jurisdiction '... to examine the question of necessity as against the possibility of a manifest abuse of the races power ...'[76] Next, the High Court in the Native Title Act Case upheld the Native Title Act 1993 as a law beneficial to indigenous people and so did not determine whether the races power extends to laws detrimental to the people of a particular race.[77] Finally, the Aboriginal and Torres Strait Islander Social Justice Commissioner recently said of the Native Title Act Case;

"The Court noted that the race power is a general power which may support laws which discriminate against or benefit the people of any race but did not examine the issue in any detail. At best the extent to which the race power may be used to legislate for the detriment of Aboriginal people is not certain."[78]

There are High Court opinions that the races power can be used either beneficially or detrimentally. However, these views do not take account of the 1967 referendum nor thinking about the source of legitimacy of the Australian Constitution. Since the passage of the Australia Act 1986 (UK) it has been said that sovereignty resides in the Australian people[79]--in 1967 the people exercised their power to change the Constitution so that special laws could be enacted for the benefit of indigenous people. Last, views that the power can be used detrimentally do not take account of the Constitution as an organic document which should be read in the light of changing circumstances. The former Chief Justice of the High Court, Sir Anthony Mason, said that:

"...the framers of the Constitution were aware that they were shaping a constitution for the future and not merely to meet the circumstances of their own time."[80]

Such opinions about constitutional interpretation have a long and distinguished history. Inglis Clark said in his 1901 work, Studies in Australian Constitutional Law:

...the Constitution was not made to serve a temporary and restricted purpose, but was framed and adopted as a permanent and comprehensive code of law, by which the exercise of the governmental powers conferred by it should be regulated as long as the institutions which it created to exercise the power should exist. But the social conditions and political exigencies of the succeeding generations of every civilised and progressive community will inevitably produce new governmental problems to which the language of the Constitution must be applied, and hence it must be read and constructed, not as containing a declaration of the will and intentions of men long since dead, and who cannot have anticipated the problems that would arise for solution by future generations, but as declaring the will and intentions of the present inheritors and possessors of sovereign power, who maintain the Constitution and have the power to alter it, and who are in the immediate presence of the problems to be solved. It is they who enforce the provisions of the Constitution and make a living force of that which would otherwise be a silent and lifeless document.[81]

Changing circumstances may also have to take into account international law and fundamental human rights--especially to assist in the interpretation of words which are of uncertain meaning. In a recent case, Justice Kirby remarked:

Where there is an ambiguity in the meaning of the Constitution ... it should be resolved in favour of upholding such fundamental and universal rights ... The Australian Constitution should not be interpreted so as to condone an unnecessary withdrawal of the protection of such rights. At least it should not be so interpreted unless the text is intractable and the deprivation of such rights is completely clear.[82]

Evidence was given to the Committee by John Basten QC;

"I think one opens by saying that no lawyer in this country could currently give a categorical answer in relation to questions of constitutional validity of this bill. What one can say--and I suspect this would be a view universally held by constitutional lawyers--is that the bill gives rise to very serious areas of doubt. ...

The race power .. is subject to doubt as to whether or not it supports legislation which is not intended for the benefit of Aboriginal people. ...

The other point to make is that the High Court can determine the issue one of two ways, in effect. If the race power is limited to beneficial legislation for Aboriginal people, then the arguments that this bill does not qualify are quite strong. It may also be said that if the race power is not so limited, then the external affairs power, so far as it is through the convention on the elimination of all forms of racial discrimination and the special measures provision, which might be an alternative basis, is clearly limited to beneficial legislation."[83]

To sum up, there is a strong argument that the races power can only be used beneficially and note Mr Basten's argument about the external affairs power. A further thread which appears to us to run through some of the judgments is that if the power is used detrimentally then it can only be used if the particular race constitutes a threat or problem.

Just Terms Compensation

Section 51(xxxi) of the Constitution provides that the Parliament has the power to make laws for peace, order and good government of the Commonwealth with respect to 'The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws.'

Native title rights are property rights. Thus, in Mabo [No.2], Deane and Gaudron JJ said:

"Our conclusion that rights under common law native title are true legal rights which are recognised and protected by the law, would, we think, have the consequence that any legislative extinguishment of those rights would constitute an appropriation of property, to the benefit of the underlying estate, for the purposes of 51(xxxi)."

There are also indications from the High Court in North Ganalanja v. Queensland (the Waanyi Case) that the right to negotiate is a property right. Justice McHugh said in Waanyi:

"Parliament has laid down the law. It has attached valuable rights to an accepted claim, rights that are exercisable by a claimant before the validity of the claim is judicial determined. The Act has given claims of native title an economic as well as a spiritual and physical dimension."[84]

The opinion of Messrs Fajgenbaum and Moshinsky (Appendix 4) includes the following;

"The provisions of the NTAB [relating to the validation of 'intermediate period acts', the 'confirmation' of extinguishment of native title by previous exclusive or non-exclusive possession acts and the future act amendments] ... would constitute an acquisition of property within the meaning of s 51(xxxi): Newcrest Mining (WA) Ltd v Commonwealth (1997) 147 ALR 42. Although most of the provisions of the NTAB provide for compensation to be payable, it is arguable that, as there is no procedure for notifying holders of native title of their right to claim compensation, the compensation is not on "just terms." Such an argument is suggested by a passage from the judgment of Deane J in the Tasmanian Dam Case at 291, where he held that the procedure for obtaining compensation under s 17 of the World Heritage Properties Conservation Act 1983 (Cth) was intrinsically unfair and therefore did not amount to the provision of compensation on just terms. At present, however, there is little authority to support such an argument."[85]

The issue of just terms compensation was also raised in evidence before the Parliamentary Joint Committee by John Basten QC.[86]

Moral Imperatives and the Native Title Amendment Bill 1997

The Parliament cannot overlook the moral ramifications of the legislation presently before it. Even if, at the end of the day, Parliament possesses the power to pass the Native Title Amendment Bill 1997, it should not exercise that power.

On 5 June 1995, John Howard made the following statement in response to the desecration of the grave of Eddie Mabo:

"I would like to specifically associate myself with the message the Prime Minister said should be conveyed to people of racist inclination in Australia: there is no place in Australia for racial intolerance, there is no place in this country for people who peddle racist bigotry and there is no place in Australia for people who would seek to treat one Australian as less important or less deserving of a place in the Australian sun than other Australians.

I agree with the Prime Minister that we have come a long way in a better understanding of the role and the place of Australians of the Aboriginal and Torres Strait Islander community. I think most Australians are desirous of seeing the disadvantage they have suffered addressed and repaired. Those who are not willing to see that addressed and repaired are in a very distinct minority.

I would hope the best messages all of us can convey to those who peddle racist bigotry is to treat them in the fashion that is most effective and to treat them and brand them as moral outcasts of our society. I think in that way we will mark our commitment as a people to a tolerant, harmonious Australia in which all Australians, irrespective of their backgrounds, are equal and entitled to be treated with equal dignity and respect."

The Coalition's Aboriginal and Torres Strait Islander Affairs Policy, released prior to the 1996 General Election, said that the Coalition's approach to 'Aboriginal land rights' is based on the following:

a) the fact of Native Title where it has survived;

b) the constitutional protection given to all property interests against Government resumption without compensation;

c) the prohibition of racially discriminatory measures or laws: and

d) the special relationship between Indigenous people and land which is at the core of Indigenous culture.[87]

The policy stated that, amongst other things, when elected the Coalition would 'a) retain the Native Title Act;...c) respect the provisions of the Racial Discrimination Act.'

More recently again, the Government released its White Paper--In the National Interest. Australia's Foreign and Trade Policy. Under the heading 'National Values', the paper states:

"Central to the values to which the Government gives expression is an unqualified commitment to racial equality and to eliminating racial discrimination. This is a non-negotiable tenet of our own national cohesion, reflected in our racial diversity, and it must remain a guiding principle of our international behaviour. The rejection of racial discrimination is not only a moral issue, it is fundamental to our acceptance by, and engagement with, the region where our vital security and economic interests lie. Racial discrimination is not only morally repugnant, it repudiates Australia's best interests.

On questions of race, as on other issues which go to the values of the Australian community, Australia's international reputation matters. Australia has a direct national interest in an international reputation as a responsible member of the international community, committed to the rule of law, ready to assist in cases of humanitarian need, and a constructive contributor to the economic development of its neighbourhood."[88]

We call on the Prime Minister to uphold his concerns about addressing indigenous disadvantage and promoting a tolerant and harmonious society, based on principles of equality. We call on the Government to abide by its election promises. And we call on the Government to honour the commitment to equality and the elimination of racial discrimination which was so forcefully expressed in the foreign affairs White Paper.

Racial equality does not amount to treating everyone the same. Equality and non-discrimination are about acknowledging and respecting difference. In a written submission to the Committee, Ms Jennifer Clarke from the Faculty of Law at the Australian National University said:

"Under international law ...equality and non-discrimination require the same treatment of things which are the same, but may require appropriately different treatment of things which are relevantly different."[89]

Further Ms Clarke's submission reads;

"Many parts of the Bill fail the non-discrimination test for the simple reason that they prefer the rights of non-Aboriginal people over those of native title holders. This preference is given either by the extinguishment of native title, or by its suppression (in many cases, permanent suppression). While compensation is generally provided, its availability does not mitigate the discrimination. ... Other parts of the Bill fail the non-discrimination test because they fail to provide native title holders with protection approaching the kind of protection given to other landowners. These provisions also operate to "run down" the Racial Discrimination Act standard of equal treatment, creating space for discriminatory state action ... Yet other parts of the Bill may fail the non-discrimination standard because they require native title to be treated like an inferior right to land. ... Finally, some parts of the Bill are discriminatory because they fail to provide appropriately different treatment for unique aspects of Aboriginal culture or Aboriginality."[90]

In 1967 Prime Minister Harold Holt asked rhetorically why section 127 of the Constitution needed to be repealed and why section 51(xxvi) should be amended. Answering his own question he said:

"Because nationally and internationally we are growing in stature. We cannot allow it to be said that our Federal Constitution discriminates against some people who live within our shores--the Aborigines."[91]

In 1997--30 years later--we are faced with a similar choice. The view taken in this report is that the Native Title Amendment Bill 1997 in its present form is morally repugnant, possibly unconstitutional and, if enacted, will lead to divisiveness and further uncertainty, and diminish our stature nationally and internationally.

APPENDICES

Appendix 2 Australian Law Reform Commission Draft Comments on the Native Title Amendment Bill 1997, 22 September 1997

Appendix 3 J. Clarke; Submission on the Native Title Amendment Bill 1997(Cth), 16 October 1997

Appendix 4 J. Fajgenbaum and M. Moshinsky, Joint Memorandum of Advice, 24 September 1997

Appendix 5 R. Castan AM QC, Submission to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, 17 October 1997

Appendix 6 R. Castan AM QC, Supplementary Submission to the Parliamentary Joint Committee on Native Title, 20 October 1997

The Senate Legal and Constitutional Affairs Committee has a reference on the constitutionality of the Bill. The following legal opinions on this question are appended to this report.

Appendix 6.1 New South Wales Bar Association, Submission on the Native Title Amendment Bill 1997, 20 October 1997

Appendix 6.2 J. Bastan QC, Submission to the Senate Legal and Constitutional Legislation Committee, 21 October 1997

RECOMMENDATIONS

1. The Minority believes that to achieve absolute certainty the amendment Bill must be beneficial to indigenous Australians. A principal test of its beneficial nature is full and adequate negotiation with the supposed beneficiaries.

CHAPTER 4 RACIAL DISCRIMINATION ACT

The Racial Discrimination Act 1975

The Racial Discrimination Act 1975 has been in operation since 30 October 1975. It was enacted in accordance with Australia's international obligations as a signatory to the International Convention for the Elimination of Racial Discrimination ("CERD"). For present purposes the following aspects of the Act are relevant:

* Section 9 makes it unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise on an equal footing of any `human right or fundamental freedom';

* Section 10 provides that if by reason of a law of the Commonwealth, a State or Territory, persons of a particular race (the first group) do not enjoy a right that is enjoyed by persons of another race (the second group), or enjoy a right to a more limited extent, then notwithstanding that law, the first group are to enjoy the right to the same extent as the second group; and

* Section 8 provides that the prohibition on racial discrimination in the Act does not apply to `special measures' under paragraph 4 of Article 1 of CERD.

Background

In December 1996, the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund produced its seventh report - The Native Title Amendment Bill 1996 and the Racial Discrimination Bill 1996.92 Following the tabling of the sixth report on 18 November 1996, the Senate referred the native title amendment proposals as they then stood to the Parliamentary Joint Committee for further report by 13 December 1996. The seventh report was the result of that further reference.

The December 1996 Minority report rejected the Government members' view that the right to negotiate and the Native Title Act 1993 as a whole are a 'special measure' within the meaning of Section 8 of the Racial Discrimination Act. The Minority were of the view that the Racial Discrimination Act and the Convention on the Elimination of All Forms of Racial Discrimination require substantive equality. That is, that they require the recognition of difference to achieve effective equality of outcome and the accommodation of the inherently different nature of native title.

The December 1996 Minority report continued:

"...even if one accepted for the sake of argument that the Native Title Act as a whole is a special measure it would surely not continue to be so if the right to negotiate were to be cut back in the drastic ways proposed in the Native Title Amendment Bill 1996.

The Native Title Act is not an unalloyed benefit for Indigenous people. One of the Act's main purposes is to validate any Crown grants that were invalid because of the Racial Discrimination Act. That process of validation is effectively a confiscation of property rights without any right to be heard. Because of this, taken on their own, the validation provisions in the Native Title Act conflict with the Racial Discrimination Act.

The only way one could argue that the Native Title Act as a package is consistent with the Racial Discrimination Act is by asserting that the right to negotiate, in its present form, gives the Native Title Act as a whole the character of a special measure (ie that the benefits in the right to negotiate outweigh the disadvantages in the validation provisions). But the special measure characterisation would disappear if the right to negotiate were restricted."[93]

The Minority report went on to state:

"Overall, then, the impact of the proposed amendments on native title applicants is very significant. The gauntlet which applications are required to pass would become daunting. This would not only be an injustice to native title holders, but would render the amended Native Title Act incapable of any reasonable assessment as a 'special measure'. Even on the Government's understanding of the Racial Discrimination Act and the status of the Native Title Act as a 'special measure', its amended Native Title Act taken as a whole would offend the Racial Discrimination Act and the Racial Discrimination Act's correspondence with the Convention on the Elimination of All Forms of Racial Discrimination would be impaired. Were the Government's amendments to the Native Title Act adopted in their present form, the result would be an overriding of the Racial Discrimination Act."[94]

The clause proposed in the minority report for adoption was:

* Without limiting the general operation of the Racial Discrimination Act 1975 in relation to the provision of the Native Title Act 1993, the provisions of the Racial Discrimination Act 1975 are intended to prevail over the provisions of this Act.

* The provisions of this Act do not authorise conduct that is inconsistent with the provisions of the Racial Discrimination Act 1975.

Government Promises

The Government would not support this proposal despite its repeated commitment to respect the principles in the Racial Discrimination Act. That commitment is not only included in Coalition Policy but is repeated in the first Outline document "Towards a More Workable Native Title Act" (May 1996) which states (p1):

"The Government's policy prior to the election was to ensure the Native Title Act's workability but in so doing in respect the provisions of the Racial Discrimination Act 1975."

The Prime Minister has continued to assert that this remains the Government's position. On 5 March 1996, in his first press conference as Prime Minister, he said changes to the Native Title Act would have to be made, "in a way that doesn't violate principles of the Racial Discrimination Act"95. On 6 May 1996 he said:

"The Government has no plans to introduce any amendments to the Racial Discrimination Act.96"

On 21 May 1996 the Prime Minister, in responding to a question on amendments to the Native Title Act 1993 reiterated the Government's position when he said:

"We also said that we would respect the principles of the Racial Discrimination Act, and we will."

The Native Title Amendment Bill 1997 (the Bill)

The Committee has received detailed and weighty evidence that even more than the Native Title Amendment Bill 1996, significant portions of the Native Title Amendment Bill 1997 are inconsistent with the Racial Discrimination Act and the Convention on the Elimination of All Forms of Racial Discrimination. Not only is the right to negotiate greatly impaired. Other examples of inconsistencies between the Bill, the Racial Discrimination Act and the Convention are the provisions relating to intermediate period acts, the provisions 'confirming' extinguishment of native title, most of the future act regime and the application and registration requirements for a native title claim.

Attached to the submission of the Aboriginal and Torres Strait Islander Commission is a joint memorandum of advice by barristers Jacob Fagenbaum and Mark Moshinsky (Appendix 3). Ron Castan Q.C concurred with the advice (Appendix 4). Messrs Fagenbaum and Moshinsky summarise their opinion about whether the provisions of the Bill are inconsistent with the Racial Discrimination Act 1975 in paragraphs 5, 6 and 7 of their memorandum.

"5. In relation to inconsistency of the Racial Discrimination Act, our advice can be summarised as follows. The question of inconsistency with the Racial Discrimination Act arises as a political rather than a legal issue. Assuming that the provisions of the Bill are constitutionally valid, they will, as a later, specific enactment, operate as an implied repeal of the Racial Discrimination Act to the extent of inconsistency. This is expressly acknowledged in Section 7(2) of the Native Title Act 1993 (to be amended by the Bill) in respect of past acts and intermediate period acts, however the same effect will occur in other cases of inconsistency between the Racial Discrimination Act 1975 and the Bill. Section 7(1) of the Native Title Act 1993 will not prevent this occurring as it is itself an earlier, general enactment vis-a-vis the later, specific provisions of the Bill.

6. The provisions of the Bill relating to intermediate period acts, the provisions "confirming" the extinguishment of native title and much of the new future act regime are, in our opinion, inconsistent with the Racial Discrimination Act 1975. The inconsistency arises because these provisions extinguish or impair native title rights of Aborigines or Torres Strait Islanders while leaving intact the proprietary rights derives from the Crown of people of other races: Mabo v Queensland [No.1] (1998) CLR 186.

7. The amendments discussed in the previous paragraph are not only inconsistent with the Racial Discrimination Act 1975. They are also inconsistent with Australia's obligations under the Racial Discrimination Convention. The amendments to the right to negotiate and to the application and registration requirements for a native title claim are also arguably contrary to Australia's obligations under the treaty."

Father Frank Brennan, Director of Uniya, the Social Justice Centre in Sydney, who is also a lawyer, in a critique of the Bill which he provided to the Committee also believes that the Bill both rolls back the Racial Discrimination Act 1975 or is inconsistent with it in many respects. He notes for instance (p2):

"The real effect of Division 2B "Confirmation of past extinguishment of native title by certain valid or validated acts" is clause 23E (p15) which allow State parliaments to confirm that scheduled interests give a right of exclusive possession free of native title. Insofar as such confirmation foes beyond the common law, the effect of the Commonwealth provision would be to override the "future acts" regime in the Native Title Act and to roll back the operation of the Racial Discrimination Act to the extent that it would have precluded the State parliament from going beyond the common law, extinguishing native title rights in a racially discriminatory way and enhancing the rights of the leaseholder."

At page 8 of his critique he states:

"The acquisition of native title for the purpose of upgrading a pastoral lease to freehold or another exclusive tenure is either so uncertain as to be unworkable or such a breach of the Racial Discrimination Act as to make a suspension of the Racial Discrimination Act unacceptable."

At page 9 he continues:

"Though the government has dropped reference to upgrade to freehold of pastoral leases, it is still committed to a Commonwealth law which would permit State governments to acquire native title rights so that a pastoral lease may be upgraded to a title granting a right of exclusive possession. This will be possibly only if (a) the amendment bill rolls back the operation of the Racial Discrimination Act or (b) if the State legislation is non-discriminatory on its face and applied in a non-discriminatory way. Option (a) will have no chance of Senate approval. If the upgrade proposals remain in the bill, the Senate will have to be assured non-discriminatory application with an amendment along these lines (p70):

Section 24ME Racial Discrimination Act to Prevail

1. For the avoidance of doubt, it is expressly declared to be the intention of the Parliament that the terms of the Racial Discrimination Act shall prevail over this subdivision.

2. Nothing in this subdivision shall be taken to authorise any conduct, wether legislative, executive or judicial, that is inconsistent with the operation of the Racial Discrimination Act."

The Law Institute of Victoria said in a letter dated 12 September 1997, in which it provided its comments on the Bill, (p3):

"The process proposed robs indigenous Australians of their rights and access to justice and to the legal system. These are rights that other Australians enjoy. The statutory removal of common law rights held only by indigenous Australians, involves a distinction based on race. The proposed Bill violates the Racial Discrimination Act and Australian's obligations under International Human Rights treaties."

It is also noteworthy that in the draft submission of the Australian Law Reform Commission, which the Government directed be not formally submitted to the Committee, the Commission expresses a firm opinion, in paragraphs 2.24 to 2.27 that the Bill will infringe the prohibition of both direct and indirect discrimination on ground of race of Sections 9 and 9(1) of the Racial Discrimination Act 1975 respectively, as well as Section 3 which provides for the right to equality before the law.

Commissioner Michael Dodson, Aboriginal and Torres Strait Islander Social Justice Commissioner of the Commonwealth Human Rights of Equal Opportunity Commission believes the Bill is inconsistent with non-discrimination standards under international law, and will override the Racial Discrimination Act. Commissioner Dodson expresses the Commission's view as follows;

"The Government has relied on a 'formal equality' argument to claim that its proposals are inconsistent with non-discrimination standards. It has suggested that the package will be non-discriminatory so long as it either provides formal equality or constitutes a 'special measure' for the benefit of Indigenous peoples. This approach is wrong on two counts.

First, it is clear that a law which requires formal equality between racial groups can be racially discriminatory. It is widely accepted under international law that non-discrimination requires substantive, genuine equality rather than formal equality between racial groups.

Secondly, the Bill fails to satisfy the Government's own definition of non-discrimination, as it does not guarantee formal equality and cannot be described as a 'special measure'.

The Bill does not provide formal equality, when, for example, it:

* validates Crown-granted titles at the expense of native title; and

* moves the future acts regime away from a guarantee of formal equality, by winding back the freehold test.

It is impossible to see how the Act amended as proposed could be characterised as a 'special measure' for the benefit of Indigenous peoples. As described, the Bill increases the discriminatory aspects of the Act, but it does not 'balance' this with beneficial provisions to protect native title and accommodate the needs of native titleholders. On the contrary, the Bill dramatically curtails the right to negotiate. The agreements provisions cannot 'balance' the rest of the Bill. They are of negligible value, as the Bill removes any real incentive for governments and other stakeholders to pursue agreements."[97]

Yet another distinction - which relates to the argument about 'special measures' - must be made between the Native Title Act 1993 and the Native Title Amendment Bill 1997. The passage of the Native Title Act 1993 was preceded by full and detailed negotiations between the Government and Indigenous people. In Gerhardy v. Brown, Brennan J (as he then was) considered the indicia of a 'special measure'. One indicator is that the special measure is for:

"the sole purpose of securing adequate advancement of the beneficiaries in order that they may enjoy and exercise equally with other human rights and fundamental freedoms."[98]

In Gerhardy v. Brown, His Honour considered the meaning of the word 'advancement' and said:

"To some extent, that is a matter of opinion formed with reference to the circumstances in which the measure is intended to operate. 'Advancement' is not necessarily what the person who takes the measure regards as a benefit for the beneficiaries. The purpose of securing advancement for a racial group is not established by showing that the branch of government or the person who takes the measure does so for the purpose of conferring what it or he regards as a benefit for the group if the group foes not seek or wish to have the benefit. The wishes of the beneficiaries for the measure are of great importance (perhaps essential) in determining whether a measure is taken for the purpose of securing their advancement."[99]

The National Indigenous Working Group 'seeks to represent the views of the vast majority of Indigenous Australians.'[100] The National Indigenous Working Group on Native Title's submission to the Parliamentary Joint Committee states:

"...the 1993 Native Title Act was the result of a negotiated process between the Commonwealth of Australia and Indigenous representatives. In our view it cannot be changed without the consent of Indigenous representatives. No such process of negotiation has taken place leading to the 1997 Native Title Amendment Bill."[101]

The view of groups such as the National Indigenous Working Group and the opinions expressed by Brennan J in Gerhardy v. Brown, give further weight to the argument that neither the Native Title Amendment Bill 1997 nor the Native Title Act 1993 as amended by the Bill can be characterised as a 'special measure'.

