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Native Title Amendment Bill 1997 [No. 2]



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Bills Digest No. 171  1997-98

 

Native Title Amendment Bill 1997 [No.2]

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Contents

 

Passage History

Native Title Amendment Bill 1997 [No.2]

Date Introduced:   9 March 1998

House:   House of Representatives

Portfolio:   Prime Minister

Commencement:   Generally, the amendments commence 9 months and one day after Royal Assent—if not commenced earlier by Proclamation. Part 1 of Schedule 3 (initial amendments relating to Representative Bodies) also commences 9 months and one day after Royal Assent—unless commenced earlier by Proclamation. Part 2 of Schedule 3 (later amendments which introduce a new regime for representative bodies at the end of the transitional period) commences 12 months and one day after the commencement of Part 1—unless a later day is fixed by Proclamation.

 

Note: For a detailed commentary on the Bill as first presented in 1997, readers are refe rred to Bills Digest No. 51 of 1997-98.

Re-introduction

On 4 September 1997, the Native Title Amendment Bill 1997 (the Bill) was introduced into the House of Representatives. Two Parliamentary Committees inquired into the Bill. These were the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund(1) and the Senate Legal and Constitutional Legislation Committee.(2) The Bill passed the House of Representatives on 29 October 1997. The Senate made 217 amendments to the Bill before passing the Bill on 5 December 1997. On 6 December 1997, the House of Representatives laid the Bill aside after agreeing to 125 of those amendments and rejecting the rest.

The Bill has now been re-introduced into the House of Representatives and incorporates 107 of those 125 amendments agreed to by the House. In relation to the 18 amendments not included in the re-introduced Bill, the Explanatory Memorandum says:

Upon further examination, some non-Government amendments accepted by the House on 6 December 1997, may have technical or other deficiencies and therefore have not been incorporated into the Bill. It is anticipated that some will, in an amended form, be moved as Government amendments when the Bill is debated in the Senate. Further, where there is any doubt about whether the Senate ‘made’ a particular amendment, that amendment has also not been incorporated: where appropriate, that amendment will also be moved as a Government amendment in the Senate.(3)

Subject to the requirements of s ection 57 of the Constitution, the Bill will become a double dissolution trigger if the Senate again rejects the Bill, fails to pass it or passes it with amendments to which the House of Representatives will not agree.(4)

Purpose

The Bill contains extensiv e amendments to the Native Title Act 1993 (NTA). Some of these are the Government’s response to the High Court’s decision in Brandy v. Human Rights and Equal Opportunity Commission ,(5) some re-visit the Government’s Native Title Amendment Bill 1996 and others implement the Ten Point Plan developed in response to the High Court’s decision in Wik Peoples v. Queensland .(6)

Main Provisions

The scheme adopted in this Digest is to group the Bill’s provisions according to the headings used by the Senate in its consideration of the Bill in November and December 1997. The focus is therefore on proposals for amendment to the Bill. More detailed descriptions of the original Bill can be found in Bills Digest No. 51 of 1997-98.

References to Senate amendments by number refer to the numbering found in the Schedule of Amendments made by the Senate dated 5 December 1997.

Right to negotiate

The right to negotiate (RTN) is one of the major battlegrounds between the House of Representatives and the Senate. Under that heading th ere were about a dozen areas of significant policy disagreement between the two Houses of Parliament.

The Government has said that the current RTN provisions are an unacceptable burden on development. Indigenous interests have identified the RTN as a vital part of the negotiated compromise between stakeholder interests struck in 1993. They regard the RTN as codifying a native title right, and essential to the protection of their culture and their participation in economic activity.(7)

What does the 1993 Act say about the right to negotiate?

An outline of the right to negotiate and its place in the wider future act regime can be found at pages 17-18 and 29-30 of Bills Digest No. 51 of 1997-98. What follows is a brief overview of the Act’s provisions.

In general terms, the future act regime reg ulates activities on native title land and water which occur after 1 January 1994. It is designed to strike a balance between the protection of native title and economic development. Generally, most future acts may proceed on the same basis that they would proceed if the land was instead freehold.

Because of their significant impact on native title, two categories of future act have been singled out for more stringent procedures: mining activity, and compulsory acquisition of native title rights in order to grant interests to a third party. These are the only future acts to which the right to negotiate applies.

To ensure validity under the NTA, where a government intends to grant a mining tenement or to compulsorily acquire native title rights for the benefit of a third party it issues a section 29 notice. If there are no registered native title claims for the area at the end of a 2 month period, the mining grant or compulsory acquisition can proceed without further native title complications.

But if there are registered native title claimants on the record at the end of the notice period, then the government party and the grantee must negotiate with them. Time limits apply so that if no agreement is reached, a party can seek arbitration. The arbitral body must decide if the act can proceed and if so, on what conditions. At the end of the day, if a government does not like the outcome of an arbitration, it can over-ride the result and make its own decision about the proposed mine or compulsory acquisition.

What does the 1997 Amendment Bill say about the right to negotiate?

A summary of the significant changes to the right to negotiate proposed by the Government can be found at page 30 of Bills Digest No. 51 of 1997-98. More detail is provided at pages 31-44. I t should be noted that limited changes to the Bill made by Government amendment in the Senate have been maintained in the re-submitted Bill. The most important changes relate to time limits: the minimum period for negotiations over mining production is restored to 6 months,(8) and the Tribunal has an extra month to consider registration of a claim which was lodged within the 3 month notice period. (9)

Overall, the substantial changes to the right to negotiate proposed in the Bill may be grouped into 4 major categories:

• restricting access to the RTN through a much higher registration test;

• widening the range of acts which are excluded from the RTN;

• altering the mechanics of the RTN process itself; and

• enabling States and Territories to displace the na tional RTN scheme with their own procedures on pastoral leases and some other categories of land.

Major issues of contention

Restricting access to the RTN

This is dealt with separately under the heading ‘Registration Test’.

Exclusions from the RTN

The two Houses are in disagreement over the application of the RTN to private infrastructure projects. The Government wants to exclude compulsory acquisitions of native title rights from the RTN where the land is intended for private developers of infrastructure. Non-Government Senators opposed this exemption and also sought to prevent private developers riding on the back of the exemption available for government acquisitions.(10)

The Senate also voted not to exclude land or waters within a town or city from the RTN.(11) The House disagreed.

The RTN currently applies to both the exploration and production stages of a mining project. The Government sought through proposed section 26A to exempt ‘approved exploration acts’ from the RTN, if certain alternative procedures applied. The Senate voted to remove proposed section 26A from the Bill. The Government has sponsored a number of measures including this one because it believes there should be only one right to negotiate per project. It also argued that its procedure would protect native title interests in all exploration tenements, whereas the RTN is currently bypassed altogether in over 80% of cases, through use of the expedited procedure.

But non-Government Senators supported the preservation of the RTN at exploration for several reasons:

• the invasive nature of exploration in relation to certain minerals;

• the productive and enduring relationships which can form during early face to face negotiations;

• the potential for conjunctive arrangements to be negotiated that would smooth the path for subsequent mineral production; and

• the need to protect sites and other areas of cultural heritage.

The House and the Senate also disagree over whe ther the RTN should apply to mining renewals.(12) The Government favours one RTN per project so as to reduce delays from a process which it regards as ‘a significant brake on mining and public and private development activity'.(13) The main argument in favour of subjecting mining renewals to the RTN is that mining leases can endure for decades and over their life the nature of their impacts can vary dramatically. For mining leases granted before the NTA, a renewal may be the one and only opportunity for local native title holders to negotiate over social, environmental and other impacts.

The two Houses also disagree over the threshold at which the expedited procedure should apply to exploration tenements.(14)

The mechanics of the RTN process

Under the Bill, Ministers are given two opportunities to intervene in the RTN process and take the matter out of the hands of the negotiating parties and/or arbitral body. It is reasonable to assume that in most cases the relevant Minister would be the State or Territory Minister for Mines. The Senate voted to remove the first provision for early Ministerial intervention [Harradine (26)/Opposition (137)/Dems-GWA (127)] and to preserve the second, but only permit interventions in the national interest by a Minister of the Commonwealth. The House disagreed with both Senate amendments. It also disagreed with a Senate amendment that allowed the negotiating parties to override a Ministerial intervention if they were able to achieve belated agreement on the proposed government action.(15)

Because future act arbitrations may contemplate a number of matters some of which will only crystallise down the track, the Senate amended the Bill so that such matters could be left to future negotiation or arbitration.(16) The House disagreed with this amendment, as well as another two which sought to facilitate conjunctive agreements and determinations.(17)

Alternative State and Territory provisions for leased or reserved land

The current NTA enables States and Territories to set up their own right to negotiate regime if certain national guidelines are met. That provision is largely re-enacted by proposed section 43 . However the Bill creates an additional opportunity in proposed section 43A for States and Territories to devise alternative procedures to the right to negotiate. These would apply to ‘leased or reserved land’.

The Senate voted to remove proposed section 43A and thus preserve the right to negotiate on pastoral leases, national parks etc.(18) This remains a fundamental difference between the two Houses.

The Government maintains that it was never envisaged the RTN would operate on pastoral leases and that as a matter of equity native title holders should have only the same rights in respect of mining and compulsory acquisitions as the holder of a coexisting title, such as a pastoral lessee.

Non-Government Senators expressed their opposition to proposed section 43A in a number of ways. It was described as ‘a denial of native title holders’ substantive equality protected under the Racial Discrimination Act’.(19) It was also portrayed as undermining the trade-off between the RTN and the certainty offered to non-indigenous interests by various provisions in the Act adverse to indigenous interests.(20) Senator Harradine, in the following passage, emphasised the distinct and different nature of native title rights and questioned the justice of differentiating amongst native title holders and their rights depending on whether their country was vacant Crown land or had been subject to pastoral lease:

Native title has been recognised as a common law right. It is title based on prior possession and ownership. It is not just another leasehold. It therefore follows that to treat Aboriginal people as equivalent to miners or pastoralists is to effectively downgrade them and their property rights. If a right to negotiate with a mining company is to be enjoyed by native title holders whose country is vacant crown land, that right should not be taken away from native title holders who suffer the added disadvantage of having their land subject to a pastoral lease without their consent. I ask the government to look at it from that point of view, that justice point of view.(21)

Racial Discrimination Act

Another amendment made by the Senate and not agreed to by the H ouse of Representatives concerns the Racial Discrimination Act 1975 . An Opp/Dems-GWA/AG amendment inserted new section 2A into the Bill. The purpose of this amendment was to repeal subsection 7(1)(22) of the NTA and substitute the following:

This Act is intended to be read and construed subject to the provisions of the Racial Discrimination Act 1975 .

