Chapter 7
Land Management – s.206(d)(vi)
Introduction
7.1 In recognising native title and finding that the doctrine of terra
nullius did not apply, the High Court in Mabo (No2) handed down a
decision which had the potential to significantly influence the management
of land in Australia.
7.2 Further, by subsequently passing the Native Title Act 1993,
the Commonwealth provided for a regime under which native title rights
are affected or protected. The Act also provided for the establishment
of a Land Fund, in recognition of the fact that many Aboriginal peoples
and Torres Strait Islanders would be unable to benefit from the High Court
decision in Mabo (No2) as a consequence of the extinguishment of their
native title.
7.3 The main objects of the Native Title Act 1993 (s.3) are: to
provide for the recognition and protection of native title; to establish
ways in which future dealings affecting native title may proceed; to establish
a mechanism for determining native title claims; and to provide for, or
permit, the validation of past (and intermediate period) acts. That is,
the Act governs the ways in which all land users, including native title
holders, governments and others (for example pastoralists and miners)
can deal with, use, acquire and manage land in instances where native
title may exist.
State/Commonwealth Land Management Powers
7.4 Before the commencement of the Native Title Act 1993 it was
predicted that the legislation would have a significant impact upon the
States and the way in which land is managed. [1]
The commencement of the Act also raised the issue of the Commonwealth's
power to make laws in relation to land management, which was arguably
one of the State's residual powers under the Constitution. [2]
7.5 There had previously been a number of High Court decisions which
had addressed the effect of the reserve or residual powers of States on
the Commonwealth's legislative power. [3] In
Melbourne Corporation v The Commonwealth the High Court held that
the powers expressly granted to the Commonwealth by the Constitution did
not permit the Commonwealth to pass laws which aimed to control or hinder
the State's execution of its governmental functions. [4]
Notably, however, in the Franklin Dams Case [5]
(in response to the argument that the Commonwealth law preventing the
construction of the dam was invalid because it impaired the ability of
Tasmania to manage its Crown lands), Mason J stated:
What [the principle] does is to prohibit impairment of the capacity
of the State to function as a government, rather than to prohibit interference
or impairment of any function which a State government undertakes. [6]
7.6 It can generally be deduced from this judgment that a State's residual
powers will only be protected when the Commonwealth law directly affects
the State's ability to operate independently. [7]
Following the Franklin Dams Case, land management does not appear to fall
into this category. Further:
… in the Mabo case (No.1), the High Court applied a Commonwealth
law (ie. the Racial Discrimination Act) so as to render invalid
a State law extinguishing native title. It was not considered that the
governmental power to extinguish native title was so fundamental to
a State that it could not be affected by Commonwealth legislation requiring
that the power be exercised in a manner which is not racially discriminatory.
[8]
7.7 Despite these precedents, in WA v The Commonwealth [9]
the Western Australian Government argued that the Native Title Act
1993 was invalid on a number of grounds, including that it was not
a law that fell within Commonwealth power because it was essentially a
law about land management and related matters in the States, and that
it infringed the implied prohibitions in the Constitution because it impaired
the capacity of the States to govern. [10]
These arguments, of course, were rejected by the High Court.
7.8 It has been suggested [11] that once native
title was recognised in Mabo (No2), it was clear that a legislative response
was necessary to manage the complex problems of land management. Arguably,
this response emanated from the Commonwealth, and not the States, because
the Racial Discrimination Act, providing protection for indigenous land
rights, meant that:
… a management regime paying particular attention to native title
rights must come from, or at least have the legislative imprimatur of,
the Commonwealth. [12]
Validation of Government Acts
Past Acts
7.9 Pursuant to s.3(d) one of the main objects of the Native Title
Act 1993 was to provide for the validation of past acts which may
have been invalid because of the existence of native title. Section 14
of the Act allowed for the validation of certain past Commonwealth acts.
These acts included (s.226) the grant of a permit or licence, the making
of legislation, the creation of any interest in land or waters and the
exercise of executive power. [13] States and
Territories were also given the power to validate equivalent past acts
(s.19).
7.10 The validation provisions were included in the Native Title Act
to remove any doubt about past acts by the Commonwealth, States or Territories.
