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Native Title Bill 1993
House: House of Representatives
Portfolio: Prime Minister and Cabinet
Commencement: Substantive provisions come into effect on the date fixed by Proclamation, or the date 9 months from the day on which the Act receives royal assent, whichever is the earlier.
The main purposes of the Bill are:
- to recognise and protect native title;
- to validate existing Commonwealth land titles where they may be invalid due to the existence of native title, and to allow States and Territories to validate their own titles;
- to establish procedures for determining claims to native title; and
- to establish procedures for dealing with native title land.
On 3 June 1992 the High Court handed down its judgment in Mabo v Queensland [No. 2]. 1 The Court noted that the common law has always recognised that native title to land held by indigenous peoples may survive the acquisition of sovereignty by a colonising power. A majority of six Justices rejected the fiction that Australia was terra nullius (i.e. land belonging to no one) at the time of settlement, and held that in the case of the Murray Islands, native title had survived up until the present day. It was also noted that as the same common law prevails throughout Australia, native title may also still exist on mainland Australia.
In their judgments, members of the High Court made observations on the nature of native title and how it may be extinguished. Briefly, native title is a continuation of the type of interests held in land before sovereignty was acquired by the Crown. The nature of native title therefore depends upon the traditional laws and customs of the Aboriginal group. These interests in the land may range from simple rights of access to land (similar to a licence) to rights to exclusive possession of land (which are similar in nature to freehold). The interest in the land will usually be a communal title, rather than an individual title. Another characteristic of native title is that because it is dependent upon traditional laws and the continuity of title existing at the time Australia was settled, it cannot be transferred to others outside the system of traditional law. It may, however, be surrendered to the Crown.
The acquisition of sovereignty over Australia by the Crown gave the Crown the power to make laws governing Australia, including laws which extinguish existing rights such as native title. Native title can be extinguished by:
(b) inconsistent Crown grant;
(c) inconsistent Crown reservation or dedication;
(d) surrender of native title to the Crown;
(e) abandonment of the land; or
(f) failure to maintain traditional laws and customs in relation to the land.
The method which has caused the most controversy is extinguishment by inconsistent Crown grant. It is clear from the judgments in Mabo that freehold and leasehold grants which give exclusive possession are totally inconsistent with continuing native title and therefore extinguish it completely. There is less certainty about some pastoral leases where reservations have been made in the leases in favour of Aboriginal people, and some mining interests where exclusive possession has not been granted. In these cases it is possible that native title may survive, to the extent that it is not inconsistent with the interests granted by the lease or mining tenement. In any event, once native title is extinguished, it cannot be revived at common law, even if the lease or interest which extinguished it later expires.
The extinguishment of native title has been constrained by the enactment of the Racial Discrimination Act 1975 which came into force on 31 October 1975. It prohibits discrimination based on race in relation to the holding of property. The High Court held in the earlier case of Mabo v Queensland [No. 1] 2 that it is a breach of the Racial Discrimination Act to extinguish native title without complying with the same procedures by which other titles may be extinguished when compulsorily acquired under State legislation. As the Racial Discrimination Act is a Commonwealth law, s. 109 of the Constitution provides that when there is inconsistency with a State law, the Commonwealth law will prevail, and the State law will be invalid. This led to doubt as to the status of existing land titles which have been granted by the Crown since October 1975 and purported to extinguish native title without the payment of compensation or the application of procedural fairness. Although the most likely result of any challenge to the validity of such land grants would be that a right to compensation would have accrued to the Aboriginal people whose native title was extinguished, some concern has been expressed that these land grants may be held completely invalid.
For a more detailed analysis of the Mabo decision and its consequences, see A guide through the Mabo maze 3 and for a chronology of the subsequent debate on the issue of native title see The Mabo debate - a chronology 4.
Outline of the structure of the Bill
The Bill is structured with the definitions at the back. A black edge shows where the definitions commence. As some of the definitions run for a number of pages, they have been broken up into separate sections. A useful table at the front of the definitions on pp. 92- 95 of the Bill sets out where all the definitions are to be found.
Part 2 of the Bill recognises and protects native title. Native title cannot be extinguished except in accordance with the Bill. Division 2 of Part 2 provides for the validation of existing titles to land. Titles granted by the Commonwealth are directly validated by the legislation if they would otherwise be invalid due to the existence of native title. The States and Territories are given the power to validate titles they have granted, without running foul of the Racial Discrimination Act 1975, but only if they comply with Commonwealth rules about extinguishment on native title, and the payment of compensation. Briefly, where freehold titles or commercial, agricultural, pastoral or residential leases are validated, all native title will be extinguished (unless it is preserved in a reservation). Where a mining lease is validated, native title will not have been extinguished, but aspects of it which are inconsistent with the mining lease will be suspended, and revive when the lease expires. Compensation for any extinguishment of native title will be payable by the Government which did the act which caused its extinguishment.
Division 3 of Part 2 sets out how acts affecting native title may be done in the future. Native title may be extinguished by its surrender to the Government in exchange for statutory title or other payment, or it may be compulsorily acquired, as long as certain conditions are met, including the payment of compensation on 'just terms'. Otherwise acts affecting native title will only be permitted if they could have been done in relation to freehold title. If the act is one relating to mining, then a negotiation procedure must be undertaken, under the control of the National Native Title Tribunal ('NNTT') or a recognised State or Territory arbitral body. If negotiations fail, the arbitral body can make a determination whether the act should proceed within a specified time period. The decision of the
arbitral body can be overridden by the Commonwealth Minister or if there is a recognised State or Territory body, then the State or Territory Minister may override the decision.
Division 5 of Part 2 sets out the rules for the payment of compensation, and Division 6 requires native title to be held by bodies corporate, rather than the traditional holders of native title.
Part 3 of the Bill sets out the procedure by which people can claim native title, and how it is to be determined. Once again, there is to be a mediation process, and if there is no agreement, then the determination is to be made by the Federal Court.
The rest of the Bill deals with the mechanics of setting up the Registrar and the National Native Title Tribunal, as well as the procedural aspects of hearings before the NNTT and the Federal Court. It also establishes registers, so a list of all people claiming native title is publicly available, as is a list of all determinations that native title exists.
Part 1 - Preliminary
Application of the Bill: The Bill is intended to have the broadest possible application throughout Australia. Proposed s. 5 states that it will bind the Crown in right of the Commonwealth, as well as all the States and Territories and Norfolk Island. Proposed s. 6 states that the Bill will apply to each external territory, to the coastal sea, and all the waters over which Australia claims sovereignty.
Effect on State and Territory laws: Proposed s. 7 notes that the proposed Act is not intended to affect State laws that can operate concurrently with the proposed Act, although it will, by virtue of s. 109 of the Constitution, render State laws which are inconsistent with the proposed Act invalid to the extent of that inconsistency.
Part 2 - Native Title
Division 1 - Recognition and protection of native title
Definition of native title: 'Native title' is defined in proposed s. 208. The vital elements of native title are as follows:
* Native title is a bundle of rights and interests.
* These rights and interests may be held communally, or by a group or individual.
* These rights and interests may be held in relation to land or waters, including seas, lakes, harbours, rivers, the sea bed and subsoil under the waters and the airspace above the waters (proposed s. 238).
* They are rights and interests possessed under the traditional laws and customs of the Aboriginal peoples or Torres Strait Islanders, which give them a connection with the land or waters.
* They must also be rights and interests recognised by the common law (as in the Mabo case).
This last requirement that the rights and interests be recognised by the common law, may be a limitation on other elements of the definition, particularly in relation to waters. The Mabo case did not determine whether native title could apply to waters, or the sea bed or the airspace above, as the claim to the territorial sea made by the Murray Islanders was dropped during the course of the case. Although, on the basis of common law precedent in other countries, it is likely that the common law would recognise some native title rights to waters, this may be limited to a right to use the waters for fishing and may not necessarily extend to the sea bed, subsoil or airspace.