RECOMMENDATIONS

1. The Minority proposes amendment similar to the proposal contained in Chapter 2 of the First Minority Report and Chapter 3 of the Second Minority Report of the Committee in relation to the Native Title Amendment Bill 1996, to include in the Bill a clause with the purpose of ensuring that amendments effected by that Bill would be subject to the Racial Discrimination Act 1975, be adopted in respect of the current Bill.

2. The proposal is designed to confirm Australia's determination to uphold its obligation under the Convention for the Elimination of all forms of Racial Discrimination (CERD) and to reflect the Government's commitment not to impair or diminish the operation of the Racial Discrimination Act 1975 in any amendment of the Native Title Act 1993. If the Bill is a special measure it will be effective.

The clause proposed for adoption would:

2.1 Without limiting the general operation of the Racial Discrimination Act 1975 in relation to the provisions of the Native Title Act 1993, provide that the Racial Discrimination Act 1975 is intended to prevail over the provisions of the amending Act.

2.2 Provide that the provisions of the amending Act do not authorise conduct that is inconsistent with the provisions of the Racial Discrimination Act 1975.

CHAPTER 5 VALIDATION OF INTERMEDIATE PERIOD ACTS

SUMMARY OF PROVISIONS

Validation of Intermediate Period Acts and its Effect

The Bill validates intermediate period acts. Intermediate period acts are acts done between the commencement of the Native Title Act 1993 (1 January 1994) and the date the Wik decision was handed down (23 December 1996), where those acts may be invalid because they impact on native title.

Effect of Validation

Intermediate period acts attributable to the Commonwealth are validated (Section 22A - 22E). The effect of validation is to extinguish native title permanently in the case of freehold and certain leasehold grants, or to extinguish native title permanently to the extent of the inconsistency in other cases. Extinguishment is now defined as permanent extinguishment, incapable of revival (Section 237A). States and Territories may make similar laws validating an intermediate period act (Section 22F).

Compensation

Where the Commonwealth or a State or Territory validates an intermediate period act and as a result native title is extinguished, native titleholders are entitled to compensation for the act, payable by the Commonwealth (Sections 22D and 22G). Compensation in respect of a valid Commonwealth act must be on "just terms" in accordance with paragraph 51(xxxi) of the Constitution (Section 22E).

COMMENTARY

The validation of intermediate period acts is the first of many examples of the scheme of the Bill where:

* Governments' deliberate or reckless flouting of the law is cured;

* miners and others have their invalid titles validated;

* Aboriginal people lose their native title; and

* the taxpayer foots the bill.

The Government proposes to validate categories of acts which took place between the commencement of the Native Title Act 1993 and the date of the Wik decision in December 1996 ('intermediate period acts'[102]) where State and Territory governments chose not to follow the future act validation provisions of the Native Title Act 1993. The effect of validation is to extinguish native title permanently where it is inconsistent with the intermediate period acts[103].

5.1 Government Justification

The justification for the Government's proposal is that pastoral lease grants were "generally assumed"[104] to extinguish native title. Therefore, any grants of interest in land since the commencement of the Native Title Act 1993 which might be invalid because of governments' failure to follow the provisions of that Act should be validated, permanently extinguishing the native title concerned.

The fallacy of the Government's argument is that it was well known that the practice of ignoring the Native Title Act 1993 risked invalidity of interests granted during the intermediate period. The State and Territory governments took that risk and now demand that native titleholders and taxpayers foot the bill for governments' negligence.

The legal advice of the State of Western Australia was that the High Court would decide pastoral lease rights did not necessarily extinguish native title.[105] The Western Australian government followed the 'future act' provisions of the Native Title Act 1993 in making new grants of interest in land, with successful results.[106]

There are good reasons why the Western Australian government correctly anticipated the outcome of the Wik decision. The pastoral lease question was not settled in Mabo [No. 2]. In the Waanyi[107] case, the High Court held that the effect of a grant of a pastoral lease on native title was a "fairly arguable" question of law. The Aboriginal and Torres Strait Islander Social Justice Commissioner, Mr Michael Dodson, raised the risk of governments issuing mining titles without accounting for the potential survival of native title in his 1993 and 1994 Annual Reports.[108]

The assertion in the Explanatory Memorandum to the Bill[109] that governments believed they were free to do various acts over pastoral lease land should more properly read that governments chose to believe the same.

The fact of Western Australia's accurate assessment of the true position and subsequent actions puts lie to the suggestion that the States and Territories could have acted in honest ignorance.

In evidence, Northern Territory officials readily admitted that the failure of the Northern Territory government to follow the future act provisions of the Native Title Act 1993 was a policy decision by that government.[110]

In Queensland, the government did not even bother to differentiate between pastoral lease and other land when issuing new titles which may have affected native title during the intermediate period. With few exceptions, the Queensland Government ignored the future act provisions of the Native Title Act 1993 entirely.[111]

Ignorance of the law is no excuse for other Australians. There is no reason why ignorance, whether feigned or the result of negligent omission, should excuse governments for their failure to observe a valid law of the Commonwealth, particularly where the failure to observe the law detrimentally affects property rights.

5.2 Extinguishment of Native Title

There is no doubt that the effect of validation of intermediate period acts is permanently to extinguish the relevant native title.[112] The likelihood of extinguishment of native title in this way is admitted by the Government in the Explanatory Memorandum:

"A Category A intermediate period act attributable to a State or Territory may be validated and will extinguish all native title in relation to the land or waters covered by the lease..."[113]

By way of contrast, the Government's public position is that no native title will be extinguished by operation of these provisions.[114]

The issue arising here, and in many other parts of the Bill discussed in the Chapters below, is that the Government either consciously intends to mislead Australians or is recklessly ignorant of the terms and effect of its own legislation.

5.3 Policy

By an overwhelming majority in the 1967 referendum, Australians gave the federal government the power to make laws for Aboriginal people[115]. One reason for the granting of the power was to allow the Commonwealth to make laws for Aboriginal people where the states had failed in their responsibility.

The failure of the states to follow the provisions of the Native Title Act 1993 during the "intermediate period" to protect native title from wanton destruction, is another example of the irresponsibility of State and Territory governments in dealing with Aboriginal people and issues.

The Government now proposes to reward the contempt and indifference shown by States and Territories towards its own law. The Government is sending a message to the States and Territories that compliance with valid laws of the Commonwealth is optional.

There are existing provisions in the Native Title Act 1993 to allow governments to make valid grants of interest in land.[116] Those provisions should be enforced and adhered to.

Innocent people, indigenous and non-indigenous, have been affected by the irresponsible failure of State and Territory governments to apply the law.

RECOMMENDATIONS

1. As a general principle, only those intermediate period acts directly justifiable having regard to the Wik decision should be validated.

2. Consistent with the general principle at (1), only intermediate period acts associated with pastoral leases and which do not have the effect of causing impairment of the enjoyment of native rights or disturbance of sites of significance should be automatically validated.

3. The Minority recognises that there are categories of intermediate period acts where automatic validation cannot be justified. In those cases, measures including notice to Representative Bodies and an appropriate negotiation period should be adopted for the purpose of retrospective validation of the acts.

4. Consistent with the principle at (1), the Minority rejects the automatic validation of intermediate period acts where those acts were or authorised grants of interest from the Crown in one capacity to the Crown in another; grants of interest on or of Aboriginal land; and grants in respect of leases containing reservations in favour of Aboriginal people.

5. In respect of all validations of intermediate period acts, the Commonwealth must guarantee compensation to affected native titleholders on just terms.

CHAPTER 6 CONFIRMATION OF EXTINGUISHMENT OF NATIVE TITLE

SUMMARY OF PROVISIONS

Extinguishment of Native Title by Valid or Validated Acts

The effect of Division 2B is to "confirm" extinguishment or actually extinguish native title in relation to categories of validated acts. Note that extinguishment is defined as being permanent and incapable of revival (Section 237A). The provisions identify a list of tenure types (valid grants of freehold estates and certain leases granted prior to 23 December 1996) over which it is proposed to effect extinguishment in relation to acts attributable to the Commonwealth (Sections 23C and 23G), and permit extinguishment in relation to acts attributable to a State or Territory (Sections 23E and 23I).

Previous Exclusive Possession Acts

"Previous exclusive possession acts" are defined as including valid grants made on or before 23 December 1996 consisting of:

* Scheduled interests, where the Commonwealth and State and Territory governments agree as a matter of policy that native title is extinguished;

* freehold estates (including freehold and other grants of exclusive possession from the Crown in one capacity to the Crown in another);

* commercial, residential, or community purposes leases;

* exclusive agricultural lease or an exclusive pastoral leases;

* dissection leases (mining townships); and

* the construction or establishment of public works that commenced on or before 23 December 1996 or after that date where provision was made prior to 24 December 1996 for constructing or establishing the public work.

Where title vested in a statutory authority includes the power to create certain further interests, the vesting is deemed to be a grant of freehold, which will permanently extinguish native title (Subsection 23B(3)).

Effect of Previous Exclusive Possession Acts

A previous exclusive possession act of the Commonwealth or States or Territories (other than public works) extinguishes the relevant native title interests from the date that the freehold estate or lease was granted. Previous exclusive possession acts which are public works are taken to have extinguished the relevant native title from the date construction or establishment of the public work began (Sections 23C and 23E).

Previous Non-Exclusive Possession Acts

A Previous non-exclusive possession act is defined as,

* the valid grant of a non-exclusive agricultural lease or a non-exclusive pastoral lease (Sections 247B and 248B) on or before 23 December 1996; or

* the valid exercise, after 23 December 1996, of certain options and commitments granted before 23 December 1996 (Section 23F).

Where there is a previous non-exclusive possession act;

* the act permanently extinguishes native title rights and interests to the extent that the act grants inconsistent rights and interests; and

* native title rights of exclusive possession are permanently extinguished (Section 23G).

Compensation for Extinguishment by Previous Exclusive Possession and Previous Non-exclusive Possession Acts

If any further rights were extinguished by operation of this Division the native titleholders are entitled to compensation in accordance with Division 5. Compensation is payable by the Commonwealth for its acts and by the States or Territories for theirs (Section 23J).

COMMENTARY

"There are bucketfuls of extinguishment in the 10 - Point Plan"

Hon. Tim Fisher, Deputy Prime Minister.[117]

In the interest of providing certainty[118], the Government intends to legislate that native title is permanently extinguished where there has ever been a grant of freehold or other tenure, past or present, which a public servant believes probably involves exclusive possession. Where there has ever been a grant of a pastoral lease or other non-exclusive tenure, past or present, native title will be permanently extinguished to the extent of the pastoral lease or other rights.

The kinds of interests which are to effect total or partial permanent extinguishment of native title are identified;

1. In a list of general descriptions; and

2. In a Schedule of specific interests.[119]

6.1 Government's Justification

The Government's stated intention is to "reflect the Government's understanding of the common law of native title after the Wik decision."[120]

While the parliament has the power to extinguish native title "on just terms"[121], the survival of native title as a matter of fact can only be determined by the courts. Native title cannot be legislated away without incurring liability for compensation. Nor should it be extinguished without some essential public purpose which justifies deprivation of property rights.

The risk in legislatively "confirming" the extinguishment of native title is that if the Government's understanding of the Wik decision or the common law is in any way incorrect and the legislation oversteps the common law, the Government will effect arbitrary extinguishment of native title throughout Australia by operation of the legislation itself, and create unquantified liability to pay "just terms" compensation wherever native title is found to have been so extinguished.

6.2 Defects in the Plan

In the context of the developing common law, the Government is more likely to strike Lasseter's Reef than to find absolute certainty through legislative "confirmation" of extinguishment, and the quest may prove equally fatal.

The first crack in the plan is the Government's misunderstanding of the Wik decision. Point 4 of the '10 Point Plan' begins:

"As provided in the Wik decision, native title rights over current and former pastoral leases and any agricultural leases...would be permanently extinguished to the extent that those rights are inconsistent with those of the pastoralist,"[122] (emphasis added).

The Wik decision is not authority for the proposition that native title rights are permanently extinguished by the grant of a pastoral lease. The question of suppression or extinguishment is left open by the Court.[123] The Government's own Explanatory Memorandum concedes as much;

"The Bill specifically defines the word extinguish in relation to native title to mean permanent extinguishment. This means there is no possibility of revival of the native title at some time after the extinguishment occurs even if the extinguishing act ceases to exist...Some of the Justices in Wik specifically left open the question whether native title is permanently extinguished by the grant of inconsistent pastoral lease rights, or whether the native title rights can revive on the expiration of the pastoral lease. The policy of the Government is to provide that extinguishment is permanent."[124]

It is not only feasible but likely that native title will be found by the courts to be capable of revival after the expiry of an inconsistent interest, particularly non-exclusive interests like a pastoral lease.[125]

Canadian court decisions, while not strictly binding on Australian courts, have persuasive force. The British Columbia Court of Appeal has suggested that there will be no permanent extinguishment where there is clear and plain legislative authority to issue grants which are inconsistent with Aboriginal rights. When an actual conflict in the exercise of rights emerges, the Aboriginal rights are suspended rather than permanently extinguished. [126] This illustrates how the common law could develop with respect to extinguishment.

The Prime Minister and his Government persist with reassurances that the Bill will merely confirm the common law in relation to extinguishment, and will not itself extinguish native title.[127]

The Attorney General has put the Government's position as follows:

"It needs to be clearly understood that the government does not seek to extinguish native title in this process. We do not seek to go beyond what can be inferred from the decisions of the High Court as to what acts have already extinguished native title."[128]

The Bill's architect, Senator Nick Minchin, gave evidence to the Committee that:

"There is no statutory extinguishment in this amendment bill at all".[129]

The Government's assertion is also confirmed by the Committee Chair, the Hon. Warren Entsch;

"CHAIR - And we, as a government, have said that we are not going to legislate for extinguishment.

Father Brennan - I am delighted to hear it.

CHAIR - That is also a reality."[130]

The Government's alternate denial of and enthusiasm for permanent extinguishment of native title is not shared by all its members. Liberal Party member for Aston, Mr Peter Nugent, recently spoke in the following terms of his concerns about the Bill.

"Finally, Mr Deputy Speaker, let me state, in essence, my concerns about this legislation. Apart from the foreseeable difficulties of passing it through the Senate and the enormous cost to the community through compensation claims and litigation costs, I think the perceived outcomes of the Wik decision have been overstated. For many generations on many leases, Aboriginal people have co-existed with pastoralists and have had rights to move over the land. The Wik decision determined that the granting of a pastoral lease did not necessarily extinguish native title; that native title could coexist with the rights of the leaseholder; and that the rights of pastoralists prevail over any rights of native titleholders. The number of pastoral leaseholders who have to coexist with native titleholders is relatively small; that is, small enough to successfully negotiate any conflict situations if they arise--but, it would seem to me, not large enough to justify extinguishment, and all that that entails, of native title on pastoral leasehold land on a large scale basis."[131]

6.3 How the Bill Extinguishes Native Title

It is readily apparent that the Government's categories of "extinguishing acts" depart from settled common law. In each case, the legislative assertion of extinguishment could itself amount to an act of extinguishment. Ironically, a Government whose traditional philosophies regard private property rights as sacrosanct may preside over one of the largest arbitrary and compulsory appropriations of property rights by a Government in recorded Australian history.

6.3.1 Pastoral Leases

The best example of the Government's foolhardy approach is in its attempt permanently to extinguish native title where there has been a pastoral lease grant.

Current pastoral leases cover an estimated 42 per cent of the Australian land mass.[132] Up to 78 per cent of Australia was at sometime covered by a pastoral lease. Any law affecting pastoral leases will have broad application across Australia. The slightest legislative overreach of the common law could result in the extinguishment of native title rights throughout Australia on a breathtaking scale, with an incalculable compensation burden left to the taxpayer. In these circumstances, the sensible approach is to allow the common law to develop and provide the certainty sought.

There are approximately seventeen native title cases before the courts, at the conclusion of which many of the existing uncertainties will have been resolved.[133]

At very least is would be reasonable to assume the Government was confident of the direction of the common law before embarking on the exercise of preempting it. Alarmingly, this is not so. Referring to the issue whether native title is permanently extinguished or temporarily suppressed by the force of an inconsistent grant of interest at common law, the Attorney General recently said (in an apparent contradiction of his previous quoted statement);

"The government recognises that the permanency issue was left unresolved by some members of the High Court in the Wik decision. However, it is a central element of the government's approach to amending the act to put an end to such uncertainty."[134]

In other words, the Government is prepared to accept the risk that its own legislation extinguishes native title where the common law provides that native title may have survived.

There are other examples where the legislative 'confirmation' of extinguishment of native title does not necessarily accord with the common law.

The so-called exclusive pastoral lease, the community purpose lease, and the vested land are the types of land tenure which could presently permit the co-existence of native title with other interests. For example, land vested in a shire council as a camping reserve or public recreation reserve does not at common law, necessarily extinguish native title, yet this clause seeks to do that.[135]

6.3.2 Crown Freehold and Other Interests

Many interests in land are vested in the Crown in one capacity or another. National parks, state forests, timber reserves and defence reserves are a few examples.

Under the Native Title Act 1993, grants of freehold and leasehold title from the Crown in one capacity to the Crown in another expressly do not permanently extinguish native title.[136] Such grants are known as "category D" past acts which merely suppress native title for the term of the grant. Native title revives at the expiry of the grant.

In this respect the Native Title Act 1993 reflects the common law. The Mabo [No.2] decision suggests that the mere statutory vesting of an interest in the Crown, without further grant, may be insufficient to extinguish native title.[137]

The Bill itself will operate to extinguish native title permanently in these areas.[138]

Even where the title held by a statutory authority is less than freehold, but entitles the authority to grant certain further interests to third parties, native title will be permanently extinguished.[139]

President of the National Native Title Tribunal Justice Robert French, has noted by way of example that the Bill may permanently extinguish native title in national parks in Western Australia, where the land is vested in the National Parks and Nature Authority under the Conservation and Land Management Act 1984. Native title claims covering these tenures are currently accepted.[140] A similar result will apply in the Northern Territory.

There is no good policy reason why native title should be extinguished for all time in these areas. The Wik decision confirms that inconsistent Crown grants of interest will prevail over native title.[141] Under the current law, national parks will still be available for public use; the army will continue to train on its reserves; and Aboriginal traditional owners will enjoy recognition and exercise of their traditional rights to the extent that those rights do not interfere with the other purposes.

In contrast, the Government's plan will result in arbitrary deprivation of native title rights and the imposition of compensation liabilities upon the taxpayer for no good reason. Native title rights over these areas simply do not need to be extinguished.

6.3.3 Scheduled Interests

Schedule 4 of the Bill highlights many of the problems with the Government's approach to the Native Title Act 1993 amendments.

Grants of interests contained in the Schedule will permanently extinguish native title.[142] The Schedule lists categories of interests by reference to particular State and Territory legislation.

The Schedule was prepared by Commonwealth Government public servants with the assistance of State and Territory government public servants[143]. Indigenous interests were consulted in the scantest of ways about what grants would be included in the Schedule of permanent extinguishment.[144] The consultation was meaningless as the document itself would take weeks to analyse. The Schedule was not shown to the President of the Tribunal.[145]

The Government officials involved produced a list of general criteria for permanent extinguishment of native title[146] and matched types of interest in land against the criteria. Those interests which, in the exercise of the public servants' discretion[147], were deemed to extinguish native title permanently were included in the Schedule.

In evidence it was conceded by Mr Orr, a member of the Government's 'Wik Task Force' that the decision to confirm permanent extinguishment by the legislation was a matter of Government policy, not necessarily an accurate reflection of the common law;

"Senator BOLKUS: You cannot be certain that native title has been extinguished by common law but I am not certain that it has extinguished. The inclusion of, for instance, historic leases for a start means extinguishment when the interest has lapsed.

Mr Orr - I have said what the government's position is, as I understand it, and that is that some of the majority judges leave that open. It is unclear. The government's position is that that question should be answered by confirming that extinguishment is permanent in these cases. There are a number of other provisions in the Native Title Bill and the Native Title Act where the non-extinguishment principle applies, which is the prevailing notion",[148] (emphasis added).

The Schedule was released to the public on 23 September 1997. In the time available, it has not been possible to examine the Schedule in sufficient detail to provide comprehensive analysis of its application and effect.

The Schedule only lists species of grants of interests. The authors of the Schedule did not examine individual lease or title documents, relying instead upon the general criteria.[149] In most cases the Act in question gave no indication of the terms or conditions which could be judged against the criteria.

At common law, the test for determining the effect of an interest in land on native title involves, among other things, an examination of the grant document (lease, title deed etc) itself.[150]

Accordingly, the authors of the Schedule have failed to take a crucial step in ensuring that the extinguishing effect of those grants bears any relation to their effect at common law.

In contrast to the Prime Minister and Messrs. Williams, Minchin and Entsch who persist with assertions that the Bill will not legislatively extinguish native title, the Explanatory Memorandum confirms that native title is likely to be extinguished by the operation of the Schedule and the Bill:

"[T]he Schedule may contain some leases the grant of which were Category D past acts, such as the grant of a commercial lease from the Crown in one capacity to the Crown in another capacity (section 232). A Category D past act did not extinguish native title, but rather, attracted the non-extinguishment principle (paragraph 15(1)(d)). The inclusion of a lease of this kind in the Schedule means that, if its grant is a previous exclusive possession act...its grant will extinguish native title",[151] (emphasis added).

The Aboriginal and Torres Strait Islander Social Justice Commissioner. Michael Dodson, put the position as follows:

"To proceed at this level of generality is indeed "pregnant with the possibility if injustice". This process is designed to enable the Parliament of Australia to dispossess, once and for all, native titleholders across this continent. If the national values of this country include genuine respect for justice and equality before the law, then the Federal Parliament must reject the schedule of extinguishment."[152]

Appendix 7 to this report provides some factual examples of the effect of the Bill's extinguishment provisions on Aboriginal people across Australia.

6.4 Extinguishment and the Racial Discrimination Act 1975

As discussed in Chapter 4, the Racial Discrimination Act 1975 operates as a legislative yardstick of racism in this country.

The Prime Minister has made an unequivocal undertaking to respect the principles of the Racial Discrimination Act in amending the Native Title Act 1993.[153]

The Racial Discrimination Act prohibits discrimination based on race in relation to the holding of property. The High Court held in Mabo v. Queensland [No. 1][154] that it was a breach of the Racial Discrimination Act to single out the legal rights of native titleholders for extinguishment while leaving the legal rights of other people in the Murray Islands intact.[155]

As noted above, the "confirmation of extinguishment " provisions of the Bill are likely to overreach the common law and effect extinguishment themselves. The Government has made provision for this likelihood in the Bill. The Explanatory Memorandum notes:

"If the inclusion of a particular lease in the Schedule results in the extinguishment of any native title (which may be the case if a court considers that the lease does not confer a right of exclusive possession) the native titleholders involved are entitled to compensation (section 23J). However, the lease will continue to be a Scheduled interest and the extinguishment by Division 2B of native title cannot be revisited".[156]

The above quoted passage indicates that the primary objective of the Government's provisions is not to "confirm" the common law, but rather to extinguish native title, whether or not in accordance with the common law.

Father Frank Brennan comments;

"Insofar as such confirmation goes beyond the common law, the effect of the Commonwealth provision would be to override the "future acts" regime in the Native Title Act and to roll back the operation of the Racial Discrimination Act to the extent that it would have precluded the State parliament from going beyond the common law, extinguishing native title rights in a racially discriminatory way and enhancing the rights of the leaseholder."[157]

The "confirmation of extinguishment" provisions of the Bill will not be struck down if, as is likely, their operation contradicts the provisions of the Racial Discrimination Act. Instead, they will stand as a tragic reminder of Australia's abandonment of the principles of fairness and equality before the law.