[14] The Act [15]
provided for different effects of validation, depending on the type of
past act:
- the validation of a grant of freehold or of a commercial, agricultural,
pastoral or residential lease or the construction of a public work (a
category A past act) extinguished native title;
- the validation of the grant of any other leasehold interest, apart
from a mining lease, (a category B past act) extinguished native title
to the extent of any inconsistency, and
- the validation of any other past act (Category C or D past acts) was
subject to the non-extinguishment principle in s.238. [16]
Intermediate period acts
7.11 The High Court judgment in Wik created uncertainty about
the validity of certain acts done by governments between the commencement
of the Native Title Act 1993 on 1 January 1994 and 23 December
1996 (the date of the Wik decision). The main reason for concern
was that many of the acts had been done without adhering to the Act's
procedures on the widely held assumption that the valid grant of a leasehold
estate extinguished native title. [17]
7.12 The Explanatory Memorandum to the Native Title Amendment Bill 1997
outlined the view that governments had taken following the implementation
of the Native Title Act:
Governments believed, therefore, that they were free to do various
acts over pastoral lease land (including converting it to freehold)
without following the processes in the NTA. As a consequence of this
belief, acts were done over leasehold land, which we now know, on the
basis of Wik, may have been invalid because of native title.
The Government does not believe that invalidity is the appropriate
consequence for acts done on the basis of a legitimate assumption subsequently
proved wrong. [18]
7.13 Division 2A of the amended Native Title Act provides for the general
validation of intermediate period acts; that is, certain acts over freehold
and pastoral lease land and public works occurring between 1 January 1994
and 23 December 1996 which were potentially invalid because of native
title. [19] The States and Territories are
also able to validate intermediate period acts pursuant to s.22F (subject
to ss.22B, 22C). [20]
7.14 In similar manner to the validation of past acts (Division 2), the
amended Act sets out the different effects of validation [21]
of intermediate period acts on native title, depending on the classification
of the intermediate period act:
- A Category A intermediate period act (which included the grant or
vesting of freehold estates, commercial leases, exclusive agricultural
or pastoral leases, certain other leases including any lease (other
than a mining lease) which confers exclusive possession and the construction
of public works)(s.232B) extinguished native title;
- A Category B intermediate period act which covered the grant of a
range of other leases (s.232C) extinguished native title to the extent
of any inconsistency;
- Category C intermediate period acts (relating to mining leases)(s.232D)
and Category D intermediate period acts (all other intermediate period
acts)(s.232E) did not extinguish native title and the non-extinguishment
principle applied.
7.15 The amended Native Title Act also allows the Commonwealth, States
and Territories to legislate to confirm previous extinguishment of native
title (ss.23A-E). The ability of State, Territory and Commonwealth governments
to validate past and intermediate period acts is considered critical for
their ability to manage land and natural resources, and to provide certainty
for acts or grants of interests in relation to land and water within their
respective jurisdictions.
The Future Act Regime
Valid Future Acts
7.16 The future act regime under the Native Title Act governs the validity
of an act affecting native title, its conditions, and the procedures that
must be followed before the act can be undertaken. The Explanatory Memorandum
to the Native Title Amendment Bill 1997 explains the basis of the future
act regime as follows:
In essence, the future act regime seeks to answer the question: what
acts can governments take which will affect native title? If an act
will not affect native title, it is not subject to the NTA and
the future act regime. If an act will affect native title and complies
with Division 3 it will be valid. The Division also sets out some of
the consequences of these acts for native title. If an act affects native
title and does not comply with Division 3, it is invalid to that extent.
[22]
An act was a future act under the Native Title Act 1993 (s.233)
if:
- it was a legislative act taking place on or after 1 July 1993 or any
other act taking place on or after 1 January 1994 which was not a past
act (pursuant to Division 2); and
- it validly affected native title or it was invalid to any extent but
would be valid to that extent if native title did not exist and if it
were valid to that extent, it would affect native title.