Proposed s. 208(3) includes with the definition of 'native title', any native title rights and interests which have been compulsorily converted into or replaced by a statutory title (as is proposed in Western Australia). Hence, if the Western Australian Land (Titles and Traditional Usage) Bill 1993 were to become law, and was a valid law, then the statutory traditional usage title which will replace native title, will be given the same protection as native title under the Commonwealth proposed Native Title Act 1993.
Commonwealth laws v State laws: Section 109 of the Constitution provides:
When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
Proposed ss. 10 and 11 make use of this provision in order to override State laws which might seek to extinguish native title or otherwise affect it.
Proposed s. 10 states that native title cannot be 'extinguished contrary to this Act'. This means that if, after the Bill is enacted and comes into force, a State purported to extinguish native title, as is proposed under the Western Australian Land (Titles and Traditional Usage) Bill 1993, it would conflict with the Commonwealth legislation and therefore be invalid due to the effect of s. 109 of the Constitution.
A more controversial provision is to be found in proposed s. 11. It provides that, subject to the terms of the proposed Act, the common law in respect of native title has, after 30 June 1993, the force of a law of the Commonwealth. There appear to be two possible reasons for this provision. The first is to confer jurisdiction upon federal courts to deal with the common law, in so far as it relates to native title. This would give federal courts jurisdiction to determine that native title exists.
The second possible reason is that this is an attempt to give the common law relating to native title, priority over State legislation. The relevance of the phrase 'a law of the Commonwealth' is that, as noted above, s. 109 of the Constitution allows a 'law of the Commonwealth' to override inconsistent State laws. The retrospective application of the provision back to 30 June 1993 suggests that it may be intended to affect any legislation by a State Government which purports to extinguish or otherwise affect native title prior to this Bill coming into force. If effective, this would reverse the general legal principle that common law is subordinate to legislation.
However, the Commonwealth Parliament does not have the power to define the words of the Constitution in a certain manner. It is only the High Court which has the power to interpret the words of s. 109 of the Constitution, and the High Court may well consider that the common law is not a 'law of the Commonwealth', no matter what the Parliament intends. Therefore proposed s. 11 may be ineffective as an impediment on the powers of the States.
Division 2 - Past acts and native title
Subdivision A of Division 2 deals with acts attributable to the Commonwealth, while subdivision B deals with acts attributable to a State or Territory.
Validation of past acts: The only acts which will be validated by the Bill are those described as 'past acts'. 'Past acts' are defined in some detail in proposed s. 213. In summary, a 'past act' is any legislative act done before 1 July 1993, or any other act done before 1 January 1994, which apart from this Bill would be invalid due to the existence of native title. It also includes the future exercise of options, extensions or renewals in relation to grants which amounted to 'past acts'. Certain 'past acts' are excluded such as the Queensland Coast Islands Declaratory Act 1985 (which attempted to extinguish all native title in Queensland, and was held invalid by the High Court in Mabo v Queensland [No. 1]) or other acts listed in regulations.
Subdivision A - Acts attributable to the Commonwealth
Validation: Proposed s. 13 provides that past acts attributable to the Commonwealth are valid and are taken to have always been valid. It is a declaratory provision, which applies back to the time the act was done, in order to ensure that it has always been valid. It is not limited in any way to grants made after 31 October 1975 when the Racial Discrimination Act came into force. It also covers grants of land made before that date, such as the grants which are under challenge in the Wik case 5 in Cape York due to claims of a breach of fiduciary duty.
Proposed s. 13 only validates 'past acts' which are 'invalid to any extent, but ... would have been valid to that extent if the native title did not exist'. This means that if native title is currently co- existing with valid titles to land, such as pastoral leases, then because the title does not need validating, native title will not be extinguished. This is most important in relation to pastoral leases, and will therefore be discussed in greater detail in Subdivision B which deals with acts attributable to States or Territories, below.
Effects of validation: Proposed s. 14 sets out the effect of validation. The effect will be different depending on the category of the act. In the case of 'category A past acts' native title over the land is completely extinguished. 'Category A past acts' are defined in detail in proposed s. 214. Briefly, these acts cover the grant of freehold estates in land, commercial leases, agricultural leases, pastoral leases and residential leases, which were made before 1 January 1994, as long as the grant is not made by the Crown to itself, or under land rights legislation or otherwise in favour of Aboriginal and Torres Strait Islander peoples. Therefore, the validation of freehold or leasehold land previously granted under land rights legislation to people who would otherwise have held native title, will not extinguish any native title which has survived.
'Category B past acts' cover the grant of leases made before 1 January 1994 where the grant is not a category A past act and is not a mining lease. In the case of these leases, if they are inconsistent with the exercise of native title, they will only extinguish native title to the extent of the inconsistency.
'Category C past acts' are defined in s. 216 to be acts granting mining leases. A mining lease is defined in s. 230 as a lease that permits the lessee to use the land or waters covered by the lease solely or primarily for mining. Provision is made to dissect from the lease towns or other buildings which have been built as permanent fixtures. 'Category D past acts' pick up any acts not covered by the other three categories.
Proposed s. 14(d) provides that the 'non- extinguishment' principle applies to acts which fall within categories C and D. The 'non- extinguishment principle' is set out in s. 223. It basically provides that if the grant falling within category C or D is partially or wholly inconsistent with the enjoyment of native title, then native title continues to exist in its entirety, but the rights under native title cannot be exercised, to the extent of the inconsistency, during the duration of the grant.
Reservations: Proposed s. 15 provides that where the 'past act' (whether it be the making of legislation, or the granting of leases or licences) contains a reservation or condition in favour of Aboriginal peoples or Torres Strait Islanders, then that reservation or condition is not affected by any extinguishment under proposed s. 14.
Proposed s. 15 also provides that where Aboriginal peoples or Torres Strait Islanders hold rights (other than native title rights) in relation to the land, whether those rights be statutory, or exist at common law or equity, then the extinguishment which occurs as a result of validation, will not affect these rights.
Compensation: Proposed s. 16 provides that compensation is payable by the Commonwealth to native title holders when their native title has been extinguished due to a category A or B act. Compensation is to be determined upon 'just terms' under proposed s. 49. Compensation is also payable if a category C or D act could only have been done in relation to 'ordinary title' (i.e. freehold, or in the A.C.T. - leasehold) if compensation were paid.
Proposed s. 17 ensures that s. 51(xxxi) of the Constitution, (which provides that the Commonwealth can only acquire property on 'just terms'), is not breached if the compensation provisions in Division 5 of Part 2 of the Act are not sufficient to satisfy its terms. Proposed s. 17 provides that if a grant would have been held invalid by reason of breach of s. 51(xxxi) of the Constitution, and the compensation provisions in the Bill are not sufficient to satisfy the Constitution's requirements of 'just terms', then the Commonwealth must pay such additional compensation as is necessary. Proposed s. 51 appears to have the same effect. These provisions exist because it is beyond the power of the Parliament to validate an action which is unconstitutional. 6 It could, therefore, only ensure that 'just terms' were paid, in order to ensure the validity of any such act.
Subdivision B - Acts attributable to a State or Territory
Validation: Proposed s. 18 provides that a State or Territory may pass legislation to declare that its past acts are valid, and are to be taken always to have been valid, as long as its legislation has the same effect with regard to the extinguishment of native title as in proposed ss. 14- 15.
States and Territories can, of course, legislate on their own to validate their prior acts. However, if the source of the invalidity of those acts is the effect of a Commonwealth law, such as the Racial Discrimination Act, the State cannot legislate to override the effects of s. 109 of the Constitution. As noted above, it is unlikely that the High Court would hold that all grants of land which were made after 1975 and purported to extinguish native title, were invalid. It is more likely that the Court would hold that compensation, upon just terms, was owed to the native title holders, and that native title was extinguished. However, if the Court were to hold that the grants were invalid, due to the effect of s. 109 of the Constitution, it would be beyond the legislative competence of a State to validate its actions in order to escape the effects of the Constitution.