There are a number of arguments that can be advanced in favour of and against the insertion of such a clause. Those favouring the clause might say that:

• the clause ensures Australia observes the international standards of non-discrimination that are contained in treaties to which Australia is a signatory;

• strong concerns have been expressed that many provisions in the Native Title Amendment Bill are discriminatory. The RDA clause ensures that the principle of non-discrimination applies;

• the effect of the RDA clause would not be to invalidate any Commonwealth law but ‘to offer and confer on persons who have been discriminated against on the grounds of race, colour or national or ethnic origin the same rights as are enjoyed by persons of another race, colour or national or ethnic origin on whom there are conferred superior rights.’(23)

• the clause does not impact upon the validation of past and intermediate p eriod acts (proposed subsection 7(2));

• the clause will ensure that State laws are formulated in accordance with non-discrimination principles by virtue of section 109 of the Constitution. Such safeguards are particularly important given the devolution of power to the States which is contained in the Bill(24) and the need for uniformity in decision-making;(25)

• if the Bill is non-discriminatory then there is no reason not to support the RDA clause;(26)

• there is a strong case that the races power in the Commonwealth Constitution which forms the principal basis of native title legislation only supports legislation which is beneficial for indigenous people. The presence of an RDA clause may be important in safeguarding the legislation in the event of a constitutional challenge;

• the proposed amendment protects the Racial Discrimination Act itself from invalidity;

• the clause encapsulates in law the Government’s 1996 election promise to ‘respect the provisions of the Racial Discrimination Act’;

• a clause m aking the NTA subject to the Racial Discrimination Act 1975 was unnecessary because the NTA was beneficial legislation negotiated with indigenous agreement.

Those arguing against the inclusion of the RDA clause might say that:

• it introduces further uncer tainty and the potential for considerable, expensive and socially divisive litigation over native title;

• it will not prevent a constitutional challenge being made to the legislation;

• it is unnecessary because the NTA as amended by the Bill will be beneficial legislation for indigenous people;

• the RDA clause may have unintended consequences—putting at risk what appear to be unexceptional provisions in the NTA;

• such an amendment indicates that Parliament does not know what the relationship is between native title and racial discrimination legislation. It is up to the Parliament to make this relationship clear by legislating appropriately.

• the Opposition, which was then in Government, rejected the inclusion of such a clause in the NTA.(27)

Registration test

Introduction

There appears to be widespread support for changes to the registration test—for example, to reduce the number of overlapping and competing claims. Disagreement exists about how far and in what way the test should be tightened.

What does the 1997 Amendment Bill say about the registration test?

Under the Bill, a native title claim must satisfy a number of technical and substantive requirements before it is registered. The substantive requirements which must be met are set out in proposed section 190B . For example, the claim must, prima facie, establish that each of the native title rights and interests claimed can be established and that at least one member of the native title claim group has or had a traditional physical connection with the claimed area.

Under amendments proposed in the Bill, the registration test does not operate as a barrier to the pursuit of a native title claim. An application for a native title determination which fails the registration test may continue to be pressed in the Federal Court. Instead, the registration test determines which claimants have the right to negotiate over compulsory acquisitions and mining acts and which claimants have a right to be notified about certain proposed future acts. The registration test will also affect other statutory entitlements proposed in the Bill—such as access rights to a pastoral lease under proposed Subdivision Q in Part 2 Division 3. The Bill inserts a registration test with multiple conditions, each of which must be satisfied before registration can occur.

Further details about the registration test can be found at pages 60-62 and 73-74 of Bills Digest No. 51 of 1997-98.

Senate amendments

Four Government amendments relating to the registration test [(66)-(69)] were agreed to by the Senate in December 1997. These are largely technical amendments. For example, Government amendment (66) obliges the Registrar of the Federal Court to advise the Native Title Registrar when a native title application is withdrawn—irrespective of whether the application has been registered or is unregistered. This will ensure that the register is kept up-to-date.(28)

A major Senate amendment not accepted by the House of Representatives concerns the physical connection requirement in the registration test [Opp(267)[as amended by Harradine amt]]. The Senate voted to omit proposed subsections 190B(6)-(9) . Instead of the physical connection test contained in proposed subsection 190B(7) the Senate amendment provided that the factual basis of a native title claim must include an assertion:

•  either that a member of the claim group has or had a traditional physical connection with the relevant land or waters;

•  or that a member of the claim group would have had such access had he or she not been prevented from maintaining their traditional physical connection by the action of the Crown, a statutory authority or another person.

It was argued in the Senate that these amendments recognise the historical facts of dispossession—that indigenous people have been and in some cases, continue to be, barred from access to their land.(29) Instances of lock-outs occurred, for example, after the equal wage decisions of the 1960s.(30) It was also argued that the Government’s amendments would obliterate the common law test enunciated by the High Court in Mabo [No.2] that the existence of native title depends, not on traditional physical connection but on continuing to observe traditional laws and customs so far as it is practicable to do so.(31) It was further argued that the Senate amendments recognised the nature of indigenous attachment to land—that is, the importance of spiritual and cultural connections.(32)

The Government contends that there was a lay presumption that the High Court in Mabo [No.2] was talking about physical connection. Senator Minchin also said in the Senate that the physical connection criterion does not impact on Federal Court determinations of native title only on whether the registration test imposed by the NTA is satisfied.(33) As stated earlier, the registration test must be satisfied before benefits such as the right to negotiate or statutory access rights to pastoral lease land can be obtained.

Senate amendments also required the Registrar to show native title claimants material adverse to their claim and give them an opportunity to supply further material. If the Registrar is then satisfied that a genuine factual or legal dispute exists over the adverse material, the Registrar must not consider the adverse material further. These amendments were not accepted by the House of Representatives.

Claims process and the sunset clause

The sunset clause

There is no sunset clause in the NTA. The Bill contains two sunset clauses.

Proposed subsection 13(1A) provides that no application for a native title determination can be made to the Federal Court more than 6 years after the commencement of the subsection. The result of this provision is that after the sunset period expires, native title claims will have to be made using the common law and applicants who have not been registered will not be able to access the NTA right to negotiate.

In the Senate, concern was expressed that the sunset clause would not create certainty of outcome or process. Native title holders, it was said, would still pursue common law claims—so that certainty for industry, especially miners could not be guaranteed.(34) The Government responded that the sunset clause did not prevent common law native title claims from being made and that six years was a reasonable period in which to expect that claims could be submitted.(35)

The sunset clause on claims was rejected by the Senate in 1997 [Opp(223)/Dems-GWA(190)/Harradine(1)] but its deletion was not agreed to by the House of Representatives.

Proposed subsection 50(2A) in the Bill provided that compensation applications could not be made more than 6 years after the commencement of the subsection or 6 years after the future act was done (whichever occurred later).

Government amendment (58) replaced proposed subsection 50(2A) to provide instead that an application for compensation cannot be made more than 6 years after:

• the commencement of the subsection; or

• notification of the compensable ac t to relevant registered native title bodies corporate and registered native title claimants and representative bodies

whichever occurred later.

The Federal Court’s way of operating

What does the NTA say about the Federal Court’s way of operating?

Existing section 82 of the NTA deals with the Federal Court’s way of operating. It provides that the Court must operate in an informal, just and economical manner and take account of indigenous cultural and customary concerns when conducting proceedings. It is not bound by technicalities or rules of evidence.

What does the 1997 Amendment Bill say about the Federal Court’s way of operating?

The Bill provides that the Court:

• is bound by the rules of evidence—except to the extent that it otherwise determines [ proposed subsection 82(1) ];

• may take account of the cultural and customary concerns of indigenous people but ‘not so as to prejudice any other party to the proceedings’ [ proposed section 82(2) ].

Senate amendments

Government amendment (61) amends proposed subsection 82(2) to provide that the Court may take account of indigenous cultural and customary concerns but not so as to unduly prejudice any other party to the proceedings.

Government amendment (62) inserts the word ‘unduly’ into a similar provision relating to the operation of the National Native Title Tribunal [ proposed subsection 109(2) ].

Harradine amendment (1) was made by the Senate but rejected by the House of Representatives. This amendment would have required the Federal Court to take account of indigenous cultural and customary concerns.

The need for the Federal Court to continue to operate in a flexible and non-adversarial fashion and in a way that ensures that indigenous culture is taken into account was raised by speakers in the Senate opposing provisions in the legislation about the Federal Court’s way of operating. For example, Senator Bolkus said the effect of the Bill would be to reduce the ability of native title claimants to put their case.(36) The Government’s view was that while the amendments require the Court to abide by the rules of evidence, these rules can be relaxed at the Court’s discretion. Senator Minchin also said that because the rights of non-native title holders are likely to be affected by a native title determination, it is reasonable and fair for normal Court procedures to be followed—with the proviso that these can be relaxed and indigenous cultural concerns recognised so long as the interests of other title holders are not unduly prejudiced.(37)

The qualifications of presidential members of the NNTT

What does the NTA say about the qualifications of presidential members of the NNTT?

Under the NTA, presidential members (ie the President or Deputy Presidents) of the NNTT must be judges of the Federal Court or former judges.(38)

Senate amendments

Government amendment (63) which was passed by the Senate deals with the qualifications of presidential members of the NNTT. It expands the eligibility criteria for presidential membership to include people who have been enrolled as legal practitioners for at least 5 years.

A provision to this effect was included in the Native Title Amendment (Tribunal Appointments) Bill 1997. In the Second Reading Speech for the Native Title Amendment (Tribunal Appointments) Bill, the Government emphasised the need to expand the pool of eligible, experienced and qualified people who could become presidential members of the NNTT. In 1997, the Senate rejected these arguments and passed the Tribunal Appointments Bill without the presidential qualifications amendments.(39)

These matters were re-visited and others raised during debate on Government amendment (63). For example, the amendment was commended by the Government as a way of relieving pressures on the Federal Court and as appropriate because the NNTT will no longer be acting judicially. It was suggested by Senator Harradine that non-judicial appointments might be less daunting to those using the Tribunal.(40) It was also remarked that the previous Government had proposed an identical amendment to the NTA.(41) In response it was said that the amendment would downgrade the status of NNTT members, undermine the NNTT’s credibility and was not supported by indigenous people. It was also said that judicial appointments ensured that presidential members would act independently of the Executive Government.(42)

Other

A group of Opposition amendments(43) were made by the Senate and agreed to by the House of Representatives but do not appear in the re-introduced Bill. Opposition amendments (247)-(249) deal with the parties to native title and compensation applications. The Opposition view was that the provisions in the Bill which enable any person whose interests may be affected by a determination to be a party are too wide. In brief, the Opposition’s amendments sought to restrict the people who could become parties to those who have an interest in the land. The amendments also provided for public interest representation.