7.17 The Native Title Act 1993 provided for a future act regime
distinguishing between permissible and impermissible future acts. A future
act was a `permissible future act' (s.235), in most instances, if it satisfied
the `freehold test'. That is, if it was:
- a legislative act that applied to native title holders in the same
way as it would if they held ordinary title [23]
to the land or the effect of the act on the native title would not disadvantage
the native title holders more than if they instead held ordinary title
to the land; or
- a non-legislative future act and the act could be done if the native
title holders instead held ordinary title to the land concerned, or
the land adjoining, or surrounding the waters concerned.
7.18 This definition only applied to onshore acts; pursuant to s.235(8)(a)
all future acts in offshore places were `permissible'. [24]
The renewal, re-grant or extension of a commercial, agricultural, pastoral
or residential lease was also a permissible future act (s.235(7)) provided
that it did not create a proprietary interest where one did not exist
before, or create a larger proprietary interest than under the original
lease.
7.19 The Act also provided that `low-impact' future acts were permissible
(ss.234, 235(8)). These were generally acts that had a limited duration
(that is they commenced and ended before any determination of native title
was made over particular land or waters) and they did not include such
things as the grant of freehold estate or a lease, or the conferral of
exclusive possession interest or mining leases.
7.20 The general presumption was that the non-extinguishment principle
applied; that is, native title was not extinguished and merely suppressed
or suspended while the future act and its effects were in place (s.238).
The future act regime also provided for compensation for the effect of
permissible future acts on native title.
7.21 In order to undertake a valid future act, the Commonwealth, or a
State or Territory government had to follow certain procedures set out
in the Native Title Act. Essentially there were three options:
- issue a s.29 notice indicating the government's intention to do the
future act and adhere to the requirements such as notice, and the right
to negotiate procedures where required;
- lodge a non-claimant application seeking a determination that native
title did not exist in the land or waters in question; or
- negotiate a s.21 agreement in order to obtain surrender of the native
title or agreement for the doing of a particular act.
Changes to the Future Act Regime
7.22 The amendments to the Act's future act regime implemented points
3, 4, 5, 6, 7, 8 and 10 of the Ten Point Plan. [25]
The range of acts excluded from the definition of `future acts' (s.233(2))
was extended to include `intermediate period acts' which are not considered
future acts to the extent that they purport to validate an act or extinguish
native title. [26]
7.23 The permissible/impermissible future act scheme of the original
Act was removed and replaced by 12 separate categories of validity for
future acts. First, future acts are valid, or can be validated, if they
are consented to under an Indigenous Land Use Agreement (ILUA) (s.24AA(3)).
The other 11 bases for validity pursuant to s.24AA(4) are:
a) section 24FA (future acts where the procedures indicate absence
of native title;
b) section 24GB (acts permitting primary production on non-exclusive
agricultural or pastoral leases);
c) section 24GD (acts permitting off–farm activities directly
connected to primary production activities);
d) section 24GE (granting of rights to third parties etc. on non-exclusive
agricultural or pastoral leases);
e) section 24HA (management of water and airspace);
f) section 24IA (acts involving renewals and extensions etc. of acts);
g) section 24JA (acts involving reservations, leases etc.);
h) section 24KA (acts involving facilities for services to the public);
i) section 24LA (low impact future acts);
j) section 24MD (acts that pass the freehold test – but see subsection
(5)); [27]
k) section 24NA (acts affecting offshore places).
7.24 Significantly, while Subdivision M of the Act provides that certain
acts must meet the freehold test and satisfy the right to negotiate provisions
before being considered a valid future act, there is a large number of
acts that can be valid without complying with these requirements. While
the Wik decision held that native title rights could co-exist with
other rights, the Commonwealth Government considered that co-existing
native title rights did not amount to full ownership and that the continued
use of the freehold test was not appropriate to determine what acts could
be done by governments. [28] Hence many future
acts were excluded from the requirement to satisfy the freehold test.
7.25 Further, the non-extinguishment principle applies to the categories
of valid future acts unless otherwise stated. Notably, however, native
title is extinguished by the following valid future acts:
- where agreed under an Indigenous Land Use Agreement;
- the construction or establishment of a public work on a reserved land
(Subdivision J): the extinguishment is effective from the date the construction
or establishment begins;
- giving effect to a pre-existing rights based act or permissible lease
renewal which entails the grant of freehold estate or exclusive possession
(Subdivision I);
- certain compulsory acquisitions (Subdivisions M and N).