Proposed s. 18 would, however, effectively grant a complying State Government an exemption from the effect of the Racial Discrimination Act, allowing it to validate State titles to land. 7 Therefore, it is in the interests of State Governments to comply with proposed s. 18 in order to avoid the possible invalidity of titles in that State.
Validation and pastoral leases: Proposed s. 18 only allows a State or Territory to validate past titles if it complies with the terms of proposed ss. 14 and 15. As noted above, proposed ss. 14 and 15 allow for the validation of any pastoral lease which would otherwise have been invalid, and will extinguish all native title in relation to the leased land, except where a reservation is contained in the lease or legislation. Reservations apply in Western Australia, South Australia and the Northern Territory. Native title may continue to exist to the extent allowed by the reservation, and that native title will be protected in accordance with the terms of this Bill.
In the case of pastoral leases which were validly granted, there will be no extinguishment of native title. If, therefore, the common law provides that native title may co- exist with a pastoral lease to the extent that it is not inconsistent with the lease, 8 this Bill will act to preserve that native title rather than extinguish it. This may lead to the absurd result that it may be in the interests of a pastoralist to argue that his or her lease would otherwise be invalid, in order to ensure the extinguishment of all native title, through the validation process.
However, where a pastoral lease was validly granted and it contains a legally enforceable right to renew the lease, proposed s. 24 provides that the act of renewing the lease is valid. The provision all states that the 'non- extinguishment principle applies', so the renewal will not extinguish any existing native title, and compensation will be payable by the Government which granted the lease if the act could not have been done in relation to freehold land without the requirement of compensation.
Validation and mining leases: As noted above, the consequences of validating a mining lease is that native title is declared not to have been extinguished by the lease. However, it is likely that most mining leases will not be invalid, and therefore will not be subject to validation, and the consequences it brings. The High Court did not determine in the Mabo case whether a mining lease extinguishes native title, as there were no mining leases over the Murray Islands. It is possible that the Court would hold that some types of mining leases are inconsistent with the continued existence of native title, and therefore have extinguished native title, giving rise to a claim for compensation. As some miners may consider this a preferable outcome to that established by the Act, it is likely that cases will be brought before the High Court by miners arguing that their leases are not invalid (and therefore have not been validated by the legislation) and that native title has been completely extinguished in the area.
Proposed s. 24, as described above, would allow for the renewal of mining interests, where there is a legally enforceable right to renew, and provide for any resulting compensation.
Compensation: Proposed s. 19 sets out entitlements to compensation. It provides that if a State or Territory validates a past act attributable to it, in accordance with proposed s. 18, then it must pay compensation on the same basis as the Commonwealth must under proposed s. 16.
A more controversial provision is contained in proposed s. 19(2) which grants native title holders the right to compensation for a past act attributable to a State or Territory, even when that act has not been validated in accordance with s. 18. The compensation must be paid by the State or Territory. This means that Commonwealth legislation will effectively require State or Territory Governments to pay compensation to people to whom the Commonwealth legislation grants an entitlement. The constitutional validity of such a section, by which the Commonwealth imposes a financial liability on a State, may be questioned. It is anticipated that this issue will be discussed further in a forthcoming Current Issues Brief.
Division 3 - Dealings with native title in the future
Subdivision A - General (Acts which extinguish or affect native title)
Surrender of native title: Proposed s. 20 provides that native title holders may agree to surrender native title to the Commonwealth, a State or Territory, or authorise any future act which will affect native title. The agreement may be made in exchange for the grant of statutory title to land, compensation, or on any other terms or conditions agreed by the parties, as long as they are not illegal.
As noted above, one of the characteristics of native title is that it cannot be transferred, except in a way allowed by traditional law. Therefore an Aboriginal group could not sell off its rights to part of its traditional lands, or lease it, or deal with it in other profitable ways. This provision allows a group to surrender its native title in exchange for statutory title, which would give it greater freedom in dealing with the land.
Permissible and impermissible acts: Future acts affecting native title are to be divided into two categories: permissible future acts and impermissible future acts. Permissible future acts will be valid (proposed s. 22(2)) and impermissible future acts will be invalid to the extent that they affect native title (proposed s. 21). 'Impermissible future acts' are defined in proposed s. 221 as future acts which are not permissible acts.
'Future acts' are defined in proposed s. 218. In summary, they are legislative acts which took place from 1 July 1993 or any other act that takes place from 1 January 1994, which affect native title (except for validation legislation).
Permissible future acts are defined in proposed s. 220. Legislative acts in relation to land will be 'permissible future acts' if they apply to native title holders in the same way as they would if the native title holders held 'ordinary' (i.e. freehold) title. Non- legislative acts in relation to land will be permissible if the act could have been done in relation to the land if the native title holders held ordinary title to it.
The problem, however, with according native title a similar status to freehold land is that native title rights cover a wide spectrum of proprietary and non- proprietary rights. Some may well be the equivalent of freehold, but other native title rights will be far from it. While it is understandable that the Government seeks to set uniformly applicable standards, this could result in quite peculiar consequences. For example, if an act were to affect a pastoral lease, the holder of a native title right of mere access to the land must be treated in the same way as if he or she owns the freehold to the land, while the person holding the pastoral lease may theoretically be given lesser rights, as a mere lessee.
Other permissible future acts include future acts relating to offshore places, 'low impact future acts' (where the act does not have a significant impact on the land, and ceases to occur once native title is determined) or agreements under proposed s. 20 (which allows for the surrender of native title or other acts affecting native title).
Permissible future acts may only extinguish native title if they amount to a compulsory acquisition of property, otherwise the 'non- extinguishment principle' applies to all permissible future acts.
Compulsory acquisition: Proposed s. 22(3) provides that native title can be compulsorily acquired under a 'Compulsory Acquisition Act', resulting in its extinguishment. 'Compulsory Acquisition Act' is defined in proposed s. 238 to mean a law of the Commonwealth, a State or Territory, that provides for the compulsory acquisition of an interest in relation to land or water, and provides compensation for the acquisition of any native title rights and interests. It must also contain a provision which allows for non- monetary compensation.
This means that any State or Territory wishing to compulsorily acquire land or waters to which native title applies, must ensure that its legislation regulating the compulsory acquisition conforms with the Commonwealth requirements described above, or otherwise its purported extinguishment of native title will be an 'impermissible act' under proposed s. 21, and invalid to the extent that it affects native title.
Proposed s. 22(3)(b) further provides that if the Compulsory Acquisition Act does not provide compensation on 'just terms' to native title holders, then they are entitled to compensation in accordance with Division 5 of the Bill.
Other permissible future acts: Other permissible future acts would include the grant of a mining lease over native title land, where such a grant could have been made over freehold land. In such cases, proposed s. 22(4) provides that the 'non- extinguishment' principle applies. The 'non- extinguishment principle' is set out in proposed s. 223. It provides that where an act (such as the grant of a mining lease) affects native title, it nevertheless does not extinguish native title, in whole or in part. All that happens is that the enjoyment of native title is suspended to the extent of its inconsistency with the act. Once the act no longer has an effect (such as when a mining lease over the land expires) the native title can be enjoyed in full, once again.
Compensation for the effects of other permissible future acts: Proposed s. 22(4) provides that if compensation would have been payable had the act been done in relation to freehold land (or comparable interests in the sea), then compensation for the act must be paid in accordance with Division 5, regardless of whether compensation would otherwise have been payable in relation to an interest directly comparable to the particular native title interest. Native title owners are also to have the same procedural rights as if they held freehold title or corresponding rights over the sea.
Compensation is payable by the Commonwealth, State or Territory to which the act is attributable, unless the law provides that the person requesting that the act be done must pay for it (e.g. where the law requires the applicant for a mining lease to pay the compensation). Once again, Commonwealth legislation will be making the States and Territories liable to pay compensation.
