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Native Title Amendment Bill 1997 [No. 2]

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1996-97 -98

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

THE HOUSE OF REPRESENTATIVES

 

 

 

 

NATIVE TITLE AMENDMENT BILL 1997

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of the Prime Minister

The Honourable John Howard, MP)

 



 

Glossary ................................................................................................................. iii

Part 1    Introduction

1          Overview of the Bill (including 1997 Senate amendments)............................ 3

2          How the Bill implements the 10 Point Plan.................................................. 19

3          Background to the Bill................................................................................ 23

Part 2    Intermediate period acts

4          Validation of intermediate period acts........................................................ 35

Part 3    Confirmation of past extinguishment of native title

5          Confirmation of past extinguishment of native title..................................... 53

Part 4    Future acts and activities

6          Future acts - general................................................................................... 71

7          Validity of future acts done under indigenous land use agreements........... 79

8          Validity of future acts where procedures indicate an absence of native title 93

9          Future acts and primary production......................................................... 101

10        Future acts and management of water and airspace................................. 115

11        Future acts and renewals and extensions of leases etc............................. 119

12        Future acts and reservations, leases etc.................................................... 127

13        Future acts and facilities for services to the public................................... 133

14        Low impact future acts.............................................................................. 139

15        Future acts passing the freehold test......................................................... 143

16        Future acts affecting offshore places........................................................ 151

17        Access rights for native title claimants...................................................... 157

Part 5    The right to negotiate

18        Overview of the right to negotiate............................................................. 167

19        Future acts covered by the right to negotiate provisions........................... 175

20        The right to negotiate processes................................................................ 191

21        State or Territory alternatives to the right to negotiate processes............. 219

Part 6    Registration of indigenous land use agreements

22        Procedures for registration of indigenous land use agreements............... 229

23        The Register of Indigenous Land Use Agreements.................................... 241

Part 7    Miscellaneous amendments relating to native title

24        Miscellaneous amendments relating to native title..................................... 247

Part 8    Management of claims

25        Applications.............................................................................................. 261

26        Operation of the Federal Court................................................................ 279

27        Operation of the National Native Title Tribunal........................................ 287

28        Mediations................................................................................................ 297

29        Registration test and registration procedures........................................... 303

30        Definitions relating to management of claims............................................ 313

31        Amendments to other Acts.......................................................................... 317

32        Miscellaneous amendments relating to management of claims.................. 319

Part 9    Representative Aboriginal/Torres Strait Islander bodies

33        Representative bodies - initial amendments............................................... 325

34        Representative bodies - later amendments................................................. 343

Part 10 Application and transitional

35        Application and transitional arrangements............................................... 381

Part 11 Scheduled interests

36           Scheduled Interests ................................................................................... 401

Index                                                                                                                     415



 

The following acronyms and abbreviations are used in this Explanatory Memorandum:

ATSIC                            Aboriginal and Torres Strait Islander Commission

HREOC                         Human Rights and Equal Opportunity Commission

ILUA                              Indigenous land use agreement

NTA                               Native Title Act 1993

NNTT                             National Native Title Tribunal

Recognised body           Recognised State/Territory body

Representative body     Representative Aboriginal/Torres Strait Islander body



 

 

 

 

 

 

Part 1

 

 

Introduction

 

 

 

 



Introduction

1.1          This Explanatory Memorandum for the Native Title Amendment Bill 1997 provides an explanation of the clauses in that Bill and the items in its Schedules.  To assist the reader of the Bill to understand more clearly how various provisions will operate and inter-relate once enacted, the explanations are grouped by topic into parts and chapters, with an index at the end setting out where the explanation for each clause and item is located.

1.2          Chapter 2 explains how the amendments in this Bill implement the Government’s 10 Point Plan in response to the High Court’s decision in the Wik [1] case.  Chapter 3 describes the background to these amendments, including a summary of the existing Native Title Act 1993 (the NTA) and the Wik decision Chapter 3 also explains the effect of the High Court’s decision in the Brandy [2] case and the Full Federal Court decision in the Fourmile [3] case and the need for amendments to the functions and powers of the National Native Title Tribunal (the NNTT) and the Federal Court.  Chapter 3 explains the background to the amendments in Schedule 3 dealing with representative Aboriginal/Torres Strait Islander bodies.

The history of the Bill in the Parliament

1.3       The Native Title Amendment Bill 1997 was introduced into House of Representatives on 4 September 1997.  It was passed by the House on 29 October and was considered in the Senate between 25 November and 5 December.  The Senate made 217 amendments to the Bill (see Schedule of amendments made by the Senate prepared by the Clerk of the Senate dated 5 December 1997) and passed the Bill as amended.  The House of Representatives considered the Bill on 6 December 1997.  Of the 217 amendments made by the Senate, 100 Government amendments and 25 non-Government amendments were agreed to by the House of Representatives on that day.  The House disagreed with the balance of amendments.  The House then laid the Bill aside.

1.4       Most amendments agreed to by the House of Representatives on 6 December 1997 have been incorporated in the Bill (for a list of amendments incorporated into the Bill see paragraph 1.27).  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.

Overview of amendments in the Native Title Amendment Bill 1997

Amendments relating to acts affecting native title

1.5          Schedule 1 of the Bill deals with amendments relating to acts affecting native title etc (explained in Chapters 4 to 24).  The amendments in this Schedule all concern the interaction between native title rights and interests and other rights and interests in land or waters.  The amendments deal with the effect of certain acts done on or before 23 December 1996 (the date of the High Court’s decision in Wik ) by:

·       validating certain acts in the intermediate period between the commencement of the NTA (1 January 1994) and 23 December 1996 (see Chapter 4);

·       confirming the total or partial extinguishment of native title by certain acts occurring on or before 23 December 1996 (as part of the confirmation process, Schedule 4 of the Bill will list certain interests in land or waters that will be confirmed as extinguishing native title) (see Chapter 5).

1.6          As well as dealing with the effect of actions in the past on native title, the amendments in Schedule 1 establish a much more comprehensive regime for the validity of acts occurring in the future which affect native title.  Among other matters, the new future act regime covers:

·       agreements about the use of land affected by native title (see Chapters 7, 22 and 23);

·       primary production activities (see Chapter 9);

·       the regulation and management of water and airspace (see Chapter 10);

·       renewals and extensions of leases etc. (see Chapter 11);

·       acts in areas that have been reserved or otherwise set aside for a particular purpose (see Chapter 12)

·       facilities for the delivery of services to the public (see Chapter 13);

·       low impact future acts (see Chapter 14);

·       acts which can be done in relation to ordinary title, generally freehold, and can therefore also be done in relation to native title (the freehold test) (see Chapter 15);

·       acts affecting offshore places (see Chapter 16);

·       the right to negotiate process for certain future acts covered by the freehold test (mainly those relating to mining and some types of compulsory acquisitions) (see Chapters 18, 19, 20 and 21); and

·       statutory access rights on certain leased land for native title claimants pending the determination of their claims (see Chapter 17).

Amendments relating to the management of claims

1.7          Schedule 2 of the Bill deals with amendments relating to processes for determining native title, compensation, etc. (explained in Chapters 25 to 32).  These amendments explain how applications concerning native title issues are to be made and dealt with by the Federal Court, the NNTT and State or Territory bodies which have been approved under the Native Title Act 1993 in relation to applications about native title matters.  Schedule 2 also contains amendments to the way in which the Register of Native Title Claims and the National Native Title Register are to be kept, and in particular, the new registration test that is to be applied to claims for native title.  Registration of a claim is a precondition for access to certain statutory rights, such as the right to negotiate and statutory access rights.

Amendments relating to representative Aboriginal/Torres Strait Islander bodies

1.8          Schedule 3 deals with amendments relating to representative Aboriginal/Torres Strait Islander bodies (explained in Chapters 33 and 34).  The amendments in this Schedule are divided into two parts, with differing commencement dates, to facilitate the transition from the current system for recognising and regulating representative bodies to the new system established by the amendments.  As well as detailing the functions that are to be performed by representative bodies in relation to native title matters, the new system deals in a comprehensive manner with the selection, funding, accountability and administration of representative bodies.  The amendments will ensure that a consistently high standard of service is provided to native title clients, that the Commonwealth Minister retains overall strategic control of representative body performance and that their accountability is in line with standards applying to other Commonwealth funded bodies.

List of Scheduled interests

1.9       Schedule 4 to the Bill contains new Schedule 1 to the NTA, which is referred to in the definition of ‘Scheduled interest’ in new section 249C.  The completed Schedule was added to the Bill in the House of Representatives.

1.10     The Schedule contains types of leases and other interests the grant of which the relevant State or Territory, and the Commonwealth, consider, on the basis of the common law, have conferred exclusive possession on the grantee and have therefore extinguished native title.  The Schedule principally contains specific types of residential, commercial, community purpose and agricultural leases.  The Government’s policy is to ensure certainty with regard to those interests in the Schedule, as set out in the confirmation provisions (see Chapter 5).

Application and transitional measures

1.11        The application and transitional provisions are contained in Schedule 5 and are explained in Chapter 35.  The provisions in this Schedule explain how the new future acts processes will apply to processes already underway when the amendments commence, what will happen to applications already made to the NNTT and the Federal Court and how the new registration test will apply to claims already on the Register of Native Title Claims.  The transitional and application provisions also explain how certain other amendments made by the Bill will apply to things done or events occurring before and after the amendments commence.

Clauses in the Native Title Amendment Bill 1997

Short title

1.12        Clause 1 explains that the short title of the Act will be the Native Title Amendment Act 1997. The short title is the name by which the Bill will be known and cited when it is enacted.

Commencement

1.13        Clause 2 explains when the provisions of the Bill and its Schedules will commence, that is, when they become law.

Sections 1, 2 and 3

1.14        Sections 1, 2 and 3 will take effect upon Royal Assent.

Part 1 of Schedule 3

1.15        The commencement date for Part 1 of Schedule 3 will be fixed by proclamation.  If the Part has not been proclaimed to commence at the end of 9 months from Royal Assent, it will commence on the first day after that 9 month period expires.  Schedule 3 contains amendments relating to representative bodies, and is explained in Chapters 33 and 34.  There will be a transition period between the commencement of the provisions in Part 1 and the commencement of those in Part 2, which will assist the transition from the current system for recognising and regulating representative bodies to the new system.  The transition period will begin on the date that Part 1 of Schedule 3 commences and will end when Part 2 of that Schedule commences.

Part 2 of Schedule 3

1.16        To ensure that the transition period is sufficiently long to enable necessary preparatory work to be completed before the new system begins, Part 2 of Schedule 3 will commence either 12 months after Part 1, or on a later date to be fixed by Proclamation.  Such a proclamation would enable the transition period to extend beyond the 12 period from the commencement of Part 1 should this prove to be necessary, but the proclamation must be made before that 12 month period expires.

Remaining provisions

1.17        The remaining provisions in the Bill, which are the contents of Schedules 1, 2, 4 and 5, will commence when they are proclaimed.  Different proclamations may be made for different provisions.  If a provision has not been proclaimed to commence at the end of 9 months after Royal Assent, it will commence on the first day after that 9 month period expires.

Schedule(s )

1.18        Clause 3 explains how the Schedules operate to amend other Acts.  It makes it clear that those Acts are amended by the items in the Schedules in the way set out in those items.  Items which do not amend other Acts, for example, the items in Schedule 5 which deal with the application of amendments or transitional arrangements, have the effect set out in those items.

Constitutional basis

1.19        The High Court held in Western Australia v Commonwealth (1995) 183 CLR 373 that the NTA was supported by paragraph 51(xxvi) of the Constitution.  Legal advice to the Government is that, on the basis of existing authority, the Bill is clearly supported by that power.  Other powers may also be relevant.

Financial Impact Statement

1.20        In the 1997-98 Budget, the Government provided additional funding for the Federal Court and the NNTT in anticipation of increased workload and responsibilities flowing from the proposed procedural amendments contained in the Native Title Amendment Bill 1996.  This Bill includes those amendments, introduces additional procedural enhancements and imposes new functions and duties on the NNTT.  These additional items will also have financial implications for the Federal Court and the NNTT and any additional funding will be considered in the Budget context.  If equivalent bodies are established by the States and Territories under Part 12A and are given some of the duties of the NNTT, the financial implications may be lessened.

1.21        Removing the ‘hardship’ test for the provision of financial assistance to native title respondents under section 183 of the NTA is likely to result in more grants to respondents.  In particular, additional funding will be made available to put pastoral respondents on an equal footing with claimants in relation to financial assistance.  There will be more demand for the provision of financial assistance as a result of the wider variety of measures that the new Act proposes, such as indigenous land use agreements and statutory access agreements.  As it is unlikely that such agreements will be reached under the new Act this financial year, additional funding, for all these measures, will be sought in the budget context.

1.22        There may be some additional costs associated with implementing the new accountability provisions for representative bodies, which would be met out of ATSIC’s allocation for the administration of the representative body scheme.  The possible impact cannot be estimated at this stage as it would depend on discretionary action by ATSIC or the Minister to initiate the new inspection, audit or investigation processes.

1.23        The Commonwealth has offered to assist States and Territories in meeting compensation costs arising from certain pre-1994 acts, intermediate period acts and certain future acts.  The extent of Commonwealth payments will depend on the liabilities incurred by the States and Territories.  Estimates as to the likely amount of compensation which may be payable are extremely difficult to formulate due to a number of factors which include: the unknown extent of native title; the unknown value of compensation to native title holders and the potential variation in value depending on whether what survives is full native title or a partial or co-existing interest; the total number of past and intermediate acts; the unknown number of future acts that might affect native title; and that while the Commonwealth is of the view that the maximum compensation payable to a native title holder should be no more than that payable to a freeholder the courts have yet to determine this as satisfying the requirement for 'just terms' compensation.  These factors interact to make estimation of costs a speculative task.

1.24        The Commonwealth offer to assist States and Territories also includes a contribution to the administrative costs of establishment and operation of approved bodies and alternative right to negotiate regimes.  The extent of this assistance will depend on decisions to establish such bodies and regimes following passage of the amendments, the timing of the recognition of bodies and regimes and the extent to which they are used.

1.25        The Commonwealth is totally liable for its own acts.  While it is the Government’s view that the provisions confirming the extinguishment of native title by certain acts generally reflect the common law (and therefore would not give rise to compensation), the amendments do provide a right to compensation for any extinguishment caused by the confirmation provisions with the Commonwealth being liable to pay such compensation in respect of acts attributable to it. 

1.26        The number of potentially compensable past acts and intermediate period acts done by the Commonwealth is unknown.  The Commonwealth will also have to consider the potential impact of future act compensation on a case by case basis.  It is not possible to estimate the extent of the Commonwealth’s liability for the validation and confirmation provisions or for future acts, given the unknown number and nature of acts affected by these provisions.

Amendments made by the Senate in December 1997

1.27     The amendments made by the Senate in December 1997 which have been incorporated into the Bill are listed in this paragraph.  They are listed in the order in which they appeared in the Schedule of amendments made by the Senate prepared by the Clerk of the Senate dated 5 December 1997.  It should be noted that these are very brief summaries of the amendments, and regard should be had to the more detailed descriptions later in this memorandum:

Indigenous Land Use Agreements

·       Government amendments (15), (16) and (18) make it clear that indigenous land use agreements may be about the doing of future acts subject to conditions about procedural matters.

·       Government amendment (17) sets out the information to which the Registrar must have regard when making a decision under paragraph 24CK(2)(c) in relation to the registration of an area agreement certified by a representative body.

Applications

·       Government amendment (60) requires applicants to include in their application details about any activities undertaken in the exercise of the native title rights claimed.

·       Opposition amendment (230) deletes the specific reference to circumstances in which access was prevented in subparagraph 62(1)(c)(ii) in relation to the content of applications.

·       Opposition amendment (239) amends section 66 (which deals with notification of native title applications) and requires the Registrar to provide a copy of the application to the relevant representative body as soon as possible.

Claims process and sunset clause

·       Government amendment (58) provides that the limitation period for making a compensation claim is 6 years from the later of the date the subsection commences or when notification of the act giving rise to compensation is given.

·       Government amendments (61) and (62) clarify that the cultural and customary concerns of indigenous peoples may be taken into account by the Federal Court and the National Native Title Tribunal respectively, but not so as to unduly prejudice the other parties to the proceedings.

·       Government amendment (63) adds persons who have been enrolled as a legal practitioner for 5 years as another category of persons who are eligible to be appointed as a presidential member of the National Native Title Tribunal.

·       Government amendment (64) enables the presiding member of the NNTT to direct that a mediation conference not be held in private in certain circumstances.

·       Government amendment (71) amends the definition of ‘determination of native title’ in section 225 of the Act to reflect the fact that there may be more than one group of native title holders for the one area of land.

·       Government amendment (72) adds a note to the end of the definition of ‘determination of native title’ in section 225 of the Act that non-native title rights may be dealt with generally in the determination.

Registration Test

·       Government amendment (66) requires the Registrar of the Federal Court to advise the Registrar of the NNTT of the withdrawal of unregistered applications as well as registered applications.

·       Government amendment (67) confirms that the Registrar is obliged to apply the registration test to amended native title determination applications.

·       Government amendment (68) makes it clear that the Registrar can advise an applicant that his or her native title determination application may be amended under the Federal Court Rules.

·       Government amendment (69) precludes the Registrar from taking certain action in relation to an application that has been withdrawn or otherwise finalised before the claim was entered on the Register of Native Title Claims or before the Registrar was able to make a decision as to whether it should be registered.

·       Opposition amendment (262) amends subsection 190B(2) to insert the word ‘reasonable’ in relation to the certainty required for the identification of land subject to native title in the registration test.

Representative bodies

·       Government amendment (77) inserts a time frame in which the Minister is to make decisions about applications under section 203AB for recognition as the representative body for an area.

·       Government amendments (78) and (79) provide for additional functions in relation to assistance, mediation and dispute resolution to be conferred upon the NNTT once the later amendments relating to representative bodies come into force.

·       Government amendments (80) and (81) together provide more flexibility in relation to the period in respect of which grants of money may be made by ATSIC to representative bodies.

·       Government amendment (82) requires that the grant of money to a representative body be subject to a condition that the body return any uncommitted funding to ATSIC if the body loses its recognition under section 203AH.

·       Government amendment (83) inserts a definition of ‘bank’ that is consistent with the definition of that term in other Commonwealth legislation as recommended by the Parliamentary Joint Committee on Native Title and the Land Fund.

·       Government amendment (84) restricts the extent to which an auditor or investigator appointed under section 203DF can make use of documents or information subject to legal professional privilege, and ensures that certain secrecy provisions contained in the Crimes Act 1914 apply to auditors and investigators appointed under section 203DF.

·       Government amendment (85) deals with a number of issues relating to access by an auditor or inspector appointed under section 203DF to documents or information relating to a representative body.

·       Opposition amendment (322) adds a subsection to section 203B providing that a representative bodies must determine priorities.

·       Opposition amendments (341), (342), and (344) amend section 203DC to provide that the annual reporting obligations of representative bodies are to ATSIC and then to the Minister.

Use of reserved land

·       Government amendment (26) inserts a new notification requirement in relation to certain acts to which Subdivision J applies, namely the construction of a public work on reserved land.

Miscellaneous

·       Government amendment (13) replaces the heading to Subdivision A of Division 3, Part 2.

·       Government amendment (14) enables regulations to be made imposing notification requirements in relation to valid future acts.

·       Government amendment (44) makes it clear that native title rights and interests are not extinguished by a requirement or permission contained in a valid lease, licence, permit or authority, or any activity done in giving effect to the requirement or permission.

·       Government amendment (47) removes an amendment that is already covered in Schedule 2, item 19.

·       Government amendment (49R) adds relevant determinations to the list of disallowable instruments contained in section 214.

·       Government amendment (70) ensures that the function of holding an inquiry into certain matters can be performed by an equivalent body under section 207B.

·       Government amendment (73) removes an amendment that is already covered by Schedule 5, subitem 14(8).

·       Government amendment (74) clarifies that Schedule 2, item 87 amends subparagraph 251(2)(i)(i) not paragraph 251(2)(i) (section 251, to be renumbered 207A, deals with recognised State/Territory bodies).

·       Government amendments (75) and (76) amend incorrect cross references in the new definition of ‘registered native title body corporate’ in section 253.

Management of water and airspace

·       Government amendment (25) inserts a new notification requirement in relation to the grant of a lease, licence, permit or authority under valid legislation for the management or regulation of water or airspace.

Offshore places

·       Government amendment (32) requires that the practices and procedures adopted for acquiring native title offshore do not cause the native title holders concerned to be any more disadvantaged than the holders of non-native title rights when their rights are acquired.

·       Government amendment (33) provides that compensation for any offshore act may be payable by a person that a Commonwealth law provides, not merely the person that requested the act that gave rise to the liability.

·       Government amendment (34) provides that compensation for any offshore act may be payable by a person that a State or Territory law provides, not merely the person that requested the act that gave rise to the liability.

Compensation

·       Government amendment (46) ensures that the catch all ‘just terms’ provision in section 53 of the NTA applies to State and Territory future acts as well as Commonwealth ones.

·       Government amendment (92) inserts a reference to new Schedule 5, Part 6A which is inserted by Government amendment (93).

·       Government amendment (93) ensures that ‘just terms’ compensation is payable if the Bill once enacted results in any acquisition of property within the meaning of section 51(xxxi) of the Constitution.

Validation

·       Government amendment (1) amends the heading to Division 2A.

·       Government amendment (2) removes a reference in paragraph 22B(a) (which sets out the effect on native title of certain category A intermediate period acts) to acts that are category A intermediate period acts by virtue of subsection 232B(6).  Subsection 232B(6) is removed by Government amendment (51).

·       Government amendment (3) inserts a notification requirement upon the Commonwealth in relation to certain acts that may be validated intermediate period acts attributable to the Commonwealth.

·       Government amendment (4) inserts a notification requirement upon the States and Territories that legislate to validate intermediate period acts attributable to the State or Territory.

·       Government amendment (50) clarifies the dates between which an ‘intermediate period act’ must occur.

·       Government amendment (51) removes the vesting of certain types of interest from the definition of ‘category A intermediate period act’ out of concern that their inclusion may have unintentionally resulted in the creation of some national parks being category A intermediate period acts.

·       Government amendments (52) and (53) broaden the category of acts excluded from the definition of ‘category A intermediate period act’ and ‘category B intermediate period acts’ by reason of their being acts that are in some way for the benefit of indigenous peoples.  Such acts will be ‘category D intermediate period acts’ to which the non-extinguishment principle applies.

Renewals and extensions

·       Government amendment (25A) requires that a future act also be done in good faith if it is to fall within paragraph (b) of the definition of ‘pre-existing right-based act’ in section 24IB.

·       Government amendment (25B) imposes a notification requirement in relation to future acts that fall within paragraph (b) of the definition of ‘pre-existing right-based act’ in section 24IB.

·       Harradine amendment (15) clarifies that a permissible lease etc renewal of a non-exclusive agricultural or pastoral lease cannot allow new associated or incidental activities over the majority of the lease.

Right to negotiate

·       Government amendment (35) includes in the concept of ‘approved gold or tin mining acts’ mining that involves the separation of gold or tin by an aeration process.

·       Government amendment (36) sets out which rights to mine opals and gems are excluded by section 26C from the right to negotiate.

·       Government amendments (36A), (37A) and (37B) relate to a new condition that mining for opals or gems is currently being carried out which must be satisfied before the Commonwealth Minister determines that an area is an ‘approved opal or gem mining area’ for the purposes of section 26C.

·       Government amendment (37) amends the second condition that must be satisfied before the Commonwealth Minister determines that an area is an ‘approved opal or gem mining area’ for the purposes of section 26C.

·       Government amendments (38), (39), (40) and (41) together provide that native title parties for the purpose of the right to negotiate are claimants who make a claim within three months of the notification day and have their claim registered within four months of the notification day.

·       Government amendment (42) gives negotiation parties a minimum of six months from the notification day in which to negotiate before one of the parties may apply to the arbitral body for a section 38 determination.

·       Opposition amendment (112) makes a drafting change to section 25 which contains the overview of the right to negotiate provisions.

·       Opposition amendment (175) amends section 43 which deals with the approval of alternate State/Territory right to negotiate procedures to require notification of the relevant representative body.

Freehold test

·       Government amendment (28) requires that the practices and procedures adopted for acquiring native title do not cause the native title holders concerned to be any more disadvantaged than the holders of non-native title rights when their rights are acquired.

·       Government amendment (29) provides that compensation may be payable by any person that a Commonwealth law provides (subject to the limitation in subsection 24MD(5)), not merely the person that requested the act that gave rise to the liability.

·       Government amendment (30) provides that compensation may be payable by any person that a State or Territory law provides (subject to the limitation in subsection 24MD(5)), not merely the person that requested the act that gave rise to the liability.

Confirmation of extinguishment

·       Government amendments (5) and (9) remove the vesting of certain land and interests from the definition of ‘previous exclusive possession act’ and the confirmation of extinguishment provisions, out of concern that their inclusion may have unintentionally resulted in the creation of some national parks being previous exclusive possession acts.

·       Government amendments (6) and (10) remove certain acts that take place pursuant to a legally enforceable right or option created before the date of the Wik decision from the definition of ‘previous exclusive possession act’ and the confirmation of extinguishment provisions.

·       Government amendments (7) and (11) remove certain acts consisting of the construction of a public work after the date of the Wik decision pursuant to a reservation made before that date from the definition of ‘previous exclusive possession act’ and the confirmation of extinguishment provisions.

·       Government amendment (11A) requires that in order to for an act that gives effect to a pre- Wik offer, commitment, arrangement or undertaking to be a previous non-exclusive possession act under subparagraph 23F(3)(c)(ii), the act must also be done in good faith.

·       Government amendment (12) reflects the Government’s understanding of the common law, which is that native title rights that survive the grant of a non-exclusive pastoral or non-exclusive agricultural lease are not extinguished by acts done pursuant to the lease.

·       Government amendment (12A) imposes a notification requirement in relation to certain previous non-exclusive possession acts attributable to the Commonwealth, namely those done pursuant to certain options.

·       Government amendment (12B) requires that a State or Territory law that confirms the partial extinguishment of native title by previous non-exclusive possession acts attributable to that State or Territory must contain a notification requirement to the same effect as that imposed by Government amendment (12A).

·       Government amendments (45R) and (59) enable native title claimants who are in occupation of certain types of land to have their claim determined by a Court notwithstanding the effect of certain past ‘extinguishing’ acts.

·       Government amendment (48) enables the Commonwealth, States and Territories to legislate to confirm any existing public access to and enjoyment of stock routes.

·       Government amendments (56) and (57) together ensure that only stock routes that are validated by or in accordance with Divisions 2 or 2A of the NTA are ‘public works’ and that stock routes are not confirmed to extinguish native title.

·       Government amendments (86), (87), (88), (89), (90) and (91) correct typographical errors in the Schedule of exclusive possession tenures.

Pastoral activities

·       Government amendments (19) and (20) make it clear that section 24GB applies to the grant of permits for farm tourism generally, not just farmstay tourism.

·       Government amendment (21) limits the future act provisions in relation to the granting of permits to conduct primary production activities on non-exclusive pastoral and non-exclusive agricultural lease land so that for pastoral leases greater than 5,000 hectares a majority of the area must continue to be used for pastoral purposes.

·       Government amendment (22) inserts a notification requirement in relation to the granting of permits to conduct certain primary production activities on non-exclusive pastoral and non-exclusive agricultural lease land.

·       Government amendment (23) puts it beyond doubt that the doing of certain primary production and associated or incidental activities on non-exclusive pastoral or non-exclusive agricultural lease land does not extinguish any native title rights that survived the grant of the non-exclusive lease.

·       Government amendment (24) ensures that future acts that grant a lease or confer a right of exclusive possession over land or waters are not sanctioned by section 24GD (which deals with off-farm activities).

·       Government amendment (24A) limits the ‘off-farm’ future acts to which section 24GD applies to those that permit grazing or activities relating to accessing or taking water.

·       Government amendment (24B) imposes a notification requirement in relation to the ‘off-farm’ future acts to which section 24GD applies.

Access rights

·       Government amendment (43) inserts a note that confirms that indigenous land use agreements can deal generally with access issues and that the NNTT or a recognised State/Territory body can assist, if requested, in the negotiation of such agreements.

Further explanation of amendments

1.28     The index at the back of this Explanatory Memorandum lists all the Senate amendments incorporated into the Bill with paragraph references indicating where they are further explained.

 



Overview

2.1          This Chapter sets out the Government’s 10 Point Plan and which items in the Bill implement each point.  The 10 Point Plan was released by the Government on 8 May 1997 and set out the Government’s proposed response to the Wik decision.

Point 1   Validation of acts/grants between 1/1/94 and 23/12/96

Legislative action will be taken to ensure that the validity of any acts or grants made in relation to non-vacant crown land in the period between passage of the Native Title Act and the Wik decision is put beyond doubt.

2.2          The validation of ‘intermediate period acts’ that occurred between 1 January 1994 and 23 December 1996 is achieved by new Division 2A , Part 2.   [Schedule 1, item 9].

Point 2   Confirmation of extinguishment of native title on ‘exclusive’ tenures

States and Territories would be able to confirm that ‘exclusive’ tenures such as freehold, residential, commercial and public works in existence on or before 1 January 1994 extinguish native title.  Agricultural leases would also be covered to the extent that it can reasonably be said that by reason of the grant or the nature of the permitted use of the land, exclusive possession must have been intended.  Any current or former pastoral lease conferring exclusive possession would also be included.

2.3          Confirmation of past extinguishment is dealt with in new Division 2B , Part 2.   [Schedule 1, item 9].

Point 3   Provision of government services

Impediments to the provision of government services in relation to land on which native title may exist would be removed.

2.4          Facilities for services to the public are allowed by new Subdivision K of Division 3, Part 2.  [Schedule 1, item 9].



Point 4   Native title and pastoral leases

As provided in the Wik decision, native title rights over current or former pastoral leases and any agricultural leases not covered under 2 above would be permanently extinguished to the extent that those rights are inconsistent with those of the pastoralist.

All activities pursuant to, or incidental to, ‘primary production’ would be allowed on pastoral leases (ie the right to negotiate in relation to such activities would be completely removed), including farmstay tourism, even if native title exists, provided the dominant purpose of the use of the land is primary production.  However, future government action such as the upgrading of title to perpetual or ‘exclusive’ leases or freehold, would necessitate the acquisition of any native title rights proven to exist and the application of the regime described in 7 below (except where this is unnecessary because the pastoralist has an existing legally enforceable right to upgrade).

2.5          Confirmation of partial extinguishment by previous non-exclusive pastoral or non-exclusive agricultural leases is achieved by new sections 23G to 23J .  New Subdivision G of Division 3, Part 2 covers future primary production activities.   Subdivision M continues the freehold test which allows compulsory acquisitions.  Subdivision I allows for the exercise of legally enforceable rights.  [Schedule 1, item 9].

Point 5   Statutory access rights

Where registered claimants can demonstrate that they currently have physical access to pastoral lease land, their continued access will be legislatively confirmed until the native title claim is determined.  This would not affect existing access rights established by state or territory legislation.

2.6          Statutory access rights are provided by new Subdivision Q of Division 3, Part 2. [Schedule 1, item 9].

Point 6   Future mining activity

For mining on vacant crown land there would be a higher registration test for claimants seeking the right to negotiate, no negotiations on exploration, and only one right to negotiate per project.  As currently provided in the NTA, states and territories would be able to put in place alternative regimes with similar right to negotiate provisions.

For mining on other ‘non-exclusive’ tenures such as current or former pastoral leasehold land and national parks, the right to negotiate would continue to apply in a state or territory unless and until that state or territory provided a statutory regime acceptable to the Commonwealth which included procedural rights at least equivalent to other parties with an interest in the land (e.g. the holder of the pastoral lease) and compensation which can take account of the nature of co-existing native title rights (where they are proven to exist).

2.7          The right to negotiate process, containing the changes outlined in Point 6, is found in new Subdivision P , Division 3, Part 2 of the NTA.  New sections 43A and 43B allow for equivalent State/Territory regimes on former and current pastoral lease land etc.  The new registration test is contained in new sections 190B and 190C of the NTA.  The renewal of mining leases is achieved by new section 24IC . [Schedule 1, item 9; Schedule 2, item 63].

Point 7   Future government and commercial development

On vacant crown land outside towns and cities there would be a higher registration test to access the right to negotiate, but the right to negotiate would be removed in relation to the acquisition of native title rights for third parties for the purpose of government-type infrastructure.  As currently provided in the NTA, states and territories would be able to put in place alternative regimes with similar right to negotiate provisions.

For compulsory acquisition of native title rights on other ‘non-exclusive’ tenures such as current or former pastoral leasehold land and national parks, the right to negotiate would continue to apply in a state or territory unless and until that state or territory provided a statutory regime acceptable to the Commonwealth which included procedural rights at least equivalent to other parties with an interest in the land (e.g. the holder of the pastoral lease) and compensation which can take account of the nature of co-existing native title rights (where they are proven to exist).

The right to negotiate would be removed in relation to the acquisition of land for third parties in towns and cities, although native title holders would gain the same procedural and compensation rights as other landholders.

Future actions for the management of any existing national park or forest reserve would be allowed.

A regime to authorise activities such as the taking of timber or gravel on pastoral leases, would be provided.

2.8          The right to negotiate process, containing the changes outlined in Point 7, is also in Subdivision P of Division 3, Part 2 of the NTA.  New section 43A allows for equivalent State/Territory regimes on former and current pastoral lease land etc.  The new registration test is contained in new sections 190B and 190C of the NTA.  Acts implementing reservations are dealt with in new Subdivision J of Division 3, Part 2.  The taking of timber or gravel from pastoral leases is covered by new section 24GE . [Schedule 1, item 9; Schedule 2, item 63].

Point 8   Management of water resources and airspace

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.