7.26 Issuing a s.29 notice remains the most common avenue for governments
to validly undertake future acts. Non-claimant applications are still
available with enhanced protection pursuant to s.24F, while the agreement
provisions in s.21 have been replaced with the substantial Indigenous
Land Use Agreement provisions.
The Right to Negotiate
7.27 Subdivision B of Division 3 of Part 2 of the Native Title Act
1993 set out the detailed provisions in relation to the right to negotiate.
Under s.26, the right to negotiate applied in relation to a range of future
acts undertaken by governments in relation to the grant of mining rights,
and the compulsory acquisition of land for grant to a third (non-government)
party.
7.28 Under the original Act the right to negotiate was a statutory right
acquired upon entry in the National Native Title Register following formal
acceptance. Following the decision in Northern Territory v Lane [29]
claims were automatically entered on the Register on lodgement, and there
was a three-month `guillotine' period in which claims were required to
pass the acceptance test. Any government wishing to undertake an act attracting
the right to negotiate was bound to adhere to a series of procedural requirements
before being able to `do' the `future act', such as grant the mining or
exploration licence. The government party was required to:
- notify all of the relevant registered native title claimants, registered
native title bodies corporate, representative Aboriginal or Torres Strait
Islander bodies, the grantee parties, the arbitral body [30]
(the National Native Title Tribunal or a recognised State/Territory
body) and the public of its intention to do the act: if at the end of
a 2 month period there was no registered native title claimant or registered
native title body corporate in relation to the land or waters in question,
the act was valid (s.28(1)(a)); and
- negotiate in good faith with the native title parties and the grantee
parties with a view to obtaining the agreement of the native title parties
to the doing of the act (s.31(1)(b)).
7.29 The Act allowed governments to give notice that the proposed act
attracted the expedited procedures (s.32) (and therefore the right to
negotiate did not apply) provided the act did not (s.237):
- directly interfere with the community life of the native title holders;
- interfere with areas or sites of particular significance to the native
title holders;
- involve major disturbances to the land or waters concerned.
The Act provided time frames and procedures under which native title
holders could object to an act attracting the expedited procedures, and
for an arbitral body to make a determination as to whether the expedited
procedures were to apply (s.32(3),(4)).
7.30 The 1993 Act also enabled a party to apply to the NNTT or an approved
State/Territory arbitral body if an agreement was not reached within the
time frame set (4 months in relation to exploration and 6 months in any
other case) (ss.27,35). The arbitration period was not supposed to last
more than 6 months and provision was made for ministerial override of
any determination in relation to the future act (s.42).
Changes to the Right to Negotiate
7.31 The Native Title Amendment Act 1998 made a number of changes
to the right to negotiate. In outlining the Government's view on the need
for reform of the right to negotiate regime, the Attorney-General stated
that:
Not only have these (right to negotiate) procedures impeded resource
and commercial development, but they have done so without giving indigenous
peoples substantial benefits in return.
…
… the decision in Wik has made the need for change more urgent,
as mining and certain compulsory acquisitions on pastoral lease land
may now also be subject to the right to negotiate. [31]
7.32 The changes to the right to negotiate are contained in Subdivision
P of the amended Native Title Act. A number of acts are exempted from
the right to negotiate and the States/Territories are able to implement
their own alternative regimes to replace the right to negotiate in certain
circumstances (ss.43, 43A). [32] Importantly,
the right to negotiate is only available to registered native title claimants
or registered native title bodies corporate; that is, they have to first
pass the new, more stringent registration test (ss.190A-D). The right
to negotiate now generally applies to future acts that:
- pass the freehold test or opal/gem mining test;
- are done by the Commonwealth, a State or Territory; and
- involve the compulsory acquisition of native title or the creation
or variation of a right to mine. [33]
7.33 The right to negotiate no longer applies to any of the future acts
listed in s.24AA(4)(a) to (i), as well as a range of other acts excluded
pursuant to s.26. These include:
- compulsory acquisition of native title rights where the purpose of
acquisition is to confer rights on a government party, for the purpose
of providing an infrastructure facility, or of land or waters wholly
within a town or city;
- the grant of mining rights for the sole purpose of constructing an
infrastructure facility associated with mining;
- exploration, prospecting or fossicking grants and small scale gold,
tin, opal or gem mining grants where the State or Territory has sought
and been granted an exemption by the Commonwealth Minister;
- the renewal, re-grant, re-making or extension of a previous right
to mine created on or before 23 December 1996;
- the upgrading of an exploration tenement to a mining tenement in such
situations where the original grant was subject to a right to negotiate
and a negotiated agreement or determination was made which included
a statement that there would be no right to negotiate if an upgrade
to mining occurred.