Compensation is not payable in relation to 'low impact future acts'. Low impact acts are defined in proposed s. 219, and only relate to acts which take place before a determination is made that native title exists. They may not involve mining, the excavation or clearing of the land or waters, or construction on the land. It is possible that they may include exploration for minerals, where this does not amount to excavation or have a significant impact on the land or waters.
Acts dealing with land where native title has not yet been determined: Proposed s. 23 provides that where a non- claimant has sought a determination that an area is not subject to native title, and no one has applied to oppose the claim within 2 months, then future acts in relation to that area are valid, even if they would extinguish any native title. If, however, native title to that area was established, compensation would be payable under proposed s. 16 as if the act were a 'past act'.
Subdivision B - Right to negotiate
Application of Subdivision B: Subdivision B of Division 3 of Part 2 sets out the procedures relating to a right to negotiate in relation to certain permissible future acts. These acts are listed in proposed s. 25 and are basically acts in relation to mining and the compulsory acquisition of property where the purpose of the acquisition is to confer interests in the property on persons other than the Government.
Proposed s. 27 provides that where such acts are done before the negotiation process is undertaken, they will be invalid, unless there are no native title claimants, or there is agreement with native title holders or a determination has been made by an arbitral body or they are otherwise permitted by the Bill.
Recognition of State arbitral bodies:Proposed s. 26 provides that if a State or Territory establishes a 'recognised' arbitral body, then that body will have jurisdiction in relation to native title within that State or Territory, except where it affects Commonwealth places. A body will be 'recognised' by the Commonwealth Minister, after being submitted to him or her by the relevant State Minister, if it complies with the requirements set out in proposed s. 236(2).
The requirements are very detailed. The Commonwealth Minister must be satisfied of a number of things including that:
* the body's procedures under the State or Territory law will be consistent with those set out in this Bill;
* the body will have available to it appropriate expertise, including expertise in matters relating to Aboriginal peoples and Torres Strait Islanders;
* the body will have adequate resources to perform its functions in relation to native title;
* the State or Territory will consult with the Commonwealth Minister about non- judicial appointments to the body; and
* any other requirement that the Commonwealth Minister considers necessary will be satisfied.
A determination that a State or Territory body is 'recognised' for the purposes of this Bill will be a disallowable instrument (proposed s. 199), and may therefore be disallowed by either House of the Parliament within the relevant time period. Proposed s. 236(4) also provides that the Commonwealth Minister may revoke the recognition of a body if the Minister considers that it no longer meets the requirements of proposed s. 236(2). To do so, the Commonwealth Minister must give a written warning to the relevant State or Territory, and if after 90 days the Minister is still dissatisfied, the Minister may revoke recognition.
If a State or Territory does not have a recognised body, then the NNTT (National Native Title Tribunal) will exercise jurisdiction in relation to future acts proposed to be done by that State or Territory as well as proposed future acts of the Commonwealth.
Recognition of State laws: States and Territories may also make laws for negotiation and arbitration in relation to acts which will affect native title in the future. These laws will only apply if the Commonwealth Minister determines that they comply with the conditions set out in proposed s. 41(2). The list of conditions is also quite detailed, and covers all the essential aspects of the Commonwealth scheme, including the requirement of negotiation, the criteria for making a determination, and the payment of compensation.
If State or Territory laws do not meet these requirements, then the following Commonwealth law will apply.
Notification: Proposed s. 28 provides that the 'Government party' to the relevant act, (being either the Commonwealth, a State, or a Territory) must notify various persons of its intention to do the act, including any registered native title holders or claimants, affected Aboriginal or Torres Strait Islander bodies, any person who applied for the act to be done (such as a miner applying for a mining lease), the relevant arbitral body, and the public.
Normal negotiation procedure: Under this procedure, the Government party must give all native title parties the opportunity to make submissions regarding the act, and negotiate in good faith with the native title parties and the party requesting the act (such as a miner requesting the grant of a mining lease) with the aim of obtaining agreement about the doing of the act (proposed s. 30). The arbitral body may mediate among the parties if requested.
If agreement is reached, then a copy of the agreement must be lodged with the arbitral body (proposed s. 32).
Expedited procedure: The expedited procedure may be used if the act does not directly interfere with the community life, or sites of particular significance, of the holders of native title, or involve any major disturbance to the land (proposed s. 222).
The expedited procedure will apply if the Government, in giving notice of the act under proposed s. 28, states that the expedited procedure will apply (proposed s. 31(1)). Native title parties may lodge an objection to the use of the expedited procedure, and then the arbitral body will determine whether the act falls within the criteria set out in proposed s. 222, as noted above.
If the expedited procedure applies then the Government may do the act (proposed s. 31(2)). If it does not apply, negotiations under the normal procedure must be undertaken (proposed s. 31(5)).
Failure of negotiations: If negotiations do not result in agreement after 4 months in the case of exploration licences, or 6 months in any other case, then a party may apply to the arbitral body for a determination (proposed s. 33).
The arbitral body must try and make its determination within 4 months for exploration licences, or 6 months in other case, from the date of the application for its determination (proposed s. 34).
Determination by arbitral body: The arbitral body may determine that the act be done, or done subject to certain conditions, or not be done at all. The conditions stipulated by the arbitral body may not include the sharing of any profit from the act done, such as the profits from mining (proposed s. 36).
Proposed s. 37 sets out a list of things which the arbitral body must take into account in making its determination. These can be broken down into four categories:
(1) the effect of the act on native title and the way of life, culture, traditions, social and economic interests of native title holders, as well as their expressed wishes;
(2) findings of other bodies on the impact of the act on the environment;
(3) the economic significance of the act to Australia and to the State or Territory concerned; and
(4) the public interest in the act proceeding.
Proposed s. 37(2) provides that the Bill is not intended to affect Commonwealth, State or Territory legislation for the preservation or protection of sites of traditional significance.
Enforceability of conditions: Where an agreement or the determination of an arbitral body, stipulates that the act may only be done on certain terms or conditions, proposed s. 39 deems those terms and conditions to be part of a contract between the parties, and therefore enforceable at law.
Overruling determinations: If the arbitral body which makes a determination is a recognised State or Territory body, then the relevant State or Territory Minister has the power to overrule the determination in the interests of the State or Territory (proposed s. 40(1)).
If, however, the arbitral body is the NNTT (National Native Title Tribunal), then it is up to the Commonwealth Minister to determine whether the act is in the national interest, or in the interest of the State or Territory to which the act is attributable, in order to decide whether to overrule a determination (proposed s. 40(2)).
In either case, any declaration overruling a determination, or overruling it subject to certain conditions, must be made by the relevant Minister within 2 months of the making of the determination (proposed s. 40(4)). If compensation is a condition of the overruling of the determination, then the compensation must be determined by the arbitral body (proposed s. 40(5)).
Division 4 - Other provisions relating to native title
Compensation under the RDA: Proposed s. 43 provides that if compensation must be paid due to a breach of the Racial Discrimination Act 1975, the compensation is to be determined under proposed s. 48 of the Bill.
McArthur River: Proposed s. 44 provides that the non- extinguishment principle applies to mining leases and exploration licences validated in 1992 by legislation of the Northern Territory. This means that any native title that existed at the time those mining leases and exploration licences were granted, was not extinguished. The enjoyment of native title will be suspended to the extent that it is inconsistent with the leases or licences, but will be able to be exercised in full when the leases or licences expire.
Pastoral leases held by native title claimants: Proposed s. 45 sets out the agreement which came late in negotiations between Aborigines and the Federal Government. It allows Aboriginal people who have acquired pastoral leases over their traditional lands, to regain their native title, even though it may have otherwise been extinguished in the mean time by the grant of the pastoral lease or any other interest. For the purposes of determining whether native title exists in relation to the area, the intervening grant of a pastoral lease or any other interest is to be ignored. A determination that native title exists will not affect the validity of the lease, and the non- extinguishment principle will apply.