Validation

What does the 1993 Act say about the validation of past acts?

The NTA validates certain Commonwealth acts that would otherwise be invalid due to the existence of native title. It also enables the States and Territories to validate past acts, including titles they have granted, without breaching the Racial Discrimination Act 1975 if they comply with Commonwealth rules about the extinguishment of native title.

In general, ‘past acts’ are dealings in land done prior to 1 January 1994 which were invalid due to the existence of native title. In the main, such invalidity would have arisen because of the operation of the Racial Discrimination Act 1975 .(44) ‘Past acts’ are time-limited ie they generally occurred between the commencement of the Racial Discrimination Act 1975 and 1 January 1994 (the commencement date of the NTA). The ‘past acts’ regime in the NTA recognises four categories of ‘past act’—A to D. The effect of validation on native title—for example, whether native title is extinguished or is subject to the ‘non-extinguishment principle’—depends on the category of ‘past act’ involved.

What does the 1997 Amendment Bill say about validation of intermediate period acts?

The purpose of the ‘intermediate period acts’ regime is to validate certain acts which were done after 1 January 1994 and were invalid because of th e existence of native title. An example of an invalid act might be the grant by a Government of a mining lease on pastoral lease land without following the future act regime of the NTA.

This ‘second round’ of validation arises because certain governments assumed that native title was extinguished on pastoral leases, and therefore disregarded the future act regime when dealing with former or existing pastoral leases. The High Court’s decision in Wik demonstrated this assumption to be false.

A more detailed description of the ‘intermediate period acts’ regime and its purpose can be found in Bills Digest No. 51 1997-98 at pages 9-13.

The Bill validates intermediate period acts which are attributable to the Commonwealth and enables the States an d Territories to legislate along the same lines. The effect of validation upon native title is determined by how an intermediate period act is categorised. While the Explanatory Memorandum says that this categorisation is based on the ‘past acts’ regime, there are some differences—see Bills Digest No. 51 1997-98 at page 10.

The Bill also defines extinguishment to mean permanent extinguishment. In the Wik case, the majority High Court judges expressly left open the question of whether native title could revive upon the expiry of a grant. The Explanatory Memorandum cites a recent decision of the Federal Court in Larrakia People v. Northern Territory of Australia & Oilnet (NT) Pty Ltd where O’Loughlin J said ‘My conclusion is that once native title has been extinguished, the issue has come to an end and there can be no revival of that title under common law.’(45) However, it should be noted that this was a single judge decision and may be the subject of an appeal.

Senate amendments

A number of Government amendm ents were made to the Bill in the Senate. Some of these—for example, Government amendment (1)—are technical.

Amendments relating to national parks

Government amendment (2) removes a reference to proposed subsection 232B(6) contained in proposed paragraph 22B(a) . Proposed paragraph 22B(a) provides that certain category A intermediate period acts extinguish all native title on the relevant land or waters. In the original Bill, these category A intermediate period acts included acts to which proposed subsection 232B(6) applied. The Government’s concern was that this proposed subsection together with proposed subsection 232B(5) might have ‘resulted in the creation of some national parks being included in the definition of ‘‘Category A intermediate period act.’’ This was never the intention behind section 232B …’(46) Government amendment (51) is a related amendment which omits proposed subsections 232B(5) and (6) which were contained in the original Bill from the definition of Category A intermediate period acts.

Amendments relating to compensation

Compensation is payable to native title holders as a result of the validation of intermediate period acts.

There has been considerable debate about how legislative extinguishment of native title can be effected without b reaching section 51(xxxi) of the Constitution.(47) Section 51(xxxi) limits the legislative power of the Commonwealth to acquire property to situations where the legislation is supported by another head of power and requires the Commonwealth, when it so acquires property to do so on just terms. Several witnesses gave evidence to the Senate Legal and Constitutional Legislation Committee that section 51(xxxi) requires a fair process in addition to a fair amount of compensation.(48)

Government members of the Committee preferred the view of some witnesses that just terms concerns were easily remedied and subsequently the Government has inserted notification provisions in the 1997 Amendment Bill. In the Senate, the ALP argued that these measures are inadequate and thus endanger the constitutionality of the validation regime. The ALP also claimed delays in native title holders obtaining compensation for upfront validation meant the provisions fell short of just terms requirements. The ALP’s proposed scheme combined notification of native title parties by gazettal and a process for fast-track compensation, but was defeated in the Senate.

Government amendments (3) and (4) insert notification procedures when mining rights have been granted by Commonwealth or State/Territory Governments during the intermediate period over certain land or waters(49) ( proposed sections 22EA and 22H respectively). Notice must be given to relevant registered native title bodies corporate, registered native title claimants, representative bodies and the public within 6 months of the commencement of validating legislation. The notification must include the date of the act, the kind of mining involved, sufficient information to enable the area to be identified and information about how to obtain more details [ proposed subsections 22EA(2) and 22H(2 )]. However, failure to notify does not affect the validation of intermediate period acts.

Government amendment (52) removes proposed subsection 232B(8) and replaces it with a new subsection to provide that Category A intermediate period acts exclude not only statutory acts for the benefit of indigenous people but also grants to trustees for the benefit of indigenous people. An amendment [Government amendment (53)] to proposed section 232C has a similar effect in relation to leases that are Category B intermediate period acts.

Confirmation of extinguishment

The provisions of proposed Division 2B dealing with the legislative extinguishment of native title were the subject of considerable controversy and lengthy debate in the Committee stage of the Senate debate. The Government argues that proposed Division 2B does no more than clarify and confirm the common law position on extinguishment. The potential that instead the provisions travel beyond the common law is discussed at page 14 of Bills Digest No. 51 of 1997-98. Some commentators have also suggested the ‘confirmation’ provisions are racially discriminatory(50) and may entail constitutional problems over the issue of just terms compensation.(51)

What does the 1993 Act say about extinguishment?

The NTA essentially left the effect of various past acts on native title to be determined by the courts. Thus it was that the High Court was called upon in Wik to determine at common law the effect on native title of the grant of a pastoral lease.  There was an exception to this general proposition—‘validated past acts’, generally understood to be acts which occurred in the window between late 1975 and the end of 1993. These were validated by the NTA and their effect on native title was determined by which of the statutory Categories A to D they fell within.

What does the 1997 Amendment Bill say about extinguishment?

The Government believes that leaving extinguishment issues to be clarified by the courts on a case by case basis creates too much uncertainty. As a result, its proposed Division 2B ‘confirms’ extinguishment on 21% of the Australian land mass—13% f reehold and 7.7% subject to leases which, in the Government’s assessment, confer exclusive possession. Senator Minchin indicated that over 60,000 leases were involved.(52)

In addition, the Bill treats those native title rights which are inconsistent with the grant of non-exclusive tenures as having been extinguished, rather than suspended.(53) And finally, it defines all extinguishment to mean permanent extinction.(54)

Division 2B is analysed in more detail at pages 14-17 of Bills Digest No. 51 of 1997-98.

The Bill was the subject of numerous successful Government amendments in the Senate. Many of these were technical or non-controversial but one is particularly worthy of comment. Government amendment (45R) has the effect of relaxing the legal requirements of proof for native title applications over certain tenures. A group occupying Aboriginal land which is subject to a trust or reserve etc. can press their claim unhindered by the normal concerns about prior extinguishment by various land grants. Such prior extinguishment will also be disregarded where a claim is pressed over vacant Crown land where the group again is in occupation of that land [ proposed sections 47A and 47B ].

Major issues of contention

Various non-Government Senators sought to make substanti al changes to the extinguishment provisions. Indeed, there was an unsuccessful attempt to delete proposed Division 2B entirely. The arguments put to counter the Government’s case for greater certainty related to both methodology and disagreement over the state of the common law.  It was argued that in several instances the Division went beyond the existing law most recently explored in the Wik decision—for example in the extinguishment of inconsistent rights on non-exclusive tenures and in the general definition of extinguishment as meaning permanent extinction.

The methodology of drawing up the Schedule which contains categories of grant giving rise to ‘previous exclusive possession acts’ was both defended and criticised in the course of the Senate debate. The Government argued that it had been drawn up on a conservative basis in reliance on legal principles to be discerned in the Wik and Mabo [No. 2] decisions.(55) The Opposition insisted that by looking only at legislation authorising grants, and not at the terms of individual leases nor at the extent of native title rights asserted over the same land, the Government had disregarded the methodology insisted upon by the High Court majority in the Wik case.(56)

Government amendment (5) was passed by the Senate and purported to prevent some national parks and other protected areas from coming within the definition of a previous exclusive possession act. Concern was expressed, however, that while that amendment rem oved subsections (4) and (5) from proposed section 23B , the same consequence may still flow from subsection (3) which was left intact.(57)

The definitions of a Scheduled interest and a previous exclusive possession act (and more particularly the list of exceptions) were the subject of vigorous debate in the Senate.  Senator Margetts, for example drew attention to the treatment of Crown to Crown grants under the Bill as extinguishing acts whereas the 1993 Act applied the non-extinguishment principle.(58) Senators Bolkus and Harradine criticised the capacity for additions to the schedule of extinguishing interests to be made by regulation rather than parliamentary legislation.(59) A Democrats-Green amendment which addressed some of these criticisms passed the Senate but was not agreed to by the House.(60)

The Government is not proceeding with one amended version of the definition of a ‘Scheduled interest’, despite the House having agreed to it in December 1997.(61) Another amended version which passed the Senat e but altered the Government’s original definition more substantially was not agreed to by the House.(62)

Senator Harradine succeeded in amending the provision dealing with native title rights inconsistent with the grant of a non-exclusive lease. The term extinguish was replaced by ‘suspend’ in three relevant places. The House has also disagreed with these changes to the Bill.(63)

Compensation

References to compensation recur throughout the NTA and NTAB. This is due to three main factors:

• several parts of the Act and Bill authorise or validate activities which have an adverse impact on native title;

• the Constitution requires Commonwealth laws dealing with the acquisition of property to provide ‘just terms’;

• the law proceeds on a general assumption that infringements of property interests will not go uncompensated.(64)

What does the 1993 Act say about compensation?

The NTA created a compensation regime for the extinguishment and impairment of native title with the following basic features:

• compensation is available for ‘validated’ past acts—ie official acts, usually pre-1994, which were legally dubious in light of the Mabo [No. 2] decision before the NTA retrospectively validated them;

• compensation is also available for ‘permissible future acts’—ie official acts after 1 January 1994 which adversely affect native title but can find authorisation somewhere in Part 2 Division 3 of the Act;

• past act compensation is payable by the relevant tier of government rather than eg the third party beneficiary of an individual land grant, whereas future act provisions open up the possibility for recovery from third parties;

• just terms compensation is payable for extinguishment of native title while impairment generally attracts the compensation scheme which applies to freeholders in the same jurisdiction;

• compensation will not flow to native title holders until a Court has confirmed their pre-existing legal rights in a native title determination, which may involve several years of litigation—pre-determination sums (eg decided on in a future act arbitration) are held in trust; and

• where specific compensation provisions fall short of just terms and the Constitution would require just terms, a safety net provision in section 53 seeks to ensure that just terms compensation is recoverable.