6.5 Compensation

The Explanatory Memorandum sets out the Government's official position on the question whether the Bill will actually extinguish native title.

On one hand, the Government makes a refreshingly frank admission that the provisions of the Bill dealing with permanent extinguishment are a matter of Government policy, not necessarily reflecting the common law:

"Some of the Justices in Wik specifically left open the question whether native title is permanently extinguished by the grant of inconsistent pastoral lease rights, or whether the native title rights can revive on the expiration of the pastoral lease. The policy of the Government is to provide that extinguishment is permanent".[158]

On the other hand, the Government plays down the likelihood that the extinguishment provisions of the Bill will overreach the common law:

"[I]t is not expected that section 23J [which provides for payment of compensation where native title is extinguished by operation of the Bill] will need to operate. It is included as a safeguard in the event that a court finds that extinguishment under Division 2B goes further than the common law".[159]

"Just Terms"

What compensation will be payable to native titleholders whose title is extinguished by operation of the Bill?

The compensation for loss of native title rights must be on 'just terms'.[160]

The concept of 'just terms' compensation has been the subject of close scrutiny by the High Court[161]. However at this early stage in the development of the common law of native title, there is little judicial guidance about what constitutes 'just terms' compensation for loss or impairment of native title rights.

There is a line of argument that compensation for loss of native title should be assessed with reference to the value of loss to native titleholders, rather than the commercial value of the property in question. Queensland Land Tribunal Commissioner and National Native Title Tribunal Member Graeme Neate observes:

"It seems that conventional valuation principles are either irrelevant or inappropriate to the assessment of compensation for native title (or, at lease, those native title rights and interests which have no real property equivalent) then it may be necessary to develop new principles or approaches".[162]

A Royal Australian Planning Institute and the Australian Institute of Valuers and Land Economists Background Paper describes the special nature of indigenous peoples' relationship to land and concludes that connection to land "may involve responsibilities and mutual obligations between the land and the people connected to it, in ways not envisaged by Western systems of land ownership."[163]

In the Koara Determinations, the National Native Title Tribunal, regarded "any attempt to make a comparison by way of a percentage between the incidents of a particular native title and the incidents of a freehold title as artificial and arbitrary."[164]

Under the agreement between the Dunghutti people and the New South Wales Government in relation to the acquisition of land near Crescent Head in northern New South Wales, in which 'just terms' compensation was agreed upon in accordance with similar state legislation,[165] compensation to native titleholders amounted to 150 per cent of the agreed market value of the land over which native title was to be extinguished.[166]

Neate concludes that it is arguable in some instances, that the amount of 'just terms' compensation will exceed the market value of the land. Consequently, section 51A may not provide the appropriate manner of compensation.[167]

Other submissions about compensation and the Section 51A 'freehold cap' are more emphatic. Cape York Land Council Chairman, Noel Pearson commented;

"The cap on compensation - to say that there is a freehold cap - is very hopeful indeed, when clearly the constitution requires just terms to be paid. That Commonwealth provision in 51A is meaningless in the face of the constitution. Even though 51A might provide a political comfort to parliamentarians that the bill is going to be contained - taxpayers, don't worry about it - 51A is a meaningless provision, because the constitutional requirement to pay just terms overrides 51A. You cannot comfort taxpayers by saying that a cap is the way to contain the compensation problem".[168]

Pearson provided a further example of the likely compensation costs relating to pastoral leases;

"In relation to compensating the native titleholders, we have one example in Cape York where a compulsory acquisition was done by the Queensland government in relation to the Starcke lease. A third of that lease was freeholded to George Quaid and then subsequently compulsorily acquired by the Goss government. The Goss government is presently in litigation and in the land court with Quaid, but the government's valuation was to pay him $5 million for one-third of the land that had been freeholded.

If you accept the possibility that native titleholders will have to be compensated at equivalent freehold value, a normal Cape York pastoral lease could possibly cost between $5 million and $15 million in compensation. George Quaid was offered $5 million in relation to a third of a lease. So you can extrapolate that for a normal Cape York pastoral lease the government will have to pay between $5 million and $15 million to the native titleholders."[169]

It is noteworthy that Pearson's calculations are premised on a more moderate assessment of compensation (equivalent freehold value) than Neate suggests may be adopted.

Measured against the possible compensation costs, the Government's gamble on permanent legislative extinguishment is a bad risk.

The Government is adopting a "crash or crash through" policy on the question of legislative extinguishment. In some situations, this approach can be admirable.

However, in the present circumstances, where there is an alternative which does not involve the real risk of arbitrary deprivation of property rights and exposure of taxpayers to potentially continental-scale compensation liabilities, the Government's course of action can fairly be described as reckless and irresponsible.

RECOMMENDATIONS

1. Until the question whether native title is permanently extinguished or merely suppressed is conclusively determined by the High Court, the Government must not assume that the common law provides for more than the suppression of native title during the term of an inconsistent grant of interest.

2. Consistent with the principle at (1), delete Division 2B, Part 2 of the Native Title Amendment Bill 1997 including Schedule 4.

3. The Minority notes that in respect of grants of interest from the Crown in one capacity to the Crown in another, where the High Court has indicated that native title may continue to survive, it is particularly erroneous to assume the permanent extinguishment of native title.

CHAPTER 7 INDIGENOUS LAND USE AGREEMENTS

SUMMARY OF PROVISIONS

Introduction

The Bill provides a detailed framework for agreements to be reached between all stakeholders in the process. These agreements are called Indigenous Land Use Agreements ILUA(s). There are three proposed categories of ILUAs:

* body corporate agreements (Subdivision B, Division 3, Part 2);

* area agreements (Subdivision C, Division 3, Part 2); and

* alternative procedure agreements (Subdivision D, Division 3, Part 2).

Parties to ILUAs

The primary distinction between each type of agreement is the identity of the parties to it.

* body corporate agreements cannot be made unless there are registered native title bodies corporate in relation to all of the area. All relevant registered native title bodies corporate must be parties. If the agreement provides for the extinguishment of native title by surrender then the relevant government must be a party. Any other person may be a party

* area agreements can be made in any situation other than where a registered native title body corporate holds native title over all of the area. Native title claimants and any registered native title body corporate holding native title over any part of the area must be parties. If there are no registered claimants or registered native title bodies corporate, then any native title representative body for the area and any person who claims to hold native title in relation to the area must be a party.

If the agreement provides for the extinguishment of native title by surrender then the relevant government must also be a party. The parties may include any other person.

* alternative procedure agreements may not provide for extinguishment of native title. All persons in the native title group and all relevant governments must be a party. Any other person may be a party. However, an alternative procedure agreement cannot be made if there are registered native title bodies corporate in relation to the whole area.

Content of ILUAs

Indigenous Land Use Agreements must be about one or more of a number of listed matters.

* A body corporate agreement can cover the doing of future acts, native title applications to the Federal Court, the relationship between native title and non-native title rights and interests, how native title and non-native title rights are to be exercised, the extinguishment of native title rights and interests by surrender or any other matter concerning native title rights and interests in relation to the area.

* An area agreement can cover any of the matters covered by a body corporate agreement and, additionally, can cover any matter concerning access rights to non-exclusive agricultural and pastoral leases for registered native title claimants.

* An alternative procedure agreement can cover any of the matters covered by a body corporate agreement and an area agreement except the surrender of native title rights and interests. These type of agreements can also be about providing a framework for the making of other agreements about native title.

An act done pursuant to an ILUA is one of the categories of valid future acts proposed by the Bill. An ILUA can, by consent, authorise the by-pass of the right to negotiate process where it would otherwise apply.

Registration of ILUAs

Indigenous Land Use Agreements can be registered on the Register of Indigenous Land Use Agreements upon application by any party with the agreement of the other parties. The Registrar must follow prescribed notification provisions in relation to all agreements.

In relation to body corporate agreements, a party has one month in which to advise the Registrar that the party does not want the agreement registered. In the absence of such an objection the agreement must be registered.

In relation to area agreements, the registration application must be certified by all Representative Bodies for the area or include a statement that all reasonable efforts have been made to identify those who may hold native title in the area and that all of the persons so identified have authorised the making of the agreement. If an application is certified by a Representative Body, objections may be made by any person claiming to hold native title in the area on the ground that the certification requirements were not fulfilled. Where the agreement is not certified by the Representative Body, objections will take the form of registration of a native title claim during the notice period.

In relation to alternative procedure agreements any person claiming to hold native title in the area can lodge an objection within the notice period, on the grounds that it would not be fair and reasonable. This requires an inquiry process.

Effect of Registration of ILUAs

A registered agreement has the force of a contract between the parties and also binds any native titleholders in the area of the agreement, while the agreement remains on the Register (Section 24EA).

COMMENTARY

7.1. Support for ILUAs

The Indigenous Land Use Agreement provisions are supported, in principle, by a variety of interests groups.[170] For example Richard Wells from the Mining Industry Council has said:

"There are agreements reached with indigenous people all around the world. It is just a standard form of operation. It does not have to be indigenous people. If we go and operate a mine near a local white community, there are consultations and efforts to take account of their interest. It is a standard management practice."[171]

The Australian newspaper recently quoted South Australian Attorney-General Mr Trevor Griffin, in the following terms:

"Although the SA Government supports the 10-point plan, Mr Griffin says there will still be uncertainty about native title rights and therefore litigation.

"Area agreements are the road to certainty. The whole process through the courts is impossible, in our view, and unworkable." "[172]

Several submissions suggest that agreements be able, at the option of the parties, to be given the status of a statutory instrument, not merely a contractual instrument.[173]

7.2. Benefits of Agreements

The provisions relating to indigenous land use agreements on the whole provide a flexible system to assist in the making of agreements which may affect native title. These provisions will allow for negotiation and timely resolution, rather than the litigation, of native title issues. Negotiated agreements will provide certainty for all stakeholders. Litigation will be lengthy, expensive and uncertain.

Indigenous land use agreements will provide the framework in which lasting and mutually prosperous relationships, based on consensus, can develop between all parties with interests in land. Agreements can deal with practical issues that go outside of the legislative framework and address the grass roots concerns of all the stakeholders. They provide a mechanism to deal with the many issues that relate to land in one concerted approach. Negotiated agreements have many concrete benefits including:

* Offering all the parties control of the outcome and a role in the definition of native title.

* Providing a framework for dealing with similar cases in the future.

* Providing for the satisfaction of all relevant interests.

* Provide for ongoing good relations between Aboriginal people and the wider community.

* Being compatible with the legal principle of co-existence.

* Being compatible with the principle of non-discrimination.

* Limiting unnecessary costs to taxpayers associated with legislative extinguishment of native title and associated with claims for determination of native title.

7.3. Pastoral and Industry Concerns

The submissions indicate, and it is accepted that, pastoralists and farmers need a sufficient degree of certainty to be able to carry on the activities necessary to run their businesses and the ability to invest for the future. Particularly in the case of pastoralists and farmers, agreements can provide solutions to problems which a court may not resolve, such as variation of existing and enforceable native title rights. Agreements can provide for fundamental settlement which will resolve these practical issues.

Miners, as repeat interest holders, require clear and expeditious procedures for future dealings in land. Agreements can, and have been shown, to provide this outcome.

7.4. Examples of Agreements

Over the last few years agreements have emerged which recognise co-existence and the interests of different stakeholders in the land and which attest to the faster, cheaper and more certain outcomes that can be achieved, for all parties, through such a process.

The Kimberley Land Council, in evidence, discussed agreements made by the Rubibi Working Group and developers, miners and local and State Government. Nine land use development and five mining lease agreements have been concluded. The developments include a shopping centre and an aquaculture park. Rubibi and Broome Shire have entered into a joint partnership project dealing with government development and town planning which recognises Aboriginal land use within the town area. A committee of the Shire has also been set up to create a coastal park over an area which is of significance to Aboriginal people and also has conservation and recreational value. A framework agreement has been established with the Western Australian State Government containing the transfer of land to Aboriginal people and the exclusion of the future act regime from the town site.[174]

The Quandamooka Land Council, in evidence, described the agreement made in August this year between the Land Council and the Redland Shire Council. The agreement sets out a clear process for the settling of native title issues and deals with issues wider than native title. It addresses every aspect of the relationship between the shire and Quandamooka people. Central to the Redland Shire Agreement was the acknowledgment of co-existing rights to reserved land on North Stradbroke Island. The Agreement has received a positive public response.[175]

Appendix to this report sets out some agreements reached to date.

7.5. Undermining of Agreements

While agreements represent a lasting and economical means of resolving native title issues there must be an incentive for interest holders to engage in the process. The validation of a wide range of future acts and restricted right to negotiate does little in the way of providing incentives for agreed outcomes. Agreements cannot be made if there is nothing to negotiate about. 176 Mr Ian Viner QC commented that:

"What is being done by this bill is in great contrast, for example, to the notion and the way in which agreements in indigenous areas are dealt with in Canada, for example. The basis there is that native title rights are fully respected in the law and by government. On that basis, government then negotiates agreements with the holders of those indigenous rights which cover areas of mining, forestry, municipal activity and government activity as well as protection of traditional culture and social and economic opportunities being provided."[177]

7.6. Government Participation and Support

A fundamental prerequisite of agreements over native title is the active and willing participation of the State, Territory and Commonwealth governments. Governments, as the regulators of land titles and also more generally, are a crucial party in the agreement process. Almost every agreement involving issues of land title necessarily involves the State or Territory Government.

The Attorney-General in his second reading speech stated:

"In the government's view, insufficient support is given to resolving native title issues by agreement - often the speediest, lowest cost and least divisive mechanism."[178]

There are instances where agreements have been reached among stakeholders and governments have declined to participate. If governments choose this path, then it is they who are stifling the process and halting development.

In the Northern Territory the Government broke off negotiations over the Alice Springs Application when it thought that the change in the Federal Government would lead to the wholesale extinguishment of native title.[179] Despite the Central Land Council being approached by explorers, miners and developers, the Northern Territory Government continues to resist facilitating any agreement.[180]

In Queensland, following the Wik decision, graziers and Aborigines joined together to call on Queensland Premier Bob Borbidge to "swallow his pride" and ratify the Cape York Land Use Heads of Agreement.[181]

According to the Australian Petroleum Production and Exploration Association:

"petroleum development is being hindered in Queensland since the Queensland Government has effectively frozen the issuing of new petroleum exploration and production titles until new native title legislation is passed."[182]

In relation to the Rubibi in Broome, Western Australia agreements it was stated that:

"Until the decision of the High Court in Western Australia v Commonwealth, the state government refused to talk to Rubibi. Immediately after that decision was made and the state knew that it was stuck with the future act regime in Western Australia, it sent a representative to talk to the Rubibi working group."[183]

Unless some State and Territory Governments reconsider their lack of enthusiasm for native title agreements, they will condemn the nation to years of litigation and social discord.

Fortunately the submissions indicate an expression of interest by governments in indigenous land use agreements as a way forward.

RECOMMENDATIONS

1. The Minority notes that the Government has largely accepted the amendments to include Indigenous Land Use Agreements.

2. The Minority supports these amendments as a means of addressing the concerns of stakeholders and to remedy certain classes of possibly invalid intermediate period acts.

CHAPTER 8 FUTURE ACTS AND NATIVE TITLE

SUMMARY OF PROVISIONS

The whole of the existing future acts Division has been repealed. The amendments set out different and unnecessarily complex conditions under which acts affecting native title will be valid. Some of the main amendments are set out below.

Subdivision A - Overview of Division 3

There are a number of categories of acts which validly may be done. If a proposed future act falls into more than one category, it is only regarded as an act within the category which appears first on the list (Section 24AB).

Section 24FA Protection

If a non-claimant application is made, and at the expiry of the notification period there has been no claimant application accepted by the Registrar, any future act by any person done at that time is valid. Provision is also made for compensation in respect of extinguishing acts and for non-extinguishing acts (in accordance with Division 5).

If a Government or a non-Government party lodges a non-claimant application, a future act will be valid (or will "attract section 24FA protection") if: at the end of three months no native title application has been lodged (and subsequently registered) over any of the area, and there is no entry in the Native Title Register to the effect that native title exists over any of the area.

Future Acts and Primary Production

The Bill validates the authorisation of primary production activities (widely defined in Section 24GA), including farm-stay tourism, on non-exclusive agricultural or pastoral leases granted on or before 23 December 1996 (Section 24GB). It has the effect of authorising, without regard to the interests of native titleholders (other than by creating an entitlement to compensation), a wider range of activities than may presently be authorised under such leases. Future acts authorising the carrying on a "primary production activity" on a non-exclusive agricultural or pastoral lease (as long as the majority of the area is used for primary production) while the lease is in force (including renewals) are validated by the amendments.

"Primary production activities" include:

* cultivating land;

* maintaining, breeding and agisting animals;

* taking fish or shellfish;

* forest operations;

* horticulture; and

* aquaculture;

but does not include mining (Section 24GA).

"Primary production activities" and associated activities may be performed on non-exclusive agricultural or pastoral leases without any requirements to negotiate with native titleholders (Section 24GC). The non-extinguishment principle applies and compensation is payable by the attributable government in accordance with Division 5.

Acts Permitting Off-Lease Primary Production Activities

Future acts (after 23 December 1996) authorising the carrying on of primary production or related activities on areas adjacent to or near the area covered by a freehold or leasehold estate (granted on or before 23 December 1996) are validated (Section 24GD). Compensation is payable to native titleholders and the non-extinguishment principle applies to the act. There is, however, no right to negotiate in relation to such activities even though this amounts to the grant of new rights over different land.

Granting Rights to Third Parties on Non-exclusive Agricultural or Pastoral Leases

Registered native title claimants and native title representative bodies, are given the opportunity to comment on, but not a right to negotiate with respect to, proposals to grant rights to exploit timber, gravel, etc, not involving mining (although the definition of "mining" includes quarrying (Section 253)) on pastoral leases and other non-exclusive tenures. Compensation is payable for impairment of native and the non-extinguishment principle applies to the act.

Acts within Towns and Cities

The right to negotiate will no longer apply to future acts wholly within a town or city which would otherwise have attracted the right to negotiate (Section 26(2)). Towns and cities are defined to include any area which the Minister determines in writing was a town or city as at 23 December 1997 (Section 251(C)).

Low Impact Future Acts

Under the proposed amendments, the existing "low impact future act" provision is expanded to include fossicking with hand-held implements and clearing or excavation reasonably necessary for public health and safety, or associated with environmental protection activities (Section 24LA).

COMMENTARY

As discussed in the Introduction, the Wik decision confirms the rights granted under a pastoral lease. In the event of inconsistency between native title rights and pastoral lease rights, the rights of the pastoralist will prevail.

In some States it is not entirely clear from the terms of the lease what specific rights are granted under pastoral leases. One of the reasons for the lack of clarity is the imprecise drafting of the leases.

Common law recognition of co-existing native title rights also has implications for State and Territory pastoral and agricultural diversification policies and laws.

The challenge now is to find means to address the valid concerns of pastoralists while preserving respect and recognition of native title rights and interests.

Clarity and certainty of rights is essential for pastoralists and holders of other non-exclusive tenures. Notwithstanding the High Court's confirmation of pastoralists' rights in Wik, pastoralists have given evidence that they are dissuaded from improving their leases and businesses without the guarantee of the legality of their actions. Evidence of Catherine Driver and Roy Chisholm, members of the Northern Territory Cattlemen's Association, illustrates the problem:

"Mrs Driver - What really worries me is; can you assure us that we will have sole rights to manage our properties and not have to go through a second party if we want to put up a fence, build a tank, put up a new yard, a shed, or whatever?

Senator KERNOT - That is all associated with your pastoral activities, so you are allowed to do that.

Mr Chisholm - No, you are not.

Mrs Driver - We have not been given that surety."[184]

A primary concern of pastoralists articulated in the course of the Committee's proceedings is the need for pastoral lease rights to be clarified to the extent possible.

In circumstances where the Government's own advice is wrong and contradictory[185], a lasting solution is unlikely to arise.

8.1 Primary Production Activities

Point 4 of the Government's 10 Point Plan[186] deals with native title and pastoral leases. It is founded on the wrong assertion that the Wik decision provided that native title is permanently extinguished by a current or expired pastoral lease grant.[187]

From that wrong foundation the Government proposes to permit any "primary production" activity and some tourism activity to be carried out on non-exclusive pastoral and agricultural leases without reference to native titleholders.

The Government has used a definition of primary production activity bases on the Income Tax Assessment Act 1936[188] ("the Tax Act"). "Farmstay tourism" is added to that broad definition. "Farmstay Tourism" is not defined in the Bill.

The Government appears to have adopted the widest definition of "primary production" contained in the Commonwealth's laws. The suitability of the Tax Act definition to native title and pastoral leases has been challenged.

Ian Viner QC comments;

"What this amending bill does, through Commonwealth legislation, is to say that a pastoralist may carry out any primary production. It seems to me, with respect, that this is using the provisions of the tax act, which is simply to permit tax deductibility and certain other tax benefits to flow from primary production, for another different and distinct purpose which will enable the extinguishment of native title. That is allowing pastoral and agricultural rights to prevail over native title rights to an act of extinguishment. It is really an incorrect - I could use a stronger term - usage of the purpose of the provisions of the Income Tax Act to use them for the purpose of establishing legal relationships between native title claimants and holders and other users of the land".[189]

"Primary production activity" upgrades of pastoral leases do not extend to acts which have the effect of converting non-exclusive tenures into exclusive tenures.[190] However, the breadth of the definition of 'primary production activities' allows intensive use of land, leading to difficult questions as to whether the permissible upgrade has crossed the prohibited boundary and conferred a right of exclusive possession.[191] The Government's proposal is likely to lead to more, rather than less, litigation.

The inclusion of "farmstay tourism" as a permitted use of pastoral and other land could include the construction of a motel.[192] There is no legitimate reason why native titleholders should be precluded from negotiating in respect of the construction of extensive infrastructure for tourism purposes on pastoral lease land.

Balanced against the need for efficient processes to allow diversification of primary production activities is the negative precedent resulting from the arbitrary extinguishment of native title rights to achieve that purpose.

The Australian Institute of Valuers and Land Economists has recognised this issue:

"AIVLE has previously expressed concern that an expansion of the range of uses presently permissible on pastoral leases will, by definition, erode the underlying native title rights and interests. Hence, a claim for compensation for the partial expropriation of indigenous property rights (whatever they may be under the circumstances) will prima facie be created.

Notwithstanding the provisions of Section 24GC, it is considered that the prospect of exclusion of a compensable claim will result in an undesirable precedent."[193]

To provide the certainty required by pastoral lease holders, consideration should be given to legislative particularisation of permissible pastoral activities, including the full range of acts incidental to legitimate pastoralism.

8.2 Acts Permitting Off-Lease Primary Production Activities

In addition to expanding the potential range of activities which may be pursued on non-exclusive pastoral and agricultural leases without reference to native titleholders, the Bill authorises the carrying on of primary production activities (as widely defined) outside the area covered by a freehold estate or lease without reference to native titleholders. The only proviso is that the act does not prevent native titleholders from having reasonable access to the area.

There is a loose requirement that the "off lease" activity be in an area "adjoining or near" to freehold or pastoral lease.[194] There is no indication in the Bill how "near a pastoral lease" will be defined.

An example of a permissible "off lease" activity given in the Explanatory Memorandum is the conferral of off-lease rights to graze cattle.[195]

The submissions of the National Farmers' Federation[196] and New South Wales Farmers Association[197] are silent on the "off lease" rights amendment.