Division 5 - Compensation
This division sets out the principles upon which compensation is to be paid under the Bill.
No double- dipping: Proposed s. 47 provides that compensation is only payable once under this Bill, for acts of essentially the same nature.
State and Territory bodies: Where there is a recognised State or Territory body, and a law of the State or Territory confers on that body the power to determine compensation, that power is recognised by the Bill as long as the body is a court (proposed s. 48). The reason for this is that the Commonwealth cannot confer judicial power except upon a court recognised by Chapter III of the Constitution.
Otherwise, compensation claims are to be made to the Registrar of the NNTT under Part 3 of the Bill (see below).
General criteria for determining compensation: In general, compensation must be paid on just terms for any loss, diminution, impairment or other effect of the act on native title rights and interests (proposed s. 49(1)). Therefore, if the act in question only affects one aspect of native title, such as the right of access over land, compensation will only be payable for the loss of that right, rather than in relation to the value of the whole area of land.
Compensation for compulsory acquisitions: When the act is done under a Compulsory Acquisition Act, then compensation will be based on the criteria in that Act (although see proposed s. 22(3), discussed above, which requires the payment of just terms).
Compensation where similar compensable interest: If the act giving rise to the claim for compensation, is one which grants an interest which could have been granted over ordinary freehold land (such as a mining lease), then compensation is payable under the same principles which would govern payment where the act occurred in relation to freehold land (proposed ss. 49(3) and 225).
Once again, while this is most appropriate in cases where native title amounts to exclusive possession, there will be other cases where native title amounts to what is effectively a mere licence. Depending, of course, on the terms of the relevant legislation, it may be considered to be inequitable if compensation payable to native title holders who hold a mere licence to enter upon land is governed by the same principles as compensation to those who own the freehold title to the land.
Type of compensation: Compensation must be by payment of money, unless the person claiming compensation requests that all or part of it should consist of the transfer of property or the provision of goods or services (proposed s. 49(6)). The body which determines compensation must consider such a request, and may recommend that the party liable to pay compensation should provide it in the non- monetary form. If the non- monetary compensation is not provided within a specified period, in accordance with the recommendation, then the person claiming compensation may request the body to determine compensation by means of payment of money (proposed s. 49(7)).
Compensation held in trust: Any determination of compensation made by an arbitral body under the negotiation provisions of Division 3, which was not determined in accordance with Division 5, or under a Compulsory Acquisition Act, must be held in trust (proposed ss. 39(3) and 40(5)(b)).
Proposed s. 50 provides that the negotiated compensation which is held in trust may be paid back to the relevant Government if an approved determination is made that native title does not exist in the relevant area, or if the Government informs the trustee that it no longer wishes to do the act (proposed ss. 50 (1)(a), (b) and 50(2)).
If a determination is made that native title claimants do in fact hold native title, and the native title holders, through their body corporate, state that they would rather receive the negotiated sum held in trust than to proceed with a compensation claim, then the amount held in trust may be released to them (proposed ss. 50(1)(c) and 50(3))
If a determination is made under Division 5, or a Compulsory Acquisition Act, in relation to the act for which the compensation is already held in trust, then the trustee must pay to the native title holder so much of the trust money as is covered by the determination. The relevant Government is to pay any extra money necessary to make up the full amount of the determination, or is to be refunded any amount in excess of the determination (proposed s. 50(4)). Where the compensation determination involves non- monetary compensation, the trustee must apply to the Federal Court for a direction as to how to deal with the trust money (proposed s. 50(5)).
Source of compensation: Compensation payable by the Commonwealth is to be appropriated from the Consolidated Revenue Fund (proposed s. 52).
Division 6 - Bodies which may hold native title
Bodies corporate to hold native title: If the NNTT or the Federal Court determines that native title exists, it must also determine which prescribed body corporate is to hold the rights and interests which comprise native title (proposed s. 53). In doing so, it must ask the people who hold native title at common law to nominate a prescribed body corporate, and if no prescribed body corporate is nominated, then the NNTT or the Court must choose one. The prescribed body corporate will then hold the native title.
Regulations may prescribe the types of bodies corporate which can hold native title (proposed s. 53(4)). The regulations may also provide for the holding of native title on trust, or by a company whose shareholders hold the native title at common law, and may otherwise regulate the activities of prescribed bodies corporate.
This section effectively divests common law native title holders of their native title and passes it on to a body corporate which, although primarily comprised of the traditional title holders, is a separate body which will deal with the native title in its own way, subject to heavy government regulation of its activities. Although this provision would give greater certainty to those who wish to deal with the holders of native title, it may well be considered by Aboriginal people as fracturing their legal link with the land which has survived since before the settlement of Australia.
Compensation to be paid to bodies corporate: Proposed s. 54 provides that any compensation made in accordance with Division 5 must be paid to the body corporate which must deal with it in accordance with the regulations.
Part 3 - The determination of native title
Division 1 - Native title and compensation applications
Applications for the determination of native title: Proposed s. 12(1) provides that an application may be made to the Native Title Registrar (established under Part 8 of the Act) for a determination of native title in relation to an area. Proposed s. 55 provides that the application may be brought by:
* persons claiming to hold native title over the area;
* a person who holds another type of interest in relation to the whole of the area;
* the Commonwealth Minister; or
* the relevant State or Territory Minister, if the area is wholly within the jurisdictional limits of the State or Territory.
Applications for a variation or revocation of a determination of native title: Proposed s. 12 also provides that an application may be made to the Registrar to revoke or vary an approved determination of native title. The application can be made by:
* the registered native title holder;
* the Commonwealth Minister;
* the relevant State or Territory Minister, if the area is wholly within the jurisdictional limits of the State or Territory; or
* the Native Title Registrar.
Grounds for variation or revocation, listed in proposed s. 12(5), are that events have taken place since the determination which have caused it to be no longer correct, or that the interests of justice require the variation or revocation of the determination.
Applications for compensation: As noted earlier, proposed s. 48(2) provides for applications to be made to the Registrar for a determination of compensation. Proposed s. 55 provides that such an application may be made by:
* the registered native title holder (if any); or
* persons claiming to be entitled to the compensation.
Evidence which must accompany claims: Proposed s. 56 provides that a person making a claim of native title must include with the claim a declaration that they have searched all relevant land registers as well as the National Native Title Register, and that they still believe that their native title has not been extinguished.
The regulations may also list any documents which must be provided with an application, as well as any fees which must be paid upon application (proposed s. 56(2)).
Acceptance or rejection of applications by the Registrar: If an application complies with all the requirements of proposed ss. 55 and 56, then proposed s. 57(1) provides that the Registrar must accept it unless the Registrar considers that:
(1) native title over the area claimed has already been extinguished;
(2) any part of the area is already covered by an entry in the National Native Title Register;
(3) the application does not contain sufficient information about any physical connection with the land, as required by the common law;
(4) the geographical boundaries of the area are not sufficiently described; or
(5) the application is frivolous or vexatious.
A rejection of an application by the Registrar must be confirmed by a presidential member of the NNTT (proposed s. 57(2)).
Consequences of acceptance by the Registrar: Once the application is accepted, the Registrar must register it on the Register of Native Title Claims (if it is a claim for a determination of native title) and give notice of it to all persons whose interests may be affected by it (proposed s. 59(1)(a)). This notice must be given to:
* any registered native title claimant or holder in relation to the area;
* the Commonwealth Minister;
* the State or Territory Minister, if the area is within the jurisdictional limits of the State or Territory;
* any representative Aboriginal or Torres Strait Islander body for any of the area; and
* the public.
The notice must point out that persons wanting to be a party in relation to the application must notify the Registrar within 2 months from the date of notice (proposed s. 59(3)).