What does the 1997 Amendment Bill say about compensation?

The Bill generally maintains the above framework and elaborates upon it.

Compensation is not treated as a separate topic in the Bill. Rather it arises in several parts of th e Bill, because native title is adversely affected by a number of the Government’s proposals, such as:

• far-reaching changes to the future act regime, which authorise considerably more impairment and extinguishment of native title than is currently the ca se;

• validation of ‘intermediate period acts’ - that is, acts done in breach of the future act regime after 1994 based on the incorrect assumption that native title was extinguished on pastoral leases; and

• ‘confirmation’ of extinguishment by past land grant s said to confer exclusive possession.

The Government sought by amendments in the Senate to extend the just terms safety net provisions. Government amendment (93) provided that if the Amendment Bill itself effects ‘a paragraph 51(xxxi) acquisition of prope rty’ on other than just terms, and no other provision of the NTA fills the void, then a just terms ‘top-up’ is available. The top-up applies to future acts attributable to a State or Territory, as well as for Commonwealth future acts.

Government amendment (46) inserted a similar top-up provision for the Act in general.(65) The Government asserts in the Explanatory Memorandum that section 53 now applies ‘to all future acts’.(66) This proceeds on the assumption that a future act by a State which involves an acquisition is ‘a paragraph 51(xxxi) acquisition of property’. That is ultimately a constitutional issue to which the answer is not necessarily clear at this point. What is clear is that the Government has expressed its intention that States and Territories should be bound by the requirement of just terms wherever the Commonwealth is so bound.(67)

Both Government amendments were passed by the Senate and appear in the re-submitted Bill.(68)

Major issues of contention

Two Senate amendments from the Opposition about compensation secured Government agreement when the House of Representatives sat on 6 December 1997, but do not appear in the Bill re-submitted in 1998. The first(69) inserted changes which apply just terms requirements to impairment of native title as well as acquisitions, and does so regardless of whether the offending acts were valid or invalid. However, the Government has now indicated(70) it does not support this amendment for ‘substantial policy reasons’. It appears likely that the Government will support the second amendment(71) with modified wording during the Senate debate.

A major difference emerged during the Senate debate over a fast-track process for small compensation claims. Obtaining the native title determination which is necessary for any compensation funds to flow may exhaust enormous time and resources in litigation, potentially making compensation claims uneconomic to pursue and leaving native title holders uncompensated.

An Opposition amendment proposed a low cost and informal tribunal process under Court supervision, where the cost of court proceedings was likely to exceed 50% of the final compensation award or the final amount was unlikely to exceed $50 000.(72) During Senate debate, the Government called the small claims proposal ‘well intentioned’(73) and an idea that ‘could be looked at down the track’ but asserted there were constitutional question marks over the scheme.(74) The amendment passed the Senate but is opposed by the Government and does not appear in any form in the re-submitted Bill.

The Senate approved that part of the Bill which imposes a freehold cap on compensation, subject to ultimate constitutional requirements.(75) It has been said in the High Court that native title is unique or sui generis and that comparisons to Western property concepts are hazardous.(76) The National Native Title Tribunal, sitting as an arbitral body, called percentage comparisons to freehold ‘artificial and arbitrary’ and others have emphasised the dangers of assimilating native title to Western property concepts.(77) In addition, it is clear that a statutory freehold cap cannot constrain the courts from ordering ‘freehold-plus’ compensation if that is how they see just terms as applying to the distinctive rights and responsibilities for land embedded in indigenous traditional law and custom.

The Opposition questioned the motive behind the freehold cap in light of the constitutional situation. The Government’s position was that freehold is ‘the highest estate in our law’(78) and that taxpayers are entitled to see an expression of the Parliament’s view on the appropriate level of compensation.(79) The ALP amendment which sought to remove the freehold cap was defeated in the Senate.

Freehold test

What does the 1993 Act say about the freehold test?

Currently, the general body of onshore future acts is valid if they comply with what is called the freehold test. Legislation which puts native title holders in no worse position than ordina ry title holders is basically valid. Non-legislative acts which could have been done if the native title holders were, instead, freeholders are also valid.

What does the 1997 Amendment Bill say about the freehold test?

Under the Bill many more categories a re introduced whereby future acts can secure validity without necessarily complying with the freehold test. The validity of some future acts will, however, continue to be determined by the application of the freehold test.

Some of these future acts are, in addition, dependent for validity on the operation of right to negotiate provisions or substitute provisions set out in proposed Subdivision P . Putting those to one side, proposed subdivision M states that acts which pass the freehold test are valid. Where a freeholder has procedural rights in relation to the act, so too does the native title holder. Different procedural rights apply to particular forms of mining activity set out in proposed sections 26A (approved exploration acts), 26B (approved gold or tin mining acts) and 26C (opal or gem mining).

Under the Bill, if an act is covered by proposed Subdivision M (acts that pass the freehold test), then the non-extinguishment principle applies unless the act is a compulsory acquisition which satisfies the criteria in proposed paragraphs 24MD(2)(a) & (b) .(80)

Senate amendments

Government amendment (28) which was made by the Senate inserts new paragraph (ba) into proposed subsection 24MD(2) . This paragraph adds to the criteria that must be satisfied before native title can be extinguished by certain compulsory acquisitions. The addition is that the practices and procedures adopted in acquiring the native title must not cause native title holders ‘any greater disadvantage’ than holders of non-native title rights and interests who have their rights and interests acquired.

Government amendment (29) amends the compensation provisions relating to compulsory acquisitions of native title contained in proposed sub-paragraph 24MD(4)(a)(i) . The amendment clarifies that if, under Commonwealth law, a third party is liable to pay the compensation, then that third party and not the Commonwealth will be liable. Government amendment (30) contains a similar amendment in relation to the States or Territories [proposed sub-paragraph 24MD(4)(b)(i)].

Harradine amendment (18) was made by the Senate and agreed to by the House of Representatives on 6 December 1997 but does not appear in the re-introduced Bill. Senator Harradine’s amendment related to proposed paragraph 24MD(2)(b) . As stated above, if an act passes the freehold test, the non-extinguishment principle applies unless the act is a compulsory acquisition which satisfies the criteria in proposed paragraphs 24MD(2)(a) & (b).(81) One of these criteria is that, in addition to the acquisition of native title rights, non-native title rights must also be acquired ‘whether compulsorily or otherwise.’ Senator Harradine’s amendment removed these words and substituted the word ‘compulsorily’ in their place. He explained the amendment in this way:

… it would be racially discriminatory to allow the compulsory acquisition of proven native title rights not for public purpose but simply for the grant of right of exclusive possession to a lessee who has voluntarily surrendered a non-exclusive tenure.(82)

Harradine amendment (21) was also passed by the Senate. Like Harradine amendment (18) it removes ‘(whether compulsorily or otherwise)’ and substitutes ‘compulsorily’—this time in relation to the extinguishment of native title by compulsory acquisiti on by acts affecting offshore places [ proposed paragraph 24NA(3)(b) ]. This Senate amendment was agreed to by the House of Representatives but is not contained in the re-introduced Bill.

Pastoral activities

What does the 1993 Act say about pastoral activities?

Under the NTA, the consent of native title holders would be required before diversification could be authorised on pastoral lease land.(83)

What does the 1997 Amendment Bill say about pastoral activities?

One purpose of the Bill’s provisions dealing with p rimary production activities is to ensure that ‘… acts which permit or require primary production, or activities incidental to primary production, can be validly done over non-exclusive agricultural or non-exclusive pastoral leases in force on 23 December 1996.’(84) Future act provisions—including the right to negotiate—which might otherwise apply to this expansion of leaseholder’s rights have no application under the Bill.

Primary production activities are defined in proposed section 24GA to include cultivation, forestry, horticulture, and aquaculture. Post- Wik acts which permit farmstay tourism can also occur on valid non-exclusive pastoral or agricultural leases if the lease was granted on or before 23 December 1996. This provision did not apply to an act permitting farmstay tourism involving the observation of indigenous activities or cultural works.

In its submission to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, the Commonwealth Government said of the primary production amendments (which include primary production and off-farm activities):

The management of pastoral leases remains a matter for the relevant State and Territory government, as it always has been. The effect of the NTA, once it became apparent that native title may continue to exist on pastoral leases, was to (unintentionally) prevent the States and Territories from fulfilling that management task by making the grant of future rights, and even activities, ‘impermissible’ under the NTA. The effect of Subdivision G is restricted to ensuring that these activities are not invalid under the NTA …(85)

Another view is:

Post-Wik acts permitting primary production and associated activities on pre-Wik ‘non-exclusive’ agricultural or pastoral leases (and their renewals) are valid and suppress co-existing native title for their duration. State governments may now authorise pastoralists to engage in those activities, even if the leases do not presently allow it. ... The ‘primary production’ amendments potentially expand the rights of people other than ‘non-exclusive’ agricultural and pastoral lessees. … A State government may grant a farmer the right to take water from nearby land subject to full native title, even though a farmer would not be granted such rights over neighbouring freehold (or even a neighbouring pastoral lease) except consensually by its owner. The only constraint on the grant of such rights is a requirement that the taking of water ‘does not prevent native title holders … from having reasonable access to the area’ … Native title is thus stereotyped as a set of rights to roam around land.(86)

For more detail on the primary production amendments, readers are referred to pages 20-22 of Bills Digest No. 51 of 1997-98.

Senate amendments

A number of amendments to the pastoral activities provisions were passed in the Senate. Government amendments (19)-(24), (24A) & (24B) are included in the re-introduced Bill. Amendments made in the Senate which were sponsored by the Opposition and by Se nator Harradine are not included.

Government amendments (19) & (20) replace the word ‘farmstay’ which originally appeared in proposed subsections 24GB(2) & (3) with the word ‘farm.’ ‘Farm tourism’ is not defined in the Bill. The Explanatory Memorandum says that the change is meant to emphasise that ‘paragraph 24GB(2)(b) is not confined to farmstay tourism but extends to any tourism that takes place in relation to a farm operation. ‘Farm tourism’ would include, for example, day tours of a farming operation, as well as overnight stays.’(87)

Government amendment (21) removes proposed subsection 24GB(4) as it appeared in the original Bill and replaces it. The effect of the replacement subsection is that a future act will not be valid if:

• as a result of the act , the majority of the area covered by a non-exclusive pastoral lease of more than 5,000 hectares would be used for non-pastoral purposes; or

• the act changes a non-exclusive pastoral lease or a non-exclusive agricultural lease to an exclusive lease or a freehold estate.