2.9          The management of water and airspace is protected by new Subdivision H of Division 3, Part 2.  [Schedule 1, item 9].

Point 9   Management of claims

In relation to new and existing native title claims, there would be a higher registration test to access the right to negotiate, amendments to speed up handling of claims, and measures to encourage the States to manage claims within their own systems.

A sunset clause within which new claims would have to be made would be introduced.

2.10        The new registration test is found in new sections 190B and 190C .  Amendments to the claims process are found in replacement Part 3 and amended Part 4 Section 207A and new section 207B deal with the management of claims within State/Territory systems.  The sunset clause is contained in new subsection 13(1A) and subsection 50(2A) [Schedule 2, items 3,19-70].

Point 10   Agreements

Measures would be introduced to facilitate the negotiation of voluntary but binding agreements as an alternative to more formal native title machinery.

2.11        New Subdivisions B , C , D and E of Division 3, Part 2 facilitate voluntary agreements.  New Part 8A sets up a Register of Indigenous Land Use Agreements.  [Schedule 1, items 9 and 30] .



The High Court’s decision in Mabo (No. 2)

3.1          A majority of the High Court decided in Mabo v Queensland (No. 2) (1992) 175 CLR 1 ( Mabo (No. 2) ) that the Meriam people were entitled as against the whole world to the possession, occupation, use and enjoyment of (most of) the land of the Murray Islands in the Torres Strait.  In reaching this conclusion the majority of the Court held that the common law of Australia recognises a form of native title, and indicated that the principles applied to the mainland as well as to the Murray Islands.  This was subsequently confirmed by the High Court in Western Australia v Commonwealth (1995) 183 CLR 373 (the Native Title Act case).  Native title exists in accordance with the laws and customs of indigenous people:

·       where those people have maintained their traditional connection with the land; and

·       where their title has not been extinguished by acts of Imperial, Colonial, State, Territory or Commonwealth governments.

3.2          The Court rejected the traditional doctrine that Australia was terra nullius (land belonging to no-one) at the time of European settlement.  Rather, it accepted that native title rights survived settlement, though they were subject to the sovereignty of the Crown.

3.3          The High Court indicated that although the content of native title is to be determined according to the traditional laws and customs of the title holders, there are some common characteristics:

·       it may be possessed by a community, group, or individual depending on the content of the traditional laws and customs;

·       it is inalienable (that is, it cannot be transferred) other than by surrender to the Crown or pursuant to traditional laws and customs;

·       it is a legal right that can be protected, where appropriate, by legal action.

3.4          Native title will be extinguished where the traditional title holders lose their connection with the land.  Also, while the acquisition of sovereignty did not of itself extinguish native title, subsequent legislative or executive actions by governments may have extinguished it.  A clear and plain intention or clear and unambiguous words are required for this to have occurred.  The judgments variously considered the position of a range of land, such as freehold, leasehold, land appropriated by the Crown, national parks and land over which mining interests had been granted.

3.5          A majority of the High Court held that extinguishment of native title by inconsistent Crown grant did not give rise to a claim for compensatory damages.  It follows that the validity of such grants could not be challenged merely on the basis that they extinguished native title without compensation.  However, this conclusion of the majority of the Court was made expressly subject to the operation of the Racial Discrimination Act 1975 (RDA) of the Commonwealth.  On one view, the RDA may in some cases render wholly or partly invalid past laws or grants.

The Native Title Act 1993

3.6          The Native Title Act 1993 (the NTA) came into force on 1 January 1994.  In summary, it:

·       recognised native title rights and sets down some basic principles in relation to native title in Australia;

·       provided for the validation of past acts which may be invalid because of the existence of native title;

·       provided for a future act regime in which native title rights are protected and conditions imposed on acts affecting native title land and waters;

·       provided a process by which native title rights can be established and compensation determined, and by which determinations can be made as to whether future grants can be made or acts done over native title land and waters; and

·       provided for a range of other matters.

3.7          The Commonwealth Parliament’s major purpose in enacting the NTA was to recognise and protect native title (see sections 3 and 10).  The NTA adopted the common law definition of ‘native title’ as being the rights and interests possessed under the traditional laws and customs of Aboriginal peoples and Torres Strait Islanders in land and waters, and recognised by the common law (section 223).  The decision in Mabo (No. 2 ) referred only to native land title, but the NTA did not preclude the possibility that native title rights and interests may also exist in relation to waters , including offshore waters.  This remains an unresolved issue.

Validation of past acts by Commonwealth, States and Territories

3.8          The NTA provided in section 14 for the validation of past (invalid) Commonwealth acts.  Section 19 enabled States and Territories to validate their past (invalid) acts on the same terms, and all have now done so.  The past acts which could be validated included the making of legislation, the grant of a licence or permit, the creation of any interest in land or waters and the exercise of executive power (section 226).

Future Extinguishment

3.9          Under the NTA, native title could only be extinguished by agreement with the native title holders (section 21) or in giving effect to the purpose of an acquisition of native title under the Compulsory Acquisition Acts (section 23(3), and see section 11), and in some other very limited cases.

The Future Act Regime

3.10        The NTA provided for acts affecting native title to take place in the future if they are ‘permissible future acts’, defined in section 235.

3.11        Under the NTA, all future acts in an offshore place would be ‘permissible’ even if that place is subject to native title (section 235(8)(a)).  In the case of onshore land, the NTA provided that where an act could be done over ordinary title land then that act would be permitted over native title land (section 235(5)).   New legislation affecting onshore areas would be ‘permissible’ only if it affects native title holders in the same way that it affects ordinary title holders or if it puts native title holders in no worse a position than ordinary title holders (section 235(2)).  ‘Ordinary title land’ was defined to mean either freehold or, in the case of the Australian Capital Territory and Jervis Bay, residential leasehold (section 253).

3.12        Other permissible future acts included acts covered by an unopposed non-claimant application (section 24), renewals of leases etc (sections 25 and 235(7)), low impact future acts (section 235(8)(a)) and acts pursuant to an agreement (section 235(8)(c)).

3.13        In certain circumstances, native title rights to hunt, fish and carry on other activities could be exercised without the need for a licence or permit where others can carry out the activity only with a licence or permit (section 211).

Right to Negotiate

3.14        The NTA provided that for certain ‘permissible future acts’, registered native title holders and registered native title claimants would have a right to negotiate before such an act could be undertaken.  The acts to which the right to negotiate would apply were essentially acts relating to mining, the compulsory acquisition of native title for the purpose of making a grant to a third party, and any other acts approved by the Commonwealth Minister.

3.15        The right to negotiate was not a veto.  If the parties could reach agreement after negotiation, then any party could apply to the National Native Title Tribunal (NNTT) or a recognised State or Territory body, called the ‘arbitral body’ (section 27), for a determination of whether the act could go ahead and if so on what conditions (section 35).   Where there is a State or Territory arbitral body, a State or Territory Minister could override the determination in the interest of the State or Territory (section 42(1) and (3)).  If the NNTT is the arbitral body, the Commonwealth Minister could override the decision in the national or State or Territory interest (section 42(2) and (3)).

Compensation for Future Acts

3.16        Native title holders would be entitled to ‘just terms’ compensation for any future extinguishment of their rights and interests.  Where an act only impaired the title rights onshore, native title holders would be entitled to compensation under the same regimes as are applicable to ordinary title holders (sections 23(4) and 51(3)).  Offshore, the native title holders would be entitled to ‘just terms’ compensation for such impairment (sections 23(4) and 51(1)).

Determinations of Native Title

3.17        The NTA provided a mechanism to determine whether native title exists and which rights and interests comprise that native title (see sections 13 and 61).

3.18        The NTA also provided for the establishment of two public registers: one for native title claims (the Register of Native Title Claims, Part 7), and the other for native title determinations (the National Native Title Register, Part 8).

The NNTT and Court Process

3.19        The NTA established the NNTT to deal with certain native title matters and also gave the Federal Court jurisdiction for particular native title matters.

3.20        Applications would be made to the Native Title Registrar (section 61).  If various requirements were met (in particular those in section 62), the Registrar must accept an application for a native title determination by persons claiming to hold the title unless he or she was of the opinion that the application was frivolous or vexatious or that prima facie a claim cannot be made out (section 63).  In such a case, the application had to be referred to a presidential member, who must give the applicant an opportunity to show that the application should be registered.  The NNTT would mediate contested claims, but if this mediation was unsuccessful, the matter would be referred to the Federal Court (section 74).

Role of Federal Court

3.21        The Federal Court was to hear contested claims for a determination of native title or for compensation (section 81).

3.22        The NTA provided that determinations of the NNTT would be registered with the Federal Court (section 166(2)).  Applications could be made to the Court for a review of a registered determination (sections 167 and 168).

Recognised States and Territory bodies

3.23        States and Territories could set up their own bodies to hear native title claims and compensation claims.  Where those bodies complied with the criteria and standards set out in the NTA in section 251, the responsible Commonwealth Minister would be able to recognise them.  Native title claims could be initiated in either a recognised State or Territory body or the Federal system.

Role of prescribed bodies corporate

3.24        The NTA recognised that native title rights are primarily group or communal rights and membership of the title holding group would inevitably change over time.  The NTA provided that native title would either be held on trust by a prescribed body corporate controlled by those who are the native title holders from time to time (see sections 56 and 57) or, alternatively, it provided for a prescribed body corporate which would represent the native title holders and act as their agent (sections 57 and 58).

Role of Representative Aboriginal/Torres Strait Islander Bodies

3.25        The NTA provided for the designation of Aboriginal and Torres Strait Islander organisations as representative bodies to assist native title claimants to make applications for the determination of native title and compensation and to assist in negotiations and proceedings (section 202).

Aboriginal and Torres Strait Islander Land Fund

3.26        Part 10 of the NTA established a National Aboriginal and Torres Strait Islander Land Fund.  Part 10 was repealed by the Land Fund and Indigenous Land Corporation (ATSIC Amendment) Act 1995 .  That Act also amended the Aboriginal and Torres Strait Islander Commission Act 1989 (the ATSIC Act) to establish an Indigenous Land Corporation to assist Aboriginal persons and Torres Strait Islanders acquire land and manage indigenous-held land so as to provide economic, environmental, social or cultural benefits to Aboriginal persons and Torres Strait Islanders (sections 191A and 191B of the ATSIC Act).  Part 4A Division 10 of the ATSIC Act also established the Aboriginal and Torres Strait Islander Land Fund, the purpose of which was to, among other things, make payments to the Indigenous Land Corporation under that Division (sections 192W and 192X of the ATSIC Act).

The Native Title Act Case

3.27        In the Native Title Act case ((1995) 183 CLR 373), the High Court unanimously held that the substantive provisions of the NTA were a valid exercise of the Commonwealth Parliament’s power to make laws with respect to ‘the people of any race for whom it is deemed necessary to make special laws’ (paragraph 51(xxvi) of the Constitution).

The effect of the High Court’s Brandy decision and the Full Federal Court’s Fourmile decision

3.28        In March 1995, the High Court in Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 ( Brandy ) held that a process set up under the Racial Discrimination Act 1975 under which non-binding determinations made by the Human Rights and Equal Opportunities Commission (HREOC) were to have effect, upon registration by the Federal Court, as if they were orders made by the Federal Court was invalid because it purported to vest judicial power in HREOC.  HREOC is not a court for the purposes of Chapter III of the Constitution and therefore cannot be vested with Commonwealth judicial power.

3.29        When it was handed down the decision cast doubt on the validity of NTA processes for the registration of determinations of native title, which were based on the HREOC model.  The NTA scheme provided for applications for a determination of native title or compensation to be lodged with the NNTT, with the NNTT having the function of making determinations for unopposed or agreed applications which would then be registered with the Federal Court (see paragraph 3.22 above).  Upon registration, a determination has effect as if it were an order of the Federal Court (see sections 166,167 and 168 of the current NTA).  These doubts were confirmed when the Full Federal Court held in Fourmile [4] that the scheme established by sections 166, 167 and 168 of the NTA (see paragraph 3.22) is in no relevant way distinguishable from the scheme held to be invalid by the High Court in Brandy .

3.30        Amendments to the NTA to address the implications of the Brandy decision were introduced in 1995 but lapsed with the calling of the 1996 Federal election.  Similar amendments were introduced in June 1996, but have not been debated and will be replaced by amendments in the Bill.  Under these amendments, native title determination and compensation applications will be made to and determined by the Federal Court. 

Effect of cases dealing with registration and the acceptance test

3.31        The purpose of the acceptance test contained in current sections 62 and 63 of the NTA was to screen applications so that those with no prospects of success could be removed early in the process.  It was intended that only those claims which were accepted would be entered on the Register of Native Title Claims, thereby enabling the claimants to have access to the right to negotiate and other statutory benefits flowing from that status as a registered native title claimant.  Essentially, the acceptance test would ensure development was not impeded by unmeritorious claims.

3.32        The efficacy of the acceptance test as a screening process for registration was reduced by the decision of Justice O’Loughlin of the Federal Court in Northern Territory v Lane (1995) 138 ALR 544, to the effect that applications are to be registered upon receipt by the Registrar, who is then to apply the acceptance test in sections 62 and 63.  This decision meant that all claims, regardless of their prospects of ultimate success, would initially attract the right to negotiate until such time as they underwent the acceptance test.  That test could take some months to apply in any given case, so that a claim which ultimately failed the test could remain on the Register for some time before being removed.

3.33        The High Court decided in North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 that whenever an application raised an issue of law that was “fairly arguable” it must be accepted by the Registrar.  The effect of this decision was to increase the number of applications claiming native title that could be accepted for determination, since the novelty of native title law in Australia and the associated limited body of precedent meant that many issues are ‘fairly arguable’.  In turn, this meant that the right to negotiate applied to a greater proportion of Australia as areas other than vacant Crown land, national parks or reserves became subject to claims.

Review of Representative Bodies

3.34        In 1995 the Aboriginal and Torres Strait Islander Commission commissioned the Review of Native Title Representative Bodies (the Review), to examine the performance of representative bodies under section 202 of the NTA and to recommend ways in which that performance could be improved.  The Review recommended that the functions of representative bodies should be mandatory, so that representative bodies funded by the Commonwealth would be obliged to perform their functions as such bodies to a consistent standard.

3.35        The Review also made recommendations concerning the need to ensure that the representative bodies were truly representative of, and accountable to, potential and actual native title clients in the areas for which they have been given responsibilities.  It also recommended that the level of funding to representative bodies be increased to reflect the impact of mandatory functions and strengthened accountability requirements.  The Government adopted many of the Review’s recommendations to improve the representative body system, and included them in its Exposure Draft of October 1996 and now in this Bill. 

Native Title Amendment Bill 1996 and the Exposure Draft

3.36        The Government introduced the Native Title Amendment Bill 1996 (the 1996 Bill) into the House of Representatives on 27 June 1996, and released proposed Government amendments to that Bill in its Exposure Draft of October 1996.

3.37        As noted previously, the 1996 Bill contained amendments resulting from the Brandy decision.  It also contained a registration test to replace the acceptance test, to make it clear that satisfying the test would be a precondition for access to the right to negotiate and other statutory benefits.  The 1996 Bill also contained amendments to correct minor technical or typographical errors.

3.38        The Exposure Draft contained amendments to improve the representative body system, a strengthened registration test and amendments to streamline the right to negotiate process.  The amendments to the right to negotiate process included some to ensure that the Ministerial power to exclude acts having minimal impact could in fact exclude certain exploration, fossicking and prospecting activities.  They also included provision for ministerial intervention in the case of urgent matters or where there was unreasonable delay.

3.39        The 1996 Bill and the Exposure Draft were not pursued following the Government’s decision to develop a comprehensive package of amendments to the NTA following the Wik decision, which would include many of the earlier proposals.  That package of amendments is contained in this Bill, and is explained in detail in the following Chapters.

The effect of the High Court’s Wik decision

3.40        On 23 December 1996, the High Court handed down its decision on a number of preliminary questions of law in the matter of Wik Peoples v Queensland (1996) 187 CLR 1 ( Wik ).  In four separate judgments, a majority of the High Court, comprising Toohey, Gaudron, Gummow and Kirby JJ, examined the historical development of pastoral tenures in the Australian colonies, the two Queensland Acts under which the leases concerned in the case were granted, and the relevant lease instruments, and concluded that there was no legislative intention to confer exclusive possession on the lessees.

3.41        The majority Justices regarded the pastoral leases as a creation of statute and held that the rights and obligations that accompany them do not derive from the common law principles relating to leasehold interests.  This was notwithstanding the use of terms such as ‘lease’ and ‘demise’.  Rather, the rights conferred upon the grantees of the pastoral leases were to be determined by reference to the terms of the particular leases and the relevant statutes under which they were granted.  In particular, their Honours found that there was nothing in the Acts under which the leases were granted, or in the lease instruments themselves, that should be taken as intending a total exclusion of indigenous people from the land, there being a strong presumption that a statute is not intended to extinguish native title, or indeed any valuable rights relating to property, unless there are clear and plain indications to the contrary.  Their Honours also rejected the argument that upon the grant of a pastoral lease the Crown acquires a reversionary interest which precludes the continued existence of native title.

3.42        Accordingly, the rights conferred on the grantees of the pastoral leases concerned did not necessarily extinguish native title in the areas subject to those leases.  The Court did not decide however that native title does in fact exist in relation to the land subject to the leases; this is now being determined by the Federal Court.

3.43        In his dissenting judgment, Brennan CJ, with whom Dawson and McHugh JJ agreed, concluded that the lessees had been granted rights of exclusive possession and that any native title had been extinguished.

3.44        Accordingly, the decision opened up the possibility of claims being made over a greatly increased area of Australia, without deciding whether any particular claim would be successful.  Whether native title does exist will depend on an assessment of the terms of the lease and the relevant statute under which it has been granted, and of the evidence of continuing traditional attachment to the land by the native title claimants.  The decision has created doubt about the validity of certain acts done over pastoral and other leasehold land since the commencement of the NTA, including acts by pastoral lessees, as well as acts by governments and third parties.  It has also raised doubts about the validity of future activities of these parties.  As native title may continue to exist on pastoral leases, which cover a significant proportion of Australia’s land mass, and the NTA will protect those rights, it is important to ensure that there are effective processes for regulating the interrelationship between native title holders, pastoral lessees and others.



 

 

 

 

 

 

Part 2

 

 

Intermediate period acts

 

 

 

 



Overview

4.1          To achieve point 1 of the Ten Point Plan, Item 9 of Schedule 1 inserts Division 2A into Part 2 of the NTA.  The Senate made Government amendment (1) which is included in the Bill.  This amendment omits the heading to Division 2A and substitutes ‘Validation of intermediate period acts etc.’   This Division validates certain Commonwealth acts, and allows for the validation of State or Territory acts, done during an intermediate period.  The acts validated are generally those done in areas that were freehold, leasehold, or on which a public work had been constructed, and which may have been invalid because of native title.

4.2          Generally, the intermediate period is the time between 1 January 1994, when the NTA commenced, and the time the Wik decision was handed down by the High Court on 23 December 1996.  Division 2A provides for compensation to be payable to native title holders for validated intermediate period acts.  The Division follows a similar pattern to the existing validation regime under the NTA for past acts (generally acts done before 1 January 1994 and invalid because of native title - see Division 2 of Part 2 of the NTA).  Schedule 1, item 9 inserts a new section 21 to provide an overview of Division 2A.  The ‘objects’ section of the NTA (section 3) is also amended to make it clear that an object of the Act is to provide for, or permit, the validation of intermediate period acts invalid because of the existence of native title [Schedule 1, item 1] .

Background to Division 2A

4.3          Prior to the Wik decision, it was widely assumed (an assumption reflected in NTA provisions such as section 47) that native title had been extinguished on leasehold land (including land formerly the subject of a lease).  The High Court said in Mabo (No. 2) (1992) 175 CLR 1 that ‘... native title has been extinguished by grants of ... leases...’ (at 69).  This view was adopted by the previous Government.  The Second Reading Speech to the NTA stated:

“the Government’s view [is that]... under the common law past valid freehold and leasehold grants extinguish native title.  There is therefore no obstacle or hindrance to the renewal of pastoral leases in the future...”

4.4          Governments believed, therefore, that they were free to do various acts over pastoral lease land (including converting it to freehold) without following the processes in the NTA.  As a consequence of this belief, acts were done over leasehold land which we now know, on the basis of Wik , may have been invalid because of native title.

4.5          The Government does not believe that invalidity is the appropriate consequence for acts done on the basis of a legitimate assumption subsequently proved wrong.  Division 2A makes intermediate period acts valid.  It does not, however, validate acts over land where the only type of lease ever granted over that land was a mining lease or where the land has always been vacant Crown land.  The reasons for this validation regime are very much the same as the reasons for the past act regime in the current NTA (Part 2 of Division 2).  The form of the new regime follows that of the current NTA.

What is an intermediate period act?

4.6          The Bill defines an ‘intermediate period act’, a term which is central to the operation of the provisions of Division 2A [Schedule 1, item 39, section 232A] .  Regulations can, however, specifically declare an act not to be an intermediate period act even though it is otherwise defined to be one. [Subsection 232A(3)]

4.7          Note that the word ‘act’ is already defined, broadly, in section 226 of the NTA.  The term ‘act affecting native title’ is defined in section 227.

General - acts between 1 January 1994 and 23 December 1996

4.8          The flow chart (Diagram 4.1) on the following page illustrates the process involved in determining whether an act is an intermediate period act.

Diagram 4.1

4.9          An act will be an intermediate period act if it meets several conditions, as set out below.  [Subsection 232A(2)]

·       The act must have taken place at any time during the period from the beginning of 1 January 1994 until the end of 23 December 1996 .   In addition, there must have been native title existing in relation to the particular land or waters affected by that act at the time the act took place.  Paragraph 232A(2)(a) was amended by Government amendment (50) in the Senate and included in the Bill to make the notice period completely clear.

·       The act must not consist of the making, amendment or repeal of legislation unless the legislation affects native title either by directly creating a freehold estate, lease or licence over the land or waters affected or by containing, making or conferring a reservation, proclamation or dedication under which any part of the land or waters was to be used for a particular purpose. [5]   However, as noted in the Bill, an intermediate period act may be validated under Division 2A even if the legislation under which the act is done is not so validated.  [Paragraph 232A(2)(b)]

·       The act must have been wholly or partly invalid (including because of Division 3 of Part 2 or for any other reason) only because native title existed in relation to the land or waters affected by the act [paragraph 232A(2)(c)] .  This has two consequences.  Firstly, it ensures that the validation of the act is limited to the extent that the act affects native title: invalidity for other reasons (e.g. a failure to comply with the legislation under which the licence etc. was granted) is not validated.  Secondly, if an act has complied with the future act regime existing under the NTA before the commencement of the amendments in the Bill (e.g. the ‘right to negotiate’ provisions under current Subdivision B of Division 3 of Part 2 of the NTA have been complied with in relation to the grant of a mining lease), it is not an intermediate period act.

·       The act must not be a ‘past act’ [paragraph 232A(2)(d)] .  This means, for example, that acts done in accordance with rights (such as an option) created by a past act before 1 January 1994 are not intermediate period acts.  The term ‘past act’ is already defined in section 228 of the NTA.  However, past acts have generally been validated by the past act regime (Division 2 of Part 2 and complementary State and Territory legislation).

·       Before the act was done, any of the land or waters affected by the act (ie. over or in relation to which the act was done) must either have been the subject of a valid grant of a freehold estate or lease (other than a mining lease) or have had public works validly constructed or established on them [paragraphs 232A(2)(e) and (f)] .  The validity can be because of the operation of any provision in the NTA.  This means that, as a general rule, acts done on vacant Crown land or land covered by mining leases during the relevant period will not be validated by Division 2A.  However, acts done partly on vacant Crown land or mining leases during the relevant period (such as the grant of a licence) will be validated if at least part of the land affected is, or has been, freehold or leasehold or occupied by public works.

Acts done in pursuance of options, reservations etc. created in the intermediate period

4.10        Unlike current Division 2 of Part 2, proposed Division 2A of Part 2 does not deal with acts done after 23 December 1996 in pursuance of options or reservations etc. created in the intermediate period.  This is because such acts would, where the necessary tests are met, be valid in accordance with the future act provisions contained in proposed Subdivisions I and J of Division 3. [6]

General validation of Commonwealth intermediate period acts

4.11        Division 2A provides for a general validation of intermediate period acts attributable to the Commonwealth [Schedule 1, item 9, section 22A] .  This validation is in the same form as that which already applies to past acts (generally, acts done before 1 January 1994 and invalid because of native title) under the NTA (see subsection 14(1)).

When is an act attributable to the Commonwealth?

4.12        The term ‘act attributable to the Commonwealth’ is already defined in section 239 of the NTA.  It is any act done by the Crown in right of the Commonwealth, the Commonwealth Parliament or any person under a law of the Commonwealth.

Specific effect on native title of validation of Commonwealth acts

4.13        Division 2A also describes the effect on native title of the validation of intermediate period acts attributable to the Commonwealth [Schedule 1, item 9, section 22B] .  Again, this is generally in the same form as the existing NTA regime dealing with validation of past acts (see section 15).  For this purpose, intermediate period acts are split into four categories (A, B, C and D).  Each category is discussed below (paragraphs 4.16 to 4.29).

4.14        However, section 22B will not apply to acts covered by the provisions dealing with confirmation of extinguishment of native title.  In other words, where an act is both an intermediate period act and covered by Division 2B (confirmation of past extinguishment of native title by certain valid or validated acts) the effect of the act on the native title (in terms of extinguishment) is to be determined by reference to the relevant provisions in Division 2B, not Division 2A (refer to the discussion in Chapter 5).

4.15        Section 11 of the NTA is being amended to include a reference to intermediate period acts.  Section 11 says that native title cannot be extinguished by legislation on or after 1 July 1993 except in accordance with certain provisions in the NTA, which will now include those validating intermediate period acts which extinguish native title (ie. category A and category B intermediate period acts).  [Schedule 1, item 5]

Category A intermediate period acts

4.16        Category A intermediate period acts (see paragraph 4.19) consisting of anything other than the construction or establishment of public works extinguish all native title in relation to the land or waters concerned [paragraph 22B(a)] .  The extinguishment is taken to have occurred when the validated act was done.  Thus, for example, the grant of a freehold estate would extinguish native title at the time the grant was made not when the relevant section in the NTA (depending on whether it is an act attributable to the Commonwealth or to a State or Territory) comes into effect.

4.17        Category A intermediate period acts consisting of the construction or establishment of public works extinguish native title on the area of land or waters on which the public work is situated, the area being determined at the time its construction or establishment is completed.  The extinguishment after validated acts, however, is taken to occur at the commencement of the construction or establishment.  [Paragraph 22B(b)]

What does extinguishment mean?

4.18        The Bill specifically defines the word extinguish in relation to native title to mean permanent extinguishment.  This means there is no possibility of revival of the native title at some time after the extinguishment occurs even if the extinguishing act ceases to exist [Schedule 1, item 45, section 237A] .  For example, the grant of an exclusive agricultural lease will extinguish native title in relation to the land covered by the lease (see proposed subparagraph 23B(2)(c)(iv)).  Even when the term of the lease expires or the lease is surrendered to, or resumed by, the Crown, the native title will not again exist in relation to that land.  This is consistent with the recent Federal Court decision in Larrakia People v Northern Territory of Australia and Oilnet (NT) Pty Ltd [7] where O’Loughlin J stated:

‘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 the common law.’

What is a category A intermediate period act?

4.19        The Bill defines certain kinds of intermediate period act to be category A intermediate period acts [Schedule 1, item 39, section 232B ].  These are set out in Table 4.1.  However, the regulations may provide that an act is not a category A intermediate period act.  [Subsection 232B(9)]  

4.20        The Senate made Government amendment (51) which is included in the Bill.  This amendment removes subsections (5) and (6) from section 232B out of concern that these subsections may 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 and the amendment will put this beyond doubt.  (This parallels Government amendment (5) to section 23B.)  The Senate also made Government amendment (2) which is included in the Bill.  This amendment removes the reference to subsection 232B(6) from paragraph 22B(a) (which provides that native title is extinguished by certain Category A intermediate period acts).

Table 4.1

Kind of intermediate period act that is a category A intermediate period act

Comments

Grant or vesting of a freehold estate

[Subsection 232B(2)]

 

Grant or vesting of a Scheduled interest

[Paragraph 232B(3)(a)]

A definition of ‘Scheduled interest’ (section 249C) is inserted by item 49 of Schedule 1 of this Bill and is explained in Chapter 24 (Table 24.2).

Grant or vesting of a commercial lease

[Paragraph 232B(3)(b)]

The lease must not be an agricultural lease or a pastoral lease.

The term ‘commercial lease’ is already defined in section 246 of the NTA.



Grant or vesting of an exclusive agricultural lease

[Paragraph 232B(3)(c)]

A definition of ‘exclusive agricultural lease’ (section 247A) is inserted by item 47 of Schedule 1 of this Bill and is explained in Chapter 24 (Table 24.2).  The term ‘agricultural lease’ is defined in section 247 of the NTA.

Grant or vesting of an exclusive pastoral lease

[Paragraph 232B(3)(c)]

A definition of ‘exclusive pastoral lease’ (section 248A) is inserted by item 48 of Schedule 1 of this Bill and is explained in Chapter 24 (Table 24.2). The term ‘pastoral lease’ is defined in section 248 of the NTA.

Grant or vesting of a residential lease

[Paragraph 232B(3)(d)]

The term ‘residential lease’ is already defined in section 249 of the NTA.

Grant or vesting of a community purpose lease

[Paragraph 232B(3)(e)]

A definition of ‘community purpose lease’ (section 249A) is inserted by item 49 of Schedule 1 of this Bill and is explained in Chapter 24 (Table 24.2).





Grant or vesting of what is taken to be a separate lease:

·        in respect of land or waters over which a mining lease was in force at the start of 24 December 1996; and

·        on which certain towns, cities or private residences, or related buildings or works, are constructed

[Paragraph 232B(3)(f)]

Subsection 245(3) of the NTA deems certain portions of land or waters covered by a mining lease in existence at the start of 1 January 1994 to be covered by separate leases where certain conditions are met.  For example, certain towns or cities constructed on land covered by a mining lease are taken to be subject to a different lease from that covering the rest of the land or waters covered by the lease.  Paragraphs 245(2)(a) and (b) define the land on which the relevant towns, cities or private residences, or related buildings or works, are constructed.

Paragraph 232B(3)(f) applies to what are taken, under paragraph 245(3)(a), to be separate leases in respect of land covered by paragraphs 245(2)(a) and (b) if the mining lease were in force at the start of 24 December 1996 rather then 1 January 1994.

Division 2A will therefore validate an intermediate period act consisting of the grant or vesting of a mining lease but the grant will be a category A intermediate period act only to the extent it relates to land or waters on which towns, cities or private residences, or related buildings or works, are

Table 4.1 (continued)

Kind of intermediate period act that is a category A intermediate period act

Comments

 

constructed.  They are also treated separately for the operation of the past act regime (paragraph 229(3)(b) of the NTA).

Grant or vesting of any lease (other than a mining lease) which confers a right of exclusive possession over particular land or waters

[Paragraph 232B(3)(g)]

The term ‘lease’ is already defined in section 242 of the NTA.  ‘Mining lease’ is already defined in section 245.



Vesting in a person of particular land or waters by or under State or Territory legislation where a right of exclusive possession is expressly or impliedly conferred on the person by or under the legislation

[Subsection 232B(4)

.

An example of an act that would be covered by subsection 232B(4) is the making of an instrument (such as a vesting order), in accordance with legislation, which vests in a State or Territory statutory authority particular land for the purpose of building a hospital on it.



Construction or establishment of a public work

[Subsection 232B(7)]

An additional definition relating to the term ‘public work’ (section 251D) is inserted by item 50 of Schedule 1 of this Bill and is explained in Chapter 24 (paragraph 24.23).  The definition gives an extended meaning to the expression ‘land or waters on which a public work is constructed, established or situated’.  Also, a revised definition of ‘public work’ is inserted by the Bill (refer to paragraphs 24.20 to 24.23 of Chapter 24).

Note to Table 4.1: Subsections 232B(5) & (6) were deleted in the Senate and therefore do not appear in the Bill.

Grants to or for the benefit of Aboriginal peoples and Torres Strait Islanders are not category A intermediate period acts

4.21        However an intermediate period act will not fall into category A if it is the grant or vesting of any thing by or under legislation that makes provision for the granting or vesting of such things only to or in, or for the benefit of, Aboriginal peoples or Torres Strait Islanders [subsection 232B(8)] .  This will include grants under the Aboriginal Land Rights (Northern Territory) Act 1976 and other land rights legislation.

4.22        The Senate made Government amendment (52) which is included in the Bill.  This amendment also excludes from the definition of a ‘category A intermediate period act’:

·       the grant or vesting of any thing to or in a person to hold on trust for the benefit of Aboriginal peoples or Torres Strait Islanders ( paragraph 232B(8)(b )); and

·       the grant or vesting of any thing over particular land or waters, if at the time a thing covered by paragraph (8)(a) or (8)(b) is in effect in relation to the land or waters ( paragraph 232B(8)(c) ) This catches any grant over Aboriginal land or Aboriginal trust land, for example the grant of a lease by the trustees.

By excluding such acts from the definition of ‘category A intermediate period act’ these acts are removed from the operation of paragraph 22B(a) (which provides that category A intermediate period acts extinguish native title).  As a result of this amendment and Government amendment (53) (made by the Senate and included in the Bill amending section 232C which defines the term ‘category B intermediate period act’), the grant or vesting of such things will be category D intermediate period acts to which the non-extinguishment principle applies (see sections 232E and paragraph 22B(d)).

Category B intermediate period acts

4.23        Category B intermediate period acts extinguish native title to the extent of any inconsistency between the act and the continued existence, enjoyment or exercise of the native title rights and interests concerned.  Thus, a category B intermediate period act that is wholly inconsistent with the continuance of native title will completely extinguish the native title.  If the act is partly inconsistent with the continuance of native title, it will only extinguish the native title to that extent [paragraph 22B(c)] .  The extinguishment is taken to have occurred when the validated act was done.  The meaning of ‘extinguish’ is discussed in paragraph 4.18.