Applications by non- claimants: Applications by non- claimants for a determination that native title does not exist will be taken as being unopposed unless a claimant applies for a native title determination in relation to part or all of that land within 2 months of notice (proposed ss. 59(3) and (4)).
If an application is made by a native title claimant and it is accepted by the Registrar, the application by the non- claimant is taken to have been dismissed (proposed s. 60(2)).
Parties to an application: The parties to an application are the applicant and any other person notified under proposed s. 59(2)(a) or whose interests may be affected, and who notifies the Registrar in writing that he or she wants to be a party.
A presidential member of the NNTT has the power to decide whether a persons rights may be affected (proposed s. 62).
Unopposed applications: Where an application is unopposed, the NNTT may make a determination consistent with the terms sought by the applicant, if the NNTT is satisfied that the applicant has made out a prima facie case and the NNTT considers it to be just and equitable in all the circumstances (proposed s. 63).
Agreement by parties to an application: If the parties to an application reach an agreement as to the terms of a determination, the NNTT must make a determination consistent with the terms of the agreement, as long as it is within the NNTT's power, the applicant has made out a prima facie case, and the determination would be just and equitable in all the circumstances (proposed s. 64).
Mediation: If no determination is made under proposed ss. 63 or 64 (because the claim was opposed and there was no agreement between the parties), the President of the NNTT must direct the holding of a conference, presided over by a member of the NNTT, to attempt to resolve the matter (proposed s. 65).
Agreement after mediation: If the parties reach agreement after mediation, then the NNTT must make a determination in terms consistent with the agreement as long as the applicant has made out a prima facie case and it is just and equitable in the circumstances (proposed s. 66).
Other applications referred to Federal Court: If a determination is not made under any of the above circumstances, the application must be referred to the Federal Court for decision. It should be noted that there does not appear to be any stipulated time period for the mediation process, so it is uncertain how long it would take from the point of notification of a claim to the time that it would be referred to the Federal Court.
Division 2 - 'Right to negotiate' applications
'Right to negotiate' applications: This division deals with applications objecting to the use of the expedited process under proposed s. 31, and applications for a determination in relation to future acts affecting native title under proposed s. 33.
Material and fees accompanying application: The regulations will set out what information, documents and fees must accompany the application (proposed ss. 68 and 69).
Consequences of application: Proposed s. 70 provides that the Registrar must accept the application if it complies with proposed ss. 68 and 69. The procedure to be followed is set out in Subdivision B of Division 3 of Part 2, and is noted above.
Division 3 - Miscellaneous
Assistance to potential applicants: The Registrar may assist people prepare applications and the necessary accompanying material and may conduct searches or provide research services (proposed s. 71).
Requests for non- monetary compensation: If during negotiations (such as during the course of mediation), a request is made for non- monetary compensation, the other parties must consider the request and negotiate about it in good faith (proposed s. 72).
Part 4 - Determinations of the Federal Court
Division 1 - General
Application of Part: As noted above, when the mediation process under Part 3 of the Act fails, proposed s. 67 requires applications to be lodged with the Federal Court. This Part applies to Court proceedings dealing with those applications (proposed s. 73).
Jurisdiction: The Federal Court has jurisdiction to hear and determine applications referred to it under proposed s. 67, and that jurisdiction is exclusive of all other courts (including State courts) except for the High Court (proposed s. 74).
The Federal Court's approach: Proposed s. 75 provides that the aim of the Federal Court must be to ensure that its proceedings are 'fair, just, economical, informal and prompt'. The Court is to take into account the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, and is not to be bound by technicalities or rules of evidence. The Court may also receive into evidence and draw conclusions of facts from transcripts of evidence before other bodies (proposed s. 79).
Assessors: The Court is to be assisted by assessors, who will be subject to the control of the Court, but who cannot exercise any judicial power (proposed s. 76). The assessors will be appointed according to proposed amendments to the Federal Court Act 1976, discussed in Part 12 below.
Representation: Parties may appear in person, or may be represented by a barrister, solicitor or another person (proposed s. 78).
Agreement between parties: If agreement is reached by the parties at any stage during the proceedings, the Court may make an order consistent with the agreement, as long as it is within the Court's power, and the Court considers that it is equitable and just to do so, and that the applicant has made out a prima facie case (proposed s. 80).
Division 2 - Conferences
Court may order conference: The Federal Court may direct a conference of the parties to be held in order to resolve a matter relevant to the proceedings. The conference is to be presided over by the assessor (proposed s. 81).
Conferences to be held in public: Conferences are normally to be held in public, although where the assessor considers it is appropriate, a conference may be held in private. In making this decision, the assessor is to have due regard to the cultural and customary concerns of the Aboriginal peoples and Torres Strait Islanders (proposed s. 84).
Disclosure of evidence: The Federal Court may order that evidence given to an assessor must not be disclosed (proposed s. 85).
Conference proceedings: The assessor may take evidence on oath or affirmation, and may apply to the Federal Court for an order to summon a person to give evidence. Parties may call witnesses, who may be examined and cross- examined (with the leave of the assessor). People may also participate in conferences by means of telephone or other means of communication (proposed s. 86).
Division 3 - Orders
Order for compensation: If the Federal Court makes an order for compensation, it must set out the body corporate, or the persons entitled to the compensation, the method for determining the amount or kind of compensation, and the method for determining any dispute about entitlement to the compensation (proposed s. 87).
Part 5 - Native Title Registrar
Appointment of Registrar: The Registrar of the NNTT is to be appointed by the Governor- General, upon the nomination of the President of the NNTT (proposed s. 88). The Registrar must be a legal practitioner who has been admitted for at least five years.
Powers of the Registrar: The Registrar is to have power to do all things necessary to assist the President of the NNTT in the administrative running of the NNTT (proposed s. 89).
The Registrar also has all the power set out in Part 3, which relate to the acceptance and rejection of applications for native title, and their registration (Part 3 and proposed s. 90).
The Registrar also has powers in relation to the registers of native title and native title claims, as set out in Parts 7 and 8.
Terms and conditions: Terms and conditions of appointment are set out in proposed ss. 93- 96. The Registrar is to be appointed for a term of five years, which can be renewed. Remuneration is to be determined by the Remuneration Tribunal.
Termination of appointment: Proposed s. 97 provides that the Registrar's appointment may be terminated by reason of his or her misbehaviour, incapacity, bankruptcy, absence from duty without leave, engagement in paid employment contrary to proposed s. 98, or failure to disclose pecuniary interests, contrary to proposed s. 99.
Outside employment: The Registrar cannot engage in other paid employment except with the consent of the President of the NNTT.
Disclosure of interests: The Registrar must disclose to the President all direct or indirect pecuniary interests in any business.
Part 6 - National Native Title Tribunal ('NNTT')
Division 1 - Establishment
Establishment: The NNTT is established by proposed s. 100.
Functions: Its functions are those already described in Part 3 in relation to mediation and the registration of unopposed claims and agreed claims. It also has further functions of undertaking inquiries and making determinations under Division 5 of Part 6, which are discussed below.
The NNTT may carry out research, including research into the history of property interests in land and waters, anthropology and linguistics, in order to assist it carry out its other functions (proposed s. 101).
NNTT's approach: Like the Federal Court, the NNTT must try to carry out its objectives in a 'fair, just, economical, informal and prompt way', and must take into account the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders. The NNTT is not to be bound by technicalities or rules of evidence (proposed s. 102).
Division 2 - Membership of the NNTT
Membership: The NNTT is to be comprised of 'presidential members', who are to be judges of the Federal Court, or former judges, and non- presidential members. Proposed s. 103 provides that non- presidential members must be either:
(a) people who have special knowledge in relation to:
(i) Aboriginal or Torres Strait Islander societies; or
(ii) land management; or
(iii) dispute resolution; or
(iv) other substantially relevant matters; or
(b) assessors; or
(c) members of recognised State or Territory bodies.