Government amendment (22) inserts proposed subsection 24GB(9) into the Bill. This proposed subsection requires relevant representative bodies, registered native title bodies corporate and registered native title claimants to be notified before a future act is done which permits horticulture, forestry or aquaculture or which permits agricultural activities on non-exclusive pastoral leases. They must also be given an opportunity to comment.

Government amendment (23) amends proposed paragraph 24GC(2)(a) . Proposed subsection 24GC(2) provides that a primary production activity or an activity incidental to primary production prevails over any native title rights and interests. Government amendment (23) inserts a point of clarification—that while these activities prevail over native title they do not extinguish it.

Government amendments (24), (24A) & (24B) amend provisions in the Bill permitting off-farm activities that are related to primary production. These provisions would enable Governments to give people with pre- Wik freeholds, agricultural or pastoral leases post- Wik rights to engage in off-farm activities on land adjoining or near to their holding.(88) Native title holders must not be prevented from having reasonable access to these adjoining areas [ proposed subparagraph 24GD(1)(e)(iv) ].

Government amendment (24) provides that the off-farm activities provisions do not apply when the future act is the grant of a lease or if it confers a right of exclusive possession [ proposed paragraph 24GD(1)(d) ]. In its original form, this paragraph only excluded the former.

Government amendment (24A) limits the kind of activities that a future act can permit under the off-farm activities provisions to grazing or activities relating to gaining access to, or taking water [ proposed paragraph 24GD(1)(e) ].

Government amendment (24B) inserts notification requirements that must be followed before a future act can be done which permits off-farm activities. Relevant representative bodies, native title bodies corporate and registered native title claimants must be notified and given an opportunity to comment [ proposed subsection 24GD(6)] .

Three other Senate amendments—one moved by the Opposition and two by Senator Harradine—were not accepted by the House of Representatives on 6 December 1997.

Opposition amendment (64) amended proposed section 24GE which deals with the granting of post- Wik rights to third parties on pre- Wik non-exclusive agricultural or pastoral leases. Rights which can be granted include rights to cut and remove timber, extract or remove gravel, quarry rocks, or remove sand, soil or other resources (although this cannot constitute mining). Future acts authorised by proposed section 24GE do not include the grant of a lease. Opposition amendment (64) provided that, in addition, future acts permitted by proposed section 24GE exclude the grant of a mining lease.

Harradine amendment (7) related to proposed section 24GB (future acts permitting primary production on non-exclusive agricultural and pastoral leases). This amendment provided that a future act permitting primary production on these types of lease could only occur if the future act could have been performed lawfully on the lease with or without permission prior to 23 December 1996. One commentator has remarked of this amendment:

[If the amendment does achieve its purpose], the effect … will depend on the particular laws in each State/Territory. In some States it will mean limited diversification is permitted without involving native title holders. In other States it appears to allow almost unlimited diversification without involving native title holders. However, this may be limited by the Government’s own amendment which restricts diversification under the primary production definition to 50% of the area of leases (for leases greater than 5,000 hectares).(89)

Harradine amendment (R9) related to the off-farm activities provision ( proposed section 24GD ). It provided that future acts permitting off-farm activities will not be valid if they take place on land which is the subject of a native title determination giving exclusive possession to the native title holders. It appears that Senator Harradine’s intention was to create equivalence between native title holders with rights of exclusive possession and freeholders (who would have to consent before such activities could occur on their land).

Access rights

What does the 1997 Amendment Bill say about access rights?

There is no provision for statutory access rights in the NTA. Under the Bill as originally introduced, registered native title claimants are given statutory access rights to non-exclu sive agricultural land and non-exclusive pastoral leases if a member of the native title claim group or a descendant of such a person had regular physical access to the area as at 23 December 1996 for the purpose of carrying out a traditional activity ( proposed section 44A ). Such rights are interim in nature and will exist pending the making of a native title determination. Under proposed section 44A , such access rights are subject to the rights of the lessee or any other person with non-native title rights. Proposed section 44F of the Bill provides that the NNTT or a recognised State/Territory body could be asked by anyone involved in a dispute about statutory access rights to mediate in that dispute.

Senate amendments

Government amendment (43) adds a note to the foot of proposed section 44F that confirms that Indigenous Land Use Agreements can deal with access and that assistance for making such agreements can be sought from the NNTT or a recognised State/Territory body.

In the Senate, other amendments to the access rights provisions were made but were rejected by the House of Representatives on 6 December 1997. For example, Senate amendment Opp(183)/Dems-GWA(151) omitted proposed section 44C from the Bill.

Proposed subsection 44C(1) provides that native title rights cannot be enforced by anyone in a native title claim group so long as statutory access rights continue in force. (90)Proposed subsection 44C(2) provides that rights conferred by the NTA are not affected by proposed subsection 44C(1).

In the Senate, Senator Minchin said that proposed section 44C is merely intended to ensure that all native title claim groups participate in Native Title Act claims processes.(91) However, this view was not taken by a majority of Senators. Concern was expressed that the provision would suspend common law rights and that it was discriminatory and constitutionally deficient because it did not provide compensation for the suspension if a native title determination was later made.(92)

A further amendment made by the Senate (Harradine R55) which was not agreed to by the House provided that, for the purposes of the requirement for regular physical access contained in proposed subsection 44A(3) , physical access would be deemed to be regular if access had been denied by an act of government or by the act of the lessee or someone acting on behalf of the lessee. Like Senate amendment (267) which relates to the registration test, this amendment addresses the situation of indigenous people being forced off their land and thus being unable to satisfy the requirement in the Bill for regular physical access. It was referred to by Senator Harradine as the ‘locked gate amendment’ or the ‘stolen generation amendment’.(93)

Use of reserved land

In relation to reserved land, Brennan J said in Mabo [No.2] that native title would survive the reservation of land for a public purpose. He said that whether subsequent use for that purpose extinguished native title depended on whether it was inconsistent with native title.

What does the 1993 Act say about reserved land?

Existing subsection 228(9) of the NTA defines as ‘past acts’ acts occurring after 1 January 1994 which are done under an earlier reservation enabling the land or waters to be used at a later time for a particular purpose—for example, a reservation for forestry purposes. The future act regime does not stand in the way of subsequent uses of land thus set aside. The crucial factor which brings a post-1993 act within the extended definition of a ‘past act’ is that the original reservation occurred before 1 January 1994.

What does the 1997 Amendment Bill say about reserved land?

The Bill provides that an act on native title land is valid ie development can occur, if it falls into one of 12 categories. For example, detailed provisions have bee n introduced to give effect to three types of Indigenous Land Use Agreement which can endow future acts with validity. Another category validates future acts on non-exclusive pastoral leases where they fall within the definition of primary production. Yet another category of future act which will be valid under the Bill, is an act which involves reservations, leases etc ( proposed Subdivision Q ).

Proposed Subdivision Q goes further than the present provisions of the NTA. It extends the definition of an earlier reservation to cover the intermediate period(94) and allows the later act to include legislative action. It also allows subsequent use for a different purpose where this would entail no greater impact on native title.

Under proposed Subdivision Q if the act which occurs is the construction or establishment of a public work, then native title is extinguished on the land or waters from the time the construction or establishment of the public work began. If the act is not a public work, then the non-extinguishment principle applies. Native title holders are entitled to compensation.

Senate amendments

Government amendment (26) which was passed by t he Senate is included in the re-introduced Bill. The amendment, which adds proposed subsection 24JB(6) , provides that if the future act consists of the construction or establishment of a public work, then prior to the act being done, notification must be given to any representative bodies, registered native title bodies corporate and registered native title claimants. There must also be an opportunity for them to comment on the act.

Renewals and extensions

This part of the Bill takes an existing category of validity for future acts and expands it so that a wider range of activities can be done on native title land by non-indigenous land users.

What does the 1993 Act say about renewals and extensions?

If a future act involves giving effect to a legally enfor ceable right—eg a right to renew a 21 year mining lease for another 21 years, which is written into the original lease—then the act is valid. The non-extinguishment principle applies and compensation is payable.(95)

Even where there is no legally enforceable right to renewal, the renewal, extension or re-grant of certain leases is guaranteed by a separate provision of the NTA. The ‘privileged’ tenures in question are commercial, agricultural, pastoral or residential leases. Restrictions apply, the most important of which is that the renewal cannot enlarge the nature of the original interest.(96)

What does the 1997 Amendment Bill say about renewals and extensions?

An outline of proposed Subdivision I dealing with renewals and extensions etc. can be found at pages 23-24 of Bills Digest No. 51 of 1997-98.

The Bill consolidates the NTA provisions into a single subdivision, but tilts the balance against native title interests in a number of ways including the following:

• it allows the renewal to convert a term lease to a perpetual one;

• it allows the renewed lease to run for a longer term than its predecessor 
lease;

• it permits the renewal of a pastoral or agricultural lease to expand the range of authorised activities to encompass full primary production;

• it includes rights to renewal etc created in the intermediate period (ie between early 1994 and late 1996).

A successful Government amendment in the Senate means that relevant indigenous parties must be notified before a government gives effect to a written offer to renew or extend under this provision. They will have an opportunity to comment. But the Explanatory Memorandum states that ‘failure to notify will not affect the validity of the future act’.(97)

Major issues of contention

The two Houses are divid ed over an amendment successfully moved in the Senate by Senator Harradine.(98) It denied governments the capacity to expand a term lease upon renewal to either a perpetual lease or a lease for a longer term without regard for native title consequences. Senator Harradine pointed out that the provision as amended provided certainty to pastoralists—they can renew their leases on identical terms to their current one without the need to negotiate. Unamended, he said the provision could effect long term suppression of native title and that constituted over-reach.(99) The Government sought to distinguish between the length of a lease and the terms and conditions of what is authorised under it.(100)

The Senate also voted to exclude mining renewals from this subdivision, so that they remain subject to the right to negotiate.(101) It was argued that impacts can substantially change over the life of a mine—in disturbance to the ground, the size of the workforce, changes in technology, consequent social and environmental impacts such as larger populations, liquor outlets and site destruction—and that the RTN was essential to protect indigenous interests. The House disagreed with this amendment—the Government’s position on mining renewals is set out above under the ‘Right to Negotiate’.

Facilities for services to the public

This is a category of future acts which have been taken out of the general coverage of the freehold test and placed in their own category where lesser procedural rights apply on non-exclusive tenures. Disagreement betw een the Houses centred on this recurrent question of assimilating or differentiating the procedural rights of native title holders and co-existing leaseholders—described by many as a question of formal versus substantive equality.