Michael Dodson comments:

"The proposal extends the reach of the primary production expansion beyond leasehold and freehold properties. Its greatest impact will be on native title which subsists on vacant crown land. The assault on our rights under the camouflage of Wik has moved beyond the boundaries of pastoral properties."[198]

Father Frank Brennan proposed a balance of interests:

"The non-extinguishment principle will apply to land on which off-lease activities occur. The government's intention is merely to permit the ongoing continuation of existing off-lease activities. But the legislation provides no enjoyment of the native title rights of those whose land happens to be adjacent to a pastoral lease with overflow activity. If the activity is authorised under the lease and any renewal thereof as a permissible future act (s. 235(7)), there could be no objection. But if the activity is pursuant to a separate permit provision which is unrelated to the lease and which does not carry a right of renewal, it should surely comply with the future acts regime."[199]

Access to areas entirely outside a lease or other interest cannot be justified without some procedural right of negotiation.

8.3 Granting Rights to Third Parties on Pastoral Leases

Future acts performed after Wik are valid if they confer, where there is a valid or validated non-exclusive agricultural or pastoral lease, a right for any person to:

* cut and remove timber;

* extract and remove gravel; or

* obtain (other than by mining) and remove rocks, sand or other resources.[200]

Before the act is done, notification and an opportunity to comment must be provided to any relevant representative body and any registered native title bodies corporate or claimants.[201]

Father Brennan comments:

"Given the broad range of activities, including agriculture, permitted on pastoral leases with prior ministerial consent, my major concern about the expansion to "primary production" would be the insistence that timber be treated as a public asset, not the private asset of the pastoralist. As a public asset taken from native title land, it ought yield some royalty share under state regimes to the native titleholders. The Queensland government is presently considering proposals to privatise timber on various selections and holdings. If this were to occur, native titleholders should enjoy first (or at least equal) priority in the new ownership of timber resources. Clause 24GE would permit removal of timber and quarry material from leases on which native title existed with provision only for compensation to native titleholders after notification and opportunity to comment on the proposed removal."[202]

Environmental concerns about paving the way for privatisation of timber resources was explained by Mark Horstman of the Australian Conservation Foundation:

"There is a very clear link between native title and the fate of the environment. In many ways, the protection of native title is an important environmental issues as well as one of social justice and human rights because on many tenures in this country, particularly leasehold tenures, it is the native title rights that stand between the public nature of the ownership of that land and a more privatised nature of that land."[203]

The extent of native title rights to timber and other resources has not yet been conclusively determined by the courts.

For reasons of justice as well as financial prudence, this matter should be left for determination within the processes of the common law.

A confirmation and particularisation of pastoralists' rights will remove any doubt about what current leaseholders may and may not do under the terms of their lease.

8.4 Towns and Cities

The right to negotiate will not apply within towns and cities as defined.[204]

The Native Title Act 1993 excludes public infrastructure project acts from the right to negotiate.[205]

Given that such acts are already excluded from the right to negotiate, there is no apparent need for the proposed amendment.

The Royal Australian Planning Institute Inc. and the Australian Institute of Valuers and Land Economists Inc. presented a joint submission to the Committee. The submission presents a well-balanced and considered treatment of this issue:

"While RAPI recognises that native title is less likely to survive in urban areas, it cannot be assumed that it will have been entirely extinguished (hence the need for this amendment). For instance, areas designated for future urban uses which have not yet been built could retain native title interests.

How towns and cities are defined under local planning schemes or planning instruments and, therefore, what they contain, varies from state or territory to state. They can cover an enormous range of land uses from the CBD of a major international city through to suburbs and to the remnant rural fringe areas of a small town.

The planning profession is involved in many ways in defining our towns and cities, from investigating and assigning land uses to leading debate about the types of cities and towns we want. The planning profession has long recognised the wider consequences of their activities. For instance, in urban development, planners have accommodated the timely provision of urban and human services (health, education, family support services) into the planning framework for new suburbs.

This amendment will differentiate between towns and cities and the rest of Australia removing the right of native title claimants to negotiate over a particular proposal is likely to encourage a view that urban areas do not or should not contain any residual interests of Aboriginal Australians. This amendment is consistent with the outdated notion of Aboriginal Australians as displaced by or not belonging in urban areas.

Since the Mabo decision and the enactment of the Native Title Act 1993, the planning profession can no longer regard vacant crown land and other non-exclusive land tenures as belonging to no one ('terra nullius') and, therefore, as land which can be allocated to other uses without considering the rights and interests over it. The provisions in the Bill which seek to remove the right to negotiate in towns and cities are in fact attempting to reinstate 'terra nullius' in these areas. This is unacceptable.

If, as the Wik Task Force has suggested, the difficulty some states would have in defining a town or city will mean that the amendment in fact only applies to the towns and cities in only parts of Australia, this will result in further differential treatment of native title and the rights of native titleholders or claimants.

It fragments any national understanding about what native title is. It presents the public at large with differing notions about cities. It is not a national approach to a national issue.

The case for removing the right to negotiate is not well made out in the Bill and accompanying memorandum. Nor is the reason why this exemption is necessary in some states and not others. It has not been supported by the Australian Local Government Association, as the national voice of local government associations.

Members of the planning profession have been involved in negotiating agreements where there are conflicting interests. As already pointed out above, RAPI supports the use of negotiated agreements because of their potential to resolve conflicts, maintain community support for planning decisions and preserve community harmony where there are land use changes. Having the right to negotiate helps get all the parties to the negotiating table so they can reach a solution which may satisfy all parties, not just the proponents."[206]

Evidence was also received from the Committee that a town and city definition provision in Northern Territory legislation has previously been used by government as a device to prevent claims over an area much larger than any legitimate description of Darwin.[207]

RECOMMENDATIONS

1. The Minority rejects the use of the modified Income Tax Assessment Act 1936 definition of 'primary production activity' for the purposes of classifying valid future acts.

2. The Minority proposes an alternative definition derived from the definition of "pastoral purposes" in the Pastoral Land Act (NT). The definition includes pasturing of stock, associated agricultural uses and farmstay tourism.

3. The extension of the 'primary production' definition to 'off farm' activities as a basis for denying access to the right to negotiate should be deleted, except so far as State laws allow for bona fide 'off farm' activities for the purposes of access to water and grazing during periods of drought, flood, fire and other natural disasters.

4. In respect of the wider classes of future acts contained in Division 3, Part 2 of the Native Title Amendment Bill 1997 listed below, there should be an obligation upon the relevant government to notify and consult with registered native title bodies corporate, registered native title claimants and relevant Representative Bodies in respect of impact mitigation and continuing access for native titleholders. This Recommendation applies to;

* Subdivision G (primary production)

* Subdivision H (water and air management)

* Subdivision I (renewals)

* Subdivision J (reserved land)

* Subdivision K (facilities for services to the public)

* Subdivision L (low impact acts) and

* Subdivision M (freehold test).

5. Subdivision J, Division 3, Part 2, Native Title Amendment Bill should not apply to reserved land to prevent negotiation over future use.

6. The Minority rejects the proposed expansion of renewals of interest in land where such expansion will allow upgrade to non-primary production activity if associated with or incidental to primary production.

7. Consistent with the Minority Recommendations at Chapter 6, the amendments should ensure that the non-extinguishment principle applies to all upgrades and renewals under this subdivision.

8. Subdivision K, (facilities for services to the public) should be amended to ensure that it applies only to existing facilities, and to provide adequate procedural rights to native titleholders.

CHAPTER 9 SEAS, WATER AND AIRSPACE

SUMMARY OF PROVISIONS

There are a number of provisions in the Bill that affect native title and the Native Title Act 1993 in relation to both onshore and offshore water. These are:

* the removal of all procedural rights in relation to new legislation and the grant of licences, leases, permits or other authorities over surface and subterranean water, living aquatic resources and airspace;

* the removal of all procedural rights and the right to negotiate when establishing aquacultural projects under the extended definition of Primary Production (Section 29 GA (1)(f));

* the removal of all procedural rights and the right to negotiate in relation to "the taking or catching fish/shellfish under the extended definition of Primary Production (Section 29GA(i)(c));

* in relation to the registration test claims that assert the right "to exclude all other rights and interests" to waters in an offshore place cannot be registered (Section 190B (9)(6)). Note that the Right to Negotiate does not apply offshore;

* Compensation for the effect upon native title is provided for, as is under the Native Title Act 1993;

* the removal of the right to negotiate from the inter-tidal zone (quote reference)

COMMENTARY

The Government contends that these provisions provide for the "confirmation of the ability of governments to regulate and manage water"[208]. Point 8 of the 10 Point Plan says:

"The ability of government's to regulate and manage surface and subsurface water, off-shore resources and airspace, and the rights of those with interests under any such regulatory or management regime would be put beyond doubt."[209]

Further that:

"This subdivision ensures that legislation and other future acts dealing with surface and subsurface water, living aquatic resources and airspace will be valid."[210]

Nowhere is it said why there is doubt in this area. The existing Native Title Act allows the Commonwealth or any State or Territory to confirm existing ownership or management regimes as follows:

Confirmation of Ownership of Natural Resources etc.

212.(1) Subject to this Act, a law of the Commonwealth, a State or Territory may confirm:

(a) any existing ownership of natural resources by the Crown in right of the Commonwealth, the State or the Territory, as the case may be; or

(b) any existing right of the Crown in that capacity to use, control and regulate the flow of water; or

(c) that any existing fishing access rights prevail over any other public or private fishing rights.

Confirmation of Access to Beaches etc.

(2) A law of the Commonwealth, a State or Territory may confirm any existing public access to and enjoyment of:

(a) waterways; or

(b) beds and banks or foreshores of waterways; or

(c) coastal waters; or

(d) beaches; or

(e) areas that were public places at the end of 31 December 1993.

Effect of Confirmation Under Subsection (2)

(3) Any confirmation under this section does not extinguish or impair any native title rights and interests and does not affect any conferral of land or waters, or an interest in land or waters, under a law that confers benefits only on Aboriginal peoples or Torres Strait Islanders.

The existing Native Title Act also provides for validity of grants in the future if procedural rights are followed in relation to native titleholders.

The total effect of these provisions in relation to water appear to be that they provide for no procedural rights and then seek to ensure the validity of any new grant under the Native Title Act.

The practical effect of Section 190B (9)(b) will be that claimants will thereby do two separate claims over offshore and land to ensure they have the right to negotiate over land. This will lead to further confusion and expense. The provision is unnecessary because a claim for exclusive possession as a matter of law cannot change the existing ownership or Government regulation of onshore and offshore waters. Claims are subject to laws of general application.

Industry View

The Australian Seafood Industry Council states that it has no interest in wholesale extinguishment of native title and proposes:

"

* confirmation of the validity and effectiveness of existing statutory schemes governing commercial fishing rights and aquaculture, including renewals;

* re-working onshore/offshore place definitions;

* recognition in the Act of the expanding aquacultural industry; and

* delineating more clearly the application of the right to negotiate."[211]

These proposals are in effect the same as the Government's position.

The Aboriginal and Torres Strait Islander Social Justice Commissioner, Michael Dodson, expresses his concern that these provisions amount to the de facto extinguishment of native title. Similarly ATSIC criticise the Government's position on Section 24HA because of the loss of procedural rights. A number of other submissions express similarly concerns.

These criticisms arise from the loss of procedural rights. The Government's answer to the "de facto" extinguishment claim is as follows:

"This should not be the case. Laws that impose a permit regime in order to regulate or manage the taking of living aquatic resources from water will have minimum impact on native title rights to fish. Section 211 of the Act will continue to operate to ensure that native titleholders can carry on native title rights to fish, and have access to waters for the purpose of exercising native title rights to fish without obtaining a permit."[212]

The Government's answer clearly does not address the issue at hand.

The National Indigenous Working Group emphasises the importance of native title rights in relation to water and states:

"The proposed amendments will inevitably have dramatic and drastic consequences in relation to traditional fishing rights. The amendments proposed in relation to future acts under subdivision (h) will permit regulation and management of waters and aquatic resources in a manner which can be used to destroy and extinguish traditional fishing rights."[213]

The Working Group points to the Torres Strait Treaty of 1984 whereby the Commonwealth "protected the traditional fishing activities of the inhabitants" of Papua New Guinea and created a "protected zone" in the Torres Strait, whilst in Australia taking away the existing minimal procedural rights under the current Native Title Act. These procedural rights ensure that at a minimum, native titleholders are notified and have a right to be heard (make submissions) where their interests are to be adversely affected by a new grant.

In relation to the inter-tidal zone, primary production activities of aquaculture and taking of fish and shell fish there shall also be no such procedural rights. In some circumstances under the current Native Title Act such acts would attract right to negotiate provisions of the Native Title Act.

The Government's provisions are a recipe for confusion and uncertainty as they strip native title procedural rights. This is clearly discriminatory. Such rights may be implied by the courts.

Any Government that seek to affect property rights has to apply the rules of natural justice as a minimum requirements.

These provisions will also be subject to challenge as being invalid because of a breach of the just terms compensation provisions of the Constitution.

RECOMMENDATIONS

1. The Minority notes the importance of distinguishing between offshore waters and inland waters.

2. In respect of offshore waters, the Minority recommends deletion of the exclusion of future acts from the right to negotiate.

3. In respect of inland waters;

3.1 provision should be made to protect the procedural rights of registered native title bodies corporate and registered claimants in respect of ordinary regulatory acts; and

3.2 the right to negotiate should apply where the proposed act involves major alterations to water quality or quantity, for example acts permitting damming of rivers, alterations to aquifers, flooding and so on.

4. In respect of airspace, provision should be made for consultation with registered native title bodies corporate registered claimants and Representative Bodies in relation to regulatory acts likely to cause significant disturbance to the enjoyment of native title rights.

CHAPTER 10 THE RIGHT TO NEGOTIATE

SUMMARY OF PROVISIONS

Where The Right To Negotiate Applies Under The Bill

The right to negotiate is available with respect to:

* the creation and variation of rights to mine (other than the exclusions identified below); and

* some compulsory acquisitions of native title rights and interests where the purpose of the acquisition is to confer rights or interests on third parties. If the purpose of the compulsory acquisition for a third party is for an "infrastructure facility", even a private infrastructure facility, there is no right to negotiate (Section 26).

"Infrastructure facility" includes highways, railways, electricity transmission or distribution facilities, dams pipelines or cables and other facilities of a similar nature. The definition includes facilities privately owned and operated (Section 253).

Further new classes of acts are excluded from the right to negotiate process. These are:

* acts over non-exclusive pastoral leases and "public purpose" reserves (like national parks and forestry reserves). The right to negotiate can be reduced by States and Territories (Section 43A);

* compulsory acquisition acts for privately owned and operated infrastructure facilities (Section 26)

* acts in respect of water (Section 24HA);

* "approved exploration acts" (Section 26A);

* "approved gold and tin mining acts" (Section 26B);

* "approved opal or gem mining areas" (Section 26C);

* renewals regrants or extensions of valid mining leases (Section 26D); and

* acts relating solely to land or waters wholly within a town or city (referred to at Section 251C).

The right to negotiate in respect of new acts over pastoral lease areas and reserves may be replaced by procedural rights equivalent to those available to other titleholders.

Before the Minister can grant approval for "approved exploration acts", "approved gold and tin mining acts" and "approved opal and gem mining areas", a number of conditions must be satisfied, such as the degree of impact of the activity. Native titleholders can only make submissions to the Minister for consideration about whether to grant approval for the acts.

Where a right to mine follows an exploration licence which is subject to conditions in an agreement or determination governing the creation of the mining right, the right to negotiate does not apply to the creation of that mining right if the conditions imposed at the exploration stage are adhered to (Section 26D).

The Right to Negotiate Process Under the Bill

Notice

Before an act is done which attracts the right to negotiate, (namely, the granting of rights to mine and some compulsory acquisitions), the relevant Government must give notice of the act in accordance with Section 29. The section provides for a notification process which fixes a period for notification by reference to a "notification day". The 'notification day' is a day by which, the Government party believes, it is reasonable to assume that all notices will have been received. Applications for a determination of native title or applications to become a native title party must be lodged within three months from the notification day. In that three month period, native title parties must prepare and lodge a native title application which complies with the strict new registration requirements (discussed in Chapter 13) in order to avail themselves of the right to negotiate.

Negotiation Procedure

The procedure is that the negotiation parties must negotiate in good faith with a view to obtaining an agreement. The negotiation parties are only required to negotiate about matters related to the effect of the act on the native title rights and interests of the native title parties (Section 31(2)).

If the Section 29 notice contains a statement by the Minister that the act attracts the "expedited procedure" and no objections are lodged, the act may be done. An objection may be lodged within three months from the publication of the section 29 notice. If an objection is lodged, the arbitral body must determine whether the act is an act attracting the expedited procedure. If so, the act may be done; if not, the normal negotiation procedure applies (Section 32). Under the current Act, the expedited procedure will not apply (and native titleholders will thus retain the right to negotiate) if the proposed act will directly interfere with the community life of native titleholders. Under the proposed amendments, the native titleholders may lose their right to negotiate unless the proposed act directly interferes "with the physical aspects of the community life" of native titleholders. Spiritual and cultural matters which may be threatened and which may be central to native title rights and interests are thus excluded from the criteria (Section 34A).

If an agreement cannot be reached within four months from the notification day, any negotiation party may apply to the arbitral body for a determination in relation to the act (Section 35). If, as is likely to be the case, a native title party becomes registered at the end of the three month notification period, there will only be a period of one month for negotiation.

The arbitral body must make a determination if requested to do so by any party (for example, a miner) even if the other parties (for example, a government) did not negotiate in good faith (Section 36(2)). The arbitral body must make a determination as soon as practicable. If a determination is not made within four months from the date of a request the arbitral body must write to the Commonwealth Minister advising of the reasons for the delay and when a determination is likely to be made (Section 36(3)). This period may not be sufficient to enable the parties to adequately put their case to the arbitral body. It is worth bearing in mind that the subject of the negotiations and arbitration may be large-scale mining development with numerous impacts and implications.

Broader Ministerial Intervention

New provision is made for Ministerial intervention in the negotiation process. The Minister is given broad discretion to by-pass the right to negotiate and determine that a future act should proceed three months from the notification day, which in many cases will be before negotiation has commenced (Section 34A). The Minister may also determine that the act should proceed if the arbitral body has not made a determination within four months from the date of referral to arbitration (Section 36A). The Minister may also overrule an arbitral body's determination as to whether an act should proceed and upon what terms (Section 42).

Exception to the Right to Negotiate: State/Territory Provisions

The Commonwealth Minister may authorise alternative provisions to those contained in the "right to negotiate" subdivision where those provisions relate to acts proposed by the State or Territory over land covered by a non-exclusive lease, such as a pastoral lease, or reserves for public purposes, such as a national park. The alternative procedures must give native titleholders equivalent procedural rights to those of the non-exclusive lessee, and make provision for compensation for impairment of native title rights, or in a case where there is not a lease over the area, make provisions for notification, negotiation, objection and compensation in relation to the proposed act (Section 43A).

The States and Territories may establish their own right to negotiate regimes as an alternative to the right to negotiate provisions in the Native Title Act 1993. A new system is introduced for future acts affecting "leased or reserved areas". This system allows the States and Territories to compulsorily acquire native title on leased or reserved land for the benefit of third parties, without the right to negotiate applying. Native titleholders have the same procedural rights as other holders of an interest in the land or waters concerned (Section 43B).

New Criteria for Arbitral Bodies

The criteria to be taken into account by an arbitral body in making determinations whether and upon what terms a future act should proceed are significantly amended (Section 39). Where previously the arbitral body was to take into account the effect of the proposed act on any native title rights and interests it is now required to take into account the effect of the act on the enjoyment by the native title parties of their determined or claimed native title rights and interests. Note again that there is a stricter new registration test for claimed native title rights which in many cases must be passed in less than three months.

The present criterion requiring the arbitral body to take into account the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of the lands or waters concerned is now narrowed to the use or control of land or waters in relation to which there are determined or claimed native title rights and interests of the native title party that will be affected by the act. A new factor to be taken into account is the economic or other detriment to any non-native title party if the act is not done. The arbitral body is also required to take into account the nature and extent of existing non-native title rights and interests and the existing use of land or waters concerned by persons other than native title parties.

COMMENTARY

10.1 Why a Special Right to Negotiate for Native Titleholders?

The Submission of the International Commission of Jurists explains the purpose of the right to negotiate under the Native Title Act 1993;214

"Under international law it is accepted that to treat different groups in a like manner will often not result in equality, unlike groups must receive unlike treatment. The classic statement of this is found in the decision of the International Court of Justice in the South West African Case[215]. In that case, Judge Tanaka stated that;

"The principle of equality before the law does not mean absolute equality, namely equal treatment of men without regard to the individual, concrete circumstances, but it means the relative equality, namely the principle to treat equally what are equal and unequally what are unequal...to treat unequal matters differently according to their inequality is not only permitted but required."

Michael Dodson offered this observation:

"In its original form, the right to negotiate was intended to provide native title with a meaningful level of protection in situations where it was particularly vulnerable to being overridden by governmental use of land and the granting of rights to third parties. By contrast, the proposed amendments are entirely weighted in favour of governments and developers".[216]

Under the Native Title Act 1993, native titleholders and some claimants are given a right to negotiate in respect of:

* the grant of new mineral exploration and mining rights; and

* compulsory acquisitions by governments for the benefit of third parties.[217]

Underpinning the right to negotiate is the consideration that recognition of native title is meaningless without some mechanism to protect it against arbitrary impairment or destruction.

As discussed in Chapter 6, native title rights may only be compulsorily acquired on "just terms".[218] The right to negotiate enjoys Constitutional protection in so far as "just terms" has been interpreted by the courts as including a requirement for procedural fairness in Government decisions affecting property rights and interests.[219]

10.2 Exploding a Myth

The right to negotiate has been the subject of more misrepresentation than perhaps any other part of the Native Title Act 1993.

As noted in Chapter 2, the Prime Minister has recently contradicted his Government's own Explanatory Memorandum by announcing on national television that the right to negotiate amounts to a "potential right of veto".[220]

Peak mining bodies have taken up the Prime Minister's lead, referring to the right to negotiate as a `de facto right of veto'.[221]

This report makes recommendations about ways in which the right to negotiate procedures may be streamlined[222] so as to provide greater efficiency and flexibility for the benefit of all.

It must however be noted that the practice of employing misleading, alarmist and simplistic phrases as `right of veto' is dishonest and repugnant.

There is no doubt that the mining industry plays a key role in the national economy. Efficient processes to facilitate mineral exploration and mining are in the interest of all Australians. Those processes must take into account interests affected by proposed mining development.

In evidence, George Savell, Chief Executive of the Association of Mining and Exploration Companies (Inc) alluded to the risk that some mining companies may prefer to operate in "Third World" countries rather than in Australia.[223]

If the implication is that miners will operate wherever landowners' rights are most easily subordinated, then the policy consideration is whether Australia intends to remain an example to its neighbours through its democratic respect of property rights, or if it will diminish or abandon those standards in the interest of accelerating mining development in the short term.

It is noteworthy that Mr Savell also conceded that mineral exploration and production is increasing in Australia, and that there is a "basket of reasons" why Australian companies are exploring opportunities overseas.[224]

In 1986, six years before Mabo [No.2], C.D. Rowley wrote;

"It would indeed be naive to assume that the gains by Aboriginal groups over the last two decades have not reinforced the prejudices of a general public that is well meaning but seriously ill-informed about both the plight and the opportunities of Aborigines. To be fair, one must take into account that for nearly two centuries certain systems and principles of land ownership and government land management not only became firmly established but were developed free from any real understanding of, or influence by, the dispossessed Aboriginal owners. Self interest is a firm basis for beliefs and mores in us all and one can at least understand the shocked disbelief turning to wrath as miners and pastoralists now hear what they claim as their legal rights questioned or see them restricted."[225]

10.3 The Bill's Major Changes to the Right to Negotiate

Under the right to negotiate provisions of the Native Title Act 1993,226 registered native titleholders and certain claimants are entitled to:

* notice that the Government proposes to grant mining interests or compulsorily acquire property; and

* negotiate the terms on which the Government's act will proceed.