Appointment of members: Members are to be appointed by the Governor- General, and may be either full- time or part- time members (proposed s. 104).
Terms and conditions of appointment: Terms and conditions are set out in proposed ss. 107- 111. Appointments are to be made for a term not longer than 5 years, but members are eligible for reappointment. Remuneration is to be set by the Remuneration Tribunal.
Suspension of non- judge members: The Governor- General may suspend from office a member, (other than a judge), on the ground of misbehaviour or incapacity. The reasons for suspension must be laid before each House of Parliament. If within 15 sitting days, both Houses pass a resolution declaring that the member's appointment shall be terminated, the Governor- General must do so. If a House does not pass such a resolution within 15 sitting days, the suspension terminates (proposed s. 113).
Termination of appointment of non- judges: The Governor- General may terminate the appointment of a member who is not a judge or an assessor if the Governor- General receives an address from both Houses of Parliament requesting the termination of the member's appointment on grounds of proved misbehaviour or physical or mental incapacity (proposed s. 112(1)). The Governor- General must terminate the appointment of a member, (who is not a judge or an assessor), who becomes bankrupt (proposed s. 112(2)).
Outside employment: A full- time member may not engage in other paid employment without the consent of the Commonwealth Minister (proposed s. 114).
Disclosure of interests: Proposed s. 115 provides that members must disclose conflicts of interest, and if there is a conflict, they must have the consent of the parties if they continue to take part in the inquiry.
Division 3 - Organisation of the NNTT
Proposed ss. 116 - 120 deal with arrangement of business, places of sittings, presiding members and the constitution of the NNTT. The NNTT is to be constituted either by one member, or three members. Where possible, one of the three members should have special knowledge in relation to Aboriginal and Torres Strait Islander societies (proposed s. 117).
Division 4 - Management of the NNTT
Division 4 confers responsibilities on the President and the Registrar in relation to the management of the NNTT (proposed ss. 121- 122). Proposed s. 123 provides for the appointment of Deputy Registrars and the employment of staff. Proposed s. 125 provides that consultants may be engaged.
Proposed ss. 126 - 129 provide that annual reports be made, that proper accounts and records be kept and that the NNTT be audited by the Auditor- General annually.
Division 5 - Inquiries and determinations by the Tribunal
Special inquiries: The Commonwealth Minister may direct the Tribunal to hold an inquiry into matters relating to native title (proposed s. 130).
Other inquiries: Proposed s. 132 provides that the NNTT must hold an inquiry into unopposed applications (under proposed ss. 63- 64), objections to the use of expedited procedures and applications for a determination in relation to a future act (under proposed s. 68).
Submissions and representations: The NNTT is to ensure that all parties are given a reasonable opportunity to present their cases (proposed s. 135). A party may appear in person or be represented by a barrister, solicitor or another person (proposed s. 136).
Determination of questions: Questions of law must be decided by the member presiding, and other questions must be decided by a majority, or failing a majority, the opinion of the presiding member will prevail (proposed s. 137).
Reference of questions of law to Federal Court: The NNTT may refer a question of law to the Federal Court for decision, and the Court has jurisdiction to hear and determine it (proposed s. 138).
Evidence in other proceedings: The NNTT may receive into evidence transcripts of evidence in proceedings before other bodies, and draw conclusions of fact from them (proposed s. 139).
Frivolous or vexatious proceedings: The NNTT may dismiss an application at any stage of an inquiry if it is satisfied that it is frivolous or vexatious.
No prima facie case: The Tribunal may dismiss an application if it is satisfied that the applicant is unable to make out a prima facie case.
Conferences: The President of the NNTT may direct that the parties hold a conference to resolve a question. The conference is to be presided over by an officer of the NNTT. Statements made at the conference cannot be used later in a hearing of the NNTT unless the parties agree (proposed s. 142).
Hearings: The NNTT must hold hearings in relation to its inquiry (proposed s. 143). Parties to an inquiry have the right to appear (proposed s. 144). The NNTT may also allow participation by telephone or other means of communication (proposed s. 145).
Public inquiries: Inquiries are to be held in public except where the NNTT considers it appropriate to hold an inquiry in private, taking into account cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders (proposed s. 146).
Disclosure of evidence: The NNTT may direct that evidence must not be disclosed, or restrict its disclosure (proposed s. 147).
Powers to take evidence: The NNTT may take evidence on oath, and has the power to summon witnesses to give evidence and produce documents. Parties may call witnesses, who may be examined, and if leave is granted, they may be cross- examined (proposed s. 148).
Determinations in relation to native title claims: Proposed s. 152 provides that after holding an inquiry in relation to an application under proposed s. 55 for a determination of native title, the revocation or variation of such a determination, or an application for compensation, the NNTT must make a determination. The determination must state any findings of fact upon which it is based (proposed s. 152). Proposed s. 157 provides that such a determination is not binding or conclusive, but may be registered in the Federal Court as noted below.
Determination about compensation: If the NNTT determines that compensation is payable, then it must set out in the determination the body corporate or persons to which the compensation must be paid, the method of determining the amount, and the method for determining any dispute (proposed s. 153). Once again, such a determination is not binding or conclusive, but may be registered in the Federal Court (proposed s. 157).
Determination re 'right to negotiate' applications: In the case of inquiries about whether the expedited process should apply, or whether a future act should go ahead under Subdivision 3B of Part 2, the NNTT must made a determination which sets out the findings of fact upon which it is based (proposed s. 154). These determinations are binding and conclusive (proposed s. 157), but an appeal on a question of law may be heard by the Federal Court (proposed s. 161(1)).
Reports after special inquiries: The NNTT must make a report after holding a special inquiry, which includes any findings of fact on which the report is based (proposed s. 155).
Registration of determinations with Federal Court: Where a determination of native title, or a revised determination of native title, or an order for compensation is made for acts affecting native title, then the determination must be lodged and registered in the Registry of the Federal Court (proposed s. 158). Once it is registered, a determination will have effect as if it were an order made by the Federal Court (proposed s. 159).
Review of determinations: A party to the inquiry, or a person whose interests are affected by the determination, may apply within 28 days of its registration for a review of the determination. The Court may grant a party leave to apply for a review after the 28 day period has expired, but only in exceptional circumstances. The determination may not be enforced during this 28 day period, or during the course of a review (proposed s. 159).
Once an application for review is made, the Court may review all issues of fact and law, but a party cannot provide new evidence unless the Court gives leave. The provisions of Part 4, which deal generally with Federal Court hearings are to apply generally to reviews of NNTT determinations (proposed s. 160).
Appeals from the Registrar's decision not to accept a claim: Where a person's application to the Registrar under proposed s. 55 has been rejected by the Registrar and a presidential member of the NNTT, the person may appeal to the Federal Court on a question of fact or law (proposed s. 161(2)).
Appeals from decisions re parties: Where a person's application to be a party to a proceeding has been rejected by the NNTT on the basis that the person will not be affected by the determination, the person may appeal to the Federal Court on matters of fact or law (proposed s. 161(3)).
When appeals to be instituted: Appeals under proposed s. 161 must be instituted within 28 days of the decision or determination appealed from.
Jurisdiction of Federal Court: The Federal Court has the jurisdiction to hear and determine the appeals, and make such orders as are appropriate (proposed ss. 161(5) and (6)).
Operation of decisions subject to appeal: The fact that the decision is under appeal does not affect its operation or implementation unless the Court decides otherwise (proposed s. 162).
Division 6 - Offences
Proposed ss. 163- 169 provide that it is an offence to:
* fail to attend the NNTT when summoned;
* refuse to be sworn or to answer questions as required by the NNTT;
* give false or misleading evidence to the NNTT;
* refuse to produce a document required by summons;
* provide a false or misleading document;
* contravene a direction prohibiting the disclosure of evidence; or
* do any act which would constitute contempt if the NNTT were a court.
Each offence is punishable with imprisonment for 3 months.