What is a category B intermediate period act?

4.24        A category B intermediate period act is the grant of a lease that is neither a category A intermediate period act nor:

·       a mining lease [subparagraph 232C(b)(i)] ; or

·       a lease granted by or under legislation that grants such estates or leases only to or for the benefit of Aboriginal or Torres Strait Islander peoples [subparagraph 232C(b)(ii)] ;

·       a lease granted to a person to hold on trust for the benefit of Aboriginal peoples or Torres Strait Islanders [subparagraph 232C(b)(iii)] ; and

·       any other lease granted over particular land or waters, if at the time a lease covered by subparagraph (b)(ii) or (b)(iii) is in force over the land or waters [subparagraph 232C(b)(iv)] .

Accordingly, the grant of leases of these kinds will be category D intermediate period acts to which the non-extinguishment principle applies (see sections 232E and paragraph 22B(d) ).

4.25        The exclusions contained in subparagraphs 232C(b)(iii) and 232C(b)(iv) were inserted by Government amendment (53) which was made by the Senate and is included in the Bill.

Example

4.26        An example of a category B intermediate period act is the grant, between 1 January 1994 and 23 December 1996, over former pastoral lease land of a non-exclusive pastoral lease that was invalid because of native title.

Category C intermediate period acts

4.27        The non-extinguishment principle applies to category C intermediate period acts [Paragraph 22B(d)]

What is a category C intermediate period act?

4.28        An intermediate period act falls into category C if it is the grant of a mining lease [Schedule 1, item 39, section 232D] .  The term ‘mining lease’ is defined in section 245 of the NTA.

What is the non-extinguishment principle?

4.29        The ‘non-extinguishment principle’ is already defined in section 238 of the NTA.  In broad terms, it says that an act subject to the principle does not extinguish native title to the extent of any inconsistency.  However, the native title has no effect in relation to the act where the two are inconsistent.  If the act or its effects are later removed or cease to operate, the native title again can have full effect (ie. the native title is only suppressed).

Example

4.30        The validation of an intermediate period act consisting of the grant of a mining lease conferring exclusive possession in respect of land will nullify the effect of any native title existing on former pastoral lease land.  However, the native title can revive when the term of the mining lease expires.

Category D intermediate period acts

4.31        The non-extinguishment principle also applies to category D intermediate period acts [Paragraph 22B(d)]

What is a category D intermediate period act?

4.32        An intermediate period act is a category D intermediate period act if it does not fall into any of the other categories [Schedule 1, item 39, section 232E] .   An example would be the grant of a licence to perform an activity on former pastoral lease land where co-existing  native title exists or the grant of a lease under legislation that grants leases only for the benefit of Aboriginal and Torres Strait Islander peoples.

Preservation of reservations etc. beneficial to Aboriginal peoples or Torres Strait Islanders

4.33        The regime for validation of intermediate period acts is not intended to remove reservations and conditions for the benefit of, or existing non-native title rights or interests of, Aboriginal or Torres Strait Islander peoples.

  4.34       To this end, section 22B, which sets out the extent of the extinguishing effect of intermediate period acts on native title (discussed in paragraphs 4.13 to 4.29), does not affect the things set out in Table 4.2 [Schedule 1, item 9, section 22C].   Section 22C follows the same form as section 16 of the validation regime in the current NTA.

Table 4.2

Nature of the thing

Comments

A reservation or condition in the intermediate period act attributable to the Commonwealth where the reservation or condition is for the benefit of Aboriginal peoples or Torres Strait Islanders [Paragraph 22C(a)]

This is not restricted to a reservation or condition in legislation but also includes all those interests listed in the definition of ‘act’ in section 226 of the NTA, such as a lease, licence or permit.

An example of the application of paragraph 22C(a) is as follows.  The grant of a pastoral lease that is a category B intermediate period act contains a condition that it is subject to rights of access by Aboriginal people.  Paragraph 22B(a) does not nullify the effect of that condition.

Rights or interests of Aboriginal peoples or Torres Strait Islanders that would be affected by the doing of the intermediate period act  [Paragraph 22C(b)]

The rights or interests do not include native title rights and interests.  However, they do include rights or interests arising under legislation, at common law or in equity and whether or not they are rights of usage.

Examples of such rights and interests would be those arising under an easement, under a contract or lease or from possession or use.

 

Validation of State and Territory intermediate period acts

4.35        The Commonwealth cannot unilaterally validate the acts of States (see University of Wollongong v Metwally (1985) 158 CLR 447; Western Australia v The Commonwealth (1995) 183 CLR 373).  The Commonwealth can prospectively allow the States to validate their acts.  The Government which did the act must do the validation.  Division 2A allows States and Territories to validate intermediate period acts [Schedule 1, item 9, section 22F] .  This reflects the approach taken to the validation of past acts in Division 2.

4.36        Section 22F says that a law of a State or Territory may provide that intermediate period acts attributable to the State or Territory are valid, and are always taken to have been valid.  However, these laws will only be effective if they contain provisions to the same effect as sections 22B and 22C.  These sections are discussed in this Chapter.

4.37        However, section 22F does not require States and Territories to validate their intermediate period acts.  Nor does the section prevent the States and Territories from attempting to validate their intermediate period acts in a different way to that set out in section 22B and 22C.

When is an act attributable to a State or Territory?

4.38        The term ‘act attributable to a State or a Territory’ is already defined in section 239 of the NTA.  It is any act done by the Crown in right of the State or Territory, the State or Territory Parliament or any person under a law of the State or Territory.

Compensation for validation of intermediate period acts

4.39        The Bill provides for compensation to be payable to native title holders for the validation of intermediate period acts that affect their native title.

Compensation for intermediate period acts attributable to the Commonwealth

4.40        Native title holders are entitled to compensation from the Commonwealth for the effect on native title of the validation of intermediate period acts attributable to the Commonwealth.  [Schedule 1, item 9, section 22D]

4.41        Compensation is payable in accordance with Division 5 of Part 2 of the NTA (as modified by the Bill) [Schedule 1, item 13] .  In general terms, compensation for intermediate period acts is an entitlement on ‘just terms’ to compensate the native title holders for any loss, diminution, impairment or other effect of the act on their native title.  

Invalidity because of paragraph 51(xxxi) of the Constitution

4.42        Paragraph 51(xxxi) of the Constitution allows the Commonwealth to acquire property from a person only on ‘just terms’.  The Bill contains a provision to ensure that the constitutional requirements are met where the invalidity of the intermediate period act attributable to the Commonwealth results from an acquisition of property subject to paragraph 51(xxxi) of the Constitution that has not been made on the necessary ‘just terms’.  [Schedule 1, item 9, subsection 22E(1)]

4.43        Where this is the case, any compensation payable by the Commonwealth to native title holders under Division 5 of Part 2 is ‘topped-up’ to ensure that the ‘just terms’ requirements of paragraph 51(xxxi) of the Constitution are satisfied.  [Subsection 22E(2)] .

Notification by Commonwealth

4.44        The Senate made Government amendment (3) which is included in the Bill.  This amendment inserts a new section 22EA into Division 2A that imposes certain notification requirements on the Commonwealth in relation to acts that:

·       consist of the creation of a right to mine, the variation of a right to mine so as to increase the area to which the right relates or, in certain cases, the extension of the period for which such a right has effect (see paragraphs 26(2)(a), (b) and (c) of the current NTA) ; and

·       are attributable to the Commonwealth; and

·       took place between 1 January 1994 and 23 December 1996; and

·       took place over land that is or was the subject of a freehold or leasehold grant or public work.

4.45         In relation to these acts, the Commonwealth must, within 6 months of the commencement of this section, notify the public and any registered native title body corporate, registered native title claimant and representative Aboriginal/Torres Strait Islander body of the details set out in subsection 22EA(2).  These details include the date on which the act was done, information identifying the area over which the act took place, and information about how further details about the act may be obtained. 

4.46        Not all acts in relation to which notice is given under subsection 22EA(1) are validated intermediate period acts, since some of these acts will have taken place on land where native title does not exist (see paragraphs (2)(a) and (2)(c) of the definition of ‘intermediate period act’ in section 232A).  Rather, the purpose of this provision is to give notice of acts which may be validated intermediate period acts attributable to the Commonwealth.  Failure to comply with this section does not, however, render the validation of any intermediate period acts by Subdivision B ineffective.

Compensation for intermediate period acts attributable to a State or Territory

4.47        An entitlement to compensation arises for native title holders if a law of a State or Territory validates, in accordance with section 22F, an intermediate period act attributable to the State or Territory [Schedule 1, item 9, subsection 22G(1)] .  The compensation is payable in accordance with Division 5 of Part 2 of the NTA.  This compensation may be recovered by native title holders from the State or Territory concerned [subsection 22G(2)] .

4.48        If a State or Territory does not validate an otherwise invalid intermediate period act attributable to it, the regime applying under the NTA prior to the commencement of this Bill, which rendered impermissible future acts invalid, would continue to apply.

4.49        The Bill does not prevent a State or Territory from creating its own system for an entitlement to compensation for an intermediate period act or for the validation of such an act.  [Subsection 22G(3)]

Notification by States and Territories

4.50        The Senate made Government amendment (4) which is included in the Bill.  This amendment inserts a new section that imposes certain notification requirements on States and Territories that legislate to validate intermediate period acts attributable to them.  The new section largely mirrors new section 22EA.  Proposed section 22H requires a State or Territory that has legislated, in accordance with section 22F, to validate intermediate period acts attributable to that State or Territory to give notice of any act that:

·       consists of the creation of a right to mine, the variation of a right to mine so as to increase the area to which the right relates or, in certain cases, the extension of the period for which such a right has effect (see paragraphs 26(2)(a), (b) and (c) of the current NTA); and

·       is attributable to the State or Territory; and

·       took place between 1 January 1994 and 23 December 1996; and

·       took place over land that is or was the subject of a freehold or leasehold grant or public work.

4.51        In relation to these acts, the State or Territory must, within 6 months of the commencement of that State or Territory’s validation legislation, notify the public and any registered native title body corporate, registered native title claimant and representative Aboriginal/Torres Strait Islander body of the details set out in subsection 22H(2).  These details include the date on which the act was done, information identifying the area over which the act took place, and information about how further details about the act may be obtained. 

4.52        Not all acts in relation to which notice is given under subsection 22H(1) will be validated intermediate period acts, since some of these acts will have taken place on land where native title does not exist (see paragraphs (2)(a) and (2)(c) of the definition of ‘intermediate period act’ in section 232A).  Rather, the purpose of this provision is to give notice of acts which may be intermediate period acts validated by a State or Territory.  Failure to comply with this section does not, however, render the validation of any intermediate period act pursuant to section 22F ineffective.

Inquiries by the National Native Title Tribunal (NNTT) into the effect of validation of intermediate period acts

4.53        Section 137 of the NTA currently allows the Commonwealth Minister to direct the NNTT to hold special inquiries into certain matters relating to native title.  The Bill specifically allows such an inquiry to cover the effect on Aboriginal peoples and Torres Strait Islanders of the validation of particular intermediate period acts.  [Schedule 1, item 28]

Consequential amendment to section 7 of the NTA

4.54        Subsection 7(1) of the NTA provides that the NTA does not affect the operation of the Racial Discrimination Act 1975 .  However, subsection 7(2) currently provides that this general principle does not affect the validation of past acts under the NTA.  Subsection 7(2) is being amended so that the general principle also does not affect the validation of intermediate period acts [Schedule 1, item 3] .  This amendment is consistent with the policy underlying the existing subsection 7(2).



 

 

 

 

 

 



Overview

5.1          To achieve points 2 and 4 of the Ten Point Plan, Item 9 of Schedule 1 inserts Division 2B into Part 2 of the NTA.  This Division confirms the effect on native title of various types of Commonwealth acts done on or before 23 December 1996 and seeks to reflect the Government’s understanding of the common law of native title after the Wik decision.  It also permits the States and Territories to confirm the effect of acts they have done on or before 23 December 1996.  Schedule 1, item 9 inserts a new section 23A to provide an overview of Division 2B.

5.2          Generally speaking, the existing NTA only provides a framework for dealing with native title.  The NTA currently says little about whether or where native title may still exist in Australia, and apart from the very limited validation provisions in Division 2 of Part 2, says nothing about whether native title may or may not have been extinguished.  The NTA generally leaves these issues to be determined by the common law.  This has given rise to significant uncertainty for native title claimants and the holders of other interests in land.

5.3          The purpose of the proposed amendments dealing with confirmation of extinguishment of native title is to limit this uncertainty.  The effect will be to confirm that native title is extinguished on exclusive tenures (such as freehold and residential leases) and extinguished to the extent of any inconsistency on non-exclusive agricultural and pastoral leases.  Consistent with the Wik decision, the rationale for such confirmation is that the rights conferred and/or the nature of the use of the land is such that the exclusion of others (including native title holders) must have been presumed when the tenure was granted.  The amendments will put the matter beyond doubt.

Acts affected by the confirmation provisions

5.4          Under Division 2B, ‘previous exclusive possession acts’ attributable to the Commonwealth will be confirmed as extinguishing native title totally.  ‘Previous non-exclusive possession acts’ attributable to the Commonwealth will be confirmed as extinguishing native title rights and interests that are inconsistent with the rights and interests which the act creates or gives.  States and Territories will be able to enact equivalent provisions for previous exclusive and non-exclusive possession acts attributable to them.

5.5          Division 2B explains which acts are ‘previous exclusive possession acts’ and which are ‘previous non-exclusive possession acts’.  The categories are determined according to whether an act or the activities are assessed to permit, either directly or necessarily, exclusive possession of the area to the person who has an interest in the area because of the act.

What is a previous exclusive possession act?

5.6          Certain categories of act are defined as previous exclusive possession acts [Schedule 1, item 9, section 23B] .  The regulations may provide, however, that an act is not a previous exclusive possession act [subsection 23B(10)] .

Grants of freehold and certain leases and vesting of certain interests on or before 23 December 1996

5.7          An act is a previous exclusive possession act if it meets the conditions set out below.  [Subsection 23B(2)]

·       The act must be valid.  This validity can arise because it has been validated as a ‘past act’ under existing section 14 or 19 of the NTA, or validated as an ‘intermediate period act’ under sections 22A and 22F proposed to be inserted by this Bill.  Most of these acts will always have been valid.  [Paragraph 23B(2)(a)]

·       The act must have taken place on or before 23 December 1996 [paragraph 23B(2)(b)] .  Point 2 of the 10 Point Plan referred to confirmation in relation to tenures in existence on or before 1 January 1994.  The confirmation provisions in Division 2B apply to acts done on or before 23 December 1996 which is the date the Wik decision was handed down by the High Court.  The only acts occurring between those two dates which will be covered are those which either validly extinguished native title in accordance with the NTA provisions, or those which are validated by Division 2A.

·       The act consists of one of the acts set out in Table 5.1.

Table 5.1

Act

Comments

Grant or vesting of a Scheduled interest

[Subparagraph 23B(2)(c)(i)]

A definition of ‘Scheduled interest’ (section 249C) is inserted by item 49 of Schedule 1 of this Bill and is explained in Chapter 24 (Table 24.2).

Grant or vesting of a freehold estate

[subparagraph 23B(2)(c)(ii)]

 

Grant or vesting of a commercial lease

[Subparagraph 23B(2)(c)(iii)]

The lease must not be an agricultural lease or a pastoral lease.

The term ‘commercial lease’ is already defined in section 246 of the NTA.



Table 5.1 (continued)

Act

Comments



Grant or vesting of an exclusive agricultural lease

[Subparagraph 23B(2)(c)(iv)]

A definition of ‘exclusive agricultural lease’ (section 247A) is inserted by item 47 of Schedule 1 of this Bill and is explained in Chapter 24 (Table 24.2).  The term ‘agricultural lease’ is defined in section 247 of the NTA.



Grant or vesting of an exclusive pastoral lease

[Subparagraph 23B(2)(c)(iv)]

A definition of ‘exclusive pastoral lease’ (section 248A) is inserted by item 48 of Schedule 1 of this Bill and is explained in Chapter 24 (Table 24.2).  The term ‘pastoral lease’ is defined in section 248 of the NTA.



Grant or vesting of a residential lease

[Subparagraph 23B(2)(c)(v)]

The term ‘residential lease’ is already defined in section 249 of the NTA.



Grant or vesting of a community purposes lease

[Subparagraph 23B(2)(c)(vi)]

A definition of ‘community purposes lease’ (section 249A) is inserted by item 49 of Schedule 1 of this Bill and is explained in Chapter 24 (Table 24.2).

Grant or vesting of what is taken by subsection 245(3) to be a separate lease:

·        in respect of land or waters over which a mining lease was in force at the start of 24 December 1996; and

·        on which certain towns, cities or private residences, or related buildings or works, are constructed

[Paragraph 23B(2)(c)(vii)]

Table 4.1 in Chapter 4 explains the background to subsection 245(3).

Division 2B will therefore extinguish native title on land or waters affected by the grant or vesting of a mining lease but only to the extent it relates to land or waters on which towns, cities or private residences, or related buildings or works, are constructed.



Grant or vesting of any lease (other than a mining lease) that confers a right of exclusive possession over particular land or waters

[Subparagraph 23B(2)(c)(viii)]

The term ‘lease’ is already defined in section 242 of the NTA.  ‘Mining lease’ is already defined in section 245.



Vesting in a person of particular land or waters by or under State or Territory legislation where a right of exclusive possession is expressly or impliedly conferred on the person by or under the legislation

[Subsection 23B(3)

(Examples are discussed at paragraphs 5.8 to 5.10).

An example is the vesting, by an order of a State Governor (in Council), in a charitable body of land under which a right of exclusive possession is conferred on the body.

 

Note to Table 5.1 The Senate made Government amendment (5) which is included in the Bill.  This amendment removes subsections (4) and (5) from section 23B (of the Bill introduced in 1997) out of concern that these subsections may have resulted in the creation of some national parks, conservation reserves and other like areas being included in the definition of previous exclusive possession act.



Examples of acts not covered by subsection 23B(3)

5.8          To avoid doubt, the following acts are examples of acts that are not covered by subsection 23B(3):

·       the Northern Territory Surrender Act 1907 of South Australia (this legislation handed the Northern Territory over to the Commonwealth);

·       the Seat of Government Surrender Act 1909 of New South Wales (this legislation granted to the Commonwealth the land which now forms the Australian Capital Territory);

·       the Seat of Government Surrender Act 1915 of New South Wales (this legislation granted to the Commonwealth the land which now forms the Jervis Bay).

5.9          Also, the Commonwealth Coastal Waters (State Title) Act 1980 and Coastal Waters (Northern Territory Title) Act 1980 are not acts covered by subsection 23B(3).  These Acts vested in each State and the Northern Territory certain property rights in the seabed beneath the relevant coastal waters.

5.10        The Senate made Government amendment (6) which is included in the Bill.  This amendment removes acts covered by subsection 23B(6) from the definition of ‘previous exclusive possession act’.  These are certain acts that take place after 23 December 1996 in exercise of a legally enforceable right or option created on or before 23 December 1996.  As these are acts which take place after 23 December 1996, it is not appropriate to include them in the confirmation provisions.  Rather, these acts should be, and are, generally covered by the future act regime, in particular section 24IB.

Construction of public works that commenced on or before 23 December 1996

5.11        An act is also a previous exclusive possession act if it is the valid construction or establishment of any public work, where the construction or establishment started on or before 23 December 1996.  The validity can arise because of the validation of past acts under existing section 14 or 19 of the NTA, or because of the validation of intermediate period acts under sections 22A or 22F proposed to be inserted by this Bill.  Most acts will always have been valid.  [Subsection 23B(7)]

5.12        The Senate made Government amendment (7) which is included in the Bill.  This amendment removes acts covered by subsection 23B(8) from the definition of ‘previous exclusive possession act’.  These are certain acts consisting of the construction of a public work that commenced construction after 23 December 1996 pursuant to a reservation made for a particular purpose before that date.  As these are acts which take place after 23 December 1996, it is not appropriate to include them in the confirmation provisions.  Rather, these acts should be, and are, generally covered by the future act regime, in particular section 24JB.

Grants to or for the benefit of Aboriginal peoples or Torres Strait Islanders are not previous exclusive possession acts

5.13        However, an act will not fall into any of the categories of previous exclusive possession act if it is the grant or vesting of any thing by or under legislation that makes provision for the grant or vesting of such things only to, in or for the benefit of Aboriginal peoples or Torres Strait Islanders [subsection 23B(9)] .  This will include grants under the Aboriginal Land Rights (Northern Territory) Act 1978 and other land rights legislation.

What is a previous non-exclusive possession act?

5.14        Two categories of act are defined as previous non-exclusive possession acts: grants of non-exclusive agricultural or non-exclusive pastoral leases on or before 23 December 1996 and rights etc. created on or before 23 December 1996 to grant such leases but exercised after that date.  [Schedule 1, item 9, section 23F]

Grants of non-exclusive agricultural or pastoral leases on or before 23 December 1996

5.15        An act is a previous non-exclusive possession act if it meets the conditions set out below [subsection 23F(2)] .  The regulations may provide, however, that an act is not a previous exclusive possession act [subsection 23F(4)] .

·       The act must be valid.  As with previous exclusive possession acts, this validity can arise because of the validation of past acts under existing section 14 or 19 of the NTA, or because of the validation of intermediate period acts under sections 22A or 22F proposed to be inserted by this Bill.  Most will always have been valid.  [Paragraph 23F(2)(a)]

·       The act must have taken place on or before 23 December 1996 (the date of the High Court’s decision in Wik ).  [Paragraph 23F(2)(b)]

·       The act must consist of the grant of a non-exclusive agricultural lease or a non-exclusive pastoral lease [Paragraph 23F(2)(c)] .  These terms are defined in proposed sections 247B and 248B, respectively, of the NTA (see items 47 and 48 of Schedule 1). [8]

Rights etc. created on or before 23 December 1996 to grant non-exclusive agricultural or pastoral leases but exercised after that date

5.16        An act is also a previous non-exclusive possession act even if it takes place after 23 December 1996 provided it happens in pursuance of certain rights or arrangements etc. arising on or before that date [subsection 23F(3)] . [9]   An example would be a decision before 24 December 1996, evidenced in writing, to grant a non-exclusive pastoral lease, but where the things necessary to complete the grant have not been done by that time.  An act will fall into this class if the conditions below are met.

·       The act must take place after 23 December 1996.  [Paragraph 23F(3)(a)]

·       The act must have been a previous non-exclusive possession act under the general definition (discussed in paragraph 5.21) if that definition allowed acts after 23 December 1996 to be previous non-exclusive possession acts.  [Paragraph 23F(3)(b)]

·       The act must take place in good faith in exercise of a legally enforceable right created, or as a result of a bona fide offer, commitment, arrangement or undertaking made or given, on or before 23 December 1996.  However, there must be written evidence of the offer, commitment, arrangement or undertaking created at or near the time it was made or given.  [Paragraph 23F(3)(c)]  The requirement that the act also take place in good faith was inserted by Government amendment (11A) which was made by the Senate and is included in the Bill.

Previous exclusive and non-exclusive possession acts of the Commonwealth

5.17        Division 2B also confirms the effect on native title of previous exclusive possession acts and previous non-exclusive possession acts, as follows:

·       previous exclusive possession acts attributable to the Commonwealth extinguish native title totally [Schedule 1, item 9, section 23C] ; and

·       previous non-exclusive possession acts attributable to the Commonwealth extinguish any inconsistent native title [Schedule 1, item 9, section 23G] (see paragraph 5.28 below).

5.18        Consistent with this, section 11 of the NTA is being amended to include a reference to Division 2B.  Section 11 says that native title cannot be extinguished by legislation on or after 1 July 1993 except in accordance with certain provisions in the NTA, which will now include those in Division 2B.  [Schedule 1, item 4]

Previous exclusive possession acts extinguish native title

Grants or vesting of interests

5.19        A previous exclusive possession act attributable to the Commonwealth that is the grant or vesting of an interest listed in Table 5.1 extinguishes any native title in respect of the land or waters covered by it.  The extinguishment is taken to have occurred at the time of the grant or vesting not the time that the relevant section of the NTA comes into effect [subsection 23C(1)].  The interest need not still exist on 23 December 1996 for the extinguishment to be confirmed.  If it ceases to exist after 23 December 1996, the extinguishment will still have occurred.

5.20        The Senate made Government amendment (9) which is included in the Bill.  This amendment removes references in subsection 23C(1) to subsections 23B(4) and 23B(5) as these subsections were removed from section 23B by Government amendment (5).   The Senate also made Government amendment (10) which is also included in the Bill.  This amendment removes the reference in subsection 23C(1) to subsection 23B(6) and is required as a consequence of the removal of subsection 23B(6) by Government amendment (6).

Public works

5.21        A previous exclusive possession act attributable to the Commonwealth that is the construction or establishment of a public work extinguishes any native title in respect of the land or waters on which the work is or was situated determined as at the time it is completed. [10]   The extinguishment is, however, taken to have occurred at the commencement of the construction or establishment of the public work [subsection 23C(2)] .  The public work need not still exist on 23 December 1996 for the extinguishment to be confirmed.  If it ceases to exist after 23 December 1996, the extinguishment will still have occurred.   The Senate made Government amendment (11) which is included in the Bill.  This amendment removes the reference to subsection 23B(8) from subsection 23C(2) and is required as a consequence of the removal of subsection 23B(8) by Government amendment (7) .

Previous non-exclusive possession acts extinguish inconsistent native title

5.22        In the Wik decision ((1996) 187 CLR 1) at 243 Kirby J stated:

“Only if there is inconsistency between the legal interests of the lessee (as defined in the instrument of lease and the legislation under which it was granted) and the native title (as established by evidence), will such native title, to the extent of the inconsistency, be extinguished.”

Proposed paragraph 23G(1)(a) implements this test.

5.23        Table 5.2 sets out the native title rights and interests in respect of the land or waters covered by the lease that are extinguished by a previous non-exclusive possession act attributable to the Commonwealth.

Table 5.2

Native title extinguished

Comments

Native title rights and interests that are inconsistent with the rights and interests granted by the lease [Paragraph 23G(1)(a)]

The extinguishment might be total in cases where the native title rights and interests are wholly inconsistent with the rights and interests granted by the lease.  In other cases, for example where the native title rights are only limited access rights, there may be no extinguishment.

Native title rights and interests to the extent that they confer exclusive possession, occupation, use and enjoyment of the land or waters [Paragraph 23G(1)(b)]

The continuation of such ‘exclusive’ rights and interests would clearly be inconsistent with the rights created under a lease which permits the use of the land for agricultural or pastoral purposes.

5.24        The extinguishment is taken to have occurred at the time of the grant of the lease (ie. not at the time that the relevant section of the NTA comes into effect) [paragraph 23G(1)(c)] .  The lease need not still exist on 23 December 1996 for the extinguishment to be confirmed.  If it ceases to exist after 23 December 1996, the extinguishment will still have occurred.

5.25        The Senate made Government amendment (12) which is included in the Bill.  This amendment inserts paragraph 23G(1)(d) which provides that to the extent that a previous non-exclusive possession act attributable to the Commonwealth involves the grant of rights and interests that are not inconsistent with the continued existence and enjoyment of native title rights, those ‘consistent’ rights granted by the Crown, and any activities done in giving effect to those rights, prevail over the native title rights and interests but do not extinguish the native title rights and interests.  The amendment reflects the position at common law, which is that native title rights and interests may survive the grant of a non-exclusive pastoral or non-exclusive agricultural lease.  The amendment makes it clear that any native title rights and interests that do survive are not extinguished by acts done pursuant to those ‘consistent’ rights.  It is generally left to the courts to determine what rights granted by pastoral leases are inconsistent with native title and what rights are consistent.

When is an act attributable to the Commonwealth?

5.26        The term ‘act attributable to the Commonwealth’ is already defined in section 239 of the NTA.  It is any act done by the Crown in right of the Commonwealth, the Commonwealth Parliament or any person under a law of the Commonwealth.

What does extinguishment mean?

5.27        The Bill specifically defines the word extinguish in relation to native title to mean permanent extinguishment.  This means there is no possibility of revival of the native title at some time after the extinguishment occurs even if the extinguishing act ceases to exist (see paragraph 4.18 of Chapter 4).  [Item 45, section 237A]   Some of the Justices in Wik specifically left open the question whether native title is permanently extinguished by the grant of inconsistent pastoral lease rights, or whether the native title rights can revive on the expiration of the pastoral lease.  However, in the recent Federal Court decision in Larrakia People v Northern Territory of Australia and Oilnet (NT) Pty Ltd [11] O’Loughlin J stated:

‘But I cannot proceed upon a premis that, because His Honour [Gummow J in Wik ] decided not to comment about a doctrine, there is therefore such a doctrine in existence.  I would, on the contrary, feel obliged, in the light of the dicta first mentioned [ Wik per Toohey J at 125, Gaudron J at 135, Gummow J at 176 and Kirby at 250] to reject the submission that native title might somehow survive the grant of an estate in fee simple’.

His Honour went on to state:

‘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 the common law.’

The policy of the Government is to provide that extinguishment is permanent.

Effect of confirmation on provisions dealing with past acts and intermediate period acts

5.28        If native title has been extinguished by a previous exclusive possession act or a previous non-exclusive possession act, the provisions that deal with the effect of past acts and intermediate period acts on native title do not apply [subsections 23C(3) and 23G(3); Schedule 1, item 8] .  These provisions are existing section 15 of the NTA and new section 22B proposed to be inserted by item 9 of Schedule 1.  Subsections 23C(3) and 23G(3) ensure that there is no overlap between the provisions that extinguish native title.  For example, the non-extinguishment principle applies to the grant by the Commonwealth of freehold validated under Division 2 if it was no longer in existence on 1 January 1994 (see subsection 229(2) and section 232) but by reason of section 23C(1), the native title will now be taken to have been extinguished by that grant.

5.29        However, there is an exception in the case of previous non-exclusive possession acts.  This relates to category A past acts consisting of the grant of an agricultural or pastoral lease.  Under existing paragraph 15(1)(a) of the NTA, such grants extinguish native title.  The regime dealing with the confirmation of extinguishment by previous non-exclusive possession acts does not cover these cases [subsection 23G(2)] .  This ensures that the effect of the confirmation provisions is not to undo extinguishment that has already occurred under the NTA (under the confirmation provisions, extinguishment only occurs to the extent of any inconsistency - see section 23G(1)): there will be no adverse effect of the amendments on any holders of land or waters for which native title has already been extinguished by the NTA.

Preservation of reservations etc. beneficial to Aboriginal peoples or Torres Strait Islanders

5.30        The regime for confirmation of past extinguishment of native title is not intended to remove reservations and conditions for the benefit of, or existing non-native title rights or interests of, Aboriginal peoples or Torres Strait Islanders.

5.31        To this end, sections 23C and 23G, which set out the confirmation provisions (discussed in paragraphs 5.23 to 5.33), do not affect the things set out in Table 5.3.  [Schedule 1, item 9, sections 23D and 23H]

Table 5.3

Nature of the thing

Comments

A reservation or condition in the exclusive or non-exclusive possession act attributable to the Commonwealth where the reservation or condition is for the benefit of Aboriginal peoples or Torres Strait Islanders [Paragraphs 23D(a) and 23H(a)]

This is not restricted to a reservation or condition in legislation but also includes all those interests listed in the definition of ‘act’ in section 226 of the NTA, such as a lease, licence or permit.

An example of the application of paragraph 23D(a) is as follows.  The grant of a lease that is a previous exclusive possession act contains a condition that it is subject to rights of access by Aboriginal people.  Section 23C does not nullify the effect of that condition.



Rights or interests of Aboriginal peoples or Torres Strait Islanders that would be affected by the doing of the intermediate period act  [Paragraphs 23D(b) and 23H(b)]

 

The rights or interests do not include native title rights and interests.  However, they do include rights or interests arising under legislation, at common law or in equity and whether or not they are rights of usage.

Examples of such rights and interests would be those arising under an easement or under a contract or lease or from possession or use.

Notification

5.32        The Senate made Government amendment (12A) which is included in the Bill.  This amendment inserts a new section 23HA which requires, in the case of a previous non-exclusive-possession act to which subparagraph 23F(3)(c)(ii) applies, that notice be given in the way determined in writing by the Commonwealth Minister, to any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the area affected by the act about the doing or proposed doing of the act, or acts of that class, and give those persons an opportunity to comment on the act or class of acts.  However, failure to comply with this notification requirement will not result in invalidity.

Previous exclusive and non-exclusive possession acts of the States and Territories

5.33        Division 2B also enables States and Territories to confirm that:

·       previous exclusive possession acts attributable to them extinguish native title [Schedule 1, item 9, section 23E] ; and

·       previous non-exclusive possession acts attributable to them extinguish native title to the extent of any inconsistency [Schedule 1, item 9, section 23I] .

5.34        The amendments to section 11 of the NTA, discussed in paragraph 5.18, relating to the effect of Division 2B on the making, amendment or repeal of Commonwealth or State or Territory legislation on or after 1 July 1993, also apply in these cases.  [Schedule 1, item 4]

5.35        As with the validation of past acts and intermediate period acts, the Commonwealth does not unilaterally provide for the extinguishment of native title by the acts of States and Territories (see paragraph 4.35 of Chapter 4).

5.36        Section 23E says that a law of a State or Territory may provide that all or any ‘previous exclusive possession acts’ (described in section 23B - see paragraphs 5.6 to 5.13) attributable to the State or Territory extinguish native title if they contain provisions to the same effect as sections 23C and 23D.  Section 23C, discussed in this Chapter, provides for the extinguishment of native title by previous exclusive possession acts attributable to the Commonwealth.  Section 23D deals with the preservation of reservations etc. beneficial to Aboriginal peoples or Torres Strait Islanders.