If there is no agreement an arbitrator makes a binding determination about the terms on which the Government act can proceed.[227] There is provision for Ministerial intervention, if necessary, at the end of the arbitration process.[228]

Native title parties do not have the right to stop the grant of mining interest or compulsory acquisition from proceeding. That is to say, there is no right of veto.[229]

The Bill proposes to reduce the right to negotiate in significant respects:

* it provides for States and Territories to implement different sets of alternative procedures on 'leased or reserved land';

* in certain circumstances it provides a once-only right to negotiate in relation to mining projects (at present, the right to negotiate applies to both the exploration and production stages of a mining project).

* it removes or potentially removes a range of future acts from the right to negotiate;

* it permits Ministers to commence the process at an earlier stage than currently possible;

* it alters time limits by extending the notice period, and contracting the minimum period for negotiations and recommended period for arbitrations which relate to mining production;

* it expands the obligation to negotiate in good faith but also dilutes the obligation;

* it amends the criteria to be taken into account by an arbitral body; and

* it empowers the Commonwealth Minister (and, in certain circumstances, State or Territory Minister) to intervene in the right to negotiate process before arbitration is concluded or, in other cases, commences.[230]

Where the right to negotiate continues to apply under the Bill, it is severely limited.

10.3.1 Alternative Procedures Applying to Leased or Reserved Land

The Bill allows States and Territories to dismantle the right to negotiate where future acts occur on areas that are or have ever been covered by leases, freehold or reserve land.[231]

The Bill effectively removes the right to negotiate from the 78%[232] of the Australian continent which was ever subject to a pastoral lease grant, national park, timber reserve, defence reserve and all other reserved land, as well as expired freehold grants, whether or not native title continues to exist in those areas.

Loose arrangements for alternative procedural rights which do not take into account native title rights are substituted for the right to negotiate.[233]

The Association of Mining and Exploration's strong support[234] for the Government's proposal is of limited assistance to the Committee, as the Association labours under the misapprehension that the right to negotiate is a de facto right to veto.[235]

Wide discretion about how the alternative procedures will operate is left to the States and Territories, some of whose policy has been to ignore entirely the future act provisions of the Native Title Act 1993.236

On the Government's proposal to allow States and Territories to create minimalist tribunals to administer the new regime, Father Frank Brennan commented:

"One of the two concessions made to Aboriginal Australia in 1993 was that they would have guaranteed access to a national tribunal chaired by a judge for the determination of native title claims. If that is to be taken away by the Australian parliament, it has to be insisted that anything like what one might parody as a Borbidge-Connolly-Ryan type tribunal process in Queensland would be so demeaning of Aboriginal Australians that, of course, they would lose complete and utter confidence in it."[237]

The minimum standards to be applied in such cases are those which would apply to an ordinary titleholder of land, without any regard to the nature of native title or the relationship between native titleholders and their country.[238]

The Government is aware of the difference between procedural and substantive equality: The Explanatory Memorandum notes:

"'Substantive equality' allows relevant differences between groups, and their interests, to be taken into account. It allows for laws which appropriately take into account such differences in providing for equality of outcome."[239]

Bearing in mind that the Government is proposing a regime with no particular consideration of native title issues, it is a staggering leap of logic indeed for the Government further to assert:

"In these amendments to the right to negotiate, the Government is of the view that appropriate measures for the protection of native title have been maintained."[240]

In an area where future development is proposed over Aboriginal traditional country, of what use to an Aboriginal lawman is a procedural right based upon loss of ability to graze cattle?

The absurdity of the Government's approach is even more apparent from the evidence presented to the Committee. The Australian Government Solicitor's advice to the Indigenous Land Corporation is that even where Aboriginal traditional owners also hold title to a pastoral lease over their own traditional country, the right to negotiate will not be available under the amendments.[241]

10.3.2 Once-only Right to Negotiate

The Native Title Act 1993 provides for a separate negotiation in respect of the grant of mineral exploration rights and the grant of mining rights.[242]

The Government proposes to collapse the right to negotiate into a once-only right for mineral exploration, mining and renewals of regrants of mining rights.[243]

The flaw in the Government's proposal is that mineral exploration and mining are entirely different activities with different impacts and consequences.

Central Land Council Executive Director, Leigh Tilmouth, made the following comments about the workability of the "once-only" right to negotiate under the Land Rights (Northern Territory) Act 1976:

"The one right to negotiate under the land rights act is extremely difficult if you follow the full letter of the law. If you have a mining company that understands the two rights to negotiate, the two rights that we have put forward on more than one occasion as part of the Native Title Act, that is the best way to go, because you will find the exploration licence area may be 10,000 square kilometres and the mining lease may be only about three or four kilometres in width. So you come down to some very discrete areas which involve very discrete groups.

We can use the Warlpiri nation as an example which has five distinct tribal groups within the Warlpiri area. If they were to sit down and negotiate for the whole area of the exploration licence and only the one group that is really being affected by the mine is in there and being overwhelmed by everything else, it is very difficult when you have the one right to negotiate, whereas if you have two rights to negotiate at the exploration stage that involve all of the groups you find that the mine comes down to the second right to negotiate with the smaller group."[244]

The "once-only" right to negotiate is likely to delay genuine, large scale mining operations, because native titleholders and Representative Bodies are forced to deal with every prospector as though a new mine will be established. That is because native titleholders only have one chance to negotiate with prospective miners about the impact of a mine, whether or not the mine is ever likely to come into existence.

Referring to speculative prospectors in Central Australia, Tilmouth observed:

"We have the lunatics, or the sons of Lasseter. They are out there and short of riding camels, but they are definitely out there. They range from mining clerks in the Department of Mines and Energy right through to people who should be put away for their own protection. So we get those sorts of people who sit there and put up absolutely hopeless ideas of what they want to do.

It begs understanding by the Northern Territory Department of Mines and Energy as to how these people got exploration licences from them anyway...These people out there don't have a brass razoo. They put absolutely hopeless deals together. And what I think is that at the end of the day they would like to mine the stock market rather than mine the land."[245]

The Minerals Industry Council does not object to the right to negotiate, at least so far as it relates to land where there is no other interest.[246] While the Association of Mining and Exploration Companies (Inc) chose to make written submissions to the Government's "Wik Task Force" rather than to the Committee, [247] the evidence of Chief Executive George Savell suggests that the right to negotiate is generally opposed by that body.[248]

Cape York Land Council Chairman, Noel Pearson, gave the following example of the effect of the Bill's proposal to exclude renewals and regrants of mining interests from the right to negotiate:

"In Cape York, for example, there is a massive bauxite lease on the Wik lands held by a French aluminium company called Pechiney. That lease has been sitting there dormant for 30 years now and may not be activated for another 20 or 30 years. But when the town is constructed to build that mine in 10 or 20 years time, we believe the Aurukun people and the Wik people should be able to negotiate the terms of that mining. It is not to say that they do not have a valid mining right, but they should be able to negotiate the terms of that mining...

The problem that has been raised by the mining industry and other parties about no guarantee of perpetual renewal is a very strange problem, because if you had an operational mine that exhausted all the legal rights of renewal, which minister is not going to override any determination by an arbitration under the right to negotiate in favour of the mining continuing? So there is no fatality for mining in allowing Aboriginal people to negotiate lease renewals. There is absolutely no problem for the mining industry in the present state of the law in the Native Title Act."[249]

The proposals for amendment to the right to negotiate provisions of the Native Title Act 1993 are set out in the Recommendations section of this chapter. The proposed amendments will streamline the right to negotiate procedures without dismantling the fundamental principles of the agreement reached in 1993.

10.3.3 Changes to Timing of Negotiations

Time limits for negotiations are reduced to the extent that meaningful and informed negotiations will in many instances, be impossible.

The Bill removes the present requirement [250] that the Government party must propose to do an act before issuing public notices of intention to do an act pursuant to Section 29.

The significance of this amendment is that under the present procedures, the right to negotiate runs concurrently [251]with other statutory procedures, like environmental assessments, required for the development of a new mining project.

Under the Bill, the Government party may issue notices triggering the right to negotiate period well in advance of actually proposing to grant the relevant mining leases etc. The consequence is that there may be very little information about a proposed mine and its likely impacts at the time the statutory period for negotiation is running. The very subject matter of the negotiations may be so vague at the time of the negotiations that there is no prospect of entering into an agreement which adequately addresses issues arising from the proposed development. It is in no party's interest to enter into quick and cheap deals which do not stand the test of time.

10.3.4 Reduced Time for Negotiation

Where the right to negotiate applies to mining projects, the effective negotiation period is reduced from the current minimum four months to as little as one month.

The assertion to the Committee by Robert Orr of the "Wik Task Force" that the Bill provides for four months of negotiation[252] is a serious misinterpretation of the effect of the amendments.

In most cases, native titleholders will be required to lodge a fresh application for determination of native title which meets the stringent and unreasonable new registration test before the right to negotiate is available to them.[253].

Justice Robert French's assessment illustrates how the new regime will operate:

"The provision leaves open the possibility of a minimum period of one month only for negotiation. This could occur where a native title party becomes registered at the end of the notification period."[254]

The tables set out below illustrate how the right to negotiate will be shortened under the Government's proposal:

Right to Negotiate Timeline Under the

Native Title Act 1993

Notice period	4 Month Minimum Negotiation Window	Arbitration	Ministerial Override
s29 notice	2 months	6 months	12 months

Right To Negotiate Timeline Under

The 1997 Bill

 

		Ministerial Override
Notice period	1 Month Minimum Negotiat-ion Window	Arbitration
s29 notice	3 months	4 months	8 months

Once the Government issues a Section 29 notice there will in many cases be severe pressure on the resources of native titleholders and their Representative Body to prepare an application acceptable under the new registration test. There will be few cases where four months of meaningful negotiations occurs under the proposed amendments.

It is fanciful to imagine that negotiations in respect of a major new mining project can be concluded within one month. The absurdity of the proposition indicates that the Government either does not understand the practicalities of the legislation, or is consciously stripping the right to negotiate of any real content.

10.3.5 Requirement to Negotiate in Good Faith

The proposed amendment to require all parties to negotiate in good faith is not opposed.

However, like so many aspects of the Bill, the requirement is illusory because there is no sanction in the event that the parties do not negotiate in good faith

In Walley v State of Western Australia the Federal Court held that it was a prerequisite to arbitration that the Government party had negotiated in good faith.[255] The Bill neutralises the effect of the Walley decision by expressly providing that arbitration can proceed even where there have not been good faith negotiations.[256]

The Bill only provides that the party who applies to have the matter arbitrated must have negotiated in good faith. Where the right to negotiate is exercised over mining acts, there will always be a government party and the proposed developer, as well as native title parties. Only one of the parties needs to have negotiated in good faith for the matter to be referred to arbitration. In many cases this "loophole" will allow either the relevant Government, the developer or the native titleholders to avoid the good faith requirement.

There is an inherent incentive for native titleholders to negotiate in good faith. That incentive is the reduced scope of compensation if the matter proceeds to arbitration.[257]

Evidence was given by Richard Wells, Executive Director of the Minerals Council of Australia that a Federal Court decision that the State of Western Australia had not negotiated in good faith set "400-odd" right to negotiate processes in that State back to the starting point.[258]

10.3.6 The Expedited Procedure

Activities such as exploration can bypass the right to negotiate through an "expedited procedure" which removes the right to negotiate if the activity does not:

* directly interfere with community life;

* interfere with areas or sites of particular significance; or

* involve a major disturbance to any land or waters.

In its 1996 review of the Native Title Act 1993 the Industry Commission reported that due to policy difference between the states, the expedited procedure had only been used extensively in Western Australia, where the procedure had resulted in the grant of 94 per cent of applications for prospecting and exploration licences in minimum time. Other states and territories chose to ignore the Native Title Act 1993.259

10.3.7 Ministerial Intervention

The Native Title Act 1993 provides for Ministerial intervention in the right to negotiate process at the end of arbitration, as a guaranteed protection of the national or state interest.

The Bill allows the Minister to intervene from the end of the notice period, in many cases before negotiation has actually commenced.

Having regard to the existence of the expedited procedure for urgent acts (referred to in the previous section) the expansion of Ministerial intervention is unnecessary and diminishes the integrity of the right to negotiate. Neil Pinnock, Chief Executive of the Queensland Mining Council, gave evidence that widening the power of Ministerial intervention was not a proposal made by that body.[260]

10.3.8 Criteria for Arbitral Determinations

In making a determination about the terms on which a mining or other development act proceeds, the arbitral body cannot take into account the amount of profit made in the proposed project.[261]

Taken together with the shortened timeframes for negotiation and potential absence of critical information about the proposed project during the negotiation period, native titleholders are effectively forced to accept whatever proposal is put to them in the negotiation phase due to the limitations placed on the terms of compensation if the matter is arbitrated. This has been identified by the Commonwealth as a disincentive to constructive negotiations but this observation has been ignored by it in the proposed amendments.[262]

Justice French comments:

"In the discharge of its arbitral functions the Tribunal is required under s.39, to take into account a variety of factors which are set out in that section. That requirement imposes upon the Tribunal a significant burden in its decision-making and affects the nature and timeframe of the process which it must undertake."[263]

10.3.9 Exclusion of private infrastructure facilities

Compulsory acquisitions, whether for public or private purposes, are excluded from the right to negotiate.[264]

Robert Orr of the "Wik Task Force" explained the effect of the amendment in his evidence:

"Senator CHRIS EVANS - Is that the actual building of infrastructure by any third party, not necessarily a state government?

Mr Orr - That's right.

Senator CHRIS EVANS - It could be private infrastructure?

Mr Orr - That's right, private and public. At the moment, if the government was going to acquire land for a private road, for example, to give to a mining company to run a private road which did not have access to the public, you would have to go through the right to negotiate provisions. These amendments provide that in the future if the government is going to compulsorily acquire native title for a road, whether dedicated public or private, there will be no requirement to go through the right to negotiate, but there will be a requirement with regard to that compulsory acquisition to accord to the native titleholders the same rights that freeholders have.[265]

Michael Dodson summarises the debate:

"The Government argued that the provision of public infrastructure should be exempted from the right to negotiate, citing an increasing tendency for private organisation to be hired to perform this work.

Under the Bill, there is no requirement that the infrastructure have a 'public' purpose. Native title rights can be compulsorily acquired by governments in order to enable private companies to construct infrastructure purely for their own use. The bias of these provisions could not be more blatant. They run contrary to the commonly accepted principle that compulsory acquisition of property by the State should be for a public purpose."[266]

Under the Native Title Act 1993, compulsory acquisitions for public purposes are excluded from the right to negotiate. There is no good policy justification for allowing compulsory acquisition for the benefit of a (private) third party to be excluded from the right to negotiate as well.[267]

10.4 A Mining Industry Proposal

In the course of the Committee's proceedings, a proposal was made on behalf of the Minerals Council of Australia concerning the tax deductibility of compensation payments and associated costs paid by mining companies under the right to negotiate.

Richard Wells, Executive Director of the Minerals Council of Australia, argued in favour of the proposal as follows:

"Expenditure on native title issues, such as compensation, should be regarded as a cost of running a business enterprise, and treated as a tax deductable expense. As noted above, the Native Title Act and the Native Title Amendment Bill require the industry to pay compensation, and this legislative requirement should at least provide that expenses be deductible.

We feel very strongly that if you have a situation where Commonwealth legislation provides an imperfect system, in our view, where we have to negotiate with people with unspecified rights for unspecified amounts of compensation, then the taxation treatment of that should be made fair. Our understanding at the moment is that it is not intended that that should be tax deductable in the hands of the companies that pay it. We call upon the government to take action to remedy that. The legal fees alone in this business are very high and are very difficult, particularly for some of the smaller companies, to manage to maintain protection of their interests".[268]

There is considerable merit in the proposal.

In July 1997 the Federal Court held that recurrent compensation payments made by a silica mining company in North Queensland were a revenue account; and were therefore deductable by the company. Legal expenses incurred were also found to be deductable.[269]

Serious consideration should be given to legislative confirmation that recurrent compensation payments paid by a mining company resulting from agreements under the right to negotiate, along with associated legal expenses are deductable by the company.

RECOMMENDATIONS

1. The Minority takes the view that an effective right to negotiate must remain in place for the matters addressed in this Chapter.

2. The Government's inflexible approach to the right to negotiate is rejected. The right to negotiate procedures must be sufficiently flexible to take into account the circumstances in which they are intended to apply.

3. The right to negotiate in respect of mining related activities should not be excluded from areas subject to pastoral lease grants, past or present.

4. There is no justification for Ministerial intervention in the right to negotiate process before conclusion of the arbitration phase.

5. It is an unsatisfactory policy precedent to exclude from the right to negotiate compulsory acquisitions for the benefit of any third party interests. Accordingly, the right to negotiate should apply in such cases.

6. Representative Bodies should be adequately resourced to carry out more clearly defined functions and responsibilities in the right to negotiate process.

7. The Minority recommends that the Commonwealth ensure that the net royalty and tax regime applicable to mining and exploration operations the subject of regional or other agreements between miners and indigenous people be adjusted, if necessary, to acknowledge at least in part mining companies' ongoing payments to the indigenous communities involved, and essential expenses incurred in reaching such agreements.

CHAPTER 11 STATUTORY ACCESS RIGHTS ON PASTORAL LEASES

SUMMARY OF PROVISIONS

Subdivision Q provides a conditional statutory access right for native titleholders over pastoral leases. Once a native title claim over all or part of an area covered by a non-exclusive agricultural or pastoral lease is registered, and if one or more of the native title claimants regularly had physical access to that area for the purpose of carrying out traditional activities at 23 December 1996, the Bill provides a conditional statutory right of access to those areas while the claim is in progress (Section 44A). The rights of the leaseholder prevail over statutory access rights (Section 44B). Additionally, while the statutory right of access applies to any part of the lease, no person can enforce any native title rights or interests in relation to the whole of the land covered by the lease (Section 44C).

COMMENTARY

The Statutory access right to pastoral leases only applies where native titleholders have not previously been excluded from entry. As such it is, "clearly a bogy rather than a bonus".[270] The absurdity of the provision is that it will be unnecessary for claimants who already have access and it is helpful for those who do not.

The Government states that "access for registered native title claimants to pastoral leases will be guaranteed". This is restrictively qualified, however, by requiring " that [the claimants] regularly had physical access at the date of the Wik decision".[271]

This provision has been described as "one of the cruellest hoaxes in the Amendment Bill".[272]

The National Indigenous Working Group comments that :

The provision is of very limited benefit, is likely to be difficult to enforce and precludes the exercise of common law rights of access. If it is of benefit to Indigenous people at all (which is doubtful), the benefit is likely to be entirely marginal.[273]

Australians for Native Title and Reconciliation comment that:

The rights provided by this subdivision are so proscribed and difficult of achievement it is unlikely that any native title holder will expend the time, energy and money to pursue them.[274]

11.1. Registration Test

The registration test which must be passed before Aboriginal people can claim the conditional statutory access right is onerous (discussed at Chapter 13). The failure of native title holders to pass this test will preclude them from gaining any statutory access right.

11.2. Physical Access at 23 December 1997

Many Aboriginal people have access to pastoral leases and good relationships with pastoral lease holders.[275] However, throughout history many Aboriginal people were forcibly moved from their lands as part of government policy and Aboriginal people are, in some instances, denied access to their traditional lands by pastoralists. If the native title claimants did not enjoy, or were refused, regular physical access to the area up until 23 December 1996, the statutory right of access is not available to them.

The Government has embarked on a "high risk strategy" in proposing this test for statutory access rights.[276] Common law native title rights exist and are excisable. If native title holders are prevented from exercising their rights they can apply for an injunction even against a pastoralist who claimed (wrongly) that they were trespassers.[277] The purpose of the Native Title Act 1993 was to prevent common law court actions which are time consuming, expensive and the outcome uncertain.

The question of what constitutes "regular physical access" is not easily answered.[278] Unclear concepts like this will find themselves in the court being subject to the necessary judicial interpretation.

11.3. Some Examples of Denial of Access

The Bill does not improve the situation of those native title holders who have been "locked out" of, or have no security of access to, their country. There is evidence that some native titleholders have been "put off" or "locked out" of their traditional country by pastoralists. The Kimberley Land Council lists several pastoral leases where denial of access is currently occurring: Springvale, Bedford Downs, Moola Bulla, Margaret River, Christmas Creek, Thangoo, Fossil Downs, Paradise, Brooking Springs and Ellenbrae.[279]

Mr Andrews, a Bunuba man, gave evidence in relation to Brooking Springs:

"I want to talk on behalf of my country. I am out of the boundary from my country on a station. The manager of the station won't let us go back. He has the gate locked. It is my father's country and my grandmother's country. I never will go back to visit my country any more. My mother country - I do not know why that manager is a very hard man for Brooking Springs station. We tell him to go home and I am trying to visit my own country but he does not let anybody go. Why? Twice I talked to him and he said 'I got cattle and horses in here.' I said, 'That is all right. I don't come into your country while you have cattle and horses there, trying to shoot your bullock in a paddock or tyring to shoot your horse in a paddock. I don't come for that reason. I want to come back and visit my country.' That is what I tell the manager but that manager don't agree with anybody."[280]

Mr Butcher Wise from the Wangkajunga community, talking about Christmas Creek, said:

"I come from Christmas Creek. I have worked all my life at Christmas Creek since I was a little kid. I did not go to school. What we are doing in Christmas Creek is we have a little community outside and we live there. We do not get through to that riverside friendly site and grave site. We got nowhere to get through for the countryside, to see every waterhole and take the kids for hunting and all that thing, because there are gates...With one of the first managers there at Christmas Creek, we do not have that sort of trouble at that station. We used to go all through that river all along, all around that country area. We did not hunt any cattle, we just went through there all our lives. But this new bloke, when he came about 1990, he did not want the right people to get through there. I don't know why."[281]

Mavis Wallaby, a Kija woman, in a statement read by Peter Yu wrote about Moola Bulla station:

"My country is Moola Bulla station. This is my country, the place where my parents and my grandparents come from. That is where I was born and grew up and was living for a lot of my life. Then in 1995 the government pushed us off our country - my family and hundreds of other people. They sold the station to a bloke from Queensland or New South Wales and they shipped us off on a truck to Fitzroy Crossing to live. We were always trying to get back there. We were thinking about our place all that time - worrying for it, missing it.

We want to go back to visit important places for us, the burial places and camping places, for bush tucker and fishing. The country is always on our minds. We want to take our young children back to learn them properly about their family and their culture but we can't go back to country. The manager stops us from visiting. He's clear that he doesn't want us to go there. He only lets us go there for very special occasions with the museum mob, but not for hunting and fishing.

Our kids have never seen this place. We have got old people buried there and we can't get to the graves. My proper mother is also buried there, but I don't know where and I can't get on to find out. This makes me really unhappy and sad, and I can't teach all these things about the country to my kids and grandkids."[282]

There has been much discussion at Committee hearings about the extent of 'locked gates' on pastoral leases.

The following discussion answers the debate:

"CHAIR - ...could I suggest that [being locked out] is an exception rather than the rule?

Father Brennan - it may well be. Let us rectify the exceptions."[283]

11.4. Suspension of Native Title Rights

Native title rights for all claimants are suspended over the whole of the lease area even if one individual claimant is entitled to statutory access rights under this Subdivision. This provision has been labelled "curious"[284] and its purpose is unclear.[285] There is no just basis for the suspension of native title rights.

If a determination of native title is made, no compensation is payable for the suspension of the native title rights. Failure to provide compensation for the inability to exercise a disputed property right would constitute racially discriminatory action. Suspension of native title rights in this way could constitute an acquisition of property by the Commonwealth giving rise to a Constitutional obligation for compensation on just terms.