Division 7 - Miscellaneous
Protection of persons giving evidence: Members of the NNTT, counsel and witnesses are all subject to the same protection, immunity and liabilities as they would have if the proceedings were held in the High Court (proposed s. 172).
Assistance in proceedings: Proposed s. 175 provides that a person who is a party to proceedings before the NNTT or the Federal Court (under this proposed Act) may apply to the Attorney- General for assistance. The Attorney- General may authorise the provision of assistance to the Applicant, subject to such conditions as the Attorney- General determines, if the Attorney- General is satisfied that:
(a) the applicant is not eligible to receive assistance from another source; and
(b) to refuse the application will involve hardship to the applicant; and
(c) any guidelines created by the Attorney- General regarding the grant of assistance have been met; and
(d) it is reasonable, in the circumstances, to provide the assistance.
Assistance under this proposed section may not be given to Commonwealth Ministers.
Part 7 - Register of Native Title Claims
Part 7 provides the mechanical details for the keeping of a Register of Native Title claims. Proposed s. 179 provides that the Register may be inspected by the public upon the payment of a prescribed fee.
Proposed s. 180 provides that part of the register may be kept confidential, to protect the names and addresses of persons claiming to hold native title, or for other reasons where it would not be in the public interest to include the information in the Register.
Provision is also made in proposed s. 181 for liaison with the High Court Registrar in relation to claims made to the High Court.
Part 8 - National Native Title Register
This register is to contain records of land or water over which native title has actually been determined, and details of the determination.
Proposed s. 186 provides that the register is to be available for public inspection for a prescribed fee. Once again, parts of the register may be kept confidential in the public interest (proposed s. 187).
The Registrar is to notify the relevant land titles office of any determination of native title affecting land within that jurisdiction (proposed s. 191).
Part 9 - National Aboriginal and Torres Strait Islander Land Fund
Establishment: The fund is to be established by proposed s. 192(1).
Purpose of fund: The purpose of the fund is to assist Aboriginal peoples and Torres Strait Islanders to acquire land and manage the acquired land in a way that gives them economic, environment, social and cultural benefits (proposed s. 192(2)).
Operation of fund: The way the fund operates will be determined by regulations (proposed s. 192(3)).
Part 10 - Representative Aboriginal/Torres Strait Islander Bodies
Determination: The Commonwealth Minister may determine that a body is a 'representative Aboriginal/Torres Strait Islander body' for a specified area. The determination will be a disallowable instrument (proposed s. 199). More than one body in an area is possible. The criteria on which the Minister's determination is to be made include that the body is broadly representative of the Aboriginal peoples or Torres Strait Islanders in the area and that the body satisfactorily performs its functions (proposed ss. 193(1), (2) and (3)).
Functions of body: Proposed s. 193(4) provides that the functions of the body may include:
(a) facilitating the research, preparation and making of claims for native title or compensation;
(b) assisting the resolution of disagreements about claims; and
(c) representing individuals or groups in negotiations and proceedings.
Financial assistance to the body: The Commonwealth may grant legal or financial assistance to enable a body to perform its functions (proposed s. 194).
Part 11 - Miscellaneous
Unconstitutionality of provisions: Proposed s. 195 provides that if a proposed section could be interpreted as having both an unconstitutional and a constitutional effect, it is the intention of Parliament that the constitutional effect prevails, rather than having the entire provision struck down as invalid.
The aim of the provision is to encourage the High Court to 'read down' provisions which are unconstitutional in order to give them some sort of effect. It is a general principle of statutory interpretation that the courts will always attempt to give a provision a valid meaning, but in some cases it is not possible to 'read down' a provision without the court 're- writing' it, and in these cases it is doubtful that such a provision as this would have any effect.
Operation of certain land rights laws: Proposed s. 196 provides that this Bill is not to affect any rights or interests under the following Commonwealth legislation:
(a) the Aboriginal Land Grant (Jervis Bay Territory) Act 1986; or
(b) the Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987; or
(c) the Aboriginal Land Rights (Northern Territory) Act 1976.
Ownership of natural resources: Proposed s. 197(1) provides that the Commonwealth, a State or Territory may confirm existing ownership of natural resources by the Crown, existing rights to use, control and regulate the flow of water and that existing fishing access rights prevail over other public or private fishing rights.
Access to beaches and coast: Proposed s. 197(2) provides that the Commonwealth, a State or Territory may pass laws to confirm any existing public access to and enjoyment of:
(b) beds and banks or foreshores of rivers;
(c) coastal waters;
(d) beaches; or
(e) areas that were public places at the end of 31 December 1993.
Confirmation will not extinguish native title rights and interests in these areas.
Regulations: Proposed s. 200 sets out the general regulation- making power.
Part 12 - Amendment of Acts
Division 1 - Amendment of the Federal Court Act 1976
Proposed ss. 201- 204 provide that the Federal Court Act 1976 is to be amended by the addition of Part VA, which deals with the appointment of assessors, their terms and conditions of appointment, and the termination of appointments. The rules are similar to those in relation to members of the NNTT.
Assessors are to be appointed by the Governor- General on a full- time or part- time basis. As far as practicable, assessors are to be selected from Aboriginal peoples or Torres Strait Islanders. They must have special knowledge in relation to:
(a) Aboriginal or Torres Strait Islander societies; or
(b) land management; or
(c) dispute resolution; or
(d) any other relevant matter.
Division 2 - Amendment of other Acts
Cross- vesting legislation: Proposed s. 205 is to amend the Jurisdiction of Courts (Cross- vesting) Act 1987 to ensure that cases which can be heard in the Federal Court under this Bill cannot be heard in State Courts (by virtue of the cross- vesting of jurisdiction). State bodies will only have jurisdiction in relation to native title if they are recognised under the Bill.
Ownership of petroleum: Proposed s. 206(1) provides that the Petroleum (Submerged Lands) Act 1967 is to be amended to provide that when petroleum is recovered it is not subject to any rights of any person other than the person who holds the permit, licence or lease to extract it. This amendment applies retrospectively to ensure that no claim can be made to petroleum by people who hold the native title to the area from which it was extracted (proposed s. 206(3)).
Ownership of minerals: Proposed s. 206(2) provides that the Minerals (Submerged Lands) Act is to be amended to confirm that minerals become the property of the person with a permit or licence who extracted it, and that the minerals are not subject to any rights of other persons. Once again, the provision applies retrospectively to all minerals recovered before the commencement of the proposed section.
1. (1992) 175 CLR 1.
2. (1988) 166 CLR 186.
3. Twomey, A., Parliamentary Research Service Background Paper No. 15, 1993.
4. Gardiner- Garden, J., Parliamentary Research Service Background Paper No. 23, 1993.
5. The Wik peoples v Queensland, The Commonwealth, and others, lodged in the Federal Court of Australia.
6. University of Wollongong v Metwally (1984) 158 CLR 447.
7. For political reasons, the Bill does not directly suspend the Racial Discrimination Act 1975 in order to allow the validation of past titles. Instead, it is claimed in the preamble, that the entire Bill is a 'special measure' for the purposes of the Racial Discrimination Act 1975, and therefore the validation of titles does not breach the Act. Whether this face- saving measure would actually stand up to scrutiny by a court is debateable. It is anticipated that this issue will be discussed further in a forthcoming Current Issues Brief.
8. This has not yet been directly determined by a court. A majority of four justices in Mabo v Queensland [No. 2] considered that leases on the islands of Dauer and Waier extinguished all native title, even though there were reservations in the leases which allowed the Murray Islanders to continue to farm the land. However, it has been argued by some academics that pastoral leases may not necessarily be completely inconsistent with native title, and that therefore native title may, in some cases, co- exist with pastoral leases.
Anne Twomey (Ph. 06 2772432)
Bills Digest Service 23 November 1993
Parliamentary Research Service
This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Commonwealth of Australia 1993.
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Published by the Department of the Parliamentary Library, 1993.