7.34 In some cases, while the right to negotiate has been removed, governments
must still comply with other procedural rights before making a grant or
doing a future act. The extent of these procedural rights varies considerably.
Such a right may simply provide for comment on a proposed act, for example
in relation to the grant of a licence in relation to water, living aquatic
resources or airspace (s.24HA). The right to comment also applies in relation
to the extension of primary production activity on a non exclusive pastoral
or agricultural lease to include forestry operations, horticultural activities
or aquaculture (s.24GB(9)). Alternatively, it may be a more substantial
right including the right to be notified and consulted, the right to object
and the right to have the objection heard by an independent body. Examples
of acts attracting these types of procedures include:
- mining grants created for the sole purpose of constructing infrastructure
associated with mining; and
- compulsory acquisitions that are for the benefit of a non-government
party and either;
- - involve the construction of an infrastructure facility; or
- - relate to land or waters wholly within a town or city; or
- - relate to waters in the intertidal zone. [34]
Acts which must meet the freehold test but are not subject to the right
to negotiate are only valid if registered native title claimants or registered
native title bodies corporate are extended the same procedural rights
as if they held freehold or ordinary title.
7.35 Where the right to negotiate applies, it will only be available
once for all future acts within the same project, whereas previously
the right to negotiate attached to each act (eg. exploration and mining).
States and Territories now also have the flexibility to decide at which
stage of proceedings to commence the right to negotiate process for each
act. The right to negotiate procedure must, however, be completed before
any future act may occur. [35] The government
party must notify the registered native title claimants and registered
native title bodies corporate, any representative bodies for the land
or waters concerned, the person who requested the act and the public.
This notification allows any potential native title claimants to make
an application or to become registered within the time limits set. [36]
7.36 The requirement to negotiate in good faith is retained and clarified
to make it clear (s.31) that all parties are required to negotiate in
good faith with a view to obtaining agreement from each of the native
title parties for the doing of any future act. However, good faith negotiation
is now only required regarding matters related to the effect of the act
on the native title interests of the parties (s.31(2)). [37]
If the parties are unable to reach agreement within certain time limits
(now a uniform 6 months for both mining and exploration acts), the Act
provides that either party can apply for a determination about whether
the act can be done and on what conditions (ss.35,38). There is also provision
for ministerial override of a determination made by the NNTT or a State/Territory
arbitral body provided certain procedures are followed (s.42).
7.37 The amended Act continues to provide for the expedited procedures
(s.32). The main difference is the definition of an act attracting the
expedited procedures (s.237) which now states that an act may attract
the expedited procedures if it is not likely to (the original definition
was `does not'):
- directly interfere with community or social activities of the native
title holders;
- interfere with areas or sites of particular significance to the native
title holders;
- involve a major disturbance to any of the land or waters concerned.
Indigenous Land Use Agreements (ILUAs)
7.38 Under the Native Title Act 1993, the scope for agreements
between native title claimants, governments and affected third parties
(eg pastoralists, miners, developers etc.) to authorise future acts was
quite limited. Section 21 allowed native title holders to enter into agreements
with governments to surrender their native title, or to authorise any
future act affecting their native title. Agreements could be for any lawful
consideration and could, if required, be made on a local or regional basis.
7.39 The ability to make agreements concerning future acts is much broader
under the amended Act. Provision is made for three different types of
Indigenous Land Use Agreements (ILUAs). [38]
ILUAs are binding agreements between actual or potential native title
holders and those wishing to use the land. ILUAs were introduced into
the Act as a result of widespread support for an enhanced agreements process.