What does the 1993 Act say about facilities for services to the public?

The future construction, operation and repair of facilities like roads, railways, bridges etc on native title land is basically governed by the freehold test contained in subsection 23(6). In the face of such future acts, native title holders have the same procedural rights as freeholders. The non-extinguishment principle applies (except for compulsory acquisitions) and compensation is payable.

A precondition of validity under the NTA is government observance of the procedural rights provisions.

What does the 1997 Amendment Bill say about facilities for services to the public?

An outline of proposed Subdivision K dealing with facilities for services to the public can be found at pages 25-26 of Bills Digest No. 51 of 1997-98.

The proposed subdivision would validate future construction and repair of infrastructure by governments or anyone else if native title holders retain reasonable access and site protection laws apply. The procedural rights of a freeholder would apply on eg vacant Crown land but for non-exclusive tenures, the rights of a native title holder are limited to those possessed by the co-existing leaseholder.

Validity will flow from this subdivision regardless of whether governments comply with procedural rights in carrying out the act.

Major issues of contention

There was a major disagreement between the two Houses in this area, which related to procedural rights for native title holders confronted by such a proposed future act. The Senate voted that native title holders should enjoy the procedural rights of freeholders across the board—this would be the situation under the current Act. The House, however, insisted that where the land involved was a non-exclusive pastoral or agricultural lease, the rights should be the same as those of the leaseholder.

Non-Government Senators pointed out that native title holders hold an interest in land which is different to that held by leaseholders. Senator Harradine, for example, stated that:

The fact is that native title rights and interests have a deeper foundation, certainly in common law, than do the rights and interests of leaseholders under statute.(102)

In addition, Senator Cooney pointed out:

So if you have a pipeline going across the state, different Aboriginal groups are going to have different procedural rights, depending not upon their title but depending upon the title that other people have in the land.(103)

These viewpoints essentially adopt a substantive equality framework. The Government argues a for mal equality position—that co-existing titleholders should have the same procedural rights. Senator Minchin stated:

We think it is a fundamental matter of equity that if the land has a lease over it and the lessee has whatever procedural rights that pertain in respect of an electricity facility going across that land, then the native title holders must have the same procedural rights.(104)

The ALP, in addition, sought to make government compliance with procedural requirements a condition of validity but thi s amendment was defeated in the Senate.(105)

A number of other amendments were moved unsuccessfully in the Senate. They mainly related to heritage protection, notification and confining the proposed subdivision to existing facilities.

Management of water and air space

What does the 1993 Act say about the management of water and air space?

The existence and content of native title rights in relation to water on- and off-shore are currently being tested in the courts. These issues were not decided by Mabo [No.2] and were left to judicial determination by the NTA.(106)

However, section 212 of the NTA does enable the Commonwealth, the States and the Territories to confirm certain existing rights in relationship to natural resources and water and to confirm public access to waterways, beaches etc.(107) All the States and T erritories have enacted legislation which provides for the confirmations authorised by section 212.

The NTA also sets out how future acts affecting native title can take place over onshore waters. In brief, it gives native title holders the same procedural rights as would be held by a freeholder of adjoining or surrounding land. Unless such protections are accorded then the future act will not be permissible. There are fewer protections under the NTA in relation to the offshore. Any future act in relation to the offshore is a permissible future act. There is no right to negotiate in relation to the offshore—for example, no right to negotiate exists in relation to the grant of fishing licences. For a discussion of ‘Offshore Places’ see below.

What does the 1997 Amendment Bill say about the management of water and air space?

Point 8 of the 10 Point Plan states:

The ability of governments 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.(108)

Some commentators have taken a different view about the necessity for these changes:

These amendments are not necessary for the ‘management’ of water and airspace—governments already have complete control over the offshore. They have the same (non-discriminatory) control over onshore native title to water, and airspace over native title, as they have over waters adjacent to freehold and airspace above freehold. They have the same control over native title rights to fish as they have over other (landowner or public) rights to fish. All this amounts to considerable control. … the Bill’s provisions seek to secure governmental control and the titles it gives rise to, even in circumstances of racial discrimination .(109)

As stated above, native title rights over water are currently being tested before the courts. Even if native title is proved to exist in certain water, the Bill’s provisions would mean that future acts could validly occ ur without reference to native title holders other than entitling them to compensation.

Proposed section 24HA of the Bill deals with future legislative and non-legislative acts(110) relating to the management of surface and subterranean water, living aquatic resources or airspace. Such future acts are valid, the non-extinguishment principle applies and native title holders are entitled to compensation for the future act.

Senate amendments

The 1997 Amendment Bill did not contain notification provisions if no n-legislative acts such as the granting of leases or licences were done in relation to water, living aquatic resources or airspace.

Government amendment (25) inserts proposed subsection 24HA(7) into the Bill. This requires that before a non-legislative act is done notification must be given to relevant representative bodies, registered native title bodies corporate and registered native title claimants and they must be given an opportunity to comment on the proposed act.

Offshore places

Whether the common l aw will recognise native title in offshore areas is an issue currently before the Federal Court in the Croker Island case. The Native Title Act does not pre-empt that question but it does draw a distinction between offshore and onshore places. Generally speaking offshore native title rights enjoy less protection from future acts than those located onshore. Debate in the Senate focussed on what specific level of protection should apply.

What does the 1993 Act say about the offshore places?

The first point to make is that the right to negotiate does not apply to offshore future acts under the NTA. However, procedural rights apply if anyone who holds 'corresponding rights and interests’ enjoys procedural rights. The frequently mentioned example is a native title right to fish attracting the same procedural rights as the holder of a fishing licence.

Offshore compulsory acquisitions do not of themselves extinguish native title but consequent action may, and just terms compensation is payable. All other offshore future acts attract the non-extinguishment principle and again compensation is payable.

What does the 1997 Amendment Bill say about offshore places?

A description of proposed section 24NA can be found at page 29 of Bills Digest No. 51 of 1997-98. The Government has said that the proposed section reaffirms the current NTA situation and consolidates it in one section of the Bill to make it more ‘user-friendly’.(111)

In addition, the Government successfully moved four amendments in the Senate. The most significant one seeks to ensure non-discrimination between native title and other title holders in the practical application of compulsory acquisition legislation offshore.(112)

Major issues of contention

In the Senate, the minor parties proposed that the right to negotiate apply offshore,(113) the ALP proposed spelling out the minimum content of proc edural rights where the Act says they apply,(114) and the Government maintained a ‘no change’ position beyond their four Senate amendments referred to above.

Senator Harradine voted with the Government’s position, although he indicated some interest in the Opposition amendments.(115)

Miscellaneous

A number of amendments moved during the Senate debate were grouped under the heading ‘Miscellaneous’. Most of the successful ones were moved by the Government and were of a technical nature. Three non-Government amendments were passed by the Senate and toughened the criteria which ‘equivalent State/Territory bodies’ must satisfy before they can displace the National Native Title Tribunal under proposed section 207B .

What does the 1993 Act say about these miscellaneous matters?

There is no counterpart provision for proposed section 207B in the Act—existing section 251 of the NTA finds its parallel in the Bill at proposed section 207A . The section 207B checklist offers the States an extra opportunity which does not currently exist, to set up their own bodies and oust the federal tribunal.

What does the 1997 Amendment Bill say about these miscellaneous matters?

The checklist for equivalent State/Territory bodies is dealt with at page 62 of Bills Digest No. 51 of 1997-9 8.

Major issues of contention

Senator Harradine secured passage of an amendment which required States to have a member of the NNTT as a member of its equivalent body.(116) The House agreed to that amendment but it does not appear in the re-submitted Bill. Senator Harradine himself cast doubt on whether his amendment went far enough and secured the NNTT member against marginalisation by the State or Territory government. He asked Senator Minchin to consider this matter further.(117)

The Opposition failed in an attempt to guarantee the option for parties to go to a national body for mediation services and arbitrations under the RTN procedure.

The Senate passed two Greens (WA) amendments which required equivalent bodies to be subject to ADJR-style review and to offer its members no less security of tenure and independence from government than is provided to NNTT members.(118) The House disagreed with these two amendments.

The Greens, Democrats and Opposition also sought to delete items 31 to 33 of Schedule 1 to the Bill.(119) A primary objective was to stave off a dilution of the protection given to traditional activities in the face of licensing, permit and other regulatory schemes. The amendment was, however, defeated in the Senate.

Indigenous land use agreements

What does the 1993 Act say about agreements?

The NTA says little about the making of enforceable agreements about what can happen on native title land. Section 21 of the NTA makes provision for native title holders to make agreements with governments to surrender their native title rights and interests or to authorise any future act which will affect their native title. Such agreements may be given for any lawful consideration or subject to any conditions. Subsection 21(4) says that native title holders may make such agreements on a regional or local basis.

What does the 1997 Amendment Bill say about agreements?

The concept of ILUAs was developed in discussions by indigenous organisations with industry groups and incorporated into the Government’s amendment package. Many aspects of the ILUA amendments enjoy w idespread stakeholder support.

The Bill provides for three different types of ILUA. These are body corporate agreements, area agreements and alternative procedure agreements. An act done pursuant to an ILUA is one of the 12 categories of valid future acts set out in proposed section 24AA . An ILUA can, by consent, by-pass the right to negotiate process where it would otherwise apply.

When an ILUA is registered it has contractual effect on the parties to the agreement and also binds any native title holders in the area covered by the agreement. Registration provisions for ILUAs contained in the Bill set out requirements for notification and objection.

Among the matters that may be included in all three types of ILUA are the doing of future acts, the relationship between native title and non-native title rights and how those rights are to be exercised. Alternative procedure agreements cannot include provisions about the extinguishment of native title.

Readers are referred to pages 45-51 of Bills Digest No. 51 of 1997-98 for further information about the ILUA provisions.

Senate amendments

Four Government amendments (15)-(18) which were made by the Senate are included in the re-introduced Bill. Amendments (15), (16) & (18) alter provisions relating to body corporat e agreements, area agreements and alternative procedure agreements respectively.(120) They make clear that the parties to these agreements can agree to include procedural requirements about the doing of future acts.(121)

Government amendment (17) inserts subsection (4) into proposed section 24CK which deals with the registration of area agreements certified by representative bodies. The Registrar can only register an area agreement if certain conditions are fulfilled. It is possible for the Registrar to register an area agreement against which objections have been lodged but not withdrawn [ proposed paragraph 24CK(2)(c) ]. Government amendment (17) states that in making a decision in this circumstance, the Register must take into account information provided by the persons making the objection and by the representative bodies which certified the application and may take account of anything else.