5.37        In a like manner, section 23I says that a law of a State or Territory may provide that all or any ‘previous non-exclusive possession acts’ (described in section 23F - see paragraphs 5.14 to 5.16) attributable to the State or Territory extinguish native title if they contain provisions to the same effect as sections 23G, 23H and 23HA.  Section 23G, also discussed in this Chapter, provides for the extinguishment of inconsistent native title by previous non-exclusive possession acts attributable to the Commonwealth.  Section 23H deals with the preservation of reservations etc. beneficial to Aboriginal peoples or Torres Strait Islanders.  Section 23HA requires certain notification procedures to be followed in relation to certain previous non-exclusive possession acts.  The reference to section 23HA was inserted by Government amendment (12B) which was made by the Senate and included in the Bill.  (Sections 23G, 23H and 23HA are all discussed in this Chapter.)

5.38        However, sections 23E and 23I do not require States and Territories to confirm extinguishment for their acts.  Nor do the sections prevent the States and Territories from attempting to confirm extinguishment in a different way to that set out in sections 23E and 23I.  However, there would be a risk that such an attempt was inconsistent with sections 10 and 11 of the NTA.

When is an act attributable to a State or Territory?

5.39        The term ‘act attributable to a State or a Territory’ is already defined in section 239 of the NTA.  It is any act done by the Crown in right of the State or Territory, the State or Territory Parliament or any person under a law of the State or Territory.

Compensation for confirmation of extinguishment

5.40        Division 2B provides for compensation to be payable, in limited circumstances, to native title holders for the effect of the confirmation of extinguishment on their native title.  [Schedule 1, item 9, section 23J]

5.41        If native title has already been extinguished otherwise than under the NTA (e.g. in accordance with common law principles that other legislation has extinguished native title), compensation is not payable under the NTA.  However, if Division 2B does extinguish native title to a greater extent than otherwise would have been the case without the NTA, compensation is payable to that extent [subsection 23J(1)] .  This ensures that Division 2B does not create a right to compensation for acts where it would not be payable without Division 2B.

5.42        As discussed in paragraph 5.3, Division 2B is intended to reflect the common law.  Therefore it is not expected that section 23J will need to operate.  It is included as a safeguard in the event that a court finds that extinguishment under Division 2B goes further than the common law.

5.43        If an act attributable to the Commonwealth extinguishes native title in accordance with Division 2B, the compensation is payable by the Commonwealth [subsection 23J(2)] .  States and Territories are liable for compensation in relation to their acts that extinguish native title in accordance with Division 2B [subsection 23J(3)] .

5.44        If compensation is payable under section 23J, it is payable in accordance with Division 5 of Part 2 of the NTA (as modified by the Bill) [Schedule 1, item 13] .  In general terms, compensation is an entitlement on ‘just terms’ to compensate the native title holders for any loss, diminution, impairment or other effect of the act on their native title.  

Provisions relating to certain reserves or vacant Crown land

Reserves etc. covered by claimant applications

5.45        The Senate made Government amendment (45R) which is included in the Bill.  This amendment inserts two new sections - 47A and 47B.  Section 47A (reserves etc. covered by claimant applications) is a statutory mechanism designed to allow native title claimants who are in occupation of land currently subject to a ‘land rights’ type grant to, or a trust or reservation for, Aboriginal peoples and Torres Strait Islanders, to overcome the effect of past extinguishment and have their claim determined by the court [12] .  The current section 47 allows a claim for pastoral lease land, notwithstanding past extinguishment, where the claimants hold the pastoral lease.  This provision will allow a claim for land granted to, held in trust or reserved for, Aboriginal people and Torres Strait Islanders where the claimants are in occupation of the land, notwithstanding possible extinguishment by the grant, trust or reservation, or, more importantly, any historical act. 

5.46        The amendment implements the recommendation of the Majority Report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund on the Bill that:

governments should deal sensitively and on a case-by-case basis with those situations where Indigenous people continue to live on reserves but are unable to register native title applications.

5.47        The first requirement is that the claim is made over land:

-      granted under ‘land rights’ type legislation.  The ‘land rights’ type legislation must specifically provide for the grant or vesting of land to, in or for the benefit of Aboriginal peoples or Torres Strait Islanders.  (Grants of land under general land legislation to Aboriginal peoples or Torres Strait Islanders will not be caught as a ‘land rights’ type grant); or

-      held on trust or reserved for the benefit of Aboriginal peoples or Torres Strait Islanders.

5.48        The second requirement is that one or more members of the claim group occupy the land. 

5.49        If these requirements are met, the extinguishment by the ‘land rights’ type grant or the creation of the trust or reservation is ignored, as is any other prior act, for the purposes of determining the claim.  The only exception is that for land held on trust, the prior grant of freehold is not disregarded.  In such a case, the claim will not be able to be made out.  But if the land had previously been subject to a leasehold grant, then the extinguishing effect of that grant is ignored.  Similarly, if the land had previously been subject to a pastoral lease, then the partial extinguishment effected by that grant is also ignored.  This is the case even if these grants are validated under the Native Title Act, or are subject to the confirmation regime in the Act. 

5.50        Of course the claimants will still need to establish the positive elements of their claim, that is that the land is their traditional land and that they have maintained their traditional connection to it. 

Native title subject to current land rights grant, trust or reservation

5.51        If the claim is successful, the native title rights are nonetheless subject to the current land rights grant, the trust or the reservation, which continues to be valid.  If the land has been granted to or reserved for Aboriginal peoples and Torres Strait Islanders generally, or a particular group, then the land retains this status, and those people continue to have their full rights to the land.  The non-extinguishment principle applies to the grant, trust or reservation.  Accordingly, the native title is not extinguished, but it is clearly subject to the land rights grant, trust or reservation and all the rights which flow from this. 

Native title subject to Crown interest in public works on land

5.52        The native title is also subject to any interest of the Crown in any public works on the land.  These are valid, that is, they have full force and effect ( section 253 ). 

Historical grants

5.53        Also, it is not that any historical grants are invalid in any sense.  Rather these were subject to the non-extinguishment principle (see section 238 ).

Exclusion of Crown ownership of natural resources

5.54        The creation of an interest that confers ownership of natural resources on the Crown or confirms ownership of natural resources by the Crown is not to be disregarded for the purposes of subsection 47A(2).  [subsection 47A(4)]

Prior extinguishment and the right to negotiate

5.55        The fact that a determination of native title is made over land to which this section is applicable does not prevent the land being a ‘leased or reserved area’ for the purposes of subsection 43A(2).

Vacant Crown land covered by claimant applications

5.56        Section 47B is a statutory mechanism designed to allow native title claimants who are in occupation of vacant Crown land to overcome the effect of past extinguishment and have their claim determined by the court [13] .  The current section 47 allows a claim for pastoral lease land, notwithstanding past extinguishment, where the claimants hold the pastoral lease.  This provision will allow a claim for vacant Crown land where the claimants are in occupation of the land, notwithstanding possible extinguishment by any historical act. 

5.57        The amendment flows from the recommendation of the Majority Report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund on the Bill that:

governments should deal sensitively and on a case-by-case basis with those situations where Indigenous people continue to live on reserves but are unable to register native title applications.

5.58        The first requirement is that the claim is made over vacant Crown land.  This is land which is not currently covered by a freehold estate or a lease (which by subsection (4) includes a lease which has been or is to be renewed).  It is also land which is not subject to a reservation for a public purpose or a particular purpose.  It is also land that is not subject to a resumption process.  Paragraph 47B(5)(b) sets out the circumstances in which an area is subject to a resumption process. 

5.59        The second requirement is that one or more of the claim group occupy the land. 

5.60        If these requirements are met, the extinguishment by the creation of any prior interest is ignored for the purposes of determining the claim.  Therefore if the land had previously been subject to a freehold or leasehold grant, then the extinguishing effect of that grant is ignored.  Similarly, if the land had previously been subject to a pastoral lease, then the partial extinguishment effected by that grant is also ignored.  This is the case even if these grants are validated under the Native Title Act, or are subject to the confirmation regime in the Act. 

5.61        Of course the claimants will still need to establish the positive elements of their claim, that is that the land is their traditional land and that they have maintained their traditional connection to it. 

Historical grants

5.62        If the claim is successful, it is not that any historical grants are invalid in any sense.  Rather these were subject to the non-extinguishment principle (see section 238 ). 

Public works

5.63        The native title is subject to any interest of the Crown in any public works on the land.

Exclusion of Crown ownership of natural resources

5.64        The creation of an interest that confers ownership of natural resources on the Crown or confirms ownership of natural resources by the Crown is not to be disregarded for the purposes of subsection 47B(2).  [Paragraph 47B(5)(a)]

 



 

 

 

 

 

 

Part 4

 

 

Future acts and activities

 

 

 

 



Overview

6.1          To achieve points 3, 4, 5, 6, 7, 8 and 10 of the Ten Point Plan, Item 9 of Schedule 1 repeals existing Division 3 of Part 2 of the NTA and substitutes a new Division 3 .  Existing Division 3 contains provisions that deal with the validity of future acts and their effect on native title.  The new Division 3 will provide a substantially more comprehensive regime to deal with these matters.

6.2          Item 9 contains most of the amendments which deal with the way in which acts which affect native title can be validly done in the future over areas where native title may exist.  New Division 3 is divided into Subdivisions A to Q, with each Subdivision dealing with a particular aspect of the system regulating future acts ( Subdivision A gives an overview and deals with other preliminary matters).   The Senate made Government amendment (13) which is included in the Bill.  This amendment changes the heading to Subdivision A from ‘Overview of Division 3’ to ‘Preliminary’.

6.3          There are other provisions in the NTA which have some bearing on this system.  These are mainly the definition provisions which deal with terms used in Division 3 of Part 2 and some functions of the Native Title Registrar and the NNTT which relate to future acts.

What is the future act regime?

6.4          The Bill provides an overview of new Division 3.  [Schedule 1, item 9, section 24AA]

6.5          In essence, the future act regime seeks to answer the question: what acts can governments take which will affect native title?  If an act will not affect native title, it is not subject to the NTA and the future act regime.  If an act will affect native title and complies with Division 3, it will be valid.  The Division also sets out some of the consequences of these acts for native title.  If an act affects native title and does not comply with Division 3, it is invalid to that extent.

What future acts are valid?

6.6          Division 3 provides for future acts which fall into one of a number of categories.  There are provisions in Division 3 which describe each of these categories.  Some future acts (those dealing with the conferral of certain mining rights and certain acquisitions) will only be valid where additional procedures dealing with the right of actual or potential native title holders to negotiate have been satisfied.

6.7          Division 3 establishes a system for agreements between actual or potential native title holders and those wishing to use land.  These are called ‘indigenous land use agreements’.  Under section 24EB, future acts done in accordance with these agreements are a category of acts that are valid. [14]   Where such an agreement is in place, then its terms are intended to take precedence over any other provisions in the NTA which would otherwise apply to the future acts covered by the agreement.  However, there is no requirement for parties wishing to use land to enter into, or attempt to enter into, such an agreement.

6.8          The other provisions which make future acts valid and a broad description of their coverage are set out in Table 6.1.

Table 6.1

Provision that renders future act valid

What the provision deals with

Section 24FA

Future acts where procedures indicate an absence of native title (see Chapter 8)

Section 24GB

Acts permitting primary production activity on non-exclusive agricultural or non-exclusive pastoral leases (see Chapter 9)

Section 24GD

Acts permitting certain off-farm acts etc. directly connected to primary production activities (see Chapter 9)

Section 24GE

The granting of rights to third parties etc. on non-exclusive agricultural or non-exclusive pastoral leases (see Chapter 9)

Section 24HA

Management of water and airspace (see Chapter 10)

Section 24IA

Acts involving renewals and extensions etc. of acts - e.g. the renewal of a pastoral lease (see Chapter 11)

Section 24JA

Acts involving reservations etc. (see Chapter 12)

Section 24KA

Acts involving facilities for services to the public (see Chapter 13)

Section 24LA

Low impact future acts (see Chapter 14)

Section 24MD

Acts that pass the freehold test (see Chapter 15)

Section 24NA

Acts affecting offshore places (see Chapter 16)

Most future acts are subject to the non-extinguishment principle

6.9          The ‘non-extinguishment principle’ applies to most acts that are rendered valid under Division 3.  The non-extinguishment principle is already defined in section 238 of the NTA.  In broad terms, it says that while an act subject to the principle does not extinguish native title to the extent of any inconsistency, the native title has no effect in relation to the act where the two are inconsistent.  If the act or its effects are later removed or cease to operate, the native title again can have full effect (ie. the native title is only suppressed).

Repeal of superseded definitions

6.10        Certain definitions used under the existing future act regime in the NTA are to be repealed as a result of the restructuring of the future act regime.  These are the definitions of ‘low impact future act, ‘permissible future act’ and ‘impermissible future act’ [Schedule 1, item 41] .   These provisions are now found in another form in the new Division 3 itself.

What future acts are not valid?

6.11        A future act is taken to be invalid to the extent that it affects native title if it neither falls into one of the categories listed above nor is covered by an ILUA.  [Schedule 1, item 9, section 24OA]

What other matters are dealt with by the future act regime?

6.12        Division 3 also deals with procedural rights (such as the right to object to registration of indigenous land use agreements) and compensation to native title holders for valid future acts.

6.13        Finally, Division 3 confers access rights on certain groups of Aboriginal peoples or Torres Strait Islanders with registered native title claims.  These access rights operate for land and waters that are the subject of non-exclusive agricultural and non-exclusive pastoral leases.

What is a future act?

6.14        Division 3 is not intended to create a code which applies whenever an act is done by government.  It applies only in relation to ‘future acts’.  The term ‘future act’ is already defined in section 233 of the NTA.  In broad terms, it is an act occurring on or after 1 January 1994 that affects native title.  An act consisting of the making, amendment or repeal of legislation is a future act if it takes place on or after 1 July 1993 and affects native title.  An act ‘affects’ native title only if it extinguishes the native title rights and interests or if it otherwise is wholly or partly inconsistent with their continued existence, enjoyment or exercise (section 227 of the NTA).

Amendment to the definition of ‘future act’

6.15        The existing definition of future act also provides that legislation validating a past act (generally acts done before 1 January 1994 that were invalid because of native title) is not a future act to that extent.  This aspect of the definition of future act is proposed to be amended by the Bill [Schedule 1, item 40] .  This amendment will make the definition consistent with the new provisions that will:

·       validate intermediate period acts (new Division 2A of Part 2 - refer to Chapter 4); and

·       confirm extinguishment of native title (new Division 2B of Part 2 - refer to Chapter 5).

6.16        The amendment to the definition of future act will also enable the States and Territories to enact the complementary legislative regimes envisaged under these provisions.

6.17        Under the change proposed by item 40 of Schedule 1, an act consisting of the making, amendment or repeal of legislation will not be a future act to the extent that it purports to validate any past act or intermediate period act or to confirm the extinguishment of native title.  This will only be the case where the act is done, or permitted to be done, under the following provisions of the NTA:

·       Division 2 of Part 2 (which deals with the validation of past acts and their affect on native title);

·       proposed Division 2A of Part 2 (which will deal with the validation of intermediate period acts and their affect on native title); and

·       proposed Division 2B of Part 2 (which will deal with confirmation of extinguishment of native title by certain valid or validated acts).

What if a future act is rendered valid by more than one provision?

6.18        The Bill inserts in the NTA a rule to deal with the situation where a future act meets the requirements of more than one validating provision of Division 3 [Schedule 1, item 9, section 24AB] .  This is necessary because different consequences may flow from the application of different provisions (e.g. different procedural or compensation arrangements may apply).

6.19        If an act would, apart from section 24AB, be covered by more than one validating provision, it is instead only covered by one, as set out in Table 6.2.  This applies to the extent that the act is covered by the provisions concerned.

Table 6.2

Validating provisions that, apart from section 24AB, cover the future act

Validating provision that prevails

Section 24EB (the provision validating future acts done under an indigenous land use agreement) and one or more of the provisions in the list in subsection 24AA(4)

Section 24EB

[Subsection 24AB(1)]

Two or more of the provisions in the list in subsection 24AA(4)

The provision that is closest to top of the list in subsection 24AA(4)

[Subsection 24AB(2)]

The list in subsection 24AA(4) is set out (in order) in Table 6.1.

6.20        The Senate made Government amendment (14) which is included in the Bill.  This amendment inserts a new section 24AC which will enable regulations to be made that impose notification requirements in relation to acts or classes of acts that are valid under Division 3.  Regulations made pursuant to this section may impose notification requirements that are additional to any contained in Division 3 or notification requirements where none exist under Division 3.  The Regulations may require notification to be given either before or after the acts are done.  The Regulations may provide for the time, form, content of the notice, who is to notify and who is to be notified.  Failure to notify under any such Regulations will not affect the validity of the future act.

What if activities are performed in accordance with rights or interests granted by a valid act?

6.21        The Bill clarifies the effect on native title of activities undertaken in accordance with a valid lease, licence, permit or authority [Schedule 1, item 10, section 44H] .  Following the Wik decision there was concern raised that pastoral lessees may need to obtain the agreement of native title holders in order to conduct activities under their lease, such as construct a dam.  These provisions are intended to ensure that, provided the lease is valid in accordance with the NTA, the lessee is able to carry on activities under the lease notwithstanding native title.

6.22        The provision that clarifies these matters applies where the following conditions are met.

·       A lease, licence, permit or authority must have been validly granted, issued or created. This validity could arise because of:

-      the validation of past acts under existing sections 14 or 19 of the NTA; or

-      the validation of intermediate period acts under sections 22A and 22F proposed to be inserted by this Bill; or

-      the existing Division 3, or the new Division 3, of Part 2, both of which provide for the validity of certain future acts.  [Paragraph 44H(a)]

·       The lease, licence, permit or authority must require or permit the performance of the activity (whether or not subject to conditions).  [Paragraph 44H(b)]

6.23        The consequences of section 44H applying are set out below.

·       The requirement or permission in the lease, licence, permit or authority, and the doing of any activity in accordance with the requirement or permission, prevails over any native title and exercise of native title rights and interests.  [Paragraph 44H(c)].  The Senate made Government amendment (44) which is included in the Bill.  This amendment to paragraph 44H(c) puts beyond doubt that native title rights and interests are not extinguished by the requirement or permission or the doing of any activity in giving effect to a requirement or permission contained in the lease, licence, permit or authority.

·       Any native title that may exist in relation to the land or waters covered by the lease, licence, permit or authority, and the exercise of any native title rights and interests, do not impede the doing of any activity in pursuance of the requirement or permission.  [Paragraph 44H(d)]

·       The native title holders are not entitled to any compensation for the doing of the activity in accordance with the requirement or permission [paragraph 44H(e)] .  Any compensation payable to the native title holders will be for the act of granting or issuing the lease, licence, permit or authority and this can take account of the doing of activities that are required or permitted.  Paragraph 44H(e) ensures that there is no ‘double dipping’ in relation to compensation.

6.24        It is to be noted, however, that section 44H does not make unlawful activities lawful.  For example, the activity would need to be authorised by the lease or some other authority (such as a licence or permit) and, for instance, the provision would not authorise an activity that is criminal under Commonwealth, State or Territory law.

Primary production activities

6.25        Proposed section 24GC of the Bill (item 9 of Schedule 1) specifically deals with the case of primary production activities performed in connection with non-exclusive agricultural and non-exclusive pastoral leases.  This is discussed in Chapter 9.  The existence of section 24GC is not intended to limit the operation of proposed section 44H and is included to add certainty for primary producers affected by native title.

Examples of the operation of section 44H

Example 1

6.26        An irrigation licence is issued to a person and is valid in accordance with proposed section 24HA (which deals with management of water and airspace).  When the person performs the irrigation activities permitted by the licence, section 44H operates to ensure that:

·       the licence, and the doing of activities under it, prevails over any native title and the exercise of any native title rights and interests, but does not extinguish them; and

·       any native title that may exist in relation to the land or waters affected by the licence, and the exercise of any native title rights and interests do not impede the doing of any activity in pursuance of any requirement or permission in the licence.

6.27        Compensation is not payable to the native title holders for the physical actions.  Were any compensation to be payable in relation to any effect on native title, it would instead have been paid for the future act that consisted of the issue of the irrigation licence to the person and it would have taken account of the doing of the physical actions.

Example 2

6.28        A licence to prospect for minerals on land affected by native title is granted to a company after all the necessary procedures under the NTA have been met.  In accordance with the licence, the company physically undertakes the prospecting.  These physical actions are not prevented by the native title existing in relation to the land.



(Note: in this Chapter the term ‘indigenous land use agreement’ is referred to as ‘ILUA’)

Overview

7.1          To achieve point 10 of the Ten Point Plan, Item 9 of Schedule 1 inserts new Subdivisions B, C, D and E of Division 3 to deal with future acts done in accordance with ILUAs.  This Chapter deals with the making of ILUAs and their effects on the validity of future acts when registered.  Chapters 22 and 23 deal with the procedures for registering ILUAs.

7.2          Section 21 of the NTA currently provides for agreements.  It does so, however, in very general terms.  It does not accommodate the fact that, over most of mainland Australia, governments and others seeking to use land do not know if native title exists, and if it does, who holds it.  It is difficult in such circumstances to have agreements which provide the necessary level of legal certainty.  These provisions are designed to give security for agreements with native title holders, whether there has been an approved determination of native title or not, provided certain requirements are met.  Three kinds of ILUA can be made as set out below.

Body corporate agreements

7.3            Subdivision B deals with ‘body corporate agreements’.  Body corporate agreements can only be made if there are one or more registered native title bodies corporate which hold the native title to, or have been appointed to act for the native title holders of, the whole of the area covered by the agreement.  A body corporate agreement can cover any matter relating to native title and a registered native title body corporate can make such an agreement with any other person.  The procedural requirements for registration of a body corporate agreement reflect the fact that both the existence of native title has been demonstrated and the holders identified.

Area agreements

7.4          Subdivision C covers ‘area agreements’.  This type of agreement has considerable flexibility in terms of the content, parties, and area to be covered by the agreement.  The most important condition for area agreements is that all the registered native title claimants and registered native title bodies corporate for the area to which the agreement relates must be parties to it.  However, where all of the area has been the subject of determinations that native title exists (which would mean that there is a registered native title body corporate for all parts of the area), the agreement could be registered provided it complied with Subdivision B.

Alternative procedure agreements

7.5          The third type of agreement is an ‘alternative procedure agreement’ and is covered by Subdivision D.  Because (unlike body corporate agreements and area agreements) it is not a requirement that native title holders are parties, alternative procedure agreements cannot result in extinguishment of native title.  Subject to this limitation, they may cover a wide range of native title matters.  An alternative procedure agreement can be made even if there are registered native title claimants for the area who are not parties to it, but all the registered native title bodies corporate and representative Aboriginal/Torres Strait Islander bodies (if any) for the area must be parties.  However, where all of the area has been the subject of a determination that native title exists (which would mean that there is a registered native title body corporate for all parts of the area), any agreement is to be taken to be a body corporate agreement.

Effect of registered agreements

7.6          Subdivision E explains the effect of registered agreements.  The agreement, once registered, is taken to have contractual effect between the parties, and also binds all native title holders for the area regardless of whether they are parties to it (native title holders are able to object to the registration of the agreement).  Also, if the agreement is to be supported by legislation so that it can be fully implemented, the relevant parliament can pass that legislation despite any other provision in the NTA.  Registration of an agreement ensures the validity under the NTA of future acts which it covers or authorises.  Generally, the non-extinguishment principle (which is found in section 238 of the NTA) will apply to these future acts except where the agreement specifically allows for extinguishment through surrender.

7.7          Subdivision E also deals with compensation for acts done under agreements, with the general principle being that compensation is limited to any payments mentioned in the agreement.  If there is an adverse effect on the native title of someone who is later proved to have native title but was not entitled to any of the benefits of the agreement, that person may be able to get compensation under the NTA.  However, this exception does not apply to people whose interests were represented by a registered native title body corporate (for body corporate agreements) or whose authority was obtained (for area agreements) when the agreement was made.

What is an indigenous land use agreement (ILUA)?

7.8          An agreement will be an ILUA if it meets the requirements necessary to fit into one of the following three categories of agreement:

·       body corporate agreements [Schedule 1, item 9, section 24BA] ;

·       area agreements [Schedule 1, item 9, section 24CA] ; and

·       alternative procedure agreements [Schedule 1, item 9, section 24DA] .

7.9          A definition of the term ‘indigenous land use agreement’ referring to these new sections is inserted into section 253 of the NTA.  [Schedule 1, item 56] .

What are the requirements for an agreement to be an ILUA?

7.10        Table 7.1 on the following pages sets out the requirements that must be met for an agreement to be an ILUA in respect of these categories.



Table 7.1

Nature of the requirement

Body corporate agreements

Area agreements

Alternative procedure agreements

Coverage of the agreement

The agreement must cover one or more of the matters indicated in Table 7.2 in relation to an area.

[Schedule 1, item 9, section 24BB]

The agreement must cover one or more of the matters indicated in Table 7.2 in relation to an area.

[Schedule 1, item 9, section 24CB]

The agreement must cover one or more of the matters indicated in Table 7.2 in relation to an area.

[Schedule 1, item 9, section 24DB]

Extinguishment of native title

No requirement.

(Note that body corporate agreements may, but need not, deal with extinguishment of native title).

No requirement.

(Note that area agreements may, but need not, deal with extinguishment of native title).

The agreement cannot provide for the extinguishment of native title, although it can otherwise deal with acts that affect native title (subject to the non-extinguishment principle). [15]

[Schedule 1, item 9, section 24DC]

Relationship of bodies corporate and representative bodies

Only relevant where registered native title bodies corporate exist in relation to the whole of the area covered by the agreement.

[Schedule 1, item 9, section 24BC]

Registered native title bodies corporate must not exist in relation to the whole of the area covered by the agreement.

[Schedule 1, item 9, section 24CC]

Registered native title bodies corporate must not exist in relation to the whole of the area covered by the agreement.

However, there must be at least one registered native title body corporate in relation to the area or at least one representative Aboriginal/Torres Strait Islander body for the area.

[Schedule 1, item 9, section 24DD]



Table 7.1 (continued)

Nature of the requirement

Body corporate agreements

Area agreements

Alternative procedure agreements

Parties to the agreement

The parties must include:

·        all of the registered native title bodies corporate for the area; and

·        the Commonwealth, a State or Territory where the agreement makes provision for the extinguishment of native title by surrendering it to the Commonwealth, State or Territory.

Any other person or persons may be parties to the agreement (e.g. a local government body).  The Commonwealth, a State or a Territory can be a party to the agreement even if native title is not to be extinguished.

[Schedule 1, item 9, section 24BD]

The ‘native title group’ (see paragraphs 7.14 and 7.15) in relation to the area must be a party.

The Commonwealth, a State or Territory must also be a party where the agreement makes provision for the extinguishment of native title by surrendering it to the Commonwealth, State or Territory.

Any other person may also be a party.  Some persons or bodies are specifically listed as being able to be a party (see paragraph 7.14).

The Commonwealth, a State or a Territory can be a party to the agreement even if native title is not to be extinguished.

[Schedule 1, item 9, section 24CD]

The parties must include the ‘native title group’ (see paragraph 7.16) in relation to the area and the ‘relevant government or governments’ (see paragraph 7.17).

Any of the following may also be a party:

·        any registered native title claimant in relation to land or waters in the area;

·        any other person who claims to hold native title in relation to land or waters in the area;

·        any other person.

[Schedule 1, item 9, section 24DE]

Consideration and conditions

The agreement may be given for any consideration, or subject to any conditions, agreed by the parties.

The consideration may include the grant of a freehold estate in any land, or any other interests in land (whether or not statutory).

[Schedule 1, item 9, section 24BE]

The agreement may be given for any consideration, or subject to any conditions, agreed by the parties.

The consideration may include the grant of a freehold estate in any land, or any other interests in land (whether or not statutory) (e.g. a freehold estate given to native title holders in exchange for the surrender and extinguishment of native title).

[Schedule 1, item 9, section 24CE]

The agreement may be given for any consideration, or subject to any conditions, agreed by the parties.

The consideration may include the grant of a freehold estate in any land, or any other interests in land (whether or not statutory).

[Schedule 1, item 9, section 24DF]



Terms used in provisions dealing with requirements for ILUAs

What is an area?

7.11        As discussed above, ILUAs can be made to cover a range of matters in relation to an area.  The word ‘area’ has its ordinary meaning and could include any area of land and/or waters.  The fact that an agreement covers an ‘area’ does not mean that it will have any impact on interests of other persons in the area.  Holders of non-native title interests in land or waters in the area are not bound by any agreement unless they are a party (subsection 24EA(2)).

What is a registered native title body corporate?

7.12        The term ‘registered native title body corporate’ is already defined under existing section 253 of the NTA.  It is a body corporate that is registered on the National Native Title Register and that either holds the native title on trust or acts as the agent or representative of the native title holders in relation to particular land or waters once native title has been determined.

What is a representative Aboriginal/Torres Strait Islander body?

7.13        The term ‘representative Aboriginal/Torres Strait Islander body’ is already defined under existing section 253 of the NTA.  A body is a representative Aboriginal/Torres Strait Islander body for an area if the Commonwealth Minister has made a determination to that effect (see section 202 of the NTA).  Note that Schedule 3 of the Bill makes changes to the provisions dealing with representative bodies (see Chapters 33 and 34).

What is a native title group for the purposes of an area agreement?

7.14        The parties to ILUAs in the area agreement category must include the native title group (refer to Table 7.1).  The make-up of the native title group depends on whether there is a registered native title claimant or a registered native title body corporate in relation to any of the land or waters in the area covered by the agreement.  If there is, then:

·       the native title group is all registered native title claimants, and all registered native title bodies corporate, in relation to the land or waters [subsection 24CD(2)] ; and

·       the parties to the agreement may also, but need not, include any other person who claims to hold native title in relation to land or waters in the area covered by the agreement and any representative Aboriginal/Torres Strait Islander body for the area [subsection 24CD(4)] .

7.15        If there are not any registered native title claimants or registered native title bodies corporate in relation to land or waters in the area, the native title group is any person who claims to hold native title in relation to land or waters in the area covered by the agreement and/or any representative Aboriginal/Torres Strait Islander body for the area.  [Subsection 24CD(3)]

What is a native title group for the purposes of an alternative procedure agreement?

7.16        The parties to ILUAs in the alternative procedure agreement category must include the native title group (refer to Table 7.1).  The native title group for this purpose is all registered native title bodies corporate in relation to land or waters in the area covered by the agreement and all representative Aboriginal/Torres Strait Islander bodies for the area.  [Subsection 24DE(2)]

What is a relevant government for the purposes of an alternative procedure agreement?

7.17        The parties to ILUAs in the alternative procedure agreement category must also include the relevant government or governments (refer to Table 7.1).  If any of the area covered by the agreement falls within the jurisdictional limits of a State or a Territory, that State or Territory is a relevant government.  If any of the area is not within the jurisdictional limits of a State or Territory, the Commonwealth is a relevant government.  [Subsection 24DE(3)]

What matters can be dealt with in ILUAs?

7.18        As mentioned in Table 7.1, ILUAs must deal with one or more specified matters in relation to an area.  Table 7.2 sets out each of these matters in relation to each category of agreement.

Table 7.2

Matter in relation to an area

Body corporate agreements

[Subsection 24BB(1)]

Area agreements

[Subsection 24CB(1)]

Alternative procedure agreements

[Subsection 24DB(1)]

The doing of future acts.  The future acts can be particular acts or those falling into a class and the doing of the future act may be subject to conditions.  Government amendments (15), (16) and (18) which were made in the Senate and are included in the Bill make it clear that these conditions may be about procedural matters.

,

,

,





The doing of anything relating to an application under Division 1 of Part 3 of the NTA.  This can include, but is not limited to, withdrawing, amending or varying the application.  Division 1 of Part 3 deals with applications for:

·        a determination of native title;

·        revocation or variation of an approved determination of native title; and

·        a determination for compensation.

,

,

,



The relationship between native title rights and interests and other rights and interests in relation to an area.  For example, the parties might agree that, in return for compensation, a lease will be granted over land where native title exists.

,

,

,

The way in which native title rights and interests and other rights and interests in relation to the area will be exercised.  For example, native title holders may agree to exercise access rights in such a way as not to compromise systems for holding stock on pastoral land.

,

,

,

The extinguishment of native title in relation to land or waters in the area by surrendering it to the Commonwealth or to a State or Territory.  For example, native title holders may agree to give up their native title in return for a freehold estate in land.

,

,

 

The provision of a framework for the making of other agreements about native title.

 

 

,

Any other matter concerning native title in relation to the area.  For example, the parties might agree to native title holders and claimants being on a board of management controlling the use of an area.

,

,

,

Any matter concerning rights of access, for certain persons with registered native title claims, to land or waters covered by non-exclusive agricultural and pastoral leases, as dealt with in proposed Subdivision Q of new Division 3 of Part 2.

 

,

,



Assistance to make an ILUA

7.19        The Bill allows any persons wishing to be part of an ILUA to seek assistance from the NNTT or a recognised State/Territory body [Schedule 1, item 9, sections 24BF, 24CF and 24DG] .  The persons who can request assistance are not limited to the actual or potential native title holders but could also include, for example, other persons who hold rights over land or waters.  A ‘recognised State/Territory body’ is a court, office, tribunal or body established by or under a State or Territory law that is determined by the Commonwealth Minister to be a recognised State/Territory body (see section 207A of the NTA).