In other scenarios, damages or compensation would be granted to a property holder for the impairment of property rights once established. 286 Michael Dodson, Aboriginal and Torres Strait Islander Social Justice Commissioner, comments:

"It seems inconceivable that freehold or leasehold rights could be placed at risk of being 'suspended' without compensation where a title-holder had done nothing wrong and no inconsistent government action was proposed."[287]

Not everyone in a community may be able to obtain the statutory access right. The question of who may accompany a person exercising traditional access rights arises.[288] This may be divisive and disruptive of cultural practices. ATSIC raises the spectre that:

"Spouses and relatives may be deprived of rights and opportunities to accompany claimants during access. Whilst the performance of rights and other ceremonies are "traditional activities" which may be carried on under subdivision Q, it may not be possible to conduct them because the Subdivision is likely to deny access to people whose attendance is necessary for the performance and to people who, in accordance with the relevant traditional law and custom, would otherwise normally attend and benefit from the performance."[289]

11.5. Pastoral Concerns

The National Farmers' Federation submit that the interim access right should not exceed the rights currently being exercised. They query how undesirable behaviour would be prevented as the amendments do not express the duty or standard of care required to be exercised by those with statutory access, how a code of conduct would be enforced and how conflict between traditional use and primary production is to be prevented.[290]

There is some irony in the fact that the conditional statutory right of access will only apply if a native title claim is lodged. This is the very thing that is concerning pastoralists. In effect Aboriginal people who have access are being encouraged to lodge native title applications to gain a statutory right of access when they may be content with an existing voluntary arrangement.[291]

The issues that the National Farmers' Federation raises as concerns are precisely the things that are best worked out by agreement. If co-existing native title rights and interests are recognised over pastoral leases, by a determination of the court, these are exactly the things that will have to worked out by negotiation and agreement. This option is available presently under section 21 of the Native Title Act 1993 and will be made more accessible through the indigenous land use agreement provisions in the Bill (discussed at Chapter 7).

RECOMMENDATIONS

1. The registration test for native title applications will provide adequate verification of the bona fides of native title applicants. The statutory confirmation of native title rights of access to areas subject to pastoral lease grants should not be subject to ongoing physical connection requirements.

2. The statutory right of access should not preclude other native title applicants from exercising native title rights.

3. The Minority notes that issues of access to pastoral leases and the terms of such access are matters suitable for determination by Indigenous Land Use Agreements.

CHAPTER 12 SUNSET CLAUSE

SUMMARY OF PROVISIONS

The Bill introduces a sunset clause for native title and compensation claims. Under the sunset clause native title claims must be made within six years from the commencement of the Amendment Act (Section 13(1A)).

No application for compensation is allowed to be made later than six years from either the time when the Amendment Act commences or the time when the act is done, whichever is later (Section 50(2A)).

COMMENTARY

The sunset clause provisions are unnecessary and ill-conceived. There is wide spread objection to the clause among a range of stakeholders, indigenous and non-indigenous.[292]

Native title does not depend on the Native Title Act 1993 for its existence. It is a title recognised by the common law of Australia and enforceable as such. The Government is aware of this. Senator Minchin said that the sunset clause "does not affect the common law right...to go to state courts".[293]

The Government's proposal guarantees complex, expensive and time consuming court actions after six years by preventing native titleholders from pursuing their rights under the Native Title Act 1993. A particularly unjust implication of the sunset clause is that it denies the right to negotiate to those Aboriginal native titleholders who have not made claims before the sunset date.[294]

The Native Title Act 1993 provides for the recognised protection of native title through mediation and negotiation and provides a framework in which developers and miners can establish working relationships with Aboriginal communities. The Bill proposes a return to the quagmire of the common law position before the enactment of the Native Title Act 1993 where Aboriginal people were forced into expensive and protracted court actions to protect their property rights.

Additionally, as shown by the Northern Territory experience, this clause will encourage a rush of applications on the expiry of the six year period.[295]

The rationale behind removing the mechanism by which native title claims can be resolved in a non-litigious way has been described as a "nonsense".[296] There is no certainty and no workability in this provision. The impracticality of the sunset clause and the lack of support for it among a wide range of interest groups is further evidence of the Government's failure to grasp the real issues in the current debate. Such a consequence is inevitable where there has been a lack of real consultation and negotiation.

RECOMMENDATION

1. The Minority rejects the 'sunset clause' amendments in their entirety.

CHAPTER 13 MANAGEMENT OF APPLICATIONS

SUMMARY OF PROVISIONS

Some amendments to the Act became necessary following the Brandy[297] decision (discussed at Chapter 2). Those amendments relate largely to separating the functions of the Tribunal and the Federal Court. The amendments also relate to the management of applications, including the function and way of operating of the Tribunal and the Federal Court.

Native Title Determination Applications and Compensation Applications

The Bill repeals Part 3 of the Native Title Act 1993 and replaces it with provisions which prescribe rules for various applications to the Federal Court and the Tribunal. Formerly, all applications were commenced in the Tribunal. Native title determination applications are now commenced in the Federal Court, where any opposing party may bring an application to strike them out (Sections 13, 50(2) and 84C).

Strike Out Motions

The Court may strike out an application if it does not meet the stated necessary application requirements (Section 61) or if any of the area of the application has been the subject of a "previous exclusive possession act", the application claims exclusive possession over an area covered by a "previous non-exclusive possession act" or a native title determination has been made for the area (Section 61A). The application may also be struck out if documents and information required to accompany the application are not provided (Section 62). The Court is required to consider the strike out application before the application can proceed.

Information and Material Required

A native title application must contain, among other things, results and copies of searches carried out to determine any non-native title interests in the area. A description of the native title rights and interests claimed must be supplied, along with a general description of the factual basis upon which the claim is asserted. Detail of any activities currently carried on in relation to the land by the claim group is also required, as are details of any other applications to the courts or a recognised State/Territory body or notices under Section 29 in relation to the claim area that the applicant is aware of (Section 62).

Operations of The Federal Court

Under the proposed amendments, the Federal Court is bound by the rules of evidence, except to the extent that the Court otherwise orders. This is a change in the Act which currently states that the Court is not bound by technicalities, legal forms or rules of evidence. In conducting its proceedings, the Court no longer must take account of cultural and customary concerns of Aboriginal people, it may take these things into account, but not so as to prejudice any other party to the proceedings (Section 82).

The range of non-native title parties who may join proceedings is widened (Section 84) and each party is to pay their own costs in proceedings in ordinary circumstances (Section 85A). There are also provisions about the transfer of functions from the Tribunal to the Federal Court, and about the Federal Court's supervisory role over mediation of applications by the Tribunal.

Operations of the National Native Title Tribunal

With the transfer of functions to the Federal Court it is proposed to give the Tribunal additional mediation, assistance and record keeping functions.

The same provisions as that relating to the Federal Court in respect of cultural and customary concerns and prejudice to other parties apply to the Tribunal (Section 109).

Mediation

The purpose of mediation in native title determination applications is defined as being to assist the parties to reach agreement on some or all of the questions whether native title exists and, if it exists, who holds it, whether it is exclusive, what is its content and what other interests may affect it. There is specific provision for dealing with native title in areas covered by non-exclusive agricultural or pastoral leases and the nature of the relationship between the native title rights and interests and other interests (Section 86A).

At any time after three months from the start of mediation a party may apply to the Court for an order that mediation cease. Where such an application is made the Court must make an order that mediation is to cease unless the Court is satisfied that the mediation is likely to be successful in enabling the parties to reach agreement on any of the specified matters (Section 86 B(3)).

Registration Test and Registration Procedures

The registration test administered by the Tribunal, imposes on native title applicants significant new conditions and requirements. Only native title applicants who have passed the stringent and complex registration test enjoy the right to negotiate over some compulsory acquisitions and mining acts[298]. The registration test also affects the conditional right of access to pastoral leases.[299] A claim which does not satisfy the registration test may still proceed through the Federal Court.

In applying the registration test, the Registrar must consider the information in the application and any accompanying documentation, any information obtained by the Registrar from tenure searches, information obtained from the Commonwealth, and a State or Territory that is relevant to deciding whether the claim satisfies the registration criteria. The Registrar may also consider any other information he or she considers appropriate (Section 190A(3)).

The conditions, going to merit, that must be satisfied under the registration test are that:

* The Registrar must be satisfied that at least one member of the native title claim group has or had a "traditional physical connection" with the area covered by the application (Section 190B (7));

* The Registrar considers that, prima facie, each of the native title rights and interests can be established (Section 190B (6));

* No part of the area of the application has ever been subject to a "previous exclusive possession act". In addition, the Registrar must not register an application for exclusive possession if she is aware that any part of the area of the application has ever been covered by a "previous non-exclusive possession act" (for example, non-exclusive agricultural and pastoral leaseholds) (Section 190B (8)). A previous exclusive possession act includes valid grants of: "Crown to Crown" freehold grants or grants other than freehold under which the grantee statutory authority may dispose of or grant a lease over any of the land or waters; freehold estates; a commercial, exclusive agricultural or pastoral, residential or community purpose lease; a "Scheduled interest" (discussed at Chapter 6); and areas relating to public works.

* The Registrar considers that the factual basis for asserting native title rights and interests is sufficient to support the assertion that native title exists (Section 190B(5));

* The Registrar must be satisfied that the description of the area, is sufficient for it to be able to be said with certainty whether native title rights and interests are claimed in relation to the area (Section 190B (2));

* The Registrar considers that the native title claim group is described with sufficient certainty (Section 190B (3)); and

* The Registrar considers that the description of native title rights and interests claimed is adequate for their identification (Section 190B (4)).

* The claim does not cover off-shore areas or ownership of minerals, petroleum or gas (Section 190B (9)).

* The native title rights and interests have not otherwise been extinguished (Section 190B (10)).

Further specific procedural and other conditions must be met in order for an application to be registered. These include that:

* The application must be in the prescribed form, contain the information required to be supplied with an application, being boundaries of the claim, results of searches, detailed description of native title rights and interests claimed, description of the factual basis of association with the area, current activities in relation to the land, other native title applications in the area and any Section 29 notices in relation to the area (Section 62 (2)) and contain necessary accompanying documents (Section 190 C(2)).

* No person included in the native title claim group was included in a previous registered application (Section 190 C(3)).

* The application was made with the authority of the native title claim group, or certified by the appropriate native title representative body (Section 190C(4) and (5)).

It is noted that all of these criteria must be met, often within a three-month period, to allow native titleholders access to the right to negotiate and other statutory rights.

The registration test applies to all applications made after the enactment of the amendments, all applications that have been lodged with the Tribunal from 27 June 1996, all applications lodged prior to 27 June 1996 which are in an area described in a notice given under Section 29 of the new Act and where the area subject to the application includes a non-exclusive agricultural or pastoral lease.

Where a Section 29 notice is given in relation to an act affecting any land or waters in the area covered by the application, the Registrar must attempt to finalise the question of registration of the application by the end of the three months after the notice is given.

Equivalent State and Territory Bodies

Provision is made for the establishment of "equivalent State/Territory bodies" under which the relevant State or Territory Minister may nominate offices, tribunals, or bodies, to perform the functions assigned under the Act to the NNTT or the Native Title Registrar. The effect of a Ministerial determination that the nominated body is an equivalent body is that the body will perform the relevant functions to the exclusion of the NNTT or the Native Title Registrar. The Commonwealth Minister must be satisfied that there exists appropriate expertise in the nominated body to perform the relevant functions; that the nominated body is required under State or Territory law to adopt procedures which are "fair, just, informal, accessible and expeditious"; that the equivalent bodies will be adequately resourced to perform those functions; and that adequate statutory provision exists to support performance of the functions, including the maintenance of any registers. Other provisions concern the revocation of any determination, and transitional provisions (Section 207B).

COMMENTARY

13.1 FEDERAL COURT

13.1.1. Brandy Amendments

Following the Brandy decision, there is consensus that the roles of the Federal Court and the Tribunal need redefining in the handling native title claims.

The amendments facilitating the lodgement of claims in the Federal Court and detailing the role of the Federal Court and the Tribunal are largely supported. There are, however, several provisions which unnecessarily overreach addressing the problems associated with Brandy and have the potential to cause injustice.

13.1.2 Formal Rules of Evidence

Under the amendments, the ordinary formal rules of evidence will apply unless there is an order to the contrary. The introduction of formal rules of evidence into the Court process will significantly affect the Federal Court's way of operating in relation to native title matters.[300]

The Bill reduces the flexibility, adds technical hurdles and will increase the associated expense of the process.[301] This will impact on all the parties to proceedings as much time can be spent in court arguing about whether a particular form of question or an answer is admissible according to the rules of evidence. These features are totally unnecessary and inappropriate for native title matters.[302] Provisions dispensing with the rules of evidence are not unique to the Native Title Act 1993. In Queensland the Land Court is one example. The Land Tribunal in the Northern Territory another.

Evidence in relation to native title has its basis in indigenous laws. Experience, particularly with the Aboriginal Land Rights (Northern Territory) Act 1976, has shown that evidence is best taken from Indigenous people using non-adversarial processes and unconstrained, as far as is possible, by legalistic rules.[303] The Government appears to have overlooked that the point of the current flexibility in court procedure is to encourage Aboriginal people to give evidence about their traditional connections with land, not to dissuade them from doing so. Failure to do so may involve a failure to accord substantive racial equality.

These changes mean that indigenous evidence, culture and people will be accorded less protection in the Court process.[304] There are inherent evidentiary difficulties in proving a right which is based in oral tradition.[305] The proposed changes diminish the rights of native titleholders whose evidence may now be undervalued because it does not conform precisely with the Australian legal system's rule of evidence.

The rules of evidence derive partly from the common law and partly from statute law. According to Justice French, the provision could be viewed as an attempt to give statutory force to judge made law. A similar provision in the current Act, section 12, was held by the High Court in WA v The Commonwealth[306] to be invalid. This provision may face the same problem.[307]

On 20 October 1997 the High Court rejected an application by the Western Australian Government for leave to appeal a decision by the Federal Court that allowed secret men's or women's business to be withheld from the opposite sex in native title cases.[308]

The policy behind these amendments is unclear. There is no evidence of criticism of the current section or that any party in native title cases has been disadvantaged by the Federal Court not being bound by the rules of evidence.

13.1.3. Cultural and Customary Concerns

The extent to which the cultural and customary concerns of Aboriginal and Torres Strait Islander peoples should be taken into account in the Federal Court is limited by the Bill. The Government's position was indicated by the statement of Senator Minchin in the Senate debates preceding the enactment of the Native Title Act in 1993:

"The Bill instructs the Federal Court to take account of the cultural and customary concerns of Aboriginal people and Torres Strait Islanders and is not bound by technicalities, legal forms or rules of evidence! What an unbelievable instruction from the Parliament to the judiciary. It is a most reprehensible undermining of a Superior Court of this country, and really is, at its essence, contrary to the whole principle of the separation of the executive, legislature and judiciary. As I say, it confirms that this Bill is fundamentally based on race."[309]

This amendment utterly fails to take into account the fundamental spiritual and cultural relationship Aboriginal people have to land.[310]

It also ignores the fact that in order to provide an environment in which the court can be best placed to determine whether native title exists, proceedings must be conducted in a way which takes into account cultural and customary concerns. These concerns may include such matters as:

* Which people have traditional authority to speak on certain matters.

* Where is an appropriate venue to give certain evidence.

* When is an appropriate time to give evidence (having regard to such things as funeral and other ceremonial obligations).

* Who should (and should not) have access to certain places.

* Whether restrictions should be placed on who can hear or have access to evidence about matters of great traditional significance such as evidence about certain sites or areas, objects or designs, place names, ceremonies, stones, aspects of traditional law and aspects of family histories.[311]

The amendment is regressive and has the potential to cause grave injustice.

Justice French provides an example:

"if one decided to adjourn a mediation or a court hearing because somebody in a community had died, and that might be seen as taking into account the cultural or customary concerns of that particular community, would somebody else be able to argue that that was prejudice because it involved a delay?"[312]

Australians for Native Title and Reconciliation provide another example where respect for cultural and customary concerns is important:

"traditional laws and customs, such as those which prevent men and women speaking about ceremony and ritual in the presence of the opposite sex, is an essential component of a workable and non-discriminatory process."[313]

Another example where injustice could occur if the cultural and customary concerns of Aboriginal people are not required to be taken into account is the requirement that evidence be given in open court.[314]

The Committee itself conducted its proceedings without proper regard to Aboriginal cultural and customs.

In Broome, on 6 October 1997, the Committee heard evidence from traditional owners representing 11 languages groups throughout the Kimberley. Evidence was given by these witnesses in Aboriginal language. None of this evidence was recorded in Hansard. Rather the sentence: "Evidence was then given in a language other than English-" appears in the transcript.[315]

A corner stone of our legal system is the right to be heard. If this is an indication of the way the Government would like native title proceedings to be conducted those proceedings will amount to a skewed and cynical scam.

13.1.4 Prejudice to other Parties in Proceedings

The notion of prejudice to another party is ambiguous and "highly dependent on perceptions of disadvantage"[316] the term creates uncertainty as its interpretation will ultimately have to be determined by the Court.[317] The current section in the Native Title Act 1993 does not require that the reasonable interests of other parties be ignored. Rather it strikes an appropriate balance between the interests of the indigenous parties and other parties to a proceeding.[318]

The Explanatory Memorandum offers no guidance as to the policy reasons for these changes. These amendments go against the tide of acceptance of the importance of recognising and respecting Aboriginal customary laws and cultural requirements, particularly in highly formalised settings such as legal proceedings. In a balanced procedural system, Aboriginal customary concerns should be integrated into existing court procedures, not regarded as an optional encumbrance.

13.1.5 Parties

A person may be a party to Federal court proceedings if the person's interests may be affected by a determination in the proceedings. The amendment does not use the term "interest in relation to land or waters" which is defined in Section 253 to mean legal or equitable interest. Therefore, interest may go beyond proprietary interest.[319]

This means that people with only marginal interests may be a party to the proceeding. This will have serious implications for the success of mediations and the efficiency and timelines of court processes in relation to native title matters.

13.1.6 Fast-Tracking Determinations in Relation to Aboriginal Reserves and other Areas

Where claims are made over areas of land where there are non-indigenous peoples with specific interests there is justification in putting native titleholders to strict proof and requiring a determination by a court, in the absence of a mediated agreement.

There are, however, areas of land which are reserved specifically for Aboriginal people and over which no other person has an interest. Also there are certain areas of land in Australia which remain vacant crown land over which an interest has never been granted, or which have reverted to vacant crown land after the expiry of an exclusive or non-exclusive possession act. Again, these are areas where no non-indigenous people have a specific interest in that land.

The Government could take positive steps in recognising Aboriginal interests in land over which no other individual has a claim, by a fast-track administrative recognition of those interests.

The National Indigenous Working Group's submission details a process by which this proposal can be given effect.[320]

13.2 NATIONAL NATIVE TITLE TRIBUNAL

13.2.1 Cultural and Customary Concerns

The same comments apply for the Tribunal as are discussed above in relation to the Federal Court.

13.3 REGISTRATION TEST

Following the decision in Kanak v NNTT[321] a consensus developed that there was a need to restore a meaningful threshold test for the registration of claims. The need for developers and miners to readily identify those native titleholders with whom they must negotiate is recognised and accepted. ATSIC and the National Indigenous Working Group have indicated that they are willing to support a threshold test for registration of claims but not in the current form.[322]

The test must balance the requirements of government and developers to be certain that they are dealing with bona fide claimants with minimisation of overlap on the one hand, and the right of native title claimants to have a say in future dealings affecting their land, as well as the finite capacity for indigenous parties to prepare extremely detailed claims, on the other. The test does not strike this balance. Instead it "raises the bar" for native title applicants to the extent that bona fide native titleholders may be denied registration and consequent benefits like the right to negotiate for failure to meet the unreasonably high requirements of the test.

The threshold test for registration proposed in the Bill is too high, is complex, is ambiguous in places and extends beyond a reasonable balance. A number of proposed conditions for registration are of particular concern.

13.3.1 The Physical Connection Test

This test requires that at least one member of the claimant group has maintained a physical connection to the area. If this is not the case then the claim cannot be registered. The native titleholders do not gain the right to negotiate. There are serious problems with this:

* First, people who were involuntarily moved off country or denied access to it will not satisfy a physical connection test despite their best efforts to maintain a physical connection with their land. 323 The trend of moving people off their land became pronounced with the phasing in of equal pay for Aboriginal stock workers in 1968. The Central Land Council makes the comment that:

"It is indeed ironic that Aboriginal people must continue to pay such a high price for having their basic human right (to be paid equally) recognised in 1968."[324]

The profound unfairness of this test will be apparent if it is "used in order to work injustice to Aborigines who have been locked out from the land".[325]

* Secondly, the common law test is not one of "traditional physical connection" but of maintenance of observance of laws and customs "so far as it is practicable to do so."[326] There will be situations where a claimant has not had physical access to certain land but retains the stories and knowledge of traditional law relating to his or her traditional country. 327

The amendments contained in the Bill are manifestly unjust because they fail to recognise the spiritual and cultural connection of Aboriginal people to land and prevent claimants obtaining the right to negotiate over their traditional country as an effect of being excluded by others.

13.3.2 The "Prima Facie" Test

The 'prima facie' test requires native title applicants to establish that each native title right and interest claimed can be made out on its face.

If any one of the native title rights claimed in an application does not pass the prima facie test then the whole application must be rejected. Again, this raises serious problems:

* Firstly, this all or nothing approach has been labelled a "draconian outcome".[328] The Registrar should be permitted to read down the claim to cover those rights which have been prima facie established. This ceases to be a test which prevents unmeritorious claims from attracting the right to negotiate. It becomes a test which denies bona fide native claimants the protection of their native title rights.

* Secondly, the test assumes a shopping list of rights and interests. Applications to amend claims will be made with all the associated delay.[329] The treatment of native title in such an atomistic way is unrealistic and will ultimately be shown to be unworkable.[330]

* Thirdly, the decision by the Registrar involves questions of law and fact. There has not yet been judicial guidance as to the level and nature of evidence necessary (beyond broad propositions) to establish native title.[331]

The consequences of this test are harsh resulting in bona fide native title applicants missing out on the right to negotiate in respect of mining or other high impact development. Additionally, the whole process will be the cause of delay due to amendment applications and the need for judicial interpretation.

13.3.3 Registration of Claims Covering Previous Exclusive and Non-Exclusive Possession Acts

A claim cannot be registered if the application covers an area which has at any time, in the past or present, been covered by a "previous exclusive possession act". These are defined to include grants which confer exclusive possession as well as Crown to Crown grants, those contained in the Schedule of interests and areas relating to public works. A claim also cannot be registered if it seeks exclusive possession over an area that has at any time, in the past or present, been subject to a non-exclusive pastoral or agricultural lease.

The provision proceeds on a fundamental misunderstanding of the state of the common law. The Government's own Explanatory Memorandum confirms that the question whether native title is permanently extinguished, or merely suppressed, for the term of an inconsistent grant remains open at common law[332]. The provision is therefore a massive overreach of the common law. There can be no justification for a prohibition on registration of claims where it is not certain that native title rights are inconsistent with the rights of others.

The following parts of the test are particularly unjust:

* Firstly, the test takes into account grants which may not still be in existence. The land may currently be Crown land. In the absence of a clear position at common law there is no justifiable basis upon which the right to negotiate be denied due to some dealing with the land in the early part of the century.

* Secondly, if one of these acts occurs in relation to any part of the claimed area the whole claim will not be registered.[333] There is no justification for this.

* Thirdly, there is to be no registration for claims over Crown to Crown or Crown to statutory authority grants. This is due to the combined effect of Sections 190B(8), 61A(2) and 23B. This is contrary to the current Native Title Act 1993 which states that a validated grant from Crown to Crown or Crown to statutory authority does not extinguish native title but rather is subject to the non-extinguishment principle. This also runs against the common law position articulated in Mabo [No. 2].

* Fourthly, as a matter of procedure it will be difficult for the Registrar to determine what are previous exclusive possession acts as there is no objective test to be exercised. 334 This will lead to further litigation and uncertainty.