Three Opposition amendments (48A)-(48C) were made by the Senate but were rejected by the House of Representatives. These amendments affected provisions relating to the coverage of body corporate agreements, area agreements and alternative procedure agreements(122) by providing that these agreements could cover past and intermediate period acts.

There was disagreement in the Senate about whether these amendments would impinge on the validation regime in the Bill.(123)

The Government’s view was that the amendments were inappropriate because they could produce unintended consequences and unnecessary because, by implication, provisions dealing with ILUAs already enabled agreements to be made about validated past acts, their effect on native title and about compensation.(124) The Government also said that the Opposition’s amendments were premised on it securing amendments which would undermine the validation regime.(125)

The Opposition argued, successfully, that the amendments would not affect the validation regime and that ILUAs could play a useful role with respect to past acts and intermediate period acts ‘… because they can provide not just a compensation regime but they can provide a very healthy alternative to a validation regime which people may want to contest, and they would contest it at common law.’(126) The Opposition also took the view that it was necessary to make it clear that ILUAs could cover past and intermediate period acts.(127)

Applications

What does the 1993 Act say about applications?

Under the NTA, the NNTT has the power to make determinations about the existence (or non-existence) of native title. This pow er can only be exercised where an application is unopposed or the parties agree. A determination is registrable in the Federal Court and enforceable as an order of the Court.

In the 1994 case of Brandy v. Human Rights and Equal Opportunity Commission , the High Court held that the provisions of the Racial Discrimination Act 1975 relating to the enforcement of determinations by the Human Rights and Equal Opportunity Commission were invalid. This invalidity occurred because the Act purported to make the Commission’s decisions binding and enforceable as orders of the Federal Court once registered by the Court. This, said the Court, infringed the doctrine of the separation of powers by reposing federal judicial power in an administrative body (the Commission).(128) It was widely assumed that the Brandy decision applied to a range of federal tribunals, including the NNTT. Recently, in Fourmile v. Selpam(129) , the Full Court of the Federal Court held that sections of the NTA which deal with the registration of NNTT determinations were indistinguishable from the scheme successfully challenged in Brandy .

What does the 1997 Amendment Bill say about applications?

The Bill repeals existing Pa rt 3 of the NTA and replaces it with provisions setting out rules for various applications to the Federal Court and the National Native Title Tribunal. The rules prescribe who may make applications, the content of applications, how applications can be amended, when they cannot be made, how they are brought to the notice of others, how overlapping claims are dealt with and what roles the NNTT must or may fulfil. Some of the amendments proposed in the Native Title Amendment Bill 1997 were a response to the High Court’s decision in Brandy v. Human Rights and Equal Opportunity Commission .

Like present section 62 of the NTA, proposed section 62 of the Bill sets out the information and other material that must accompany a claimant application. Under proposed section 62 , there are new categories of information and material which must be provided.

Further details about proposed section 62 can be found in Bills Digest No. 51 of 1997-98 at pages 54-55.

Senate amendments

Discussion in the Senate in 1997 about amendments grouped under the heading ‘Applications’ concerned the application process and what would provide a proper and fair process.(130) The Senate made three amendments, all of which are contained in the re-introduced Bill.

Under Government amendment (60) information that must accompany a claimant application will now include a description of any activities conducted in the exercise of the claimed native title rights and interests [ proposed paragraph 62(2)(d) ].

Under Opposition amendment (230) other information which may be contained in a claimant application includes the circumstances in which a claimant was denied access to the claimed area [ proposed subparagraph 62(1)(c)(ii) ]. Previously, this subparagraph referred both to the circumstances in which access was attempted and prevented.

Opposition amendment (239) relates to proposed section 66 (dealing with who must be notified of native title and compensation applications and how notification is to occur). As a result of Opposition amendment (239), the Native Title Registrar must give a copy of an application and certain other documents to relevant representative bodies as soon as is reasonably practicable [ proposed subsection 66(2A) ]. The Registrar is thus obliged to notify representative bodies in the same way that he or she is obliged to notify relevant State or Territory Ministers.

Heritage protection

What does the 1993 Act say about heritage protection?

The NTA does not contain a general set of provisions dealing with heritage protection.  The protection of s ites of significance is one of the criteria in section 39 by which an arbitral body is to determine whether a proposed future act should proceed. The same issue is referred to in the provision dealing with the expedited procedure.

What does the 1997 Amendment Bill say about heritage protection?

The Amendment Bill includes reference to site protection in three provisions excluding certain mining acts from the right to negotiate— proposed sections 26A, 26B and 26C . But again there is no general provision dealing with heritage protection in the Bill.

Major issues of contention

In the Senate, non-Government Senators moved amendments which would have put a floor of heritage protection under large parts of the expanded future act regime including subdivisions dealing with primary production, renewals and extensions, acts passing the freehold test and facilities for services to the public. The amendments essentially provided for notification and consultation on site protection as prerequisites of validity for various categories of future act.

The Government’s response was that heritage and native title are distinct matters and:

The proper place to deal with heritage issues is in heritage legislation. The proper place to deal with native title issues is in the Native Title Act.(131)

The amendments were defeat ed in the Senate.

Fast-tracking

Further amendments not passed by the Senate were moved by the Opposition and the Greens (WA). These amendments sought to fast-track native title claims on various land including Aboriginal reserves, national parks and conser vation reserves. It was proposed that representative bodies would perform fast-track functions—for example, identifying native title holders and indigenous people in the area. If the representative body was satisfied that the native title holders wanted a finding made in relation to the area, it would proceed to do so. It would also notify the Registrar. The Registrar would then notify the public and if there was no appeal against the finding, the finding would be entered onto the National Native Title Register as an approved determination. The Government argued that there were constitutional ( Brandy ) problems with the proposal.(132)

Representative bodies

Schedule 3 to the Bill contains detailed amendments relating to Native Title Representative Bodies. The most contentious questions are whether existing Representative Bodies should be required to undergo a process of re-recognition by the Minister, and what restrictions apply to sensitive documents when an investigator is appointed by the Minister to scrutinise the operation of a particular Representative Body.

What does the 1993 Act say about Representative Bodies?

Minimal guidance is given in Part 11 of the NTA about the operation and functions of Representative Bodies.

What does the 1997 Amendment Bill say about Representative Bodies?

By contrast, the Bill contains detailed provisions dealing with re-recognition, de-recognition, functions, finances, accountability and other matters. A detailed overview of the proposed changes, the background from which the y have emerged and some of the policy conflicts they have generated can be found at pages 63-71 of Bills Digest No. 51 of 1997-98.

A number of relatively minor Government and Opposition amendments were successfully moved in the Senate in December 1997. They dealt with such things as mediation, triennial funding, reporting requirements and protection of sensitive information in the context of an audit or investigation.

An Opposition amendment which offered protection for material the subject of privilege or copyright or the traditional knowledge of indigenous people was agreed to by the Senate and House, but has not been incorporated in the re-submitted Bill.(133)

Major issues of contention

Much of the Senate debate was devoted to the question whether, regar dless of current performance, existing Representative Bodies should be made to undergo a process for re-recognition. Senator Bolkus, for example, suggested that the broad discretion granted to a Minister on the issue of recognition created the potential for interference by the Government with organisations it may well be opposing in native title court proceedings. He also claimed it undermined self-determination and would divert resources to the re-recognition process and away from important representative body services to their constituents. He argued other representative organisations in receipt of government funding were not subject to the same potential for Ministerial intervention.(134)

Senator Minchin replied that Representative Bodies receive substantial taxpayer funding and that a re-recognition process would secure accountability and public confidence in the system.(135)

The Government has withdrawn its original support for an Opposition amendment which allowed resources to be taken into account when determining if a Representative Body had fulfilled its function of notifying native title parties.(136)

Endnotes

1. Referenc e given to the Joint Committee on 4 September 1997. The Committee reported on 27 October 1997.

2. Reference given to the Committee on 2 October 1997. The Committee reported on 10 November 1997.

3. Page 4.

4. There is some difference of opinion about whethe r the double dissolution trigger has been primed in relation to the Native Title Amendment Bill 1997. See, for example, Williams, G ‘The road to a double dissolution?’ Research Note No. 29 , 1997-98, Department of the Parliamentary Library. See also, various advices dated December 1997 and January 1998 from the Clerk of the Senate, Harry Evans.

5. (1995) 183 CLR 245.

6. (1996) 187 CLR 1.

7. See, for example, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report July 1995-June 1996 , AGPS, Canberra, 1996: 17-31.

8. Government amendment (42).

9. Government amendment (39).

10. Opposition amendment (113).

11. Harradine amendments (23), (34) and (35).

12. Opposition amendments (124) and (124A), Dems-GWA (106).

13. Second Reading Spe ech, Native Title Amendment Bill 1997 [No. 2]: 12.

14. Opposition amendments (R209) and (210).

15. Democrats-GWA amendment (126).

16. Opposition amendment (167).

17. Opposition amendments (134) and (170).

18. Harradine (31)/Opposition (178)/Dems-GWA (146).

19. Senator Dee Margetts, Senate, Official Hansard, 4 December 1997, 10412.

20. Senator Bob Collins, Senate, Official Hansard, 4 December 1997, 10415.

21. Senator Brian Harradine, Senate, Official Hansard, 5 December 1997, 10420.

22. Subsection 7(1) of th e NTA provides that ‘Nothing in this Act affects the operation of the Racial Discrimination Act 1975 .’ In Western Australia v. Commonwealth , the High Court said that subsection 7(1) did not mean that the NTA should be interpreted subject to the Racial Discrimination Act 1975 . Rather, it said, that both Acts ‘… emanate from the same legislature and must be construed so as to avoid absurdity and to give to each of the provisions a scope for operation ... The general provisions of the Racial Discrimination Act must yield to the specific provisions of the Native Title Act in order to allow those provisions a scope for operation.’ [(1993) 183 CLR 373 at 484].

23. Senator Nick Bolkus, Senate, Official Hansard, 5 December 1997, 10527.

24. Senator Nick Bolkus, Senat e, Official Hansard, 5 December 1997, 10536.

25. Senator Brian Harradine, Senate, Official Hansard, 5 December 1997, 10549.

26. Senator Dee Margetts, Senate, Official Hansard, 5 December 1997, 10534-5.

27. Senator Nick Minchin, Senate, Official Hansard, 5 December 1997, 10531-2.

28. See Senator Nick Minchin, Senate, Official Hansard, 1 December 1997, 9936.

29. See, for example, Senator Nick Bolkus, Senate, Official Hansard, 1 December 1997, 9938; Senator Brian Harradine, Senate, Official Hansard, 1 December 1997, 9946.