However, at March 1999 there had been no ILUAs registered. The matters
which can be covered under an ILUA are extensive. [39]
Among other things, an ILUA can cover:
- the doing of an act that affects native title;
- the surrender of native title; [40]
- compensation;
- the doing of an act that could not otherwise be done under the amended
Native Title Act (for example an acquisition of native title without
complying with the right to negotiate); and
- giving native title parties different procedural rights to those which
they are entitled under the amended Native Title Act (such as notification
and objection).
7.40 An ILUA can be entered into for any consideration, or subject to
any conditions agreed to by the parties. Consideration, for example, may
include the grant of freehold estate or any other interests in land. [41]
An ILUA must meet certain requirements set out in ss.24BA, 24CA and 24DA
before it can be entered on the Register of Indigenous Land Use Agreements.
Once registered, an ILUA becomes a binding contract between the parties
and binds all native title holders for the area, regardless of whether
they are parties to the agreement. [42] The
registration of an ILUA validates the act or acts that it covers. Where
an ILUA requires legislation to be passed for it to be fully implemented,
the relevant parliament may do so, despite any other provision in the
NTA.
7.41 Under an ILUA native title continues to exist as provided for by
the non-extinguishment principle (s.238), except where the ILUA specifically
provides for extinguishment through surrender. [43]
Compensation for future acts done under an ILUA is generally limited to
what is contained in the agreement (s.24EB(4),(5) and (6)). Nevertheless,
where it is established that a person has native title rights but did
not benefit from the agreement, that person may be eligible for compensation.
The Land Fund and the ILC
7.42 The Aboriginal and Torres Strait Islander Land Fund and the Indigenous
Land Corporation (ILC) were established in 1995 to replace the original
Land Fund. The land management functions of the ILC are prescribed by
s.191E of the ATSIC Act and are designed to ensure that the ILC develops
a strategic approach to assisting indigenous land managers to manage their
land in sustainable ways. The operation of the original Land Fund is discussed
in Chapter 6 of this report, and the operation of the new Land Fund and
the Indigenous Land Corporation is discussed in Chapter 8.
Summary
7.43 In summary:
- The decision in Mabo (No2) affected the way in which governments and
other parties could deal with land, given the potential for native title
to exist.
- The effect of the Native Title Act 1993 on the States' land
management functions was upheld as constitutionally valid in WA v
The Commonwealth.
- The Native Title Act provided for the validation of certain past acts
which may have been invalid because of native title.
- Following the decision in Wik, the Native Title Act was amended
to provide for the further validation of intermediate period acts; that
is, certain acts done between 1 January 1994 (the commencement of the
Act) and 23 December 1996 (the date of the Wik decision) which
were potentially invalid because of the existence of native title, in
particular on pastoral leases.
- The Act established a regime to govern future government acts based
on permissible and non permissible future acts. The amended Act replaced
this with 12 separate categories of validity for future acts. The amended
Act also significantly changed the right to negotiate regime.
- Under the amended Native Title Act, there is greater scope for agreements
concerning native title and non-native title issues as a result of the
availability of Indigenous Land Use Agreements.
- The Land Fund and the Indigenous Land Corporation were established
to assist Aboriginal and Torres Strait Islander peoples who could not
benefit from the Mabo (No2) decision to acquire and manage land beneficially.
The Committee's Duty
7.44 Pursuant to s.206(d)(vi), the Committee is required to report on
the effect of the operation of the Native Title Act 1993 on land
management.
7.45 In carrying out this duty the Committee will, among other matters,
consider the effect of the future act provisions on land management and
the potential for agreements using the Indigenous Land Use Agreement provisions
in the amended Act.
Footnotes
[1] Twomey A `The Native Title Bill – Impact
on the States' Mabo Papers 1994, p.138.
[2] Quick J and Garran R The Annotated Constitution
of the Australian Commonwealth 1901, p.935; cf Twomey A op.cit., p.130.