13.3.4 Factual Basis of Claims

The test requires, that the factual basis of the claim be sufficient to support the assertion that native title exists. As long as the bureaucratic process is not akin to a full blown court case, the test does not seem unduly onerous. Consideration, however, must be given to the level of investigation that is appropriate for a preliminary administrative screening process. 335

13.3.5 Multiple Claims

A claim cannot be registered if a member of the claim group is also a member of a group whose application has been registered and where the claims overlap. This presents some problems:

* Firstly, it may be that overlapping claims may legitimately reflect traditional law and social organisation. This may occur in a variety of circumstances:

- An overlapping native title claim may reflect the existence of people in neighbouring communities whose traditional connection with the country lies within the area of the overlap.

- Instances in which traditional law provides for joint custodianships of adjoining country by a number of different groups.

- Instances in which a group have the right under traditional law to traverse the country through songlines or dreaming tracks, or a right to reside for periods, or visit sites at certain periods. 336

* Secondly, from an administrative point of view, these criteria will be difficult to administer where there is no requirement to name persons who are native titleholders.[337]

* Thirdly, a real concern of developers and miners, especially in the Goldfields of Western Australia, is the number of overlapping claims, often made by members of the same Aboriginal group. This provision will not prevent multiple overlapping applications where the claimants differ. The test is of limited utility in addressing the concern of overlapping claims and demonstrates a misunderstanding of basic principles of Aboriginal kinship. Given that it does not accommodate legitimate traditional practices, the test is not acceptable.

13.3.6 Complexity and Ambiguity

The proposed test is extremely complex which raises the following problems.

* Firstly, these provisions are likely to create a significant level of uncertainty as it is difficult to assess how the provisions will apply in practice.[338]

* Secondly, the complexity and length of the provisions will make it difficult for native titleholders to comply. Additionally, the inclusion of some matters covered by s.62 in both the "merits" part of the registration test contained in s.190B and the "procedural" part contained in s.190C will lead to confusion among applicants and make the application of the test more complicated. 339

* Thirdly, the complexity and ambiguities in the registration test will provoke unprecedented litigation. ATSIC predicts that:

"for years to come the focus and energies of governments and other non-claimant parties, claimants, courts and lawyers will be taken up with the registration rather than the determination of claims...it will be may years before participating courts, tribunals, representative bodies and claimants will have any confidence in being able to effect registration of claims and about the issues involved in registration."[340]

13.3.7 Time Limits of the Registration Test

If a section 29 notice is issued over a claimed area, the Registrar must consider the claim before the three month notification period. If the claim is not registered by that time, the native title applicants cannot be parties to the future act application and lose the right to negotiate. These time limits are tight and inflexible. 341

A native title application may be lodged late in the period. There is a risk that the registration test may not be able to be completed in the required time or not transmitted from the Federal Court to the Registrar at the expiration of the notification period, resulting in the right to negotiate being lost through no fault of the claimants. 342 This would be a manifestly unjust outcome.

13.4 EQUIVALENT STATE OR TERRITORY BODIES

State or Territory bodies may be established in substitution of the National Native Title Tribunal to perform all functions currently carried out by the National Native Title Tribunal and the Native Title Registrar.

This provision has serious implications for the maintenance of a national body. It must not be underestimated how essential a national structure is to the proper and fair management of native title issues in this country.

The provision will ensure the following disastrous results:

* Native titleholders will lose their guaranteed access to a national tribunal...for determinations of native title. According to Father Frank Brennan:

"This guarantee [was one of the] most significant gains made by native titleholders in 1993."[343]

* The NNTT could be precluded from maintaining a complete national register of applications, determinations, or indigenous land use agreements. This would have serious implications for anyone seeking to establish where these occur over any particular area of land, leading to confusion and complication.

* There are considerable practical and administrative implications for applications which cross state and territory boundaries

* This provision would allow discrepancy and variation in standards which would apply around the country to dealings with native title land. It has negative implications for procedural consistency.

* The establishment of separate administrations in each State or Territory is inefficient and a waste of resources.[344]

* An equivalent body may be constituted by only one person.

* It risks subjecting native title policy formulation to the provincial and short-term interest of State and Territory Governments.[345]

Father Frank Brennan sums up the gravity of this proposition:

"One of the two concessions made to Aboriginal Australia in 1993 was that they would have guaranteed access to a national tribunal chaired by a judge for the determination of native title claims. If that is to be taken away by the Australian Parliament, it has to be insisted that anything like what one might parody as a Borbidge - Connolly - Ryan type tribunal process in Queensland would be so demeaning of Aboriginal Australians that, of course, they would lose complete and utter confidence in it."[346]

Ultimately, in relation to native title, it is imperative that there be national standards upheld.

RECOMMENDATIONS

1. The Brandy amendments are supported.

2. The existence and continuing central role of the National Native Title Tribunal must be confirmed. The Tribunal must be adequately resourced to perform its functions efficiently.

3. The Minority supports the re-establishment of a registration test for access to the right to negotiate and other statutory purposes. The registration test should not exclude bona fide claimants with reasonable prospects of success in establishing native title from access to the right to negotiate provisions.

4. The Minority rejects proposed simplistic suggestions for dealing with the extensive backlog of claims, particularly of a conflicting nature. There is a need for a measured consideration of pre-June 1996 registrations.

5. The Federal Court and the Native Title Tribunal must be provided with discretion in the administration of applications to prevent possible injustice.

6. In hearings of native title cases, Federal Court judges need not follow formal rules of evidence. The Minority supports the maintenance of the existing provision contained in the Native Title Act 1993. The court should still be obliged to take account of custom and tradition in conducting hearings.

CHAPTER 14 REPRESENTATIVE ABORIGINAL/TORRES STRAIT ISLANDER BODIES

SUMMARY OF PROVISIONS

Re-recognition of Native Title Representative Bodies and the "New Regime"

Amendments relating to Native Title Representative Bodies are split into two Parts in the Bill (Schedule 3). The first Part has two main aspects: it confers new functions on Representative Bodies in what is called the "transitional period", and provides a new process of recognition of Representative Bodies as a prelude to the establishment of what is called the "new regime". The second Part details the "new regime" which will operate from the end of the transitional period, and deals with functions, finances, subjection to Ministerial scrutiny, variations in Representative Body areas of jurisdiction, de-recognition and other matters.

Between the commencement of the amendments and the end of the transition period, the functions of Representative Bodies will be expanded to include assisting individuals in relation to land use agreements and rights of access; certifying applications for native title and registration of land use agreements; and becoming a party to a land use agreement.

During the "transitional period" the Minister must invite applications from eligible bodies (existing Representative Bodies and Aboriginal corporations (Section 201B)) to be recognised as Representative Bodies (Section 203AA). In other words, there is a complete re-recognition process proposed.

If an area is currently covered by a Representative Body, an invitation must initially be made to that body. The Minister may invite other bodies to apply for recognition if the Minister has rejected the current Representative Body's application or if none of the invitees respond.

The Minister may recognise a Representative Body if satisfied that:

* the body will satisfactorily represent the people who do, or may, hold native title;

* the body will be able to effectively consult with the Aborigines and/or Torres Strait Islanders living in the area;

* if it is an existing Representative Body, that it is satisfactorily performing its functions; and

* the body will be able to perform its functions as a Representative Body satisfactorily.

The Minister must not recognise more than one body for an area.

"Exempt State bodies" (a body established by a State law to represent the interests of Aborigines or Torres Strait Islanders: Section 201A) cannot be recognised as a Representative Body except in certain circumstances (Section 203AD(3)).

The Minister will have a discretionary power to withdraw recognition of Representative Bodies. This may be done where the Minister is satisfied that the Representative Body does not satisfactorily represent or consult with the people it represents or that the Representative Body is not satisfactorily performing its functions and is unlikely to rectify these problems within a reasonable period. The Minister will be required to notify the Representative Body of a proposed withdrawal of recognition and must consider any submission on the matter from the Representative Body (Section 203AH).

The main functions of a Representative Body which is recognised under the "new regime" are:

* facilitation and assistance of applications and native title applicants (Section 203BB).

* certification of applications for native title determinations and for the registration of land use agreements (Section 203BE).

* dispute resolution among constituents (Section 203BF).

* notification, as far as reasonably practicable, of native titleholders who would otherwise not receive relevant notices (Section 203BG).

* agreement making - to be a party to Indigenous Land Use Agreements (Section 203BH).

* internal review - to provide a mechanism for a Representative Body to review a decision or action when so requested (Section 203BI).

Finance

ATSIC may make a grant subject to conditions. However, grants must be subject to such conditions relating to:

* the purpose for which the money may be used;

* the acquittal of money spent;

* giving of information relating to the spending of the money;

* the appointment, when ATSIC considers that money has been spent other than on an approved purpose, of a person who will have power to ensure that money is spent only on approved purposes;

* the satisfactory performance of the Representative Body's functions; and

* compliance with the Act.

If a condition is breached, ATSIC will be able to recover the money and if there have been serious or repeated breaches of conditions, ATSIC is to inform the Minister of the breaches and what measures ATSIC proposes to take to address the situation (Sections 203C and 203CA).

Ministerial Intervention

The Minister may appoint a person to inspect, audit or investigate the financial affairs of a Representative Body if of the opinion that there is, or may be, serious or repeated irregularities in the body's financial affairs or a serious or repeated failure to perform its functions (Section 203DF).

ATSIC will have a positive duty to inform the Minister when it is of the opinion that a Representative Body is not satisfactorily representing actual or potential native titleholders; is not effectively consulting with the Aboriginal people or Torres Strait Islanders that it represents; is not satisfactorily performing its functions; or that there may be irregularities in its financial affairs (Section 203F). If the Minister is of the opinion any of these matters may have occurred or be occurring, or that a condition of a grant has been breached, the Minister may require ATSIC to produce information on the matter and ATSIC must comply with the request (Section 203FA).

Provision is made for ATSIC to review a decision by a Representative Body not to assist a person pursuant to the assistance and facilitation functions (Section 203FB).

COMMENTARY

The National Indigenous Working Group on Native Title is a consortium of Native Title Representative Bodies, ATSIC, the Indigenous Land Corporation, the Aboriginal and Torres Strait Islander Social Justice Commissioner and the National Aboriginal and Islander Legal Services Secretariat, formed for the purposes of preparing a position on proposed amendments to the Native Title Act 1993.

The National Indigenous Working Group is best placed to comment on the amendments to the representative body arrangements as it is constituted by the major current representative bodies throughout Australia whose administrative operations will be directly affected by these amendments. These bodies have been involved in building up expertise and relationships with Indigenous communities, non-indigenous people, and governments in relation to native title matters over the last four years.

Consequently, the National Indigenous Working Group's proposals for amendment to the Representative Body functions contained in the Bill are detailed below.

14.1. Functions and Powers of Native Title Representative Bodies

The role of Representative Bodies is clarified and expanded for the purposes of assisting their constituents to prepare native title applications and deal with other matters relating to native title. The additional powers and functions, on the whole, have the potential to allow Representative Bodies to be more effective in resolving disputes and consolidating claims.[347] There are a number of matters, however, which should be added:

* Representative Bodies should be required to use their best endeavours to protect the interests of native title holders, and other Indigenous people who are interested in particular land. 348

* There should be a specific function of coordinating and prioritising the performance of Representative Body functions. Representative Bodies should be able to determine the priority they will give to their functions and be permitted to allocate resources appropriately. In the absence of any satisfactory undertaking from the Commonwealth that bodies will be properly resourced and financed, such express provision is essential.[349]

* Regarding functions in relation to Indigenous Land Use Agreements, Representative Bodies should be required to be parties to all area agreements so they can be satisfied as to the authority of the native title holders and as to the fairness of the process.[350]

* The notification functions should be expressed to be subject to adequate resources of the Representative Body and should not derogate from otherwise existing government obligations to inform people of its intentions to perform certain future acts.[351]

* In order to better ensure that authority will continue to be maintained by the registered applicant after certification of an application, Representative Bodies should also certify agreements under the right to negotiate process, to ensure, as far as reasonably practicable, that they are made with the authority of all native title holders.[352]

* Land management and environmental issues should be added to the list of matters covered by the facilitation and assistance function, subject to priorities and the responsibility to protect native title.[353]

14.2. Financial and Accountability Requirements

Representative Bodies must be accountable for their use of public money and should be accountable internally, actively, and directly to their constituents. There are several points to be made about the amendments to financial and accountability requirements.

* Representative Bodies are already subject to adequate accountability arrangements. The current, single line of accountability is the proper and desirable approach, and meets general standards of public accountability.[354]

* Proposed arrangements should not duplicate ATSIC financial accountability arrangements.[355] The amendments contain layers of accountability which are unnecessary and will impair the proper functioning of representative bodies. 356 Proposed arrangements should not be so oppressive as to detract from performance.

* Representative Bodies are accountable to ATSIC and accountable under the legislation under which they are established (most bodies are incorporated under the Aboriginal Councils and Associations Act 1976). It is inappropriate that provisions from the Commonwealth Authorities and Companies Act be incorporated, by reference, into an already complex scheme governing the conduct of the management of Representative Bodies.[357]

14.3. Inappropriate Ministerial Involvement

The Explanatory Memorandum states that:

"the Commonwealth Minister retains overall strategic control of Representative Body performance".[358]

The Minister's ability to intervene in Representative Body affairs is too wide. As their title suggests, the purpose of Representative Bodies is to represent native title holders and other Aboriginal interests, not to be the agent of the Minister. Aboriginal people are most unlikely to repose trust in an organisation which appears to be yet another arm of government.

* The Minister's power to appoint an auditor or investigator to inspect and audit accounts and records or to investigate performance of a Representative Body's functions and exercise of its powers is potentially oppressive[359] and has the potential to raise a considerable conflict of interest given the Commonwealth's interests and participation in native title matters.[360] Extensive powers of investigation into Representative Body affairs already exists within ATSIC, under Administrative Decision Judicial Review procedures and the Registrar's powers under the Aboriginal Councils and Associations Act.[361]

* It is appropriate that there be one Representative Body for each area. ATSIC in their Review of Representative Bodies 1995 determined appropriate areas for Representative Bodies for the whole country. It is not appropriate that the Minister decide again what areas should have Representative Bodies.[362]

* Strategic plans assume much greater importance because a grant from ATSIC is subject to consideration of the Representative Body's strategic plan. Strategic plans are to be approved by the Minister. The Minister has no appropriate role in approving strategic plans.[363]

* If the Minister suspects that there is not satisfactory representation, effective consultation, satisfactory performance of functions, or there have been financial irregularities by a Representative Body, he or she may request relevant documents from ATSIC who must comply with the request. The exercise of a such a power should be limited to circumstances where the Minister reasonably suspects that a decision might have to be made concerning changes of areas or withdrawal of recognition of a Representative Body.[364]

14.4. Re-recognition

This provision will cause disruption to existing Representative Bodies. The National Indigenous Working Group raises the point that:

"There is no guarantee that when the regime settles down again after this disruption it will be any more efficient, accountable, representative, or just plain better than the existing regime."[365]

The following points are raised regarding re-recognition:

* Representative Bodies in the various areas have been building up expertise and relationships with Indigenous communities, non-indigenous people, and government.[366] These relationships and ways of operating should not be interrupted or over-turned by an intrusive process of re-determining areas and forcing Representative Bodies to go though a process of seeking re-recognition.[367]

* The proposals for extension, variation and reduction of areas are appropriate for ensuring that existing Representative Bodies will satisfactorily represent native title holders and will be able to consult effectively with Aboriginal and Torres Strait Islander people living in the area.[368] There is no need for re-recognition of Representative Bodies in relation to these matters.

* If the Minister is reasonably satisfied of a Representative Body's poor performance in representation, consultation or carrying out its functions, it is appropriate for him or her to initiate a process of withdrawing recognition. There is no need to force all Representative Bodies through a process of obtaining re-recognition of that status.[369]

* Given that there is no need for re-recognition of Representative Bodies, there is no need for a transition period in this regard. The new provisions regarding Representative Bodies should apply from the commencement of any amendments to the Act.[370]

14.5. Conduct of Directors and Executive Officers

Certain sections of the Commonwealth Authorities and Companies Act will apply to executive officers, directors and governing committees of Representative Bodies. These provisions are inappropriate for community based organisations, such as Representative Bodies.

Representative Bodies are already subject to equivalent provisions under other Acts of Parliament. This is unnecessary duplication which will further stretch unlimited resources.

RECOMMENDATIONS

1. The Minority acknowledges the central role Representative Bodies play in native title recognition and protection processes under the Native Title Act 1993.

2. Representative Bodies should be adequately resourced and assisted to carry out more clearly defined representative functions and responsibilities in the native title recognition and protection processes.

3. Representative Bodies must be accountable to constituents and to ATSIC in the performance of clearly defined responsibilities.

4. Ministerial powers of oversight of Representative Bodies are a duplication and unnecessary. The amendments concerning Ministerial (as opposed to ATSIC) intervention into the affairs and control of Representative Bodies are opposed.

5. There should be a power in representative bodies to nominate vacant crown land and land occupied by Aboriginal interests for "fast-track" recognition as under the Northern Territory Land Rights Act.

Mr Daryl Melham MP

Mr Harry Quick MP

Senator the Hon Nick Bolkus

Senator Chris Evans

Senator John Woodley

[Return to Table of Contents]

Footnotes:

[1] Submission of the National Council of Churches in Australia, Aboriginal and Islander Commission 24 September 1997, p. 4

[2] Mabo v Queensland [No. 2] 1992 175 CLR 1

[3] Native Title Amendment Bill Digest No. 51 1997-98, p.2

[4] Section 3, Native Title Act 1993 (Cth)

[5] (1988) 166 CLR 186

[6] Brandy v Human Rights & Equal Opportunity Commission

[7] The Wik Peoples & Ors v. The State of Queensland & Ors (1996) 141 ALR 129

[8] Native Title Amendment Bill Digest No. 51 1997 - 98

[9] The Wik Peoples & Ors v. The State of Queensland & Ors (1996) 141 ALR 129 at 83

[10] (1996) 187 CLR 133 and 204

[11] Wik at 260 per Kirby J

[12] Lane, P. Transcript of proceedings of the Parliamentary Joint Committee on Native Title and the Aboriginal & Torres Strait Islander Fund, Hansard, 23 September 1997 p. 134.

[13] The Summit was convened at Palm Cove on 21 January 1997, and sponsored by the Aboriginal & Torres Strait Islander Commission. It was attended by senior representatives of pastoral, mining and Aboriginal interests, among others. Also in attendance were representatives of state and federal governments.

[14] Peake, R. 'Canberra Times', 14 February 1997, p.2

[15] Willcox, I. 'The Age', 28 April 1997, p.3

[16] Hon. J. Howard, Prime Minister, Transcript of Press Conference, Sydney, 22 January 1997

[17] Hansard, Cairns, 8 October 1997, p. 1393, 1394

[18] See Chapter 6

[19] McGauchie, D. Hansard, 26 September 1997, p.574 - 576

[20] Hon. D Williams, Second Reading Speech, Hansard, Thursday 4 September 1997, p.7886

[21] Native Title Act 1993, Subsection. 235(7). See also Hansard, Fr. F. Brennan,

26 September 1997 p.402

[22] See, for example, the Submission of Aboriginal & Torres Strait Islander Commission, dated 24 September 1997 and the Submission of the National Native Title Tribunal dated September 1997

[23] Northern Territory v Lane (1995) 39 ALD 527

Kanak v National Native Title Tribunal (1995) 132 ALR 329

[24] See, for example, Chapters 6 and 8

[25] McGauchie, D. National Farmers Federation, Hansard, 26 September 1997. p569

[26] Wells, R. Minerals Council of Australia, Hansard 26 September p. 465

[27] Djerkurra, G. Aboriginal & Torres Strait Islander Commission Submission, p. 1

[28] Hansard, 26 September 1997 p. 475

[29] Aboriginal & Torres Strait Islander Commission Submission, September 1997, p.2. See also numerous other indigenous Submissions.

[30] Attorney General, Williams, D. Second Reading Speech, Hansard, 4 September 1997, p. 7886.

[31] Ross, D. Executive Director, Indigenous Land Corporation, Hansard, 25 September 1997 p. 312

[32] Hansard, 26 September 1997, p. 420

[33] See, for example, Brother Mundine, National Council of Churches in Australia, Hansard, 24 September 1997 p. 240; Aboriginal Legal Service, Hansard, 6 October 1997

[34] Justice French, R. National Native Title Tribunal, Hansard, 23 September 1997, p.145

[35] Savell, A. Chief Executive, Association of Mining and Exploration Companies Inc., "[W]e do not object to Aboriginal Australians being awarded native title" [emphasis added]. Hansard, 26 September 1997 p. 431

[36] National Indigenous Working Group Submission, 17 October 1997, p. 20

[37] Wensing, E. Australian Local Government Association, Hansard, 24 September 1997 p. 280

[38] See, for example, evidence of Mrs J Fessey, New South Wales Farmers, Hansard 26 September 1997, p.544 and of Mr P Murray, Past President, Pastoralists and Graziers Association of Western Australia, Hansard, 6 October 1997 p. 1008

[39] See, for example, the evidence of Mrs Driver, pastoralists Hansard, 7 October 1997 p. 1218; of Mrs Fennell, Cattlemen's Union Hansard, 8 October 1997, p.1367 and of Mr Lee, Executive Director, Northern Territory Cattlemen's Association, Hansard, 7 October 1997 pp. 1215-1211

[40] Hansard, 23 September 1997 p. 140

[41] Explanatory Memorandum to the Native Title Amendment Bill 1997, p.15 paragraph 3.14

[42] Sadler, RJ 'The federal Parliament's power to make laws "with respect to ... the people of any race ..."' Sydney Law Review, 10(3), March 1985, pp.591-613.

[43] Quoted in Sadler, p.592.

[44] Sadler, p.595.

[45] p.464.

[46] p.622.

[47] Commonwealth Government Submission to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Re: Native Title Amendment Bill 1997, Joint Opinion, DF Jackson & SJ Gageler, p.7.

[48] Commonwealth Government Submission to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, In the Matter of the Native Title Amendment Bill 1997, Opinion, Solicitor-General, para.7.

[49] Australia. Parliament. House of Representatives, Parliamentary Debates (Hansard), 1 March 1967, p.263.

[50] Australia. Parliament. House of Representatives, Parliamentary Debates (Hansard), 1 March 1967, p.279.

[51] Australia. Parliament. House of Representatives, Parliamentary Debates (Hansard), 1 March 1967, p.281. Emphasis added.

[52] Australia. Parliament. Senate. Parliamentary Debates (Hansard), 8 March 1967, p.359.

[53] Australia. Parliament. Senate. Parliamentary Debates (Hansard), 8 March 1967, p.360.

[54] Constitution Alteration (Aborigines) Bill 1967. The Case for 'Yes.'

[55] Smoke Signals, 6(2), p.6.

[56] Smoke Signals, 6(2), May 1967, p.8--quoted in Brennan, F 'The Will of the People in 1967 and the Law of the Land in 1997,' paper presented to the Aboriginal Nations and Australian Constitution Conference, Canberra, 23 may 1997.

[57] In total there were 5,183,113 votes cast for the Bill, 527,007 votes cast against the Bill and 91,464 informal votes cast. House of Representatives Standing Committee on Legal and Constitutional Affairs, Constitutional Change. Select Sources on Constitutional Change in Australia 1901-1997, Canberra, February 1997.

[58] Re: Native Title Amendment Bill 1997. Joint Opinion, DF Jackson QC & SJ Gageler, p.15.

[59] In the Matter of the Native Title Amendment Bill 1997, Opinion, Solicitor-General, para.14.

[60] (1982) 153 CLR 168 at 186.

[61] (1982) 153 CLR 168 at 244.

[62] (1982) 153 CLR 168 at 210.

[63] (1982) 153 CLR 168 at 242.

[64] (1983) 158 CLR 1 at 110.

[65] (1983) 158 CLR 1 at 325.

[66] (1983) 158 CLR 1 at 272-3.

[67] (1983) 158 CLR 1 at 242.

[68] Joint Opinion, p.19.

[69] (1992) 176 CLR 1 at 56.

[70] Unreported, High Court of Australia, 31 July 1996.