Registration of ILUAs

7.20        For future acts done in accordance with an ILUA to be valid under section 24EB, the agreement must be registered on the Register of Indigenous Land Use Agreements.  An application for registration of each type of agreement can be made by any party to the agreement but must be with the agreement of all parties (subsection 24BG(1), 24CG(1) and 24DH(1)).  The procedures for registering agreements and how the register is kept are explained in Chapters 22 and 23.  The procedures provide for those who will be affected by an ILUA that is an area or alternative procedure agreement, but who are not parties to it, to be notified of the potential registration of the agreement.  The procedures also provide for objections.  In the case of alternative procedure agreements, the regulations may provide for alternative registration procedures. [16]

Registered ILUAs have contractual effect

7.21        The Bill provides that registered ILUAs have contractual effect during any period when details of the agreement are entered on the Register of Indigenous Land Use Agreements [Schedule 1, item 9, section 24EA] .  Specifically the Bill deems the following to be the case:

·       In addition to the effect it has apart from the NTA, the agreement has effect as if it were a contract among the parties to the agreement [paragraph 24EA(1)(a)] .  Except as mentioned below, it is intended that only the parties to the agreement are bound by it [subsection 24EA(2)] .

·       All native title holders in relation to any of the land or waters covered by the agreement, but who are not parties to the agreement, are taken to be bound by the agreement.  They are bound in the same manner as the registered native title bodies corporate (in the case of a body corporate agreement) and the native title group (in the case of an area agreement or an alternative procedure agreement) [paragraph 24EA(1)(b)] .  Note that these native title holders will be given the opportunity to object to the registration of an ILUA.  This means they will not be bound by an agreement of which they have not been notified or had the chance to challenge.  These matters are explained in Chapter 22 .

7.22        To avoid doubt, the Bill states that the NTA will not prevent the Commonwealth, a State or a Territory from enacting any legislation, or doing any other act, to give effect to its obligations under an ILUA.  This applies where the Commonwealth, State or Territory is a party to the agreement [subsection 24EA(3)] .  An example of an act that a government may need to do is grant a lease to another party to the agreement.

Validity of future acts done in accordance with ILUAs

7.23        The Bill provides that future acts done in accordance with an ILUA are valid [Schedule 1, item 9, section 24EB] .

When will validation occur?

7.24        A future act is done in accordance with an ILUA if the agreement covers the particular act or class of act into which the particular act falls.  The future act will be valid where, at the time the act is done:

·       details of the agreement are on the Register of Indigenous Land Use Agreements; and

·       the agreement includes a statement to the effect that the parties have consented to the doing of the act or a class of acts into which the particular acts falls (any conditions must be stipulated).  [Paragraph 24EB(1)(b)]

7.25        Two other conditions must be met if certain future acts are to be valid, as set out below.

·       An ILUA can authorise a future act to which the right to negotiate provisions (proposed Subdivision P of Division 3) would otherwise apply.  If this is the case, the agreement must include a statement that those provisions are not intended to apply to the act [paragraph 24EB(1)(c)] .  The fact that a notice under section 29 has been given in relation to an act does not affect the validity of the act under section 24EB.  Section 29 requires a Government party to give notification of an act to which the right to negotiate provisions apply.

·       An ILUA falling into either the body corporate agreement or area agreement category can provide for the extinguishment (through surrender) of native title.  If this is the case, the agreement must include a statement that the parties intend native title to be extinguished through the surrender.  [Paragraph 24EB(1)(d)]

What is the effect of validation?

7.26        The act is valid to the extent that it affects native title in relation to land or waters in the area covered by the agreement [subsection 24EB(2)] .  This ensures that the NTA does not purport to address the invalidity of an act that would be invalid for a reason unrelated to native title (e.g because it is the ultra vires issue of a licence).  It also ensures that where the act covers an area greater than that covered by the agreement, it is only valid to the extent that it affects the area covered by the agreement.

The non-extinguishment principle generally applies to the future act

7.27        With one exception, the non-extinguishment principle applies to a future act validated under the ILUA provisions. [17]   The exception is where the agreement is a body corporate agreement or an area agreement that includes a statement that native title in relation to land or waters in the area covered by the agreement is extinguished by surrender.  In that case the non-extinguishment principle does not apply to the act of surrender.  [Subsection 24EB(3)]

Compensation for future acts done under ILUAs

7.28        The Bill provides for compensation to be payable to some native title holders for future acts done in accordance with an ILUA [subsection 24EB(7)] .  However, except in a particular circumstance, native title holders are not entitled to additional compensation under the NTA for future acts done in accordance with the agreement [subsections 24EB(4), (5) and (6)] .  This is generally those who receive benefits under, or who are parties to, the agreement.

Who is not entitled to compensation for future acts done under an ILUA?

7.29        The persons who are not entitled to compensation under the NTA for future acts done in accordance with an ILUA depend on the category into which the agreement falls [subsections 24EB(4), (5) and (6)] .  Table 7.3 sets out the persons who, under each category of agreement, are not entitled to additional compensation under the NTA for future acts done in accordance with an ILUA.  They are, however, entitled to any compensation provided for under the agreement.  In order to get additional compensation under the NTA, a person would have to prove that they hold native title which, in the case of a body corporate agreement, would require a variation to the determination.



Table 7.3

Persons not entitled to compensation under body corporate agreement  [Subsection 24EB(4)]

Persons not entitled to compensation under area agreement  [Subsection 24EB(5)]

Persons not entitled to compensation under alternative procedure agreement  [Subsection 24EB(6)]

Any registered native title body corporate that is a party to the agreement.

Any common law holder of native title where a registered native title body corporate that is a party to the agreement:

·        holds the native title on trust for the holder; or

·        is an agent or representative of the holder.

Any native title holder who is entitled to any of the benefits provided under the agreement.

Any native title holder who is entitled to any of the benefits provided under the agreement.

Any native title holder in relation to land or waters in the area covered by the agreement who has been identified and who authorised the making of the agreement. (This will only be the case where the application to register the agreement was certified by representative Aboriginal/Torres Strait Islander bodies or where the application included a statement mentioned in paragraph 24CG(3)(b)). [18]

Any native title holder who is entitled to any of the benefits provided under the agreement.

Compensation arrangements for those native title holders who can get compensation under the NTA

When does an entitlement to compensation arise?

7.30        A native title holder who is not excluded from getting compensation under the NTA will be entitled to compensation for future acts done in accordance with an ILUA and which affect their native title, but only where a condition is met.  This is that the native title holder must be entitled to compensation for the act under subsection 17(2) of the NTA if it was assumed that the future act was instead a past act.  [Subsection 24EB(7)]

7.31        In broad summary terms, this means that compensation will be payable for the future act in the following circumstances.

·       If the act is one which could be done over land subject to ordinary title, generally freehold, and the ordinary title holder has a right to compensation, any native title holders will also have such a right.  For example, mining can be done on ordinary title land, and the ordinary title holders have a right to compensation.

·       If the act is one which could not be done over land subject to ordinary title, native title holders will also have a right to compensation.

7.32        The specific terms of subsection 17(2) of the NTA provide as follows.

·       Compensation is payable if the native title relates to an onshore place [19] and the act could not have been done if it was assumed that native title holders held ordinary title [20] to the land.

·       Compensation is payable if the native title relates to an offshore place. [21]

·       Compensation is payable where the ‘similar compensable interest test’ is satisfied.  The similar compensable interest test, defined in section 240 of the NTA, is generally met if the native title relates to an onshore place and compensation would have been payable under any other law if it was assumed that native title holders held ordinary title to the land.

What is the compensation?

7.33        An entitlement of a native title holder to compensation under subsection 24EB(7) is in accordance with Division 5 of Part 2 of the NTA [paragraph 24EB(7)(a)] .  In general terms, the compensation is an entitlement on ‘just terms’ to compensate the native title holder for any loss, diminution, impairment or other effect of the act on their native title (see section 51 of the NTA).

Who pays the compensation?

7.34        Subsection 24EB(7) says who must pay the compensation for the future act.  In the first instance, the compensation can be recovered from any person or persons who have a written agreement with the government to whom the act is attributable to be liable for any compensation [subparagraph 24EB(7)(b)(ii)] .  If there is no such written agreement, the compensation can be recovered from the government to whom the act is attributable [subparagraph 24EB(7)(b)(i)] .

NTA does not prevent agreements unrelated to future acts

7.35        The provisions dealing with ILUAs are not intended to cover the field of agreements relating to native title that can be made between actual or potential native title holders and other parties.  The provisions do not prevent the Commonwealth, States or Territories making agreements, or legislating for the making of agreements, with native title holders about acts which are not future acts for the purposes of the NTA.  However, such agreements would not have the protection which ILUAs will have under the NTA.  [Schedule 1, item 9, section 24EC]



Overview

8.1          Item 9 of Schedule 1 inserts a new Subdivision F of Division 3 .  This Subdivision ensures the validity of future acts which are done over areas where steps taken under the NTA indicate that native title does not exist in those areas.  Subdivision F is similar in effect to section 24 in the current NTA as it was proposed to be amended in the then Government’s Native Title Amendment Bill 1995 to ensure its workability.  Section 24 is repealed under these amendments.  The validity ensured by this Subdivision is called ‘section 24FA protection’.  The provisions in this Subdivision deal with the effects of section 24FA protection, how it arises and compensation for native title holders whose native title rights are adversely affected by acts having section 24FA protection.

8.2          A major purpose of Subdivision F is to ensure the validity of future acts done before a determination as to whether or not native title exists has been made, but only where certain conditions apply.  In broad terms, an area will be subject to section 24FA protection where it is covered by a non-claimant application and, at the end of three months, no application has been lodged by a person claiming native title to the area.

8.3          For non-government entities to make non-claimant applications over an area they must have an interest in relation to the whole area.  By contrast, governments can make non-claimant applications over any area within their jurisdiction.  These differences remain as the amendments do not depart to any substantial extent from the position under the existing NTA.

8.4          Subdivision F is included to allow people with interests in land to ascertain whether native title exists in order to give them certainty when doing acts in relation to that land.  This will encourage potential native title holders to make native title claims.  However, the mere fact that a future act gains section 24FA protection does not prevent a native title claim being made or determined in the future.

What are the consequences if and area is subject to section 24FA protection?

8.5          When procedures indicate that no native title is claimed to exist in respect of an area, the area is said to be subject to section 24FA protection.  The Bill sets out the consequences for future acts relating to such an area.  [Schedule 1, item 9, section 24FA]

Validity of future acts

8.6          When section 24FA protection applies to an area at a particular time, any future act done by a person at that time in relation to the area is valid and remains valid for all time, even if a determination that native title exists in relation to the area is made at a later time.  [Paragraph 24FA(1)(a)]

Compensation for valid future acts

When does an entitlement to compensation arise?

8.7          The Bill provides for native title holders to be entitled to compensation for a future act that is valid because the area in relation to which it is done is subject to section 24FA protection if at some future time there is a determination that native title exists.  There are two types of compensation, as set out below.

·       The native title holders are entitled to compensation if, and to the extent that, the future act extinguishes native title [Paragraph 24FA(1)(b)] .

·       The native title holders are also entitled to compensation if the future act does not extinguish native title.  This will be the case if the native title holder would be entitled to compensation for the act under subsection 17(2) of the NTA if it was assumed that the future act was instead a past act.  [Paragraph 24FA(1)(c)]

8.8          The second case means, in broad summary terms, that compensation will be payable for the future act in the following circumstances.

·       If the act is one which could be done over land subject to ordinary title, generally freehold, and the ordinary title holder has a right to compensation, any native title holders will also have such a right.  For example, mining can be done on ordinary title land, and the ordinary title holders have a right to compensation.

·       If the act is one which could not be done over land subject to ordinary title, native title holders will also have a right to compensation. [22]

What is the compensation?

8.9          An entitlement of a native title holder to compensation under paragraphs 24FA(1)(b) and (c) is in accordance with Division 5 of Part 2 of the NTA.  In general terms, the compensation is an entitlement on ‘just terms’ to compensate the native title holder for any loss, diminution, impairment or other effect of the act on their native title (see section 51 of the NTA).

Who pays the compensation ?

8.10        If the future act for which compensation is payable is attributable to the Commonwealth, the compensation is payable by the Commonwealth [paragraph 24FA(2)(a)] .  States and Territories are liable for compensation in relation to their future acts for which compensation is payable [paragraph 24FA(2)(b)] .

When is an area subject to section 24FA protection?

8.11        There are three circumstances under which an area can become subject to section 24FA protection.  These are where the area is subject to:

·       a ‘non-claimant application’ by a government (subject to specified conditions);

·       a ‘non-claimant application’ by a person other than a government (subject to specified conditions); and

·       an entry on the National Native Title Register specifying that native title does not exist in relation to the area.

8.12        The Bill inserts a consequential definition of ‘subject to section 24FA protection’ in the definitions section of the NTA (section 253).  This defines the term as having the meaning given by Subdivision F of Division 3 of Part 2 (as discussed below) [Schedule 1, item 62] .  The meaning of certain important terms used in these provisions is set out after the discussion of the circumstances in which an area can become subject to section 24FA protection.

Areas subject to government non-claimant applications

8.13        The Bill specifies when section 24FA protection applies to areas covered by government non-claimant applications, or corresponding applications to a recognised State/Territory body [Schedule 1, item 9, section 24FB] .  Government non-claimant applications are those made by or on behalf of a Minister of any government, the Crown in any capacity or a statutory authority as defined by section 253 [paragraph 24FB(a)] .

8.14        The test for whether a future act is valid is whether section 24FA protection applies to the area at the time the act is done .  For an area to be subject to section 24FA protection at a particular time, all the conditions set out below must be satisfied at that time.

·       The government non-claimant application must have been made before that time.  [Paragraph 24FB(a)]

·       The area must be the whole of the area covered by the non-claimant application and the application must not have been amended as to area [paragraph 24FB(b)] .  This prevents a government non-claimant application attracting section 24FA protection simply by being amended to exclude an area covered by a relevant native title claim and resembles the position under section 24 of the existing NTA.

·       The 3 month notice period under section 66 of the NTA, or an equivalent provision in a State or Territory law, must have ended [paragraph 24FB(c)] .  Section 66 of the NTA (as proposed to be amended by Schedule 2 of the Bill) provides that the Native Title Registrar must notify potential native title holders that a non-claimant application has been made in relation to an area.  The persons so notified have 3 months in which to lodge a native title claim if ‘section 24FA protection’ is not to apply over the area.

·       At the end of the 3 month notice period, there must not be any ‘relevant native title claims’ covering the area or a part of the area [paragraph 24FB(d)] .  The term ‘relevant native title claim’ is discussed in paragraphs 8.18 to 8.21 below.

·       The non-claimant application must not have been finalised [paragraph 24FB(e)] .  An application is finalised if it has been withdrawn or dismissed, but is not finalised if it has been adjourned.  Therefore, once section 24FA protection has arisen, a non-claimant application may be adjourned and the area covered by the application continues to attract section 24FA protection.

·       There must be no entry on the National Native Title Register, relating to an approved determination of native title, that specifies that native title exists in relation to the area or a part of the area.  [Paragraph 24FB(f)]

Areas subject to non-claimant applications not made by a government

8.15        The Bill sets out the conditions for section 24FA protection to apply to an area covered by a non-government non-claimant application or a corresponding application to a recognised State/Territory body [Schedule 1, item 9, section 24FC] .  These are those non-claimant applications which are made by parties with a non-native title interest in the area other than a Minister of any government, the Crown in any capacity or a statutory authority as defined by section 253 [paragraph 24FC(b)] .

8.16        For an area to be subject to section 24FA protection at a particular time, all the conditions set out below must be satisfied at that time.

·       The non-government non-claimant application must have been made before that time.  [Paragraph 24FC(a)]

·       The area over which section 24FA protection applies can be either the whole of the area covered by the application or part of it [paragraph 24FC(c)] .  The result is that where a non-government non-claimant application has been made and there is a relevant native title claim over part of the area at the end of the 3 month notice period, section 24FA protection can still apply to the remainder of the area.  This differs from the position with government non-claimant applications and resembles the position under the existing NTA.

·       The 3 month notice period under section 66 of the NTA, or an equivalent provision in a State or Territory law, must have ended [paragraph 24FC(d)] .

·       There must be no current native title claim over the area [paragraph 24FC(e)] .  This means that either:

-      at the end of the notice period, there must be no ‘relevant native title claim’ covering the area; or

-      after the end of the notice period, but before the particular time, all entries relating to such ‘relevant native title claims’ are removed from the Register of Native Title Claims or cease to cover the area.

This condition reflects another difference between government and non-government applications in relation to section 24FA protection.  For non-government non-claimant applications, section 24FA protection can still apply where ‘relevant native title claims’ are removed from the Register (for example, because of dismissal or withdrawal) or the entries cease to cover the areas concerned (for example, because of amendment of claims to reduce their coverage).  Where a relevant native title claim is removed from the Register, section 24FA protection can arise over the area claimed from the time of removal.

·       The non-claimant application must not have been finalised.  [Paragraph 24FC(f)]

·       There must be no entry on the National Native Title Register, relating to an approved determination of native title, that specifies that native title exists in relation to the area.  [Paragraph 24FC(g)]

Areas subject to an entry on the National Native Title Register specifying that native title does not exist in relation to the area

8.17        An area is also subject to section 24FA protection from the time the area is covered by an entry on the National Native Title Register that native title does not exist in relation to the area [Schedule 1, item 9, section 24FD] .  This will occur when there has been an approved determination of native title to that effect.

Meaning of terms used in section 24FA protection provisions

What is a relevant native title claim?

8.18        The Bill specifies when there is a ‘relevant native title claim’ for the purposes of the conditions that need to be met for an area to be subject to section 24FA protection [Schedule 1, item 9, section 24FE] .  The critical time for determining section 24FA protection is the end of the notice period for the non-claimant application under section 66 of the NTA, or an equivalent provision in a State or Territory law.  Section 24FA protection can apply if, at that time, there are no relevant native title claims covering the area.

8.19        There is a relevant native title claim covering an area at the end of the notice period for the non-claimant application if one of two alternative conditions are met. The first condition is that there must be a claim covering the area on the Register of Native Title Claims at the end of the notice period.  [Paragraph 24FE(a)]

8.20        Alternatively, a relevant native title claim will be one which meets the requirements set out in Table 8.1.  [Paragraph 24FE(b)]

Table 8.1

Requirements

Comments

The claim is on the Register of Native Title Claims after the end of the notice period covering the area

 

The application containing that claim was made before the end of the notice period

 

One of the conditions set out opposite is met

The claim must be registered following initial consideration of the claim for registration by the Native Title Registrar under subsection 190A(6) or is found to satisfy an equivalent test to that in section 190B and 190C under a State or Territory law.  [Subparagraph 24FE(b)(i)]   or

The claim must be registered following a direction that the claim be accepted for registration as a result of an application under subsection 190D(2) which must be made within 28 days of notification of non-acceptance of the claim for registration.  [Subparagraph 24FE(b)(ii)]   or

The claim must be registered following satisfaction of an equivalent test to that in section 190B or 190C under a State or Territory law having similar effect to section 190D where the application for review was made within 28 days. [Subparagraph 24FE(b)(iii)]

8.21        Sections 190A, 190B, 190C and 190D, referred to in Table 8.1, deal with claimant applications to the Native Title Registrar for determinations of native title.  They are inserted by Schedule 2 of the Bill and are discussed in detail in Chapter 25.

What is a non-claimant application?

8.22        A new definition of the term ‘non-claimant application’ is being inserted in section 253 of the NTA by the Bill [Schedule 2, item 96] .  It is basically an application, seeking a determination about whether native title exists in relation to an area, by a person who neither claims to hold native title nor is acting on behalf of those who do.

8.23        Under new subsection 61(1) of the NTA (also proposed to be inserted by Schedule 2 of the Bill), a government can make a non-claimant application for any area within its jurisdiction.  However, a non-government party can only make a non-claimant application if they have a non-native title interest in all of the area covered by the application.

What is an area?

8.24        As discussed above, section 24FA protection arises for an area.  The word ‘area’ has its ordinary meaning and could include any area of land and/or waters.



Overview

9.1          To achieve points 4 and 7 of the Ten Point Plan, Item 9 of Schedule 1 inserts a new Subdivision G of Division 3 to deal with the validity of future acts done in the course of primary production.  The Subdivision contains a definition of ‘primary production activity’ which is based on the definition in the taxation legislation, but is subject to a number of modifications.

9.2          Subdivision G ensures that acts which permit or require primary production activities, 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.  The non-extinguishment principle applies to these acts and compensation is payable to native title holders. [23]

9.3          Against the possibility that activities such as those normally conducted on pastoral leases may be ‘future acts’ for the purposes of the NTA, Subdivision G also ensures the validity of any primary production activities or incidental activities carried out on these non-exclusive leases.  Native title holders have no right to be compensated when these activities are performed but they may be entitled to compensation for the grant of the right to carry on the activities.  There is no need for the NTA to deal with primary production activities on leases with exclusive possession or freehold because these have extinguished native title and have been confirmed as doing so under new Division 2B (see Chapter 5).

9.4          Subdivision G also ensures the validity of certain ‘off-farm’ activities which take place on areas adjoining or near the area used for primary production.  The relevant provision applies whether or not the land used for primary production is freehold, exclusive leasehold or non-exclusive leasehold.  Grazing and activities relating to accessing or taking water that are directly connected to primary production can take place validly on the adjoining or near area so long as the acts do not stop any native title holders for those areas from having reasonable access to them.  The non-extinguishment principle applies to these acts and native title holders are entitled to compensation from the relevant government.

9.5          Finally, Subdivision G permits some future acts on non-exclusive pastoral leases which allow people to take and remove timber, gravel and other natural resources from land and waters.  Any native title holders for the land need to be notified and given an opportunity to comment before the act takes place, and the act cannot involve mining (which is dealt with in Subdivision P).  The non-extinguishment principle applies to these acts and native title holders are entitled to compensation from the relevant government.

Background to Subdivision G

9.6          The thinking behind the current NTA assumed that native title on mainland Australia would exist principally in relation to vacant Crown land, that is the 36% of Australia where there has been no significant grant of private rights, or public reservation or use.  It was assumed that the native title rights in relation to such vacant Crown land could therefore amount to very significant rights and interests in that land, rights and interests which should legitimately be equated to ownership of that land.  In addition to providing native title holders the same protection as freeholders, the NTA also provided a special right to negotiate in relation to mining and some compulsory acquisitions.  The NTA does not deal in any systematic way with the relationship between co-existing native title and other rights and interests.

9.7          The High Court’s Wik decision meant that these assumptions were wrong.  That decision held that the grant of a pastoral lease over land did not necessarily extinguish native title rights in relation to that land.  It means that native title may exist over the 42% of Australia which is subject to pastoral leases, in addition to the areas of vacant Crown land.  Since the Wik decision, 78% of Australia is therefore potentially subject to native title, and the operation of the NTA.

9.8          More importantly, in relation to much of that area native title will only be a ‘co-existing right’.  Justice Toohey said in Wik (1996) 187 CLR 1 at 126-127 (quoting, in part, the judgments in Mabo (No. 2) ):

“It is apparent that at one end of the spectrum native title rights may ‘approach the rights flowing from full ownership at common law’.  On the other hand they may be an entitlement ‘to come onto land for ceremonial purposes, all other rights in the land belonging to another group’.”

9.9          It is clear that in relation to pastoral lease land, the native title rights cannot be the former, and may only be the latter.  The assumption in the NTA that all native title rights will be high level rights is rendered false by the Wik decision.  It is inappropriate therefore that the NTA should continue to give effect to that false assumption.

9.10        For this reason, the amendments to the future act regime put in place more appropriate arrangements to deal with native title rights on pastoral lease land, dealt with in this Chapter and Chapter 17. [24]   Chapters 10, 11, 12 and 13 discuss the more general adjustments to the future act regime.

What is primary production activity?

9.11        The term ‘primary production activity’ is central to the operation of the provisions that cover the validity of future acts connected with primary production.  The definition in the Bill of primary production activity is based on the Income Tax Assessment Act 1936 [Schedule 1, item 9, section 24GA]

9.12        The term has its ordinary meaning but also includes a number of listed activities [subsection 24GA(1)] .  However, the Bill specifically provides that mining is not primary production activity [subsection 24GA(2)] .

Ordinary meaning of primary production activity

9.13        It is expected that the activities specifically listed as primary production activities will cover most activities that should be considered to be primary production.  However, there may be some residual primary production activities that are not listed and which would fall within the ordinary meaning of that term in any event.

9.14        The ordinary meaning of primary production activity can be described as any activity which is involved in growing, producing, maintaining or extracting natural resources.  Natural resources include all naturally occurring materials which are capable of economic exploitation.  In this context, they would include all plants and other living organisms.  As mentioned above, mining has been explicitly excluded from the meaning of primary production activities.

Specifically listed activities included as primary production activities

9.15        The activities listed in Table 9.1 are specifically defined to be primary production activities.

Table 9.1

Activity

Comments

Cultivation of land  [Paragraph 24GA(1)(a)]

In its ordinary meaning this includes the preparation and use (including watering, fertilising or spraying) of soil for crops, animal pasture and market gardening and the raising and production of plants, including harvesting.

Maintenance, breeding or agistment of animals  [Paragraph 24GA(1)(b)]

In its ordinary meaning, the word ‘animals’ include reptiles, birds and insects (e.g. crocodiles, poultry, emus and bees).  Fish and shellfish are dealt with below.

This category covers maintaining, breeding and raising animals for a number of purposes.  These would include selling them or their bodily produce (including natural increase) or maintaining them for tourism purposes.

The ordinary meaning of agistment of animals is taking in and feeding or pasturing animals for a fee.



Table 9.1 (continued)

Activity

Comments

Taking or catching fish or shellfish  [Paragraph 24GA(1)(c)]

Shellfish include oysters and crustacea (such as crabs and yabbies).

Forest operations  [Paragraph 24GA(1)(e)]

A definition of the term ‘forest operations’ is proposed to be inserted into section 253 of the NTA by this Bill [Schedule 1, item 53] .  Section 253 will define forest operations as:

·        the planting or tending, in a plantation or forest, of trees intended for felling; or

·        the felling of trees in a plantation or forest but only where the trees are in a plantation or forest and are planted or tended for the purpose of being felled.

A forest includes a non-plantation forest.

Horticultural activities  [Paragraph 24GA(1)(f)]

A definition of the term ‘horticulture’ is proposed to be inserted into section 253 of the NTA by this Bill [Schedule 1, item 55] .  Under the definition, horticulture has its ordinary meaning (ie. growing plants) but also includes:

·        propagation or maintenance, as well as cultivation;

·        propagation, maintenance or cultivation of seeds, bulbs, spores or similar things;

·        propagation, maintenance or cultivation of fungi (e.g. mushrooms);

·        propagation, maintenance or cultivation in environments other than soil, whether natural or artificial.

Aquaculture

Aquaculture means breeding, keeping and harvesting fish or shellfish and the propagation, maintenance, cultivation and harvesting of aquatic plants.

Leaving fallow or de-stocking any land in connection with anything else that is a primary production activity  [Paragraph 24GA(1)(g)]

This aspect of the definition recognises that primary production may require land to be left uncultivated or de-stocked for periods of time.

What is mining?

9.16        As discussed above, mining is deemed not to be a primary production activity [subsection 24GA(2)] .  Under the ordinary dictionary definition, mining can be described as the extraction of any non-organic natural resource for commercial exploitation.  Section 253 of the NTA already defines the term ‘mine’ to include exploration or prospecting, extraction of gas or petroleum and quarrying.

Validity of future acts and activities associated with primary production

Future acts

9.17        Subdivision G ensures the validity of a number of future acts that meet certain requirements.  The acts that are valid are those meeting the requirements to fall into any of the following categories:

·       future acts that permit or require primary production activities or farm tourism on non-exclusive agricultural or non-exclusive pastoral leases [Schedule 1, item 9, subsection 24GB(5)]. 

·       future acts permitting or requiring certain off-farm activities that are related to primary production activities [Schedule 1, item 9, subsection 24GD(2)] ; and

·       future acts that grant rights to third parties on non-exclusive agricultural and pastoral leases [Schedule 1, item 9, subsection 24GE(2)] .

Performance of primary production activities

9.18        To avoid doubt, Subdivision G also provides that, where the requirements of section 24GC are met:

·       the doing of primary production activities and certain incidental activities prevails over any native title; and

·       the existence of native title does not prevent primary production activities and certain incidental activities being carried on.  [Schedule 1, item 9, subsection 24GC(2)] .

9.19        These activities are physical, rather than legal, in nature and as a consequence are probably not ‘future acts’ as defined in section 233.  However, the provisions dealing with them are included in Subdivision G so as to remove any legal possibility that they can be prevented by native title.

9.20        The Senate made Government amendment (23) which is included in the Bill.  This amendment to paragraph 24GC(2)(a) puts beyond doubt that the doing of any activity mentioned in paragraph 24GC(1)(c) does not extinguish native title rights and interests that survived the grant of the non-exclusive agricultural or non-exclusive pastoral lease.

The non-extinguishment principle applies to the valid acts

9.21        Future acts which are valid under proposed subsections 24GB(5), 24GD(2) and 24GE(2) are subject to the non-extinguishment principle.  This principle is explained in paragraph 6.9 of Chapter 6.

What are the requirements for an act to fall into each category?

9.22        Table 9.2 on the following pages sets out the requirements for a future act, or activity, to fall into each of these categories.  Important terms and concepts used in these requirements are explained after the table.



Table 9.2

Nature of the requirement

Future acts that permit or require primary production activities or farm tourism on non-exclusive agricultural or pastoral leases (section 24GB)

Primary production activities on non-exclusive agricultural or pastoral leases (section 24GC)

Future acts permitting or requiring certain off-farm activities that are related to primary production activities (section 24GD)

Future acts that grant rights to third parties on non-exclusive agricultural and pastoral leases (section 24GE)

Kind of interest that must have been granted over the area in relation to which the act or activity is done

A non-exclusive agricultural lease or non-exclusive pastoral lease must have been granted on or before 23 December 1996 (the date the Wik judgment was handed down).

[Paragraph 24GB(1)(a)]

A non-exclusive agricultural lease or non-exclusive pastoral lease must have been granted on or before 23 December 1996.

[Paragraph 24GC(1)(a)]

A freehold estate, agricultural lease or pastoral lease (whether exclusive or non-exclusive) must have been granted on or before 23 December 1996.

[Paragraph 24GD(1)(a)]

A non-exclusive agricultural lease or non-exclusive pastoral lease must have been granted on or before 23 December 1996.

[Paragraph 24GE(1)(a)]

Validity of the grant of estate or lease

The grant referred to above must be valid.  This validity can arise because of the validation of past acts under existing sections 14 or 19 of the NTA, or because of the validation of intermediate period acts under sections 22A or 22F proposed to be inserted by this Bill.

[Paragraph 24GB(1)(b)]

The grant referred to above must be valid.  This validity can arise because of existing sections 14 or 19 of the NTA or sections 22A or 22F proposed to be inserted by this Bill.

[Paragraph 24GC(1)(b)]

The grant referred to above must be valid.  This validity can arise because of existing sections 14 or 19 of the NTA or sections 22A or 22F proposed to be inserted by this Bill.

[Paragraph 24GD(1)(b)]

The grant referred to above must be valid.  This validity can arise because of existing sections 14 or 19 of the NTA or sections 22A or 22F proposed to be inserted by this Bill.

[Paragraph 24GE(1)(b)]

When the act or activity must take place

The future act must take place after 23 December 1996.

[Paragraphs 24GB(1)(c) and (2)(a)]

The activity must be carried on after 23 December 1996.  (This does not mean that the same kind of activities conducted on or before 23 December 1996 were invalid because of native title).

[Paragraph 24GC(1)(c)]

The future act must take place after 23 December 1996.

[Paragraph 24GD(1)(c)]

The future act must take place after 23 December 1996.

[Paragraph 24GE(1)(c)]



Table 9.2 (continued)

Nature of the requirement

Future acts that permit or require primary production activities or farm tourism on non-exclusive agricultural or pastoral leases

Primary production activities on non-exclusive agricultural or pastoral leases

Future acts permitting or requiring certain off-farm activities that are related to primary production activities

Future acts that grant rights to third parties on non-exclusive agricultural and pastoral leases

Nature of the act or activity

The future act must permit or require the carrying on of any of the following on the area covered by the lease and while it remains in force (including by renewal):

·        a primary production activity (see section 24GA);

·        an activity associated with or incidental to such a primary production activity (this activity will only be covered if, when it is carried on, the majority of the area covered by the lease is still used for primary production activities).  [Paragraph 24GB(1)(d)]

Alternatively, the future act may permit or require a farm tourism activity in the area covered by the lease while it remains in force (including by renewal) [paragraph 24GB(2)(b)] . However, farm tourism that involves

The activity can be one of the following activities conducted on the area covered by the lease and while it remains in force (including by renewal):

·        a primary production activity;

·        an activity associated with or incidental to such a primary production activity (this activity will only be covered if, when it is carried on, the majority of the area covered by the lease is used for primary production activities).  [Paragraph 24GC(1)(c)]

It is to be noted, however, that section 24GC does not make unlawful activities lawful.  For example, the activity would need to be authorised by the lease or some other authority (such as a licence or permit) and, for instance, the provision would not authorise an

The future act must permit or require the carrying on of an activity that meets all of the conditions set out below.  [Paragraph 24GD(1)(e)]

·        The Senate made Government amendment (24A) which is included in the Bill and limits the acts covered by section 24GD to grazing or activities consisting of, or relating to, gaining access to or taking water.

·        The activity must take place while the freehold estate exists or the lease remains in force (including by renewal).

·        The activity must be directly connected to the carrying on of any primary production activity on the area covered by the freehold estate or lease.

 

The future act must:

·        take place while the lease is in force (including by renewal) [paragraph 24GE(1)(c)] ;

·        not itself be the grant of a lease [paragraph 24GE(1)(d)] ; and

·        confer a right on any person (including the lessee) to:

-       cut and remove timber;

-       extract or remove gravel;

-       quarry and remove rocks; or

-       obtain and remove sand, soil or other resources (but not by mining);

from the area covered by the lease [paragraph 24GE(1)(e)] .