30. For example, in 1966, the Commonwealth Conciliation and Arbitration Commission acting on an application from the Northern Australian Workers Union removed discriminatory wage clauses from the Cattle Industry (NT) Award. See Gardiner-Garden, J ‘Aboriginality and Aboriginal Rights in Australia,’ in Mabo Papers , Department of the Parliamentary Library, AGPS, Canberra, 1994.

31. See, for example, Senator Dee Margetts, Senate, Official Hansard, 1 December 1997, 9943; Senator Brian Harradine, Senate, Official Hansard, 1 December 1997, 9946.

32. See, for example, Senator Dee Margetts, Senate, Official Hansard, 1 December 1997, 9943.

33. See Senator Nick Minchin, Senate, Official Hansard, 1 December 1997, 9947.

34. Senator Nick Bolkus, Senate, Offic ial Hansard, 1 December 1997, 9905.

35. Senator Nick Minchin, Senate, Official Hansard, 1 December 1997, 9907-8.

36. Senate, Official Hansard, 1 December 1997, 9905-6.

37. Senate, Official Hansard, 1 December 1997, 9908.

38. Section 110.

39. See Native Title Amendment (Tribunal Appointments) Act 1997 , No.170 of 1997.

40. Senator Brian Harradine, Senate, Official Hansard, 1 December 1997, 9917.

41. Senator Nick Minchin, Senate, Official Hansard, 1 December 1997, 9900.

42. See Senator Dee Margetts, Senate, Official Hansard, 1 December 1997,9902-3.

43. Opposition (242) & (247)-(249).

44. Clarke, J ‘The Native Title Amendment Bill 1997: a different order of uncertainty?’ Centre for Aboriginal Economic Policy Research, Discussion Paper No.144/97 .

45. Federal Court of Australia, 27 February 1998, unreported.

46. See Explanato ry Memorandum, Native Title Amendment Bill 1997, 41.

47. See, for example, Senate Legal and Constitutional Affairs Legislation Committee, Constitutional Aspects of the Native Title Amendment Bill 1997 , November 1997.

48. Senate Legal and Constitutional Legislation Committee, Constitutional Aspects of the Native Title Amendment Bill 1997 , November 1997, 39-42; 77-80.

49. Land or waters that, at any time before the act was done, was under freehold or leasehold or on which a public work was constructed.

50. Clarke, J ‘The Native Title Amendment Bill 1997: a different order of uncertainty?’ Centre for Aboriginal Economic Policy Research, Discussion Paper No.144/97 : 26; Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report July 1996-June 1997 , AGPS, Canberra, 1997: 158.

51. Senate Legal and Constitutional Legislation Committee, Constitutional Aspects of the Native Title Amendment Bill 1997 , November 1997, 40-42.

52. Senator Nick Minchin, Senate, Official Hansard, 4 December 1997, 1 0496.

53. Proposed section 23G.

54. Proposed section 237A.

55. Senator Nick Minchin, Senate, Official Hansard, 4 December 1997, 10507.

56. Senator Nick Bolkus, Senate, Official Hansard, 4 December 1997, 10508.

57. Senator Nick Bolkus, Senate, Official Hansard, 4 December 1997, 10516.

58. Senator Dee Margetts, Senate, Official Hansard, 4 December 1997, 10510.

59. Senate, Official Hansard, 4 December 1997, 10518.

60. Dem-GWA amendment re: proposed subsection 23B(9).

61. Government amendment (54).

62. Opposition amendment (216A) as amended by Government amendment (54A).

63. Harradine amendments (2), (3) and (4).

64. See for example Wik Peoples v Queensland (1996) 187 CLR 1 at 155 per Gaudron J and at 250 per Kirby J, and also Mabo v Queensland (No. 2) (1992) 175 CLR 1 at 111 per Deane and Gaudron JJ and cases cited there.

65. It amended the existing safety net provision in section 53 to affirm that the just terms requirement applies to future acts by State and Territory governments, not just those attributable to the Commonwealth.

66. Explanatory Memorandum, Native Title Amendment Bill 1997, 249.

67. Senator Nick Minchin, Senate, Official Hansard, 3 December 1997, 10240.

68. Native Title Amendment Bill 1997, Schedule 1 items 26A and 26B, and Schedule 5 Part 6A.

6 9. Opposition amendment (188).

70. Second Reading Speech, Native Title Amendment Bill 1997 [No. 2]: 17.

71. Opposition amendment (184) amends proposed section 44H so that grantees avoid compensation liability for activities authorised by their grant only w here they stay strictly within their legal entitlements.

72. Opposition amendment (192).

73. Senator Nick Minchin, Senate, Official Hansard, 3 December 1997, 10232.

74. Senator Nick Minchin, Senate, Official Hansard, 3 December 1997, 10239.

75. Proposed se ction 51A.

76. See Wik Peoples v Queensland (1996) 187 CLR 1 at 215 per Kirby J and Canadian and other cases cited there, and Mabo v Queensland (No. 2) (1992) 175 CLR 1 at 195 per Toohey J and cases discussed there.

77. See references in speech by Senator Nick Bolkus, Senate, Official Hansard, 3 December 1997, 10226.

78. Senator Nick Minchin, Senate, Official Hansard, 3 December 1997, 10231.

79. Ibid at 10235.

80. Note, however, that the right to negotiate applies to some compulsory acquisitions.

81. Or the act is one to which the right to negotiate applies.

82. Senator Brian Harradine, Senate, Official Hansard, 4 December 1997, 10483.

83. Clarke, J ‘The Native Title Amendment Bill 1997: a different order of uncertainty?’ Centre for Aboriginal Economic Policy Research, Discussion Paper No.144/97 , 2.

84. Explanatory Memorandum, Native Title Amendment Bill 1997, 101.

85. Commonwealth Government Submission on the Native Title Amendment Bill 1997 to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, 16 October 1997, 40.

86. Clarke, J ‘The Native Title Amendment Bill 1997: a different order of uncertainty?’ Centre for Aboriginal Economic Policy Research, Discussion Paper No.144/97 , 12.

87. Page 111.

88. Clarke, J ‘The Native Title Amendment Bill 1997: a different order of uncertainty?’ Centre for Aboriginal Economic Policy Research, Discussion Paper No.144/97.

89. Burke, P ‘The Native Title Amendment Bill: what happened in the Senate,’ indigenous Law Bulletin , 4(9), February 1998, 4-5.

90. Note, however, that any right provided under the NTA —for example, the right to negotiate—continues to operate.

91. Senate, Official Hansard, 4 December 1997, 10572.

92. Senator Nick Bolkus, Senate, Official Hansard, 4 December 1997, 10567.

93. Senate, Official Hansard, 4 December 1997, 10570.

94. That is, between 1 January 1994 and 23 December 1996.

95. NTA section 25.

96. NTA subsection 235(7).

97. Explanatory Memorandum, Native Title Amendment Bill 1997, 125.

98. Harradine amendment (14).

99. Senator Brian Harradine, Senate, Official Hansard, 4 December 1997, 10404.

100. Senator Nick Minchin, Senate, Official Hansard, 4 December 1997, 10404.

101. Opposition amendment (124A), see also (124).

102. Senator Brian Harradine, Senate, Official Hansard, 2 December 1997, 10153.

103. Senator Barney Cooney, Senate, Official Hansard, 2 December 1997, 10151.

104. Senator Nick Minchin, Senate, Official Hansard, 2 December 1997, 10150.

105. Opposition amendment (99).

106. The Yorta Yorta and Croker Island cases are currently before the courts.

107. Under section 212 of the NTA , a Commonwealth, State or Territory law may confirm existing Crown ownership of natural resources, existing Crown rights to use, control or regulate water flow, and that existing fishing access rights prevail over any other public or private fishing rights. The section also provides that a Commonwealth, State or Territory law can confirm existing public access to and enjoyment of waterways, beds, banks and foreshores or waters, coastal waters, beaches or area that were public places at a 31 December 1993. See McRae, H; Nettheim, G & Beacroft, L Indigenous Legal Issues. Commentary and Materials , 2 nd ed, LBC Information Services, Sydney, 1997.

108. See Senator Nick Minchin, Federal Government’s Response to the Wik Decision. The Ten Point Plan , 4 June 1997, 2.

109. Clarke, J The Native Title Amendment Bill 1997: a different order of certainty? Centre for Aboriginal Economic Policy Research, Discussion Paper No.144/1997, 13.

110. Non-legislative acts are the grant of leases, licences, permits or authorities under certain legislation [proposed subsection 24HA(2)].

111. Senator Nick Minchin, Senate, Official Hansard, 3 December 1997, 10206.

112. Government amendment (32).

113. Greens (WA) amendment (98).

114. Opposition am endments (108) and (110).

115. Senator Brian Harradine, Senate, Official Hansard, 3 December 1997, 10210.

116. Harradine amendment (56).

117. Senator Brian Harradine, Senate, Official Hansard, 3 December 1997, 10322.

118. Greens (WA) amendments (1) and (2).

119. Opposition amendment (165A).

120. These amendments amend proposed paragraphs 24BB(a), 24CB(a) & 24DB(a) respectively.

121. Senator Nick Minchin, Senate, Official Hansard, 28 November 1997, 9778.

122. Proposed sections 24BB, 24CB & 24DB respectively .

123. See, for example, Senate, Official Hansard, 28 November 1997, 9792.

124. Senator Nick Minchin, Senate, Official Hansard, 28 November 1997, 9794.

125. Senator Nick Minchin, Senate, Official Hansard, 28 November 1997, 9792.

126. Senator Nick Bolkus, Senate, Official Hansard, 28 November 1997, 9793.

127. Senator Nick Bolkus, Senate, Official Hansard, 28 November 1997, 9794.

128. The primary separation rule of the separation of powers doctrine mandates that the judicial power of the Commonwealth can only be exercised by a Chapter III court.

129. 13 February 1998, unreported.

130. See, for example, Senator Nick Minchin, Senate, Official Hansard, 28 November 1997, 9803; Senator Nick Bolkus, Senate, Official Hansard, 28 November 1997, 9800.

131. Senator Nick Minchin, Senate, Official Hansard, 3 December 1997, 10221.

132. Senator Nick Minchin, Senate, Official Hansard, 2 December 1997, 10158. The Opposition disagreed saying that the Registrar would be exercising administrative, not judicial functions—see Senator Nick Bolkus, Senate, Official Hansa rd, 2 December 1997, 10159.

133. Opposition amendment (312).

134. Senator Nick Bolkus, Senate, Official Hansard, 2 December 1997, 9997-10000, 10006-10008.

135. Senator Nick Minchin, Senate, Official Hansard, 2 December 1997, 9996, 10002.

136. Opposition am endment (332).

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