[3] See for example; Amalgamated Society
of Engineers v Adelaide Steamship Co. Ltd (1920) 28 CLR 129 (the Engineer's
Case); Melbourne Corporation v the Commonwealth (1947) 74 CLR 31;
The Commonwealth v Tasmania (1983) 158 CLR 1 (the Franklin Dams
Case); Australian Capital Television Pty Ltd and Others v The Commonwealth
of Australia (1992) 177 CLR 106 (The Political Ads Ban Case).
[4] Twomey A op.cit., p.130.
[5] The Commonwealth v Tasmania (1983)
158 CLR 1.
[6] The Commonwealth v Tasmania (1983)
158 CLR 1, p.139.
[7] Twomey A op.cit., p.132.
[8] Twomey A op.cit., p.132.
[9] Western Australia v The Commonwealth
(1995) 183 CLR 373.
[10] Nettheim G `Western Australia v The Commonwealth'
Aboriginal Law Bulletin Vol.3 No.73 April 1995, p.5.
[11] Basten J QC `The Native Title Amendment
Bill and the Senate Amendments' Native Title: facts fallacies and the
future Symposium Papers UNSW 30 May 1998, p.106.
[12] Basten J QC op.cit., p.106.
[13] Commentary on the Native Title Act
1993 op.cit., p.C12.
[14] Commentary on the Native Title Act
1993 op.cit., p.C12.
[15] The term `past act' was defined in s.228
and essentially included legislation passed before 1 July 1993, and acts
or grants made before 1 January 1994 (the date of commencement of the
Native Title Act 1993) as well as some acts done in the future
but linked to past acts (see Commentary on the Native Title Act op.cit.,
p.C14).
[16] An act subject to the non-extinguishment
principle does not extinguish native title. Instead, the native title
rights and interests are effectively suppressed, either wholly or in part,
until the act that affected native title is removed.
[17] This assumption is included in the Preamble
to the Native Title Act, and was referred to by the Prime Minister, Paul
Keating, in his Second Reading Speech on the Native Title Amendment Bill
1993. This issue is discussed in Chapter 5.
[18] Native Title Amendment Bill 1997 Explanatory
Memorandum, pp.35,36.
[19] Explanatory Memorandum op.cit.,
pp.35,39.
[20] The extent to which the States and Territories
have implemented validation legislation is outlined in Chapter 3.
[21] Section 22B.
[22] Explanatory Memorandum op.cit.,
p.71.
[23] Ordinary title means freehold unless referring
to the ACT or Jervis Bay in which case it means leasehold (s.253).
[24] Commentary on the Native Title Act
1993 op.cit., p.C15.
[25] Explanatory Memorandum op.cit.,
p.71.
[26] Explanatory Memorandum op.cit.,
p.306.
[27] Section 24AA(5) provides that certain
acts passing the freehold test must also satisfy the right to negotiate
requirements in subdivision P.
[28] Guide to the Native Title Amendment
Act 1998 Department of Prime Minister and Cabinet July 1998, p.4.
[29] Northern Territory v Lane (1996)
138 ALR 544.
[30] Section 29(1).
[31] House of Representatives Hansard, 4 September
1997, pp. 7890,7891.
[32] Explanatory Memorandum op.cit.,
p.167.
[33] Guide to the Native Title Amendment
Act 1998 op.cit., p.25.
[34] Guide to the Native Title Amendment
Act 1998 op.cit., pp.25,26.
[35] Explanatory Memorandum op.cit.,
p.171.
[36] Guide to the Native Title Amendment
Act 1998 op.cit., p.27.
[37] Explanatory Memorandum op.cit.,
p.171
[38] These are body corporate, area and alternative
procedure agreements pursuant to Subdivisions B, C and D Division 3 Part
2 Native Title Act 1993.
[39] Guide to the Native Title Amendment
Act 1998 op.cit., pp.10,11.
[40] Note however that an alternative procedure
agreement cannot provide for extinguishment of native title rights or
interests, s.24DC. This is due to the fact that there is no requirement
that native title holders must be parties to the agreement, unlike the
other types of ILUAs.
[41] Explanatory Memorandum op.cit.,
p.83.
[42] Native title holders have rights under
s.24BI, 24CI and 24DJ to object to an ILUA being registered.
[43] Explanatory Memorandum op.cit.,
p.80.
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