Removing soil or sand for construction or landscaping purposes is an example of a way in which those things can be obtained otherwise than by mining



Table 9.2 (continued)



 Nature of the requirement

Future acts that permit or require primary production activities or farm tourism on non-exclusive agricultural or pastoral leases

Primary production activities on non-exclusive agricultural or pastoral leases

Future acts permitting or requiring certain off-farm activities that are related to primary production activities

Future acts that grant rights to third parties on non-exclusive agricultural and pastoral leases

 

observing activities or cultural works of indigenous peoples is not covered by section 24GB.  [Subsection 24GB(3)] .

activity that is criminal under Commonwealth, State or Territory law.

·        The activity must take place in an area adjoining or near the area covered by the freehold estate or lease (e.g. the areas could be separated by a road).

·        The native title holders for the area where the activity will be performed must not be prevented from having reasonable access to the area.

The Senate made Government amendment (24) which is included in the Bill.  This amendment to paragraph 24GD(1)(d) precludes a future act from being valid under section 24GD if it is the grant of a lease or any act that confers a right of exclusive possession over the land on which the off-farm activity takes place.

 

Notice of the act or activity

The Senate made Government amendment (22) which is included in the Bill and inserts a notification requirement in relation to some future acts covered by section 24GB, namely:

 

None.

The Senate made Government amendment (24B) which is included in the Bill and requires that before the future act is done, the person proposing to do the future act must notify, in the way

Before the future act is done, the person proposing to do the act must have notified the following that the act, or acts of that class, is or are to be done:

 



Table 9.2 (continued)

Nature of the requirement

Future acts that permit or require primary production activities or farm tourism on non-exclusive agricultural or pastoral leases

Primary production activities on non-exclusive agricultural or pastoral leases

Future acts permitting or requiring certain off-farm activities that are related to primary production activities

Future acts that grant rights to third parties on non-exclusive agricultural and pastoral leases





 

·        future acts that permit or require forest operations or horticultural activities or aquaculture activities to be undertaken; and

·        future acts that permit or require an agricultural activity to be undertaken on a non-exclusive pastoral lease

In relation to these kinds of future acts, before the future act is done, the person proposing to do the future act must notify, in the way determined in writing by the Commonwealth Minister, any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the area covered by the non-exclusive agricultural or non-exclusive pastoral lease that the act, or acts of that class, are to be done and give them an opportunity to comment on the act or class of acts. Failure to notify will not affect the validity of the future act.  [Subsection 24GB(9)]

 

determined in writing by the Commonwealth Minister, any representative bodies, registered native title bodies corporate, and registered native title claimants in relation to the area that will be affected by the act, or acts of that class, are to be done and give them an opportunity to comment on the act or class of acts.  Failure to notify will not affect the validity of the future act.  [Subsection 24GD(6)]

·        any representative Aboriginal/Torres Strait Islander bodies for the area covered by the lease.

·        any registered native title body corporate or registered native title claimant in relation to the area covered by the lease.

This will allow a notification to be given in relation to a class of acts e.g. the taking of gravel by a particular person from a particular location, or by all persons from a particular location, over a specified period.  Those notified must be given an opportunity to comment on the act.

The Commonwealth Minister must determine in writing the manner in which such notifications are to be given.

[Paragraph 24GE(1)(f)]



Certain lease conversions are not covered by the first category

9.23        In spite of the above, some future acts will not be valid under section 24GB (this section deals with future acts that permit primary production activities on non-exclusive agricultural or pastoral leases).

9.24        The Senate made Government amendment (21) which is included in the Bill.  This amendment limits the range of acts to which section 24GB applies.  In relation to non-exclusive pastoral leases of any significant size, that is over 5,000 hectares in area, this amendment will provide that governments cannot grant new rights to carry on primary production activities over more than 50% of the lease [paragraph 24GB(4)(a)].  The purpose of this these restrictions is to ensure that native title is not in effect extinguished by future acts to which section 24GB applies.  In order to extinguish native title, as the note to subsection 24GB(4) indicates, the native title must first be acquired, either with the agreement of the native title holders or through a non-discriminatory compulsory acquisition.

·       This is in addition to the restriction that governments cannot convert a non-exclusive lease into a freehold or other exclusive tenure simply by granting additional primary production or associated or incidental rights [para 24GB(4)(b).  

·       This is also in addition to the limitation on the ability to grant the right to carry on new associated or incidental activities  so that the majority of the area is no longer used for primary production activities [subparagraph 24GB(1)(a)(ii)]

9.25        Future acts of the kind excluded from section 24GD may in some limited cases be valid under the provisions covering renewals and extensions of leases (Subdivision I of new Division 3 of Part 2) - see Chapter 11.

Terms and concepts used

When is a lease in force?

9.26        To avoid doubt, the provisions setting out the requirements described in Table 9.2, say that a lease is in force when it has been renewed (whether one or more times).  Future acts consisting of the renewal or extension of a lease may be valid under Subdivision I of new Division 3 of Part 2 (see Chapter 11).

What is farm tourism?

9.27        The Senate made Government amendment (19) which is included in the Bill.  This amendment makes it clear that paragraph 24GB(2)(b) is not confined to farm stay 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.  This provision continues to be subject to subsection (3). The Senate also made Government Amendment 20 which is included in the Bill.  This amendment to Subsection (3), was necessary as a result of Government amendment (19) to paragraph 24GB(2)(b).

9.28        Farm tourism is not defined in the Bill but has its ordinary meaning.  In essence it is an activity under which persons are involved in tourism on land and waters covered by non-exclusive agricultural and non-exclusive pastoral leases.  Farm tourism activities would include:

·       observing or becoming involved in primary production activities; or

·       observing and enjoying the natural environment and non-indigenous cultural activities or sites (e.g. colonial era buildings).

9.29        As noted in Table 9.2, acts that allow farm tourism involving observing Aboriginal/Torres Strait Islander activities or cultural works (e.g. rock art) will not be valid under Subdivision G (although they might be permitted under, say, an indigenous land use agreement).  However, this does not exclude tourism activities that involve observing natural objects (such as wildlife or rock formations).

Definitions of non-exclusive agricultural lease and non-exclusive pastoral lease

9.30        Various kinds of lease are covered by Subdivision G.  Definitions of ‘non-exclusive agricultural lease’ and ‘non-exclusive pastoral lease’ are inserted by items 47 and 48 of Schedule 1 of this Bill and are explained in Chapter 24 (Table 24.2).

Examples of validated acts and activities relating to primary production

9.31        The following paragraphs provide examples of acts and activities that are valid under each of the categories explained in Table 9.2.

Example of a future act valid under section 24GB

9.32        The issue of a licence, permit or authority to clear land and excavate an earthworks dam in connection with the keeping of livestock is an example of a future act covered by proposed section 24GB .

Examples of activities valid under section 24GC

9.33        The following examples are activities that are valid under section 24GC:

·       the actual clearance of land and excavation under the licence, permit or authority discussed in paragraph 9.31;

·       the carrying on of any of the activities listed in subsection 24GA(2);

·       the carrying on of farm tourism or of activities on a non-exclusive pastoral lease, provided the activity on more than half of the tenure continues to be pastoral activities such as the grazing of cattle.

Example of activities that are incidental to, or associated with, primary production

9.34        The following are examples of activities that would be incidental to, or associated with, primary production activities (this is not an exclusive list):

·       the construction and use of housing for use by leaseholders and other persons working on or visiting a farm;

·       recreational activities by leaseholders and other persons working on or visiting a farm;

·       the construction and use, in connection with the running of a pastoral operation, of an airstrip, a power supply, a water supply, fencing, roads, dams, embankments and soil conservation works;

·       the sale and transport of livestock;

·       the storage of material for use in conducting primary production activities;

·       the operation of machine shops to make or repair equipment used in cultivating land or maintaining animals;

·       pasture management;

·       culling of wildlife and control of feral animals;

·       the running of a general store (‘station store’) in a remote area.

Examples of future acts valid under section 24GD

9.35        The Bill contains two examples of future acts valid under section 24GD.  They are as follows (these examples are not exhaustive):

·       the conferral of off-lease rights to graze cattle in an area adjoining or near the area covered by the lease, if cattle are also grazed on the leased area;

·       the conferral of off-lease rights to take water from an area adjoining or near the area covered by the lease for use in carrying on primary production activities in the leased area.

Examples of future acts valid under section 24GE

9.36        The following examples are activities that are valid under section 24GE:

·       a government grant to a commercial operator of an authority to take a specified amount of forest product from a non-exclusive pastoral lease;

·       a government grant to a contractor building a road of an authority to take gravel from land covered by a non-exclusive pastoral lease where the gravel is to be used in construction of the road.

Compensation for valid future acts associated with primary production

9.37        Native title holders are entitled to compensation for future acts valid under proposed sections 24GB, 24GD and 24GE (but not in relation to the carrying on of activities under section 24GC).  The native title holders so entitled are those whose native title is affected by the valid future act.

What is the compensation?

9.38        The compensation is payable in accordance with Division 5 of Part 2 of the NTA.  In general terms, the compensation is an entitlement on ‘just terms’ to compensate the native title holder for any loss, diminution, impairment or other effect of the act on their native title (see section 51 of the NTA).  [Subsections 24GB(7), 24GD(4) and 24GE(4)]

Who pays the compensation ?

9.39        If the future act for which compensation is payable is attributable to the Commonwealth, the compensation is payable by the Commonwealth [paragraphs 24GB(8)(a), 24GD(5)(a) and 24GE(5)(a)] .  States and Territories are liable for compensation in relation to their future acts for which compensation is payable [paragraphs 24GB(8)(b), 24GD(5)(b) and 24GE(5)(b)] .

No compensation for carrying on of primary production activities

9.40        Subdivision G provides that compensation is not payable to native title holders where primary production and incidental or associated activities are covered by section 24GC [subsection 24GC(3)] .  Any compensation payable to the native title holders for the act of granting or issuing the lease, licence, permit or authority in accordance with which the activity is conducted could take account of such activity.  Subsection 24GC(3) ensures that there is no ‘double dipping’ in relation to compensation.



Overview

10.1        Item 9 of Schedule 1 inserts Subdivision H of Division 3 into Part 3 of the NTA to deal with future acts involving the management of water, living aquatic resources (such as fish) and airspace.  This implements point 8 of the 10 Point Plan.  This Subdivision ensures that legislation and other future acts dealing with surface and sub-surface water, living aquatic resources and airspace will be valid.  Any rights or obligations created by the acts will prevail over inconsistent native title rights and interests.  The non-extinguishment principle applies to these acts and native title holders are entitled to compensation from the relevant government.  Water management is also dealt with in existing section 212 of the NTA.

10.2        Subdivision H does not deal with the management and regulation of the bed or subsoil under onshore and offshore waters (which includes the regulation of off-shore mining such as the petroleum and gas industries).  These matters are generally dealt with in proposed Subdivisions M and N, respectively, of Division 3 (see Chapters 15 and 16).  It is for this reason that the term ‘water’ is used rather than the term ‘waters’ (which is defined in section 253 to include the bed or subsoil).

Validity of future acts relating to management or regulation of water and airspace

10.3        Subdivision H provides that certain future acts relating to the management or regulation of water, living aquatic resources and airspace are valid [Schedule 1, item 9, section 24HA] .  The water can be in an onshore or offshore place.  There are two classes of act that are valid: legislative acts and non-legislative acts.  The acts covered are explained below.

What legislative acts are valid?

10.4        A future act that is the making, amendment or repeal of legislation relating to the management or regulation of the following is valid:

·       surface and subterranean water;

·       living aquatic resources;

·       airspace.  [Subsections 24HA(1) and (3)]

10.5        The legislation covered is Commonwealth, State or Territory legislation.

Example

10.6        The making of legislation regulating the dumping of materials into waterways, the use of water bores, protection of drinking water or regulation of irrigation water or water to be used for the generation of hydro-electric power would be examples of legislative future acts valid under proposed section 24HA.

What non-legislative acts are valid?

10.7        A future act that is the grant of a lease, licence, permit or authority is valid if it is done under valid legislation (including legislation made on or before 23 December 1996) relating to the management or regulation of the following:

·       surface and subterranean water;

·       living aquatic resources;

·       airspace.  [Subsections 24HA(2) and (3)]

10.8        The legislation under which the lease etc. is granted can be Commonwealth, State or Territory legislation.  The legislation can be valid because of a provision of the NTA (e.g. sections 14 and 19 which validate past acts, proposed sections 22A and 22F which validate intermediate period acts or proposed subsections 24HA(1) and (3) discussed above).

Example

10.9        An example of a non-legislative future act that is valid under proposed section 24HA is the grant of a fishing licence in an onshore or offshore area.  Another example is the grant of an irrigation licence.

Activities done in accordance with valid acts

10.10      It is important to note that as with future acts covered in other Subdivisions in Division 3, the issue of the status of any activities done as a result of a requirement or permission given in a future act covered by Subdivision H is dealt with in section 44H.  Briefly, that section provides that:

·       the permission or requirement, and the doing of the activity, prevails over any native title and the exercise of native title rights and interests but does not extinguish the native title;

·       the existence of the native title rights and interests and their exercise does not prevent the doing of the activity in giving effect to the requirement or permission; and

·       native title holders are not entitled to compensation for the doing of the activities. [25]

10.11      For example, even where native title rights in some form are proved to exist in relation to water, they can not prevent any holder of a licence entitled to take water for irrigation purposes from doing so.

The non-extinguishment principle applies to the valid acts

10.12      Future acts which are valid under proposed subsection 24HA(3) are subject to the non-extinguishment principle [subsection 24HA(4)] .  This principle is explained in paragraph 6.9 of Chapter 6.

Terms used

What is water?

10.13      The term ‘water’ has its ordinary meaning.  However, Subdivision H makes it clear that ‘water’ means water in all its forms (e.g. ice and steam as well as liquid) and subterranean water.

What are living aquatic resources?

10.14      Examples of ‘living aquatic resources’ are fish, shellfish, marine mammals, coral and aquatic plants (such as algae).

What is airspace?

10.15      The term ‘airspace’ has its ordinary meaning.  It can be described as the atmosphere above the land or waters of a particular political division (e.g. a State) that is within its jurisdiction.  It is generally the air available to aircraft to fly in.

Compensation for valid future acts relating to management or regulation of water and airspace

10.16      Native title holders are entitled to compensation for future acts that are valid because of proposed subsection 24HA(3).  The native title holders so entitled are those whose native title is affected by the valid future act.

What is the compensation?

10.17      The compensation is payable in accordance with Division 5 of Part 2 of the NTA.  In general terms, the compensation is an entitlement on ‘just terms’ to compensate the native title holder for any loss, diminution, impairment or other effect of the act on their native title (see section 51 of the NTA).  [Subsection 24HA(5)]

Who pays the compensation ?

10.18      If the future act for which compensation is payable is attributable to the Commonwealth, the compensation is payable by the Commonwealth [paragraph 24HA(6)(a)] .  States and Territories are liable for compensation in relation to their future acts for which compensation is payable [paragraph 24HA(6)(b)] .

Notification

10.19      The Senate made Government amendment (25) which is included in the Bill.  This amendment to proposed section 24HA inserts a new subsection 24HA(7) that requires notification in relation to the grant of a lease, licence, permit or authority under subsection 24HA(2) only. 

10.20      In relation to future acts of this kind, new subsection (7) requires that before the future act is done, the person proposing to do the act notify, in the way determined in writing by the Commonwealth Minister, the persons mentioned in paragraph (7)(a) that the act, or acts of that class, are to be done, and give them an opportunity to comment on the act or class of acts.  The reference to ‘acts of that class’ makes it clear that notification need not be given in relation to each particular future act.  For example, notification need not be given in relation to each grant of a fishing licence, but may be given in relation to the grant of all licences to fish in particular waters.  Failure to notify will not affect the validity of the future act.



Overview

11.1        Item 9 of Schedule 1 inserts Subdivision I of Division 3 to ensure that certain renewals, extensions and re-grants are valid.  It broadly reproduces the content of current sections 25 and 235 of the NTA (which are repealed under these amendments) while ensuring that all leases, licences, permits and authorities are treated in a consistent manner.  It deals with two situations when an earlier act is followed by a later one.

11.2        First, Subdivision I protects those renewals or other acts (including the grant of a freehold interest in place of a lease) which result from a legally enforceable right or which take place in good faith pursuant to a written commitment, offer or other arrangement made in good faith, which arose on or before 23 December 1996 (the date the High Court’s decision in Wik was handed down).

11.3        Second, Subdivision I deals with renewals which meet certain requirements.  In brief, these requirements deal with the validity and characteristics of the interest that is going to be renewed, whether the renewed interest will create greater rights for the interest holder than they had before the renewal, the preservation of existing reservations or conditions benefiting indigenous peoples and whether the renewed interest will permit mining.  The renewed interest does not need to be the same in all respects as the one it follows.  For instance, it can be for a longer term, and if the original interest is a lease, it can be converted into a perpetual lease.  Also, if the original interest permitted some primary production activities or certain other activities permitted by Subdivision G to take place, the renewed interest can allow different primary production activities or incidental activities to take place as well, so long as the main use of the area covered by the interest is for primary production activities.

11.4        Some acts covered by this Subdivision (such as converting a lease to freehold as a result of a pre-existing right) will extinguish native title.  However, the non-extinguishment principle will apply to other acts under the Subdivision which do not give rise to exclusive possession.  Native title holders are entitled to compensation from the relevant government for the effect of valid future acts on their native title.

Future acts covered by Subdivision I

11.5        Subdivision I provides that two classes of future act are valid.  These are future acts labelled by the Bill as ‘pre-existing right based acts’ and ‘permissible lease etc. renewals’, respectively [Schedule 1, item 9, section 24IA] .

Validity of pre-existing right based acts

11.6        A ‘pre-existing right based act’ is valid.  [Schedule 1, item 9, paragraph 24ID(1)(a)]

What is a pre-existing right based act?

11.7        In essence, a ‘pre-existing right based act’ is a future act that takes place after 23 December 1996 in pursuance of certain rights or arrangements arising on or before that date [Schedule 1, item 9, section 24IB] .

11.8        A future act will be a ‘pre-existing right based act’ if it takes place:

·       in exercise of a valid and legally enforceable right created by an act done on or before 23 December 1996 [paragraph 24IB(a)] ; or

·       in good faith as a result of a bona fide offer, commitment, arrangement or undertaking made or given on or before 23 December 1996 (there must be written evidence of the offer, commitment, arrangement or undertaking created at or near the time it was made or given) [paragraph 24IB(b)] .  The requirement that the future act be done in good faith was inserted by Government amendment (25A) which was made by the Senate and included in the Bill.

11.9        Examples would be the grant in good faith of a non-exclusive pastoral lease pursuant to an offer made before 24 December 1996, evidenced in writing, to grant a non-exclusive pastoral lease but where the things necessary to complete the grant had not been done by that time, or the grant of a freehold estate after 23 December 1996 where the grantee had before that time a valid legally enforceable right to that grant.

11.10      The validity of an act that creates a legally enforceable right can arise because of Division 2 of Part 2 (which validates past acts) or proposed Division 2A of Part 2 (which, if enacted, will validate intermediate period acts). [26]

Effect of a pre-existing right based act on native title

11.11      The Bill specifies the effect of a pre-existing right based act on native title, as set out in Table 11.1.

Table 11.1

Nature of the pre-existing right based act

Effect of the act on native title

The grant of a freehold estate over particular land or waters

The act extinguishes any native title in relation to the land or waters.  [Paragraph 24ID(1)(b)]

The Bill specifically defines the word extinguish in relation to native title to mean permanent extinguishment.  [Schedule 1, item 45, section 237A]

The conferral of a right of exclusive possession over particular land or waters (e.g. the grant of an exclusive pastoral lease)

The act extinguishes any native title in relation to the land or waters.  [Paragraph 24ID(1)(b)]

Any pre-existing right based act not covered by the above (e.g. the issue of a licence to graze cattle)

The non-extinguishment principle applies to the act [paragraph 24ID(1)(c)] .  This principle is explained in paragraph 6.9 of Chapter 6.

Validity of permissible lease etc. renewals

11.12      A ‘permissible lease etc. renewal’ is valid.  [Paragraph 24ID(1)(a)]

What is a permissible lease etc. renewal?

11.13      A future act will be a ‘permissible lease etc. renewal’ if it is the renewal, re-grant, re-making or extension of the term of a valid lease, licence, permit or authority and meets the four requirements below. [27]   [Schedule 1, item 9, section 24IC] .  Both the Bill and the discussion below refer to the ‘lease, licence, permit or authority’ as the original lease etc.

·       It must meet one or more positive conditions (see paragraph 11.15).

·       It must not create a greater interest in the relevant land or waters than was previously the case under the original lease etc. (see paragraph 11.17).

·       The lease, licence permit or authority must continue to contain, or be subject to, a reservation or condition (if any) for the benefit of Aboriginal peoples or Torres Strait Islanders that was in the original lease etc.  If there was not any such reservation or condition in the original lease etc. this requirement does not need to be met.  [Paragraph 24IC(1)(d)]

·       The lease, licence, permit or authority must not permit mining if that was not permitted under the original lease etc.  If the original lease etc. did permit mining, the renewed, re-granted, re-made or extended lease, licence, permit or authority can continue to allow mining.  [Paragraph 24IC(1)(e)]

11.14      To avoid doubt, the Bill also sets out a number of features of a renewed, re-granted, re-made or extended lease, licence, permit or authority that will not prevent the lease etc. from being a ‘permissible lease etc. renewal’.  These are discussed in paragraphs 11.20 and 11.21.

Positive conditions

11.15      The renewal, re-grant, re-making or extension will only be a permissible lease etc. renewal if any one or more of the positive conditions set out in Table 11.2 are met.

Table 11.2

Positive condition

Comments

The original lease etc. was granted on or before 23 December 1996.

[Subparagraph 24IC(1)(b)(i)]

This means, for example, that a non-exclusive pastoral lease issued before the Wik decision was handed down can be renewed etc.

The original lease etc. was granted by an act covered by proposed section 24GB, 24GD, 24GE or 24HA.

[Subparagraph 24IC(1)(b)(iii)]

Sections 24GB, 24GD and 24GE deal with matters relating to primary production and are discussed in Chapter 9.  Section 24HA deals with water etc. and is discussed in Chapter 10.

An example is the renewal of a licence to graze cattle in an area adjoining or near to a farm owned by the licence holder.

The grant of the original lease etc. was a pre-existing right based act.

[Subparagraph 24IC(1)(b)(ii)]

The meaning of the term ‘pre-existing right based act’ is discussed in paragraphs 11.7 to 11.10.

The original lease etc. was previously the subject of a renewal, re-grant, re making or extension that was itself a ‘permissible lease etc. renewal’ (i.e. it meets the requirements set out in paragraph 11.13).

[Subparagraph 24IC(1)(b)(ii)]

This means the original lease etc. must have met one of the positive conditions above but can have been renewed etc. on more than one occasion.

An example of an act meeting this condition is the renewal of a non-exclusive pastoral lease originally granted on or before 23 December 1996 that has previously been re-granted after 23 December 1996.

11.16      Section 24IC does not deal with the renewal of leases, licences etc. that are created in the future where native title exists and which are not within the categories set out in Table 11.2 (e.g. mining leases and pastoral leases given in the future).  Future mining leases can be renewed under Subdivision M and pastoral leases can only be granted in the future by agreement or where native title has been compulsorily acquired in a non-discriminatory manner.

The renewal etc. must not create a greater interest in the relevant land or waters

11.17      A renewal, re-grant, re making or extension will not be a ‘permissible lease etc. renewal’ if it:

·       gives a right of exclusive possession over any of the land or waters covered by the original lease etc. [subparagraph 24IC(1)(c)(i)] (native title rights must be acquired if a right of exclusive possession is to be given - see section 24MD [28] ); or

·       otherwise creates a greater proprietary interest in the land or waters than was created by the original lease etc. (e.g. a renewal of a non-exclusive pastoral lease could not grant mineral rights over the land or waters) [subparagraph 24IC(1)(c)(ii)] ; or

·       creates a proprietary interest over any of the land or waters covered by the original lease etc. where none previously existed under the original lease etc. (e.g. a lease replaces a licence) [subparagraph 24IC(1)(c)(iii)] .

What if a lease etc. is replaced by two or more leases etc.?

11.18      The Bill deems the replacement of a lease by one or more other leases to be a ‘renewal’ for the purposes of the definition of a ‘permissible lease etc. renewal’.  The same applies where:

·       a licence is replaced by two or more licences;

·       a permit is replaced by two or more permits; and

·       an authority is replaced by two or more authorities.  [Subsection 24IC(2)]

11.19      To be a ‘permissible lease etc. renewal’, the replacement must meet all the conditions discussed in paragraph 11.13.  For example, if a lease is replaced with two new leases, the new leases must not, between them, create a greater proprietary interest than was previously held under the original lease.

What features do not prevent an act from being a permissible lease etc. renewal?

11.20      As discussed above, the Bill includes provisions that clarify what matters renewed, re-granted, re-made and extended leases etc. can deal with [subsections 24IC(3) and (4)] .  These provisions are intended to remove doubt.

11.21      The features set out below do not prevent a renewed, re-granted, re-made or extended lease, licence, permit or authority from being a ‘permissible lease etc. renewal’.  Nor do they prevent each of 2 or more leases etc. granted in place of a single lease etc. from being a ‘permissible lease etc. renewal’.  The original lease etc. is called the old authority and the renewed, re-granted, re-made, extended or replaced lease or leases etc. are each called a new authority (there will be more than one new authority where the old authority is replaced by two or more leases etc.).  [Subsection 24IC(3)]

·       The new authority, or the new authorities between them, can cover a smaller area than the old authority.  [Paragraph 24IC(4)(a)]

·       The term of the new authority, or any of the new authorities, can be longer than the term of the old authority and, if the new authority, or any of the new authorities, is a lease, it can be a perpetual lease even if the previous lease was not.  [Paragraphs 24IC(4)(b) and (c)]

·       Any new authority that is a non-exclusive agricultural lease or a non-exclusive pastoral lease can permit the following activities (even if they were not permitted by the old authority):

-      any primary production activity [subparagraph 24IC(4)(d)(i)] ;

-      an activity, on the area covered by the new authority, associated with or incidental to such a primary production activity (this activity will only be covered if, when it is carried on, the majority of the area covered by the new authority, or the new authorities between them, will be used for primary production activities). [29]   [Paragraph 24IC(4)(d)]   The Senate made Harradine amendment (15) which is included in the Bill.  This amendment substitutes the words ‘is likely to’ with ‘will’ in subparagraph 24IC(4)(d)(ii) .

Effect of a permissible lease etc. renewal on native title

11.22      Permissible lease etc. renewals which are valid under proposed paragraph 24ID(1)(a) are subject to the non-extinguishment principle [Paragraph 24ID(1)(c) .  This principle is explained in paragraph 6.9 of Chapter 6.

Compensation for pre-existing right based acts and permissible lease etc. renewals

11.23      Native title holders are entitled to compensation for future acts that are valid because of proposed paragraph 24ID(1)(a).  The native title holders so entitled are those whose native title is affected by the valid future act.

What is the compensation?

11.24      The compensation is payable in accordance with Division 5 of Part 2 of the NTA.  In general terms, the compensation is an entitlement on ‘just terms’ to compensate the native title holder for any loss, diminution, impairment or other effect of the act on their native title (see section 51 of the NTA).  [Paragraph 24ID(1)(d)]

Who pays the compensation?

11.25      If the future act for which compensation is payable is attributable to the Commonwealth, the compensation is payable by the Commonwealth [paragraph 24ID(2)(a)] .  States and Territories are liable for compensation in relation to their future acts for which compensation is payable [paragraph 24ID(2)(b)] .

Notification

11.26      The Senate made Government amendment (25B) which is included in the Bill.  This amendment inserts new subsection 24ID(3).  This subsection provides that where a future act is one to which paragraph 24IB(b) applies, the person proposing to do the future act must, before the act is done, notify the persons referred to in paragraph 24ID(3)(a) of the act or class of acts, and give them an opportunity to comment on the act or class of acts.  However, failure to notify will not affect the validity of the future act.

 



Overview

12.1        Item 9 of Schedule 1 inserts Subdivision J of Division 3 to deal with acts on land that has been reserved or otherwise set aside for a particular purpose.  It implements part of point 7 of the Ten Point Plan and also reflects the policy in existing subsection 228(9) of the NTA.  As well as making grants to third parties in the past, governments also reserved or set aside land for a broad range of public purposes.  The Government is of the view that land reserved or set aside in the past should be able to be used, in the future, even if native title exists in relation to that land.  Consistent with Mabo (No. 2) the reservation should not extinguish native title; the act may in limited circumstances do so.

12.2        Therefore, Subdivision J ensures the validity of future acts on reserved land which meet certain conditions.  These are, broadly, that:

·       the reservation happened on or before 23 December 1996 and is valid or validated;

·       it provided for the land to be used later on for a particular purpose; and

·       the future act is done in good faith under the terms of, or in accordance with, the reservation or in such a way as not to affect native title more than acts which the reservation did cover.

12.3        Unless the act involves a public work, the non-extinguishment principle applies to these acts and native title holders are entitled to compensation from the relevant government.  If the act involves a public work, certain notification requirements are imposed on the person proposing to do the act.

Validity of future acts relating to reservations

12.4        Subdivision J makes valid certain future acts relating to areas subject to a reservation, proclamation, dedication, condition, permission or authority (all called a reservation ) or certain leases [Schedule 1, item 9, sections 24JA and 24JB] .  The acts covered are explained below.

What future acts are valid?

12.5        Two kinds of future act are valid: those dealing with reservations etc. and those dealing with certain leases given to statutory authorities [subsection 24JB(1)] .  These categories are explained below.

Reservations etc.

12.6        A future act (called a later act ) will be valid if the conditions below are met.

·       There must be a valid earlier act that took place before the later act and on or before 23 December 1996.  The validity of the earlier act can arise because of Division 2 of Part 2 (which validates past acts) or proposed Division 2A of Part 2 (which, if enacted, will validate intermediate period acts). [30]   [Paragraphs 24JA(1)(a) and (b)]

·       The earlier act must either :

-      have been done by the Crown in right of the Commonwealth, a State or a Territory; or

-      be the making, amendment or repeal of legislation by the Commonwealth, a State or a Territory.  [Paragraph 24JA(1)(c)]

·       The earlier act must have contained, made or conferred a reservation to use particular land or waters for a particular purpose.  The land or waters covered by the later act can be part of the area to which the earlier act related.  [Paragraph 24JA(1)(d)]

·       The later act must be a bona fide act done:

-      under or in accordance with the reservation [subparagraph 24JA(1)(e)(i)] ; or

-      in the area covered by the reservation, but only if its impact on native title is no greater than would have been the case for an act done under or in accordance with the reservation [subparagraph 24JA(1)(e)(ii)] .

(An act may be done in accordance with the reservation if it is done pursuant to the purpose for which the land was reserved.  If this is the case, it is immaterial whether the act is done under a different law to that under which the land was reserved).

Leases to statutory authorities

12.7        Instead of reserving land, some governments have granted it to statutory authorities to be used by those authorities for particular purposes.  This category treats those grants in the same way as reservations.

12.8        A future act (called a later act ) will be valid if the conditions below are met.

·       There must be a valid earlier act that took place before the later act and on or before 23 December 1996.  The validity of the earlier act can arise because of Division 2 of Part 2 or proposed Division 2A of Part 2.  [Paragraphs 24JA(2)(a) and (b)]

·       The earlier act must have been done by the Crown in right of the Commonwealth, a State or a Territory.  [Paragraph 24JA(2)(c)]

·       The earlier act must have consisted of the grant of a lease to a statutory authority of the Commonwealth, State or Territory where:

-      under the lease any of the land or waters covered by it was to be used for a particular purpose; or

-      there is written evidence, created on or before 23 December 1996 by the Commonwealth, State or Territory, that any of the land or waters covered by the lease was to be used for a particular purpose.  [Paragraph 24JA(2)(d)]

·       The later act must be a bona fide act consisting of the use of the land or waters for the particular purpose.  [Paragraph 24JA(2)(e)]

Examples of future acts valid under subsection 24JA(1)

12.9        The Bill contains three examples of future acts that are valid under Subdivision J.  They are broadly as set out below.

Example 1 - land reserved for a national park

12.10      A future act consisting of the creation of a national park management plan might be valid if the land concerned was reserved for the establishment of a national park before 23 December 1996.  This act would be covered by subparagraph 24JA(1)(e)(i) if the plan was done under or in accordance with the reservation.  The construction of a raised walkway in the national park would be another example.

Example 2 - grant of a forestry licence

12.11      A future act consisting of the grant of a forestry licence might be valid if the grant is done under or in accordance with a dedication for forestry purposes made before 23 December 1996 (this act would be covered by subparagraph 24JA(1)(e)(i)).

Example 3 - land reserved for a hospital but a school is built instead

12.12      A future act consisting of the construction of a school might be valid if the school is built on land reserved for a hospital before 23 December 1996.  The act would be covered by subparagraph 24JA(1)(e)(ii) if the building of the school would not affect native title to a greater extent than the building of a hospital would have.

Effect of future act on native title

12.13      The Bill specifies the effect on native title of a valid future act relating to a reservation etc., as set out in Table 12.1.

Table 12.1

Nature of the future act

Effect of the act on native title

The construction or establishment of a public work (e.g. the school discussed in Example 3 above)

(A revised definition of the term ‘public work’ is inserted by item 59 of Schedule 1 of this Bill and is explained in Chapter 24 (paragraphs 24.20 to 24.22).  The Bill also explains what is meant by land or waters on which a public work is constructed, established or situated (section 251D in item 50 of Schedule 1)).