[71] (1992) 176 CLR 1 at 56.

[72] Kruger v. Commonwealth, unreported, High Court of Australia, 31 July 1997 at 22.

[73] Kruger v. Commonwealth, unreported, High Court of Australia, 31 July 1997 at 40.

[74] Kruger v. Commonwealth, unreported, High Court of Australia, 31 July 1997 at 48.

[75] Western Australia v. Commonwealth (1995) 183 CLR 373 at 461.

[76] Western Australia v. Commonwealth (1995) 183 CLR 373 at 460.

[77] See Re: Native Title Amendment Bill 1997, Joint Memorandum of Advice, JI Fajgenbaum & M Moshinsky, 24 September 1997, Attachment to ATSIC Submission to the Joint Parliamentary Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund.

[78] Aboriginal and Torres Strait Islander Social Justice Commissioner. Native Title Report July 1996-June 1997, p.164.

[79] See, for example, Australian Capital Television v. Commonwealth (1992) 177 CLR 106 at 138 per Mason CJ; and McGinty v. Western Australia (1996) 134 ALR 289 at 356-7 per McHugh J.

[80] Mason, A 'The interpretation of a constitution in a modern liberal democracy,' in C Sampford & K Preston (eds) Interpreting Constitutions. Theories, Principles & Institutions, Federation Press, Sydney, 1996, p.17.

[81] Inglis Clark, A Studies in Australian Constitutional Law, 1901, p.20, sidenote, quoted by Deane J in Theophanous v. Herald & Weekly Times (1994) 182 CLR 104 at 171-2.

[82] Newcrest Mining (WA) Limited v. Commonwealth, unreported, 14 August 1997, High Court of Australia quoted in Aboriginal and Torres Strait Islander Commissioner, Native Title Report July 1996-June 1997, p.164.

[83] Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Reference: Native Title Amendment Bill 1997, Proof Hansard Report, Canberra, 17 October 1997, p. NT1990.

[84] (1996) 135 ALR 225 at 259.

[85] Joint Memorandum of Advice, p.13.

[86] Hansard, 17 October 1997, p. NT1991.

[87] Aboriginal and Torres Strait Islander Policy, p.9.

[88] 1997, pp.11, 13.

[89] Clarke, J Submission on the Native Title Amendment Bill 1997 (Cth). Submission to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, 16 October 1997, p.2

[90] Clarke, J,. pp.4, 5, 6.

[91] Smoke Signals, 6(2), May 1967, p.6.

92 Which also included comment of the October 1996 Exposure Draft.

[93] Seventh Report, p. 11.

[94] Seventh Report, p. 14.

95 The Australian, 5 March 1996

96 The Hon. J. Howard, Hansard, p 346, 6 May 1996.

[97] Submission, p. 4

[98] Gerhardy v. Brown (1985) CLR 70 at 133.

[99] (1985) 159 CLR 70 at 135

[100] National Indigenous Working Group on Native Title (NWIG), Submission to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, 17 October 1997.

[101] National Indigenous Working Group, Submission p. 5

[102] Div 2A, Part 2, Native Title Amendment Bill 1997

[103] Section 237A, Native Title Amendment Bill 1997

[104] Attorney General, Williams, D. Hansard, 4 September 1997, p. 7886. See also Explanatory Memorandum, p. 23 paragraphs 4.3 and 4.4

[105] Clarke, J. Department of Premier and Cabinet, Western Australia, Hansard, 30 September 1997, p. 675

[106] French, R. & Lane, P. National Native Title Tribunal, Hansard, 23 September 1997, p. 134

[107] North Ganalanja & Bedanngu Aboriginal Corporation for the Waanyi People v. Queensland (1996) 135 ALR 225

[108] Dodson, M. Aboriginal Torres Strait Islander Social Justice Commissioner, Human Rights and Equal Opportunity Commission Submission p. 8

[109] p. 23, paragraph 4.4

[110] Pinney, J. Deputy Secretary, Northern Territory Department of Lands, Planning and Environment, Hansard, 7 October 1997, p. 1129

[111] Smith, P. Director, Legal Branch, Department of Premier and Cabinet, Queensland, Hansard,

8 October 1997, p. 1351

[112] by operation of s. 237A Bill

[113] Supplementary Explanatory Memorandum, p. 13 paragraph 36.56

[114] Hansard, 23 September 1997 p. 210

[115] Paragraph 51 (xxvi) Constitution

[116] Division 3, Native Title Act (1993)

[117] Hon. T. Fisher, Deputy Prime Minister, ABC Radio, 'P.M.' Program, Friday 16 May 1997

[118] Explanatory Memorandum, p. 39

[119] Sections 23B and 23F

[120] Explanatory Memorandum, p. 39, paragraph 5.2

[121] Paragraph 51 (xxxi) Constitution

[122] Explanatory Memorandum, p. 10

[123] (1996) 187 CLR 133, 204

[124] Explanatory Memorandum, p. 48

[125] Dodson, M. Aboriginal & Torres Strait Islander Social Justice Commissioner, Submission , 3 October 1997, p. 12

[126] Dodson, M. Aboriginal & Torres Strait Islander, Social Justice Commissioner, Submission, 3 October 1997, p. 12

[127] Short, J. "Nats Threaten Coalition Split of Leases", The Australian 22 August 1997 p. 4

[128] Hansard, 4 September 1997 p. 7889

[129] Hansard, 23 September 1997 p. 210

[130] Hansard, 26 September 1997, p. 428

[131] Current House Hansard, 21 October 1997, p. 9343

[132] Lane, P. National Native Title Tribunal, Hansard, 23 September 1997 p. 134

[133] Hon. K. Beazley, Leader of the Opposition, 25 September 1997, p. 8324

[134] Attorney-General, Williams, D. Hansard, 4 September 1997 p. 7889

[135] Glendinning, P. Australians for Native Title and Reconciliation, Submission, September 1997 p. 14

[136] Subsections 229(2) and (3) Native Title Act 1993

[137] French, R. National Native Title Tribunal Submission p. 9

[138] Sections 23B and 237A

[139] Subsection 23B(4)

[140] French, R. National Native Title Tribunal, Submission p. 9

[141] Wik, at 82

[142] Section 237A

[143] Tanna, G. Principal Solicitor, Commonwealth Attorney-General's Department, Hansard, 30 September 1997, p. 685

[144] Glendinning, P. Australians for Native Title and Reconciliation, Submission, September 1997, p. 13

[145] Justice, R. French Hansard, 23 September 1997, p. 150

[146] Orr, R. Wik Task Force, Hansard, 30 September 1997, p. 686

[147] Tanna, G. Hansard, 30 September 1997, p. 686

[148] Orr, R. Hansard, 30 September 1997, p. 647

[149] Tanna, G. Hansard 30 September 1997 p. 649

[150] Wik transcript of judgement, per Brennan J at 9; per Gummow J at 63; and Toohey J at 33

[151] Supplementary Explanatory Memorandum, p.13

[152] Dodson, M. Submission, September 1997, p. 11, citing in part Wik per Gummow J at 232.

[153] Hon. J. Howard, 21 May 1996. See also Chapter 4.

[154] (1988) 166 CLR 186

[155] Native Title Amendment Bill Digest, No. 51 1997-98

[156] Supplementary Explanation Memorandum, p. 12

[157] Submission, p.2

[158] Explanatory Memorandum, P. 48

[159] Explanatory Memorandum, P. 51

[160] Section 51(1) Native Title Amendment Bill

[161] See references in Neate, G. Submission, 14 October 1997 pp.22-35

[162] Neate, G. Submission, p. 29

[163] Neate, G. Submission, p. 29, quoting Native Title Background Paper, 2nd ed. 3 March 1997, p. 3

[164] Future Act Determination WF96/5 and WF96/11 (Koara), 23 July 1996, at 20 per Seaman QC, Smith and McDaniel.

[165] Land Acquisition (Just Terms Compensation) Act 1991 NSW

[166] Neate, G. Submission, p. 33

[167] Neate, G. Submission, pp.34 - 35

[168] Hansard, 8 October 1997 pp.1388-89

[169] Hansard, 8 October 1997 p. 1388

[170] National Assembly of the Uniting Church submission, 29 September 1997, p.2; National Farmers' Federation Submission, 26 September 1997, p.11; Australian Petroleum Production and Exploration Association Submission, 18 September 1997, p.5; French, J. and Lane, P. National Native Title Tribunal Submission, September 1997, p.15; Dodson, M. and Viner, I. Council for Aboriginal Reconciliation, Hansard, 6 October 1997, p.946; Central Land Council Submission, 17 October 1997 p. 21 Australian Institute of Land Evaluation Submission, 30 September 1997, p. 2

[171] Hansard, 26 September 1997, p. 480

[172] Wahlquist, A. The Australian, 20 October 1997 p. 24

[173] Justice R French, and Lane, P. National Native Title Tribunal Submission, September 1997, p.24; French J, Hansard, 23 September 1997, p.131; Central Land Council Submission, 17 October 1997 p. 20 National Indigenous Working Group Submission, 17 October 1997, p. 28

[174] Kimberley Land Council, Hansard, 6 October 1997, pp.991-994.

[175] Quandamooka Land Council Submission, 8 October 1997, p. 4

176 I. Viner QC Council for Aboriginal Reconciliation, Hansard, 6 October 1997, p.946.

[177] I. Viner QC Council for Aboriginal Reconciliation, Hansard, 6 October 1997, p.947.

[178] Hansard, 4 September 1997, p. 7891

[179] Central Land Council Submission, 17 October 1992 p. 23

[180] Central Land Council Submission, 17 October 1992 p. 23

[181] "State Calls for Poll on Native Title", Courier Mail 28 December 1996, pp.1-2.

[182] Australian Petroleum Production and Exploration Association Submission, 18 September 1997, p.5;

[183] Kimberley Land Council, Hansard, 6 October 1997, p.994.

[184] Hansard, 7 October 1997, p. 1214

[185] The Government's misunderstanding of the Wik decision and the Attorney General's contradiction of the Government's understanding are discussed in Chapter 6, paragraphs 6.2 and 6.3.1.

[186] Explanatory Memorandum, p. 10

[187] This issue is considered in more detail at Chapter 6.

[188] Explanatory Memorandum, p. 87

[189] Viner QC, I. Deputy Chairperson, Council for Aboriginal Reconciliation, Hansard, 6 October 1997, p. 957

[190] Section 24GB (4)

[191] National Indigenous Working Group Submission, p. 29

[192] National Indigenous Working Group Submission, p. 29

[193] Submission, 30 September 1997, p. 2

[194] Subsection 24GD (1)(e)(iii)

[195] Explanatory Memorandum, p. 95

[196] September 1997

[197] September 1997

[198] Submission, 3 October 1997 p. 15

[199] Submission, undated, p. 7

[200] Subsections 24 GE (1) and (2) Bill

[201] Section 24GE(1)(f) Bill

[202] Submission, p. 6

[203] Hansard, 3 October 1997, p. 735

[204] Sections 26(2) and 251(c)

[205] s. 26

[206] Submission, 30 September 1997, p. 4

[207] See Appendix 7

[208] The Hon. D. Williams, Second Reading Speech, Hansard, p. 7889

[209] Explanatory Memorandum. P. 12

[210] Explanatory Memorandum, p. 97

[211] Hansard, Friday, 26 September 1997, p. 560

[212] Government Submission to Joint Parliamentary Committee, pp 62 and 63

[213] National Indigenous Working Group Submission to Joint Parliamentary Committee p. 10

214 Submission of the International Commission of Jurists, Queensland Branch, 14 October 1997, p. 2

[215] [1996] I.C.J. Rep 6

[216] Dodson, M. Submission, p. 21

[217] s. 26, Native Title Act 1993

[218] clause 51 (xxxi) Constitution

[219] Delta Properties Pty Ltd v Brisbane Cit Council (11955) 95 CLR 11; Commissioner of Police v Tanos (1958) 98 CLR 383; and Twist v Tandwick Municipal Council (1976) 136 CLR 106 at 112-113 per Mason; Lisafa Holdings Pty Ltd v Commissioner of Police (1988) 15 NSWLR 1; Lisafa Holdings Pty Ltd v Gaming Tribunal [No. 3] (1992) 26 NSWLR 391; see Submission of Lofgren, N., Centre for Indigenous Rights, 1 October 1997, p.2

[220] "7.30 Report", 4 September 1997, Hansard 23 September 1997 p. 140

[221] Savell, G. Chief Executive, Association of Mining and Exploration Companies (Inc), Hansard, 26 September 1997 p. 432

[222] See Chapter 8, Recommendations

[223] Hansard, 26 September 1997, p. 449

[224] Hansard, 26 September 1997

[225] Rowley, C.D., Recovery: The Policies of Aboriginal Reform, Penguin Books Australia, 1986, p. 84

226 Part 2, Division 3

[227] Section 41, Native Title Act 1993

[228] Section 42, Native Title Act 1993

[229] In addition to the Explanatory Memorandum p. 15, See Davies, C. Partner, Clayton Utz, quoted at Hansard, September 1997, p. 374

[230] See Native Title Amendment Bill Digest, No 51, 1997-98, p. 30

[231] Section 43A Bill.

[232] Minchin, N. Media release, 20 September 1997.

[233] Subsection 43A(4) Bill.

[234] Savell, A. Hansard 26 September 1997, p. 435

[235] Savell, A, Hansard, 26 September 1997 p. 432

236 Pinney, J, Deputy Secretary, Northern Territory Department of Lands, Planning & Environment, Hansard, 7 October 1997 p.1129.

[237] Hansard, 26 September 1997 p.411.

[238] Subsection 43A(3) and (4) Bill.

[239] Explanatory Memorandum, p.151.

[240] Explanatory Memorandum, p.151.

[241] Hansard, 25 September 1997, p.354.

[242] Section 26, Native Title Act 1993.

[243] Section 26D Bill.

[244] Hansard, 7 October 1997, p.1100.

[245] Tilmouth, L., Hansard, 7 October 1997 p.1101.

[246] Submission, September 1997 p.7.

[247] Savell, A., Hansard, 26 September 1997 p.430.

[248] Savell, A., Hansard, 26 September 1997 p.432.

[249] Hansard, 8 October 1997, p.1390.

[250] Section 26(1) Native Title Act 1993

[251] Altman, J. Hansard, 15 October 1997

[252] Orr, R. Wik Task Force, Hansard, 23 September 1997 p.196.

[253] Discussed at Chapter 12.

[254] Submission, September 1997 p.41.

[255] Walley v State of Western Australia and Ors. (Federal Court, 4 June 1996 per Carr, J).

[256] Section 36(2) Bill.

[257] Section 38(2) Bill.

[258] Hansard, 26 September 1997, p. 482.

259 Submission of the National Indigenous Working Group, 17 October 1997, p.15.

[260] Hansard, 8 October 1997, p.1506.

[261] Section 38(2) Bill.

[262] National Indigenous Working Group Submission, p.15.

[263] Submission, p.15.

[264] Section 26, Bill.

[265] Hansard, 23 September 1997 p.198.

[266] Submission, p.23

[267] See Chapter 7.

[268] Hansard, 26 September 1997, p. 465

[269] Cape Flattery Silica Mines Pty Limited v. Federal Commissioner of Taxation 97 ATC 4552

[270] ATSIC submission, 24 September 1997, attachment B, p.5.

[271] Williams, D. Attorney-General, Hansard 4 September 1997, p.7890.

[272] Kimberley Land Council submission, 6 October 1997, p.12.

[273] National Indigenous Working Group submission, 17 October 1997, p.48.

[274] Australians for Native Title and Reconciliation submission, September 1997, p.21.

[275] See the submission of Camilla Cowley, a pastoralist in Queensland, 15 September 1997.

[276] Fr F. Brennan, submission, 29 September 1997, p. 11.

[277] Fr F. Brennan, submission, 29 September 1997, p. 11.

[278] Justice R. French, and Lane, P. National Native Title Tribunal submission, September 1997, p.47.

[279] Kimberley Land Council submission, 6 October 1997, p.13.

[280] Hansard, 6 October 1997, p.969.

[281] Hansard, 6 October 1997, pp. 996-997.

[282] Hansard, 6 October 1997, pp. 997 - 998.

[283] Hansard, 26 September 1997, p. 426

[284] Fr F. Brennan, submission, 29 September 1997, p.13.

[285] National Indigenous Working Group submission, 17 October 1997, p.48.

286 International Commission of Jurists submission, 14 October 1997, p.3.

[287] Dodson, M. submission, 3 October 1997, p.23.

[288] Justice R. French and Lane, P. submission, September 1997, p.47.

[289] ATSIC submission, 24 September 1997, attachment B, p.5.

[290] National Farmers' Federation submission, 26 September 1997, pp.7-8. The NSW Farmers Association and The Northern Territory Cattlemen's Association raise similar concerns in their submissions, September 1997, pp. 14-15 and 1 October 1997, p. 1, respectively.

[291] Kimberley Land Council submission, 6 October 1997, p.13.

[292] Community Aid Abroad submission, 29 September 1997, p.11; Human Rights Council of Australia Submission, 13 October 1997, p.1; International Commission of Jurists Submission, October 1997, p.6-7; NSW Farmers' Association submission, September 1997, p.19; Kimberley Land Council Submission, 6 October 1997, p.14; Justice French, R. and Patricia Lane, National Native Title Tribunal Submission, September 1997, p.4, NSW Aboriginal Land Council, Hansard, 3 October 1997, p. 710; Australian Institute Valuers and Land Economists, Hansard, 3 October 1997, p.808; Brennan, Fr. F Hansard, 26 September 1997, p.411..

[293] Hansard, 23 September 1997, p. 201

[294] Dodson, M. Aboriginal Social Justice Commissioner, submission, 3 October 1997, p.24.

[295] Human Rights Council of Australia Submission, 13 October 1997, p.6.

[296] Australians for Native Title and Reconciliation, Hansard, 3 October 1997, p.875.

[297] Brandy v. Human Rights and Equal Opportunity Commission (1995) 183 CLR 245

[298] See Subsection P, Division 3, Part 2 discussed at Chapter 8.

[299] See Subdivision Q, Division 3, Part 2, discussed at Chapter 9.

[300] Justice R. French, and Lane, P. National Native Title Tribunal, Submission, September 1997, p.64.

[301] Kimberley Land Council Submission, 6 October 1997, p.14; Australian for Native Title and Reconciliation Submission, 2 October 1997, p.23.

[302] Neate, G. Submission, 14 October 1997, p. 3

[303] Australian for Native Title and Reconciliation Submission, 2 October 1997, p.23.

[304] Mirimbiak Nations Aboriginal Corporation Submission, 8 September 1997, p.3; Australians for Native Title and Reconciliation Submission, 2 October 1997, p.23.

[305] Kimberley Land Council Submission, 6 October 1997, p.14.

[306] (1995) 183 CLR 373

[307] Justice R. French, and Lane, P. National Native Title Tribunal, Submission, September 1997, p.64; Justice R. French, Hansard 23 September 1997, pp.128-129.

[308] The Age, 1st ed., 21 October 1997, p. A4

[309] Hansard, 15 December 1993, p. 4651.

[310] Community Aid Abroad, Submission, 29 September 1997, p. 6.

[311] Neate, G. Submission, 14 October 1997, p.11

[312] Justice R. French, Hansard 23 September 1997, p.128.

[313] Australians for Native Title and Reconciliation Submission, 2 October 1997, p.23.

[314] Dodson, M. Aboriginal and Torres Strait Islander Social Justice Commissioner, Submission, 3 October 1997, p. 24.

[315] Hansard, 6 October, pp. 967 - 968, 971

[316] Justice R. French, and Lane, P. National Native Title Tribunal, Submission, September 1997, p.64.

[317] Justice R French, Hansard 23 September 1997, p.128; Neate, G. Submission, 14 October 1997, p. 16

[318] Neate, G. Submission 14 October 1997, p. 13

[319] National Indigenous Working Group Submission, 17 October 1997, p. 52

[320] National Indigenous Working Group Submission, 17 October 1997, pp. 12 - 13

[321] (1995) 132 ALR 529

[322] Aboriginal & Torres Strait Islander Commission Submission, 24 September 1997, p.2; National Indigenous Working Group "Co-existence - Negotiations and Certainty" April 1997, p. 2

323 Community Aid Abroad, Submission, 29 September 1997, p. 7.

[324] Central Land Council Submission, October 17, p.19

[325] Fr. F. Brennan, Hansard 26 September 1997, p.410.

[326] Fr. F. Brennan, Submission, 29 September 1997, p.16; see also Australians for Native Title and Reconciliation submission, 2 October 1997, p.20.

327 Australians for Native Title and Reconciliation Submission, 2 October 1997, p.20.

[328] Justice R. French,. and Lane, P. National Native Title Tribunal, Submission, September 1997, p.93.

[329] Justice R. French, Hansard 23 September 1997, p.126.

[330] Central Land Council, submission, 17 October 1997, p.20

[331] Justice R. French, and Lane, P. National Native Title Tribunal Submission, September 1997 p. 98

[332] Explanatory Memorandum, p. 48

[333] Critique of the Working Draft of the Native Title Amendment Bill 1997 for the National Indigenous Working Group, July 1997, p.59.

334 New South Wales Farmers Association, Submission, September 1997, p.12.

335 Mirimbiak Nations Aboriginal Corporation Submission, 8 September 1997, p.3

336 Justice R. French, and Lane, P. National Native Title Tribunal, Submission, September 1997, p.100.

[337] Justice R. French, and Lane, P. National Native Title Tribunal, Submission, September 1997, p.100.

[338] Aboriginal & Torres Strait Islander Commission Submission, Attachment C, p.7.

339 Justice R. French, and Lane, P. National Native Title Tribunal, Submission, September 1997, p.100.

[340] Aboriginal & Torres Strait Islander Commission Submission, Attachment C, p.7.

341 Justice R. French, Hansard 23 September 1997, p.127.

342 Australians for Native Title and Reconciliation Submission, 2 October 1997, p.21.

[343] Fr. F. Brennan, Submission, 29 September 1997, p.16.

[344] Justice R. French, and Lane, P. National Native Title Tribunal, Submission, September 1997, p.112.

[345] Australians for Native Title and Reconciliation Submission, 2 October 1997, p.8.

[346] Fr. F. Brennan, Hansard 26 September 1997, p.411.

[347] Aboriginal Legal Rights Movement submission, 15 October 1997, p.21.

348 National Indigenous Working Group submission, 17 October 1997, p.63.

[349] National Indigenous Working Group submission, 17 October 1997, p.63.

[350] National Indigenous Working Group submission, 17 October 1997, p.29.

[351] National Indigenous Working Group submission, 17 October 1997, p.63 and 66.

[352] National Indigenous Working Group submission, 17 October 1997, p.66.

[353] National Indigenous Working Group submission, 17 October 1997, p.65.

[354] National Indigenous Working Group submission, 17 October 1997, p. 64.

[355] National Indigenous Working Group submission, 17 October 1997, p. 64.

356 National Indigenous Working Group submission, 17 October 1997, p. 63.

[357] National Indigenous Working Group submission, 17 October 1997, p.64.

[358] Explanatory Memorandum p.5.

[359] National Indigenous Working Group submission, 17 October 1997, p.68.

[360] National Indigenous Working Group submission, 17 October 1997, p.68.

[361] Kimberley Land Council submission, 6 October 1997, p.15.

[362] National Indigenous Working Group submission, 17 October 1997, p.64.

[363] National Indigenous Working Group submission, 17 October 1997, p. 67 and 69.

[364] National Indigenous Working Group submission, 17 October 1997, p. 68.

[365] National Indigenous Working Group submission, 17 October 1997, p.65.

[366] National Indigenous Working Group submission, 17 October 1997, p.65.

[367] National Indigenous Working Group submission, 17 October 1997, p.65.

[368] National Indigenous Working Group submission, 17 October 1997, p.65.

[369] National Indigenous Working Group submission, 17 October 1997, p.65.

[370] National Indigenous Working Group submission, 17 October 1997, p.65.