The act extinguishes native title in relation to the land or waters on which the public work is situated determined as at the time when its construction or establishment is completed.  The extinguishment is taken, however, to have happened when the construction or establishment of the public work began.  [Subsection 24JB(2)]

The Bill specifically defines the word extinguish in relation to native title to mean permanent extinguishment.  [Schedule 1, item 45, section 237A]

Anything other than the construction or establishment of a public work (e.g. the grant of the forestry licence discussed in Example 2 above)

The non-extinguishment principle applies to the act [subsection 24JB(3)] .  This principle is explained in paragraph 6.9 of Chapter 6.

Compensation for future acts relating to reservations

12.14      Native title holders are entitled to compensation for future acts that are valid because of proposed subsection 24JB(1).  The native title holders so entitled are those whose native title is affected by the valid future act.

What is the compensation?

12.15      The compensation is payable in accordance with Division 5 of Part 2 of the NTA.  In general terms, the compensation is an entitlement on ‘just terms’ to compensate the native title holder for any loss, diminution, impairment or other effect of the act on their native title (see section 51 of the NTA).  [Subsection 24JB(4)]

Who pays the compensation?

12.16      If the future act for which compensation is payable is attributable to the Commonwealth, the compensation is payable by the Commonwealth [paragraph 24JB(5)(a)] .  States and Territories are liable for compensation in relation to their future acts for which compensation is payable [paragraph 24JB(5)(b)] .

Notification

12.17      The Senate made Government amendment (26) which is included in the Bill.  This amendment inserts new subsection 24JB(6) which requires the person proposing to construct or establish a public work under this section (the consequences of which will be extinguishment of any native title) to notify, in the way determined in writing by the Commonwealth Minister, the persons mentioned in paragraph (6)(a) that the act, or acts of that class, are to be done, and give those persons an opportunity to comment on the act or class of acts.  The notification must occur before the future act is done.  Failure to notify will not affect the validity of the future act.



Overview

13.1        Item 9 of Schedule 1 inserts Subdivision K of Division 3 to implement point 3 of the 10 Point Plan and ensure that services to the general public can be provided unimpeded by native title.  The provision of basic services to rural communities, in particular remote Aboriginal communities, is a key concern of the Government.  In its view, native title should not inhibit the provision of these services where they are for the general public, including native title holders, no matter who provides them, provided that the affect on native title is minimal.

13.2        The acts which are covered by Subdivision K include, among other things, the construction, use and maintenance of transport, electricity supply, lighting, pipeline, sewerage and communications facilities and acts which permit or require such things to be constructed, used and maintained.  These acts are valid under this Subdivision unless they prevent native title holders from having reasonable access to affected areas, subject to construction and health and safety requirements.  The Subdivision also requires there to be legislation in existence in the relevant jurisdiction which provides for the protection of significant indigenous sites from the effects of the activities.

13.3        The non-extinguishment principle applies, and any compensation entitlement of the native title holders is payable by the relevant government.  Also, the native title holders have the same procedural rights as other comparable interest holders in relation to the act.

Validity of future acts relating to the provision of facilities for services to the public

13.4        Subdivision K provides that certain future acts relating to the provision of facilities for services to the public are valid [Schedule 1, item 9, subsection 24KA(3)] .  The acts covered are explained below.

What future acts are valid?

13.5        A future act will be valid if it meets the four requirements below.

·       The act must relate, to any extent, to an onshore place.  This means the act can be covered if it relates to both and onshore place and an offshore place [31] [Paragraph 24KA(1)(a)] .  Acts relating solely to an offshore place will be covered by proposed Subdivision N.

·       The act must be one of the two things relating to facilities for services to the public set out in Table 13.1.

Table 13.1

Nature of the future act

Who must do the construction etc.

An act that permits or requires the construction, operation, use, maintenance or repair of any listed facility that is, or is to be, operated for the general public  [Subparagraph 24KA(1)(b)(i)]

(The listed facilities are explained below).

The construction, operation, use, maintenance or repair can be by or on behalf of any person.  This would include persons in the private sector, as well as the government sector.

The activity that is construction, operation, use, maintenance or repair of any listed facility that is, or is to be, operated for the general public  [Subparagraph 24KA(1)(b)(ii)]

The construction, operation, use, maintenance or repair must be done by or on behalf of:

·        the Crown in right of the Commonwealth, a State or a Territory; or

·        a local government body or other statutory authority of the Crown in right of the Commonwealth, a State or a Territory.

The actual construction, operation, use, maintenance or repair could be done by a person in the private sector on behalf of, for example, a statutory authority.

·       The act must not prevent native title holders in relation to land or waters where the listed facility is, or is to be, situated from having reasonable access to such land or waters in the vicinity of the facility.  However, this reasonable access requirement does not apply while the listed facility is being constructed or where the access would risk health and safety.  [Paragraph 24KA(1)(c)]

·       There must be a Commonwealth, State or Territory law that makes provision for the preservation or protection of areas or sites that may be:

-      in the area where, or in relation to which, the act is done; and

-      of particular significance to Aboriginal peoples or Torres Strait Islanders in accordance with their traditions.  This would include state heritage legislation.  [Paragraph 24KA(1)(d)]

What are the listed facilities?

13.6        The listed facilities referred to above are set out in Table 13.2.  [Subsection 24KA(2)]

Table 13.2

Nature of the facility

A road, railway, bridge or other transport facility (e.g. a tramway) but not an airport or port

A jetty or wharf

A navigation marker or other navigational facility (e.g. a buoy or light tower for aircraft navigation)



An electricity transmission or distribution facility (e.g. power lines or a power sub-station)

Lighting of streets or other public places

A gas transmission or distribution facility (e.g. a gas pipeline)



A well or bore for obtaining water

A pipeline or other water supply or reticulation facility (e.g. a pumping station or tank)

A drainage facility, or a levee or other device for management of water flows (e.g. a floodwall, storm water drain or regulator)

An irrigation channel or other irrigation facility

A sewerage facility, but not a sewerage treatment facility (e.g. sewerage pipes or pump stations)

A cable, antenna, tower or other communication facility

Anything else that is similar to any one or more of the things mentioned above

13.7        Large scale works (e.g. an airport) are not intended to be included among the facilities covered by Subdivision K.  Large scale works are either likely to require exclusive possession or significantly impede access by native title holders.  Any native title should be acquired for such works.  This could be done by agreement or by a compulsory acquisition which would be valid because of Subdivision M. [32]

The non-extinguishment principle applies to the valid acts

13.8        Future acts which are valid under proposed subsection 24KA(3) are subject to the non-extinguishment principle [subsection 24KA(4)] .  This principle is explained in paragraph 6.9 of Chapter 6.

Procedural rights for native title holders

13.9        The Bill makes it clear that native title holders have the same procedural rights as other land holders where their native title is affected by any future acts valid because of Subdivision K [subsection 24KA(7)] .  The nature of the rights depends on the status of the area affected by native title, and on which the act is to be done, as set out below.

·       Where the land on which the act is done is a non-exclusive agricultural lease or a non-exclusive pastoral lease, native title holders have the same procedural rights as the holders of the lease.  Where the act is done in relation to onshore waters, they have the same rights as a lessee to the land adjoining or surrounding those waters.

·       In any other case (e.g. where the land or waters for which the native title is held is on vacant Crown land or covered by a mining lease), the native title holders have the same procedural rights they would have if they instead held ‘ordinary’ title. [33]   Again, where the act is done in relation to onshore waters, they have the same rights as the owner of the land adjoining or surrounding those waters.  Where ordinary title holders would not get procedural rights, none will be available to native title holders.  This is consistent with the approach in current subsection 23(6) of the NTA (now in subsection 24MD(6)).

Example

13.10      A statutory authority of a State or Territory proposes to construct power lines across a non-exclusive pastoral lease affected by native title.  The native title holders have the same rights as the leaseholder might have, under relevant planning or electricity supply legislation, to be notified etc. of the proposed construction.

How can a procedural right to be notified be satisfied where there has been no determination of native title?

13.11      The Bill provides assistance in cases where native title holders have a procedural right to be notified of the future act but there has been no determination as to whether native title exists or who any native title holders may be.  The procedural right could arise because of proposed subsection 24KA(7) or any other Commonwealth, State or Territory law.  [Paragraphs 24KA(8)(a) and (b)]

13.12      Where this is the case, the notification can be effected by notifying any representative Aboriginal/Torres Strait Islander body [34] in, or any registered native title claimants in relation to land or waters for, the area concerned.  The notification must be given in the way determined by the Commonwealth Minister for this purpose.  If this is done, the requirements of the NTA are met.  [Subsection 24KA(8)]

Compensation for future acts relating to the provision of facilities for services to the public

When does an entitlement to compensation arise?

13.13      A native title holder will be entitled to compensation for future acts that are valid because of subsection 24KA(3) if the native title holder would be entitled to compensation for the act under subsection 17(2) of the NTA if it was assumed that the future act was instead a past act.  [Subsection 24KA(5)]

13.14      In broad summary terms, this means that compensation will be payable for the future act in the following circumstances.

·       If the act is one which could be done over land subject to ordinary title, generally freehold, and the ordinary title holder has a right to compensation, any native title holders will also have such a right.  For example, mining can be done on ordinary title land, and the ordinary title holders have a right to compensation.

·       If the act is one which could not be done over land subject to ordinary title, native title holders will also have a right to compensation. [35]

What is the compensation?

13.15      An entitlement of a native title holder to compensation is in accordance with Division 5 of Part 2 of the NTA [subsection 24KA(5)] .  In general terms, the compensation is an entitlement on ‘just terms’ to compensate the native title holder for any loss, diminution, impairment or other effect of the act on their native title (see section 51 of the NTA).

Who pays the compensation?

13.16      The Bill sets out who must pay the compensation for the future act, as set out in Table 13.3.  [Subsection 24KA(6)]

Table 13.3

Future act is attributable to the Commonwealth

Future act is attributable to a State or Territory

A person liable for the compensation under a law of the Commonwealth which provides that the person, rather than the Crown in right of the Commonwealth, is liable for the compensation

A person liable for the compensation under a law of the State or Territory which provides that the person, rather than the Crown in right of the State or Territory, is liable for the compensation

The Crown in right of the Commonwealth if there is no such law

The Crown in right of the State or Territory if there is no such law



Overview

14.1        Item 9 of Schedule 1 inserts Subdivision L of Division 3 to deal with low impact future acts.  It reproduces the effect of section 234 in the current NTA, which is repealed under these amendments.  It allows a range of acts to happen without cumbersome procedures where the act has little effect on any native title, and before there is an approved determination that any native title exists.  The non-extinguishment principle applies to low impact future acts.

Validity of low impact future acts

14.2        A future act will be valid if it falls into a category of acts that can be described as low impact future acts [Schedule 1, item 9, subsection 24LA(3)] .  The future acts covered are described in much the same way as the acts that are defined as low impact future acts under existing section 234 of the NTA.  (The only substantive differences are the addition of a qualification of the exclusion of excavation and clearing from the description of a low impact future act). [36]   An act can only be a low impact future act if it:

·       takes place before it is determined that native title exists on the relevant land or waters; and

·       does not relate to a number of excluded matters (see Table 14.1).

14.3        The details of the requirements for an act to be valid under Subdivision L are set out below.

·       The future act must take place before there has been an approved determination that native title exists in relation to the land or waters affected by the act.  Also, the act must not continue after the determination is made.  If they are in fact ‘future acts’ (because they ‘affect’ native title), the grant of a licence to collect firewood or conduct beekeeping may well be low impact future acts.  [Paragraph 24LA(1)(a)]

·       The act must not consist of, authorise or otherwise involve any of the things set out in Table 14.1.



Table 14.1

Thing that the future act cannot be, authorise or otherwise involve

Comments

The grant of a freehold estate in any of the land or waters affected by the act  [Subparagraph 24LA(1)(b)(i)]

 

The grant of a lease over any of the land or waters affected by the act  [Subparagraph 24LA(1)(b)(ii)]

 



The conferral of a right of exclusive possession over any of the land or waters affected by the act  [Subparagraph 24LA(1)(b)(iii)]

 



The excavation or clearing of any of the land or waters affected by the act  [Subparagraph 24LA(1)(b)(iv)]

However, excavation or clearance that is reasonably necessary for the protection of public health or safety can take place and be valid under Subdivision L [paragraph 24LA(2)(a)] .  An example would be the removal of earth that may present a landslide hazard to a road adjacent to the land or waters.

Also, the following can be valid under Subdivision L even if they relate to excavation or clearing:

·        tree lopping (e.g. removing the branch of a tree blocking a road);

·        control of noxious or introduced animals or plants;

·        foreshore reclamation (e.g. the dumping of sand to restore an eroded beach);

·        regeneration or environmental assessment or protection activities (e.g. the planting of native trees or the protection of streambeds from erosion).  [Paragraph 24LA(2)(b)]

Mining (other than fossicking by using hand held implements) [Subparagraph 24LA(1)(b)(v)]

The term ‘mine’ is defined in section 253 of the NTA to include, among other things, exploration or prospecting.

The construction or placing on the land, or in the waters, of any building, structure or other thing that is a fixture  [Subparagraph 24LA(1)(b)(vi)]

However, this exclusion does not extend to the construction or placement of fencing or a gate (i.e. they can be a valid act under Subdivision L) [subparagraph 24LA(1)(b)(vi)] .  An example would be the construction of a fence to keep livestock away from watercourses.

The disposal or storage, on the land or in the waters, of any garbage or any poisonous, toxic or hazardous substance  [Subparagraph 24LA(1)(b)(vii)]

 



The non-extinguishment principle applies to the valid acts

14.4        Future acts which are valid under proposed subsection 24LA(3) are subject to the non-extinguishment principle [subsection 24LA(4)] .  This principle is explained in paragraph 6.9 of Chapter 6.



Overview

15.1        Subdivision M of Division 3 , inserted by Item 9 of Schedule 1 , is based on sections 23 and 235 of the current NTA, which are repealed by these amendments.  In brief, this Subdivision means that legislation will be valid to the extent it relates to an onshore place if it affects native title areas in the same way as, or no less beneficially than, it affects freehold areas.  It also means that a non-legislative act can be done validly over native title areas if that act could be done validly over freehold areas or if its is the creation or variation of a right to mine for opals or gems.

15.2        The non-extinguishment principle will apply unless the act is the compulsory acquisition, under a non-discriminatory law, of native title and non-native title rights are also acquired (i.e. the acquisition power is exercised in a non-discriminatory way).  Generally, the native title holders would be entitled to compensation for the act in the same way that freeholders would be.  For compulsory acquisitions, native title holders will either be entitled to ‘just terms’ compensation under the relevant compulsory acquisition laws or entitled to compensation under Division 5 of Part 3 of the NTA.  Native title holders will also have the same procedural rights for the act as freeholders would have for that act.

Validity of future acts passing the freehold test

15.3        Subdivision M provides that certain future acts passing what can be described as a ‘freehold test’ are valid [Schedule 1, item 9, subsection 24MD(1)] .  However, the following should be noted.

·       The future act will only be valid to the extent that it relates to an onshore place [Schedule 1, item 9, section 24MC] .  Acts dealing with offshore places are dealt with in Subdivision N of new Division 3. [37]

·       The validity is subject to the provisions dealing with the right to negotiate (Subdivision P of new Division 3 of Part 2) [subsection 24MD(1)] .  These provisions may require certain additional procedures to be followed before the act will be valid. [38]

15.4        Two classes of future act are covered: legislative acts and non-legislative acts, as explained below.

What legislative acts are valid?

15.5        A future act is valid if it is the making, amendment or repeal of legislation that meets either of the requirements set out in Table 15.1.  The legislation covered is Commonwealth, State or Territory legislation.

Table 15.1

Legislative act that is valid

Comments

An act that applies to the native title holders concerned in the same way that it would apply to them if they instead held ordinary title to the land, or to the land adjoining or surrounding the waters, affected by the act

[Schedule 1, item 9, paragraph 24MA(a)]

This requirement is generally intended to cover a legislative act that creates a law of a particular kind.

An example, as set out in the Bill, is the making of legislation that permits mining on land for which there is either native title or ordinary title.

The term ‘ordinary title’ is defined in section 253 and in most cases means a freehold estate.

An act that does not put native title holders in a more disadvantageous position than they would have been if they had instead held ordinary title to the land, or to the land adjoining or surrounding the waters, affected by the act

(Whether the native holders are disadvantaged in this way is determined by examining the effect of the act on the native title in relation to the land or waters affected and comparing it with the position that would apply if the native title holder instead held freehold).

[Paragraph 24MA(b)]

This requirement is generally intended to cover a legislative act that amends existing legislation so that it can apply to land or waters affected by native title.

An example, as set out in the Bill, is the amendment of legislation that permits mining on land that is subject to ordinary title so that it will also permit mining, on the same terms, on land for which there is native title.

What non-legislative acts are valid?

15.6        Two kinds of non-legislative future act are covered by Subdivision M, as discussed below.

Acts passing the freehold test

15.7        A non-legislative future act is valid if it could be done on the assumption that the native title holders instead held ordinary title to the land, or to the land adjoining or surrounding the waters, affected by the act.  [Schedule 1, item 9, subsection 24MB(1)]

Example

15.8        An example of a non-legislative future act that is valid under subsection 24MD(1) is the grant of a mining lease over land subject to native title if the same mining lease could also have been granted over the land if it was instead subject to ordinary title.

Acts creating of varying rights to mine for opals or gems

15.9        A non-legislative future act that is not covered by subsection 24MB(1) is valid if it is the creation or variation of a right to mine opals or gems.  This puts beyond doubt that such acts pass the freehold test [subsection 24MB(2)] .  This category will cover the kind of small scale opal and gem mining that is not covered by the right to negotiate provisions (see Chapter 19).

Effect of future act on native title

15.10      The Bill specifies the effect on native title of a future act that is valid under Subdivision M, as set out in Table 15.2.

Table 15.2

Nature of the future act

Effect of the act on native title

The compulsory acquisition of the whole or part of any native title in certain circumstances

Where the whole or the equivalent part of all non-native title rights and interests in the relevant land or waters are also acquired, then nothing in the NTA will prevent the acquisition from extinguishing the whole or part of the native title.  However, this will only be the case if the law under which the acquisition is done permits both the acquisition of native title and non-native title rights and interests.  [Paragraph 24MD(2)(a), (b) and (c)]

This means that the law under which the compulsory acquisition takes place must be non-discriminatory as must the application of that law in the particular case.  This reflects the contents of the existing definition of ‘Compulsory Acquisition Act’ in section 253, which is repealed under the Bill. [39]

The Senate made Government amendment (28) which is included in the Bill and will further ensure a non-discriminatory process, by requiring that the practices and procedures adopted in relation to the acquisition do not discriminate against native title holders.  The amendment requires that the practices and procedures adopted do not cause native title holders to be any more ‘disadvantaged’ than the holders of other rights and interests when their rights are acquired.

Whether the act does so extinguish native title will depend on the provisions of the Commonwealth, State or Territory law under which the acquisition takes place.  The title could be expressly extinguished or extinguished by necessary implication.

The Bill specifically defines the word extinguish in relation to native title to mean permanent extinguishment.  [Schedule 1, item 45, section 237A]

Any other act (e.g. the grant of a mining lease)

The non-extinguishment principle applies to the act [paragraph 24MD(3)(a)] .  This principle is explained in paragraph 6.9 of Chapter 6.

Procedural rights for native title holders

15.11      The Bill makes it clear that native title holders have the same procedural rights as ordinary title holders where their native title is affected by any future acts that are valid under Subdivision M.  This is done by saying that the native title holders have the procedural rights they would have had if they had instead held ordinary title to the land, or to the land adjoining or surrounding the waters, affected by the act.  [Subsection 24MD(6)]

15.12      However, the native title holders do not have these procedural rights where the valid act is:

·       an act to which Subdivision P of new Division 3 of Part 2 applies (i.e. those acts to which the right to negotiate applies);

·       an act determined under proposed section 26A to be an approved exploration etc. act;

·       an act determined under section 26B to be an approved gold or tin mining act; or

·       an act covered by section 26C (this section deals the creation or variation of a right to mine opals or gems).

15.13      These acts generally relate to the right to negotiate and mining.  The procedural rights do not apply in these cases because other procedures are applicable under the NTA.

Example

15.14      A State or Territory proposes to compulsorily acquire land affected by native title for public purposes.  The native title holders have the same rights as an ordinary title holder might have, under relevant planning or compulsory acquisition legislation, to be notified of, and object etc. to, the proposed acquisition.

How can a procedural right to be notified be satisfied where there has been no determination of native title?

15.15      The Bill provides guidance for cases where native title holders have a procedural right to be notified of the future act but there has been no determination as to whether native title exists or who any native title holders may be.  The procedural right could arise because of proposed subsection 24MD(6) or any other Commonwealth, State or Territory law.  [Paragraphs 24MD(7)(a) and (b)]

15.16      Where this is the case, the notification can be effected by notifying any representative Aboriginal/Torres Strait Islander body [40] in, or any registered native title claimants in relation to land or waters for, the area concerned.  The notification must be given in the way determined by the Commonwealth Minister for this purpose.  If this is done, the requirements of the NTA are met.  [Subsection 24MD(7)]

Compensation for future acts passing the freehold test

When does an entitlement to compensation arise?

15.17      A native title holder may be entitled to compensation for future acts that are valid because of subsection 24MD(1).  The rules that apply will depend on whether or not the act is a compulsory acquisition of the whole or part of any native title.  Table 15.3 sets out the compensation arrangements.

Table 15.3

Nature of the future act

Conditions

Consequences

The compulsory  acquisition of the whole or part of any native title where the whole or the equivalent part of all non-native title rights and interests in the relevant land or waters are also acquired

Compensation on ‘just terms’ for the acquisition is provided to the native title holders under a Commonwealth, State or Territory law

and

The native title holders request that the whole or part of any such compensation be in a form other than money

The person providing the compensation must consider the request and negotiate in good faith in relation to it.

[Paragraph 24MD(2)(d)]

 

Compensation on ‘just terms’ for the acquisition is not provided to the native title holders under a Commonwealth, State or Territory law

The native title holders are entitled to compensation in accordance with Division 5 of Part 2 of the NTA.

[Paragraph 24MD(2)(e)]

Any other act

The ‘similar compensable interest test’ is satisfied in relation to the act

and

The law mentioned in that test does not provide for compensation to native title holders for the act

The native title holders are entitled to compensation in accordance with Division 5 of Part 2 of the NTA.

[Paragraph 24MD(3)(b)]

What is the nature of compensation payable under Division 5?

15.18      An entitlement of a native title holder to compensation in accordance with Division 5 of Part 2 of the NTA is, in general terms, an entitlement on ‘just terms’ to compensate the native title holder for any loss, diminution, impairment or other effect of the act on their native title (see section 51 of the NTA).

What is the similar compensable interest test?

15.19      The similar compensable interest test is defined in section 240 of the NTA.  It is generally met if the native title relates to an onshore place and compensation would have been payable under any law (other than the NTA) if it was assumed that native title holders instead held ordinary title to the land.  That is, the test is satisfied if compensation is payable to ordinary title holders.

Who pays the compensation?

15.20      The Bill sets out who must pay the compensation for a future act that is valid under subsection 24MD(1), as set out in Table 15.4.  The compensation arrangements ensure that any holder of a non-exclusive agricultural or pastoral lease will not be liable for compensation where they request a government to compulsorily acquire any native title existing in relation to the land or waters covered by the lease.

Table 15.4

Nature of the future act

Future act is attributable to the Commonwealth

Future act is attributable to a State or Territory

Future act that is the compulsory acquisition of the whole or part of any native title in relation to land or waters that are to any extent covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease.

The Crown in right of the Commonwealth  [Paragraph 24MD(5)(d)]

The native title holders are not entitled to recover the compensation from the lease holder  [Paragraph 24MD(5)(c)]

The Crown in right of the State or Territory  [Paragraph 24MD(5)(e)]

The native title holders are not entitled to recover the compensation from the lease holder  [Paragraph 24MD(5)(c)]

Any other future act covered by Subdivision M.

The Senate made Government amendment (29) which is included in the Bill and provides that if a law of the Commonwealth states that a person other than the Commonwealth is liable for the compensation, then that person (and not the Commonwealth) is liable.  [Subparagraph 24MD(4)(a)(i)]

·        For example, mining legislation generally makes the miner, not the government that issues the lease, liable for compensation for the mining.  The miner who is liable may not, however, be the person who originally requested the grant of the mining lease, since the lease may have been transferred in some way.

The Senate made Government amendment (30) which is included in the Bill and provides that if a law of the State or Territory states that a person other than the Crown in any capacity is liable for the compensation, then that person (and not the State or Territory) is liable. [Subparagraph 24MD(4)(b)(i)]

·        For example, mining legislation generally makes the miner, not the government that issues the lease, liable for compensation for the mining.  The miner who is liable may not, however, be the person who originally requested the grant of the mining lease, since the lease may have been transferred in some way.

 

The Crown in right of the Commonwealth if there is no such law  [Subparagraph 24MD(4)(a)(ii)]

The Crown in right of the State or Territory if there is no such law  [Subparagraph 24MD(4)(b)(ii)]



Overview

16.1        Item 9 of Schedule 1 inserts Subdivision N of Division 3 to ensure that all future acts affecting native title in offshore places are valid.  It reflects the policy in section 23 and paragraph 235(8)(a) of the current NTA, which are repealed by these amendments.

16.2        The non-extinguishment principle will apply to an offshore future act unless it is a non-discriminatory compulsory acquisition.  For some compulsory acquisitions, native title holders will be entitled to ‘just terms’ compensation under the relevant compulsory acquisition laws or under Division 5 of Part 3 of the NTA.  Native title holders will also have the same procedural rights for the act as comparable interest holders would have for that act.

Validity of future acts affecting offshore places

16.3        Subdivision N provides that a future act is valid to the extent it relates to an offshore place [Schedule 1, item 9, subsection 24NA(2)] .  To the extent, if any, that the act relates to an onshore place, it is not valid under Subdivision N.  However, such an act may be valid under other provisions of the NTA.

What is an offshore place?

16.4        The term ‘offshore place’ is defined in existing section 253 of the NTA and means any land or waters to which the NTA extends (see section 6 of the NTA) other than those that are in an onshore place.  An ‘onshore place’ means any land or waters within the territorial limits of a State or Territory (including an external Territory) - see the definition in section 253 of the NTA.  An offshore place therefore includes the waters (known as the coastal sea) off the coast of a State or Territory and any reefs or islands beyond their territorial limits.

Effect of future act on native title

16.5        The Bill specifies the effect on native title of a future act that is valid under Subdivision N, as set out in Table 16.1.

Table 16.1

Nature of the future act

Effect of the act on native title

The compulsory acquisition of the whole or part of any native title in certain circumstances

 

Where the whole or the equivalent part of all non-native title rights and interests in the relevant land or waters are also acquired, then nothing in the NTA will prevent the acquisition from extinguishing the whole or part of the native title.  However, this will only be the case if the law under which the acquisition is done permits both the acquisition of native title and non-native title rights and interests.  [Subsection 24NA(3)]

This means that the law under which the compulsory acquisition takes place must be non-discriminatory as must the application of that law in the particular case.  This reflects the contents of the existing definition of ‘Compulsory Acquisition Act’ in section 253, which is repealed under the Bill. [41]

The Senate made Government amendment (32)  which is included in the Bill and adds paragraph 24NA(3)(c).   This amendment further ensures a non-discriminatory process in relation to the acquisition, by requiring that the practices and procedures adopted do not cause native title holders to be any more ‘disadvantaged’ than the holders of other rights and interests when their rights are acquired.

Whether the act does so extinguish native title will depend on the provisions of the Commonwealth, State or Territory law under which the acquisition takes place.  The title could be expressly extinguished or extinguished by necessary implication.

The Bill specifically defines the word extinguish in relation to native title to mean permanent extinguishment.  [Schedule 1, item 45, section 237A]

Anything other than a compulsory acquisition of native title (e.g. the grant of an authority to mine or a fishing permit)

The non-extinguishment principle applies to the act [subsection 24NA(4)] .  This principle is explained in paragraph 6.9 of Chapter 6.

Procedural rights for native title holders

16.6        The Bill makes it clear that native title holders have the same procedural rights as other holders of interests in offshore places where their native title is affected by any future acts that are valid under Subdivision N.  This is done by saying that the native title holders have the procedural rights they would have had if they had instead held non-native title rights and interests in the offshore place affected by the act that correspond to their native title interests.  [Subsection 24NA(8)]

Example

16.7        A government proposes to allow mining and restrict fishing in a particular area offshore.  Native title holders with native title fishing rights for the area have the same rights (if any) as the holder of fishing licences have, under relevant legislation or administration, to be notified etc. of the proposed action.

How can a procedural right to be notified be satisfied where there has been no determination of native title?

16.8        The Bill provides guidance for cases where native title holders have a procedural right to be notified of the future act but there has been no determination as to whether native title exists or who any native title holders may be.  The procedural right could arise because of proposed subsection 24NA(8) or any other Commonwealth, State or Territory law.  [Paragraphs 24NA(9)(a) and (b)]

16.9        Where this is the case, the notification can be effected by notifying any representative Aboriginal/Torres Strait Islander body [42] in, or any registered native title claimants in relation to land or waters for, the area concerned.  The notification must be given in the way determined by the Commonwealth Minister for this purpose.  If this is done, the requirements of the NTA are met.  [Subsection 24NA(9)]

Compensation for future acts affecting offshore places

When does an entitlement to compensation arise?

16.10      A native title holder will be entitled to compensation for future acts that are valid because of subsection 24NA(2).  The native title holders so entitled are those whose native title is affected by the valid future act.  The rules that apply will depend on whether or not the act is a compulsory acquisition of the whole or part of any native title.  Table 16.2 sets out the compensation arrangements.

Table 16.2

Nature of the future act

Conditions

Consequences

The compulsory  acquisition of the whole or part of any native title

Compensation on ‘just terms’ for the acquisition is provided to the native title holders under a Commonwealth, State or Territory law

and

The native title holders request that the whole or part of any such compensation be in a form other than money

The person providing the compensation must consider the request and negotiate in good faith in relation to it.

[Paragraph 24NA(5)(a)]

 

Compensation on ‘just terms’ for the acquisition is not provided to the native title holders under a Commonwealth, State or Territory law

The native title holders are entitled to compensation in accordance with Division 5 of Part 2 of the NTA.

[Paragraph 24NA(5)(b)]

Anything other than the compulsory  acquisition of any native title

No special conditions

The native title holders are entitled to compensation in accordance with Division 5 of Part 2 of the NTA.

[Subsection 24NA(6)]

What is the nature of compensation payable under Division 5?

16.11      An entitlement of a native title holder to compensation in accordance with Division 5 of Part 2 of the NTA is, in general terms, an entitlement on ‘just terms’ to compensate the native title holder for any loss, diminution, impairment or other effect of the act on their native title (see section 51 of the NTA).

Who pays the compensation?

16.12      The Bill sets out who must pay the compensation for a future act that is valid under subsection 24NA(2), as set out in Table 16.3.

Table 16.3

Future act is attributable to the Commonwealth

Future act is attributable to a State or Territory

The Senate made Government amendment (33) which is included in the Bill and provides that if a law of the Commonwealth states that a person other than the Commonwealth is liable for the compensation, then that person (and not the Commonwealth) is liable. [Subparagraph 24NA(7)(a)(i)]

The Senate made Government amendment (34) which is included in the Bill and provides that if a law of the State or Territory states that a person other than the Crown in any capacity is liable for the compensation, then that person (and not the State or Territory) is liable.  Subparagraph 24NA(7)(b)(i)]

 

The Crown in right of the Commonwealth if there is no such law  [Subparagraph 24NA(7)(a)(ii)]

The Crown in right of the State or Territory if there is no such law  [Subparagraph 24NA(7)(b)(ii)]

Note to Table 16.3:  Mining legislation generally makes the miner, not the government that issues the lease, liable for compensation for the mining.  The miner who is liable may not, however, be the person who originally requested the grant of the mining lease, since the lease may have been transferred in some way.

 



Overview

17.1        Item 9 of Schedule 1 inserts Subdivision Q of Division 3 to implement point 5 of the 10 Point Plan.  It deals with access by persons in a native title claim group to areas covered by non-exclusive agricultural and non-exclusive pastoral leases which are also covered by their registered native title claim.

17.2        The Wik decision held that the grant of certain pastoral leases does not necessarily extinguish native title.  Accordingly, it may survive over some leasehold land and, in some parts of Australia, indigenous people may currently have physical access to pastoral leases for traditional purposes.  In Western Australia, South Australia and the Northern Territory this may be in the exercise of statutory access rights.  In other States and Territories, it may be as a result of longstanding practice.

17.3        Subdivision Q permits persons in a native title claim group who had access to claimed areas on non-exclusive leases for traditional activities at 23 December 1996 to continue to access those areas while the claim is being decided.  These access rights do not replace any rights the registered claimants may have under the NTA (such as under the right to negotiate provisions and section 211), under reservations in the lease or elsewhere or under heritage and sacred site legislation.  The lessee’s rights prevail over the statutory access rights.  The lessee and persons within the native title claim group can agree about the manner of exercise of these rights, or to vary them.

Meaning of terms used in the access provisions

17.4        There are three key terms that are used in the access provisions in Subdivision Q.  These are ‘native title claim group’, ‘traditional access area’ and ‘traditional activities’.

What is a native title claim group?

17.5        The concept of a native title claim group is added to section 253 of the NTA by Schedule 2 of this Bill (see Chapter 25).  The meaning of the term ‘native title claim group’ depends on where the native title claim in question is being considered, as set out in Table 17.1.  [Schedule 2, item 95]

Table 17.1

Body to which a claim in an application for determination of native title has been made

Native title claim group

The Federal Court

All the persons who claim in the application to the Federal Court to hold the common or group rights that comprise particular native title. [43]

A recognised State/Territory body

The person or persons making the claim, or on whose behalf the claim is made

What is a traditional access area?

17.6        The traditional access area is that part of any land or waters that meets the following two requirements:

·       it is covered by both a non-exclusive agricultural lease or a non-exclusive pastoral lease, and a registered native title claim ; and

·       at 23 December 1996, one or more members of a native title claim group regularly had physical access to it for the purpose of carrying on one or more traditional activities.  [Schedule 1, item 9, paragraph 44A(3)(a)]

17.7        The area can cover all of the land or waters covered by the lease or only part of it.

What is a traditional activity?

17.8        A traditional activity is one of the activities listed below that is carried on for traditional purposes of Aboriginal people or Torres Strait Islanders (this is an exhaustive definition).  [Subsection 44A(4)]

·       Hunting, fishing, gathering or camping.

·       Performing rites or other ceremonies.

·       Visiting sites of significance.

When can the traditional rights of access be exercised?

17.9        The Bill sets out when Subdivision Q, which deals with the access rights, will apply.  The Bill is drafted in such a way as to give the access rights to particular individuals in a native title claim group.  If the Subdivision applies for an individual then he or she can exercise the access rights (these are explained in detail below).

17.10      There are two conditions that have to be met for Subdivision Q to apply, as set out below.

·       The person concerned must be a member of the native title claim group for a particular claim.  The claim must be entered on the Register of Native Title Claims and must relate, to any extent, to an area that is covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease.  [Subsection 44A(2)] .

·       The person, or one of his or her ancestors, must have regularly had physical access, at 23 December 1996, to the area covered by both the claim and the lease for the purpose of carrying on one or more traditional activities.  This area is the ‘traditional access area’ discussed above.  [Subsection 44A(3)]

17.11      As noted in the Bill, an entry on the Register of Native Title Claims will be removed when the native title claim is withdrawn or determined.  This means the access rights under Subdivision Q will cease when the claim is determined.  If it is determined that the claimants have native title in the traditional access area, their determined native title rights and interests would replace the access rights under Subdivision Q (subject to any prevailing rights and interests of the leaseholders or others).  If the determination is that the claimants do not hold native title in the traditional access area, all access rights under Subdivision Q would cease.

Persons with access rights do not necessarily hold native title

17.12      The Bill makes it clear that the mere fact that Subdivision Q applies to a person as set out above does not mean that the person actually holds any native title in relation to the traditional access area [Schedule 1, item 9, subsection 44B(5)] .  The issue of whether native title is held is a separate question to be determined in accordance with the processes in the NTA for determining native title claims.

The rights granted by Subdivision Q are not native title rights

17.13      Existing section 223 of the NTA defines ‘native title’ and ‘native title rights and interests’.  Under subsection 223(3), native title and native title rights and interests include native title rights and interests that have been compulsorily converted into, or replaced by, statutory rights and interests of Aboriginal peoples or Torres Strait Islanders.

17.14      To avoid doubt, the Bill makes it clear that the rights given by Subdivision Q (set out in Table 17.2) are not native title or native title rights and interests in accordance with subsection 223(3) [Schedule 1, item 37 and item 38, subsection 223(3A)] .  This is done because the rights given by Subdivision Q are intended to be interim rights pending the outcome of the determination of native title.  They are not intended to be native title rights of themselves.

What are the traditional access rights?

17.15      A person who has access rights under Subdivision Q has two kinds of rights, as set out in Table 17.2.  [Subsection 44B(1)]

Table 17.2

Nature of the right

Effect of the act on native title

A right of access

[Paragraph 44B(1)(a)]

The right of access is to the traditional access area in the same way and to the same extent as the person, or his or her ancestors, regularly had physical access at 23 December 1996.

The access can only be exercised for the purpose of carrying on, in the traditional access area, the one or more traditional activities in the same way and to the same extent as they were carried on at 23 December 1996.

A right to carry on activities

[Paragraph 44B(1)(b)]

The right is to carry on the traditional activities in the traditional access area in the same way and to the same extent as they were carried on at 23 December 1996

The rights of leaseholders and others prevail over the access rights

17.16      The Bill ensures that the rights of the leaseholder of the non-exclusive agricultural lease or non-exclusive pastoral lease prevail over the rights set out in Table 17.2 [paragraph 44B(2)(a)] .  Also, the rights of any other person with non-native title rights and interests in relation to the traditional access area prevail over the rights in Table 17.2 [paragraph 44B(2)(b)] .

17.17      The Bill clarifies what this ‘prevalence’ means.  The rights set out in Table 17.2, or their exercise, do not prevent the leaseholder or the person with non-native title rights and interests from doing anything in the exercise of their respective rights [subsection 44B(2)] .  Thus, for example, if a person has a right to mine in a traditional access area, the access rights of the native title claimants must be exercised in such a way as not to inhibit the activities of the person done in accordance with their mining right.  Of course, the person would have to comply with any relevant heritage or sacred site legislation.

Agreements about the exercise of access rights

17.18      The Bill makes it clear that agreements about the exercise of the rights set out in Table 17.2 can be made between one or more members of the native title claim group and the leaseholder and/or person with non-native title rights and interests (such as a miner).  [Subsection 44B(3)]

17.19      An agreement can deal with the way in which the rights in Table 17.2 will be exercised or the variation of any of those rights.  For example, the native title claim group members may agree to vary the rights so as to restrict their exercise in return for consideration from the leaseholder.  Another example, as set out in the Bill, is that the leaseholder and native title claim group members may agree that notification will be required when the members wish to exercise their rights.

17.20      Any of the persons wishing to make an agreement may seek assistance in negotiations from the National Native Title Tribunal (NNTT) or a recognised State/Territory body (if any).  [Subsection 44B(4)]

Undetermined native title rights and interests are suspended while one or more persons have the access rights

17.21      A person cannot enforce native title rights, other than those provided for in the NTA, in any of the area covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease in some cases.  This is where any one or more members of a native title claim group have the rights set out in Table 17.2 over any part of the lease area.  [Schedule 1, item 9, subsection 44C(1)]

17.22      However, proposed subsection 44C(1) is not relevant to those who have been determined to hold native title in accordance with the NTA.  They can exercise their determined native title rights and interests.  Rather, statutory access rights are interim rights for native title claimants.  In relation to these, subsection 44C(1) does not affect the operation of any other provision of the NTA [subsection 44C(2)] .  This means, for example, that registered native title claimants can

·       make indigenous land use agreements in accordance with Subdivisions B to E of new Division 3 of Part 2;

·       participate in right to negotiate processes (where relevant);

·       continue to pursue their native title claim; and

·       get the procedural rights available to registered native title claimants under the NTA.

17.23      Proposed section 44C encourages all potential native title holders to make native title claims where they wish to continue to have traditional access to land.  The Bill strengthens the requirements that there should be only one determination of native title for an area.  If one group has made a claim, then other groups who claim native title to that area need to become parties to that claim, since the Court will decide all the native title rights in relation to the area and, except in limited circumstances, will not be able to hear other claims at a later time. [44]

17.24      If one group has the rights set out in Table 17.2 to a traditional access area covering part of a lease area, then other groups should also be claimants in those proceedings.  Other indigenous people should not be able to exercise traditional access to any other area covered by the lease unless they have a registered native title claim.  This gives certainty to leaseholders by ensuring that they know all those indigenous groups who claim rights in relation to the land, and who are legally able to have access, under the NTA, to the area covered by their lease whilst their claims are being determined.

The access rights given by Subdivision Q do not affect other laws dealing with the same kind of matters

17.25      As set out in point 5 of the Ten Point Plan, the access rights given by Subdivision Q are not intended to override or otherwise affect existing formal arrangements for access to land by indigenous peoples.  To this end, the Bill provides that Subdivision Q does not affect the things set out in Table 17.2.  [Schedule 1, item 9, subsection 44D(1)]

Table 17.3

Thing that is not affected by     Subdivision Q

Comments

Any reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders contained in any law of the Commonwealth, a State or a Territory

[Subparagraph 44D(1)(a)(i)]

An example is a provision in State or Territory legislation (such as section 106 of the Land Act 1933 of Western Australia) allowing Aboriginal people to access certain pastoral land for certain traditional purposes.

Any reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders contained in any place other than a Commonwealth, State or Territory law

[Subparagraph 44D(1)(a)(ii)]

An example would be a condition in a non-exclusive pastoral lease that required the leaseholder to allow access for Aboriginal people to the area covered by the lease.

The operation of any Commonwealth, State or Territory law that allows for the granting of access rights to Aboriginal peoples or Torres Strait Islanders

[Paragraph 44D(1)(b)]

An example would be State or Territory legislation allowing Aboriginal people to apply to have access to particular land.

Another example would be a provision in State or Territory wildlife protection legislation allowing a Minister to grant a licence to Aboriginal people to collect produce of wildlife (such as emu eggs) for the purpose of making traditional objects.



The operation of any Commonwealth, State or Territory law about the preservation or protection of any area or site of traditional significance to Aboriginal peoples or Torres Strait Islanders

[Paragraph 44D(1)(c)]

An example would be State or Territory Aboriginal heritage legislation providing for the protection of significant sites and access to those sites in certain circumstances.

Laws of general application are not affected by Subdivision Q

17.26      The Bill makes it clear that the rights given by Subdivision Q do not in any way mean that a person is not subject to Commonwealth, State or Territory laws that are of general application [subsection 44D(2)] .  For example, a person exercising the rights set out in Table 17.2 is still subject to the general criminal law and the law of negligence when exercising those rights.  The exercise of all native title rights will be subject to such laws of general application.  This provision is inserted here to ensure that Subdivision Q in particular is not read as being inconsistent with State/Territory laws of general application.

17.27      It should be noted that there is no conflict between proposed subsection 44D(2) and existing section 211 of the NTA [45] .  Section 211 is a provision dealing with a special circumstance and subsection 44D(2) would, accordingly, be read subject to section 211.

Resolution of disputes about the exercise of traditional access rights

17.28      The Bill sets out a number of procedures relating to the resolution of disputes about the rights given by Subdivision Q.

The Federal Court may refuse to exercise its jurisdiction where adequate alternative dispute resolution mechanisms are available

17.29      Existing subsection 213(2) of the NTA gives the Federal Court jurisdiction over any matters arising under the NTA.  If Subdivision Q is enacted, this would include resolving disputes arising about, for example, the exercise of the rights set out in Table 17.2.

17.30      The Bill ensures that the Federal Court can refuse to exercise its jurisdiction for such matters where an adequate alternative means of resolving the matter is available (e.g. by mediation in the NNTT or under a dispute resolution mechanism provided in an agreement under subsection 44B(3)) [Schedule 1, item 9, section 44E] .  This ensures that parties are not unnecessarily involved in expensive litigation where cheaper more accessible, or more appropriate, dispute resolution mechanisms are available.

The parties may request mediation by the NNTT or a recognised State/Territory body

17.31      A dispute about a right conferred by subsection 44B(1) (set out in Table 17.2) could be resolved by the parties concerned submitting the matter to mediation.  The Bill allows the parties to such a dispute to request the NNTT or a recognised State/Territory body to mediate.  However, this can only be done if all the parties agree to such a course.  [Schedule 1, item 9, section 44F] 

17.32      The Senate made Government amendment (43) which is included in the Bill.  This amendment inserts a note at the end of section 44F to confirm that indigenous land use agreements can deal generally with access issues, and that persons may seek the assistance of the National Native Title Tribunal or a recognised State/Territory body in negotiating such an agreement.  Such an agreement could deal with a broader range of access issues, beyond the statutory access rights provided for in section 44B.

Other mediation, arbitration and agreements are not excluded by Subdivision Q

17.33      The Bill makes it clear that Subdivision Q does not prevent either of the things set out in Table 17.3.  [Schedule 1, item 9, section 44G]

Table 17.3

Thing not prevented by Subdivision Q

Comments

Mediation or arbitration by any person or body of a dispute about a right conferred by subsection 44B(1) (refer to Table 17.2)

[Paragraph 44G(a)]

The parties may agree that a person or body other than the NNTT or a recognised State Territory body should mediate a dispute

The making or enforcing of agreements about access (other than in accordance with the rights conferred by subsection 44B(1)) to any area covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease

[Paragraph 44G(b)]

Indigenous people and leaseholders may prefer to work out their own access arrangements rather than rely on those in Subdivision Q.



 

 

 

 

 

 

Part 5

 

 

The right to negotiate

 

 

 

 



Overview

18.1        Item 9 of Schedule 1 inserts Subdivision P of Division 3 to cover acts which are subject to the ‘right to negotiate’ or other special processes.

18.2        This Chapter provides an overview of the right to negotiate provisions.  The following chapters discuss other matters relating to the right to negotiate, as indicated below.

·       Chapter 19 sets out the future acts to which the right to negotiate provisions apply.

·       Chapter 20 discusses the right to negotiate processes.

·       Chapter 21 explains the provisions that will allow State or Territory provisions as an alternative to the NTA right to negotiate provisions.

How do the new right to negotiate provisions work?

18.3        Subdivision P sets out certain additional processes that have to be followed before certain future acts passing the freehold test can be valid.  New section 25 , inserted in Subdivision P by item 9 of Schedule 1 , provides a broad overview of how Subdivision P works.  The Senate made Opposition amendment (112) which is included in the Bill.  This amendment simplifies section 25 , which is the overview of Subdivision P.  The change is to replace a phrase listing all the possible parties to right to negotiate matters with the term ‘the parties’.

Future acts covered by the right to negotiate

18.4        Subdivision P deals with those future acts which are subject to the right to negotiate.  It also sets out certain exceptions and different procedures for some acts which would otherwise be subject to the right to negotiate under the NTA.  It generally applies to future acts covered by the freehold test [46] that are the grant of some mining interests and some compulsory acquisitions for the benefit of third parties.  However, several kinds of future act are excluded from the right to negotiate even if they fall into this category.  The main excluded acts are:

·       those covered by ILUAs;

·       compulsory acquisitions for privately built infrastructure facilities;

·       with the approval of the Commonwealth Minister, the creation or variation of certain mining rights allowing some kinds of low impact or small scale mining (this covers exploration, prospecting, fossicking and quarrying, small scale opal or gem mining and alluvial mining for gold or tin);

·       the renewal etc. of some existing and future mining interests;

·       acts solely within a ‘town or city’; and

·       acts to the extent that they relate to a place on the seaward side of the highwater mark.

Right to negotiate processes

18.5        Diagram 18.1 gives a broad overview of the processes under the right to negotiate provisions included in the Bill.  These apply once it is determined that a particular future act is covered by the right to negotiate provisions.

Diagram 18.1

18.6        The ministerial or arbitral body determinations are a means by which the right to negotiate processes can be resolved when the negotiation parties cannot reach an agreement.  The Bill contains two distinct powers for ministerial determinations.  One allows a relevant Minister to make a determination about a future act before the matter is referred to the arbitral body.  The other permits the Minister to make a decision after the matter has been referred to the arbitral body, and before the arbitral body makes its decision.  This latter power is intended to deal with cases where the arbitral body does not, for whatever reason, make a decision within a reasonable period of time.  As under the existing NTA, the Bill continues to allow a relevant Minister to overrule an arbitral body determination in some cases where that is in the national and/or State or Territory interest.

Alternative State or Territory provisions

18.7        Existing section 43 of the NTA gives the Commonwealth Minister a power to approve alternative State or Territory right to negotiate processes which contain similar provisions to those in the NTA.  This is maintained in the Bill but the amendments also contain a new power for the Commonwealth Minister to approve substitute State or Territory processes for future acts affecting certain leased or reserved land, so long as a set of minimum requirements are present.

18.8        The minimum requirements, which  relate to procedural rights and compensation, depend on the nature of the future act and the kind of area that it affects.  They ensure that affected native title holders can have an input into the decision making process and be compensated where appropriate.

What changes are being made to the right to negotiate provisions?

18.9        Subdivision P completely replaces the existing Subdivision B of Division 3 of Part 2 of NTA (sections 26 to 43).  Subdivision B is being completely replaced even though many of its provisions are substantially re-enacted in Subdivision P.  This is being done to make the amendments as a whole easier to understand.  There are a number of application and transitional provisions that are relevant to the changes and these are discussed in Chapter 35.

18.10      The new right to negotiate provisions in Subdivision P implement points 4, 6 and 7 of the 10 Point Plan.  The Bill incorporates the amendments to the right to negotiate that were proposed by the Government in 1996 and contains several new elements to take account of the impact of the High Court’s Wik decision, amongst other things.

18.11      The purpose of the amendments to the right to negotiate provisions is to streamline the right to negotiate processes so that unnecessary delays are eliminated while maintaining the protection of the legitimate interests of native title holders and claimants.  The paragraphs below outline some background to the main changes.

Projects involving more than one future act

18.12      There is a strong need to ensure that the native title processes are able to operate effectively with State and Territory approvals processes for future acts.  To this end, the amendments focus on providing a more flexible approach.  Under the amendments, the future act which attracts the right to negotiate may consist of more than one grant of a title, for example, it may encompass all the grants of titles necessary for a particular project to proceed.  The right to negotiate processes will only have to be applied once for all acts in the same project.

Timing of notices

18.13      Similarly, increased flexibility is given to the States and Territories to determine at what stage a notice, which is the trigger for commencing the negotiation process, is to be given to any registered native title bodies corporate or claimants and to the relevant representative body for the area.  This will eliminate the difficulties with determining when a Government ‘proposes’ to do an act.  It will be up to the States and Territories to choose the most appropriate stage at which to commence the right to negotiate for each act.  However, the right to negotiate must be completed in order for the act (such as the issue of a mining lease) to be valid.

Exclusion of acts allowing certain low impact and small scale mining activities

18.14      The Bill does not pursue the option of excluding the low impact and small scale mining discussed in paragraph 18.4 from the right to negotiate altogether.  This would have been extremely difficult to achieve due to the varied approaches taken by the States and Territories.  Rather, the Bill proposes to reconstruct the current power of the Commonwealth Minister, under paragraph 26(3)(b) and subsection 26(4) of the existing NTA, to exclude acts from the right to negotiate.  This reconstruction will allow low impact and small scale mining activities to be excluded from the right to negotiate by a determination of the Commonwealth Minister, provided that certain preconditions concerning procedural rights are met.

18.15      This approach is consistent with that in the NTA, but the amendments remove difficulties with the wording of ‘minimal effect on native title’ in the current provision (subsection 26(4)), which has made it unworkable in practice when native title has not been determined.  The preconditions are generally intended to ensure that native title holders will be properly notified of the acts and have the opportunity to put their views on a range of matters such as the protection of significant sites, access, and the way in which the activities that are authorised by the act in question are to be carried out.  The purpose of these preconditions is to minimise the impact of the act on the exercise of native title rights and interests in the area.  Determinations will be disallowable instruments.

Negotiations in good faith

18.16      The requirement to negotiate in good faith is clarified to make it clear that it applies to all parties, but only requires negotiation in good faith about matters related to the effect of the act on the native title interests of the native title parties.  This amendment will assist in ensuring that negotiations are focused on the issues between the parties.

Criteria to be considered in making agreements and arbitral body determinations

18.17      The criteria to be taken into account by the arbitral body in making a determination where an agreement cannot be reached between the parties are tightened to reflect better the matters which are likely to be in issue between the parties, and to remove duplication with other State and Territory approval processes.  Also, the Bill makes it clear that negotiations between the parties are able to take account of non-native title interests in the area concerned, existing use of the land or waters by non-native title parties and the effect of those interests and any existing use on the exercise of native title rights and interests.

Ministerial determinations

18.18      The relevant Minister will be able to intervene in the negotiation process earlier, under amendments which establish two new powers of intervention.

18.19      There will be a power for the Minister to intervene, in exceptional cases, before the matter is referred to the arbitral body, once 3 months have passed since notice was given.  This power will only be exercisable to allow an act to go ahead where the Minister considers that the act is likely to be of substantial economic benefit to Australia (which could be lost if the decision is not made at that time), that there will be significant benefits to native title holders from the act and that it is in the national and/or State or Territory interest for the act to proceed.  The Minister can only determine that the act not go ahead if the Minister considers that it is in the national and/or  State or Territory interest to make such a determination at that time.

18.20      There will also be a power for the relevant Minister to intervene where the NNTT or other arbitral body has not made a decision within a reasonable time after an application for a future act determination.  A condition for the exercise of this power is that the Minister has given the arbitral body written notice requesting it to give priority to making a determination in a particular matter within a specified period.  The power to intervene is only exercisable after such a notice has been given, a determination has not been made, the Minister considers that the arbitral body is unlikely to make its determination within a reasonable time and it is in the national interest and/or State or Territory interest to make the determination at that time.

18.21      The amendments set out the conditions relating to the exercise of the Ministers’ new powers of intervention, which include giving all parties an opportunity to provide information to the Minister to be taken into account when a decision is made.  State and Territory alternative systems may also contain similar early intervention powers providing they contain similar procedural requirements.

Alternative State or Territory regimes for leased or reserved areas

18.22      The expansion of the circumstances in which the States and Territories may implement alternative provisions for acts affecting leased or reserved areas implements points 6 and 7 of the Ten Point Plan.  Generally, the States and Territories will have a right to use their own processes provided they give native title claimants and native title holders the same procedural rights as other parties with an interest in the land (e.g. the holder of a non-exclusive pastoral lease).  The States and Territories will also need to ensure that any alternative regime will provide for appropriate compensation to be paid where native title is proved to exist.

Policy considerations

18.23      The Government has been concerned to ensure that its amendments to the NTA are consistent with the principles of the Racial Discrimination Act 1975 (RDA).  This is not a legal requirement, but flows from Government policy.  The amendments to the right to negotiate are particularly relevant to this policy.

18.24      Some provisions of the NTA provide formal equality to native title holders.  The RDA generally requires such formal equality, that is, equal treatment of all groups under law without distinction on the basis of race (see Gerhardy v. Brown (1985) 159 CLR 70).  Other provisions of the NTA provide ‘special measures’ within the meaning of the Convention on the Elimination of all Forms of Racial Discrimination and the RDA.  Special measures are allowed as an exception to the general principle of formal equality because they are designed to advance the human rights and freedoms of persons, such as Aboriginal people and Torres Strait Islanders, who have been historically disadvantaged groups.  The right to negotiate provisions have been generally considered a ‘special measure’.  This understanding of the NTA and the right to negotiate provisions appears in the Preamble to the Act, and the Second Reading Speech and Explanatory Memorandum to the Native Title Bill 1993.

18.25      In amending the right to negotiate provisions, the Government is exercising the discretion it has in relation to instituting, maintaining and re-formulating such special measures.

18.26      In the amendments to the procedural rights of native title holders in the right to negotiate (for example in relation to the urgent Ministerial intervention or the power of Ministerial exclusion of ‘approved exploration etc. acts’), care has generally been taken to ensure that native title holders enjoy special rights or rights similar to those enjoyed by non-native title holders (see in particular proposed subsections 26A(5), (6) and (7), proposed subsection 26B(6), (7) and (8) and proposed paragraph 34A(2)(c)).

18.27      Consultations in relation to the proposals contained in these amendments revealed that some parties take a different view of the ‘equality’ standard under the RDA, preferring what is often termed a substantive equality approach.  ‘Substantive equality’ allows relevant differences between groups, and their interests, to be taken into account.  It allows for laws which appropriately take into account such differences in providing for equality of outcome.  In applying this test, it is apparent that the Parliament enjoys a discretion in fashioning appropriate measures to take account of the perceived differences between groups.  In these amendments to the right to negotiate, the Government is of the view that appropriate measures for the protection of native title have been maintained.

18.28      It has also been suggested that the amendments amount to an acquisition of property for which ‘just terms’ compensation is required by paragraph 51(xxxi) of the Constitution.  The Government does not believe that the adjustment of a statutory right is such an acquisition.  Even if it were held to be so, section 53 of the NTA ensures Constitutional validity by ensuring ‘just terms’ compensation.

Reliance on corporations power

18.29      The Bill re-enacts existing section 44 of the NTA.  This section provides that Subdivision P of new Division 3 is enacted relying on, in addition to all other relevant Constitutional powers, the Commonwealth’s power to make laws relating to foreign and trading or financial corporations formed within Australia.  [Schedule 1, item 9, section 44]

Minor amendments consequential to the new right to negotiate provisions

18.30      There are some minor technical amendments that are consequential on the changes that are being made to the right to negotiate provisions.  These are listed below.

·       The right to negotiation provisions are in Subdivision B of Division 3 of Part 2 of the existing NTA.  This is being changed in the Bill to Subdivision P of Division 3 of Part 2.  A cross reference in paragraph 47(3)(c) of the NTA is being amended to reflect this.  [Schedule 1, item 12]  The Senate made Government amendment (47) which is included in the Bill.  This amendment omits item 27 of Schedule 1 which also purported to amend a cross reference to Subdivision B contained in a note to section 77.  Item 27 is unnecessary as section 77 is reproduced in its correct form in Schedule 2, item 19, page 173 (lines 1 to 5).

·       The concept of a ‘proposed’ act in paragraphs 47(3)(c) and 52(1)(b) is being removed. These are consequential amendments flowing from the amendment to subsection 26(1) and reflect the refocussing of the right to negotiate on whether procedures have been followed before the act that is done rather than after the act is ‘proposed’ (see paragraph 19.5 in Chapter 19 and paragraph 20.15 in Chapter 20).  [Schedule 1, items 11 and 21]



Overview

19.1        The Bill sets out the future acts to which Subdivision P (the right to negotiate provisions) apply.  In broad terms, they are future acts that meet certain positive requirements and that do not fall into one or more of the categories of excluded acts.  However, future acts are not covered by the right to negotiate provisions to the extent that they affect offshore places or the intertidal zone.  [Schedule 1, item 9, section 26] .

19.2        Generally, a future act meets the positive conditions if it is done by a government, is covered by the freehold test (see Subdivision M) and is:

·       the grant of a mining right; or

·       the compulsory acquisition of native title for the benefit of a third party (other than a compulsory acquisition for privately built infrastructure); or

·       an act approved by the Commonwealth Minister.

19.3        Table 19.1 provides a summary of the categories of future acts that are specifically excluded from the right to negotiate provisions even if they meet the positive conditions.

Table 19.1

Category of future act to which the right to negotiate provisions do not apply

Summary of the nature of the act

Acts to the extent they are valid under provisions of new Division 3 other than Subdivision M

The relevant provisions are listed in Table 19.4.

(See paragraph 26(2)(a))

Approved exploration etc. acts

These are future acts determined in writing by the Commonwealth Minister to be approved exploration etc. acts.  They are, broadly, future acts allowing mining exploration, prospecting, fossicking or quarrying that are unlikely to have a significant impact on an area and that meet certain procedural and other requirements relating to consultation with actual or potential native title holders.

(See paragraph 26(2)(b) and section 26A)



Table 19.1 (continued)

Category of future act to which the right to negotiate provisions do not apply

Summary of the nature of the act

Approved gold or tin mining acts

These are future acts determined in writing by the Commonwealth Minister to be approved gold or tin mining acts.  They are, broadly, future acts allowing surface alluvial mining for gold or tin where land affected by the mining has to be rehabilitated and where certain procedural and other requirements relating to consultation with native title holders are met.

(See paragraph 26(2)(c) and section 26B)



Certain acts in approved opal or gem mining areas

These are essentially acts allowing small scale opal or gem mining and exploration or prospecting for opals or gems in areas that are determined by the Commonwealth Minister to be approved opal or gem mining areas, after relevant consultation with native title holders.

(See paragraph 26(2)(d) and section 26C)

Certain renewals etc. of valid rights to mine

The grant of a right to mine that is valid or has gone through the right to negotiate process will not have to go through the process again when the right is renewed, re-granted or re-made or when its term is extended.

[Note: most of these would also be covered by Subdivision I and therefore excluded from the right to negotiate provisions by paragraph 26(2)(a)].

(See paragraph 26(2)(e) and subsection 26D(1))

The creation of mining rights in accordance with agreements or determinations about exploration or prospecting rights

Where there has been an agreement or a determination in relation to the grant of an exploration or prospecting right as a result of the right to negotiate process and that agreement or determination covers conditions about a possible later grant of a mining right, the mining right in question does not need to go through the right to negotiate process again.

(See paragraph 26(2)(e) and subsection 26D(2))

Acts relating solely to land or waters wholly within a town or city

(See paragraph 26(2)(f) and section 251C)

Future acts relating to the sea or intertidal zone

19.4        A future act is only covered by Subdivision P to the extent that it relates to a place on the landward side of the mean highwater mark of the sea [subsection 26(3)] .  In essence, this means that an act will be subject to the right to negotiate provisions only to the extent that it relates to an onshore place that is not the intertidal zone.  These areas are excluded from the right to negotiate because native title holders will not have the equivalent of exclusive possession over them.

Conditions for a future act to be covered by the right to negotiate provisions

19.5        The positive conditions a future act must meet to be covered by the right to negotiate provisions (i.e. Subdivision P) are set out below.

·       The act must be done by the Commonwealth, a State or a Territory (called the Government party ) [paragraph 26(1)(b)] .  Unlike the existing subsection 26(1), there is no longer the concept of the Government party ‘proposing’ to do a future act for the right to negotiate process to be triggered.  This provides governments with greater flexibility for the timing of the notice that needs to be given under section 29 (see Chapter 20).  However, the future act will not be validly done if the right to negotiate procedures (which include specified time limits) have not been complied with before it is done.

·       The act must be a future act to which Subdivision M applies [paragraph 26(1)(a)] .  Subdivision M deals with future acts passing the freehold test.  This means the act must be one that will be valid under Subdivision M subject to the requirements of Subdivision P.  However, acts covered by Subdivision M will only be covered by the right to negotiate provisions if they consist of one of the things set out in Table 19.2 [paragraph 26(1)(c)] .

Table 19.2

Act to which Subdivision M applies that is covered by the right to negotiate provisions

Comments

The creation of a right to mine, whether by the grant of a mining lease or otherwise  [Subparagraph 26(1)(c)(i)]

The meaning of the term ‘mine’ is discussed in paragraph 19.6.

The variation of a right to mine to extend the area to which it relates  [Subparagraph 26(1)(c)(ii)]

An example would be an increase in the size of an area that is covered by a mining lease.



The compulsory acquisition of native title meeting certain requirements  [Subparagraph 26(1)(c)(iii)]

The purpose of the acquisition must be to confer, on persons other than the Government party, rights and interests in relation to the land or waters that were affected by the native title.  [Sub-subparagraph 26(1)(c)(ii)(A)]

However, if the conferral is for the purpose of providing an infrastructure facility, it is not a compulsory acquisition to which the right to negotiate provisions apply [Sub-subparagraph 26(1)(c)(ii)(B)] .  A definition of the term ‘infrastructure facility’ is inserted by the Bill and is discussed in paragraphs 19.7 and 19.8.

This means, in essence, that compulsory acquisitions of native title where the land or waters affected will be held by the Government party are not subject to the right to negotiate provisions.  If the acquisition will give rights or interests to private sector parties, it will be subject to the right to



Table 19.2 (continued)

Act to which Subdivision M applies that is covered by the right to negotiate provisions

Comments

 

negotiate provisions unless it is being done so that infrastructure can be provided (whether or not by the private sector).

Any other act approved in writing by the Commonwealth Minister for the purposes of paragraph 26(1)(c)  [Subparagraph 26(1)(c)(iv)]

Before giving the approval for an act attributable to a State or a Territory, the Commonwealth Minister must consult the State or Territory Minister about it.  [Subparagraph 26(1)(c)(iv)]

Such an approval by the Commonwealth Minister is a disallowable instrument.  [Schedule 1, item 34, section 214]

What does ‘mine’ mean?

19.6        To mine is to extract any natural resource for commercial exploitation.  Section 253 of the NTA already defines the term ‘mine’ to include exploration or prospecting, extraction of gas or petroleum and quarrying.  This definition applies to the derivative terms ‘mining’ and ‘mined’.

What is an infrastructure facility?

19.7        A definition of the term ‘infrastructure facility’ is inserted by the Bill into section 253 of the NTA [Schedule 1, item 57] .  The term has its ordinary meaning but also includes a number of listed facilities, as set out in Table 19.3.

19.8        Within its ordinary meaning, an infrastructure facility is a facility (generally a fixture) necessary for the provision of services or to support the development and operation of major developments.  The infrastructure can be provided either by a government or the private sector.

Table 19.3

Things specifically listed as infrastructure facilities

A road, railway, bridge or other transport facility

A jetty or port

An airport or landing strip

An electricity generation, transmission or distribution facility (e.g. a power station, power lines or a power sub-station)

A storage, distribution, gathering or other transmission facility for oil or gas or derivatives of oil or gas (e.g. a gas pipeline)  (The inclusion of ‘gathering’ is intended to cover the case where gas etc. is run between a producing well and a treatment facility.)

A storage or transportation facility for coal, any other mineral or any mineral concentrate (e.g. a pipeline to carry a mineral ore in slurry form from a mine to a port)

A dam, pipeline, channel or other water management distribution or reticulation facility

A cable, antenna, tower or other communication facility

Anything else that is similar to any one or more of the things mentioned above, but only if the Commonwealth Minister determines in writing that it is an infrastructure facility for the purposes of paragraph (i) of the definition of ‘infrastructure facility’.  Such a determination is a disallowable instrument [section 214] .

Categories of future act excluded from the right to negotiate provisions

19.9        The Bill sets out a number of categories of future act that are specifically excluded from the right to negotiate provisions (i.e. Subdivision P) even if they meet the positive conditions.  [Subsection 26(2)]

Future acts that are valid otherwise than under the freehold test are not covered by the right to negotiate provisions

19.10      The right to negotiate provisions will not apply to the future act to the extent that it is valid under any of the provisions set out in Table 19.4 [Paragraph 26(2)(a)] .  This ensures that the right to negotiate provisions will not operate where a future act is valid otherwise than because it meets the freehold test in Subdivision M.

Table 19.4

Provision that covers the future act such that the right to negotiate provisions do not apply to it

What the provision deals with

Section 24EB

Future acts done in accordance with indigenous land use agreements, but only where the agreement contains a statement that Subdivision P is not to apply (see Chapter 7)

Section 24FA

Future acts where procedures indicate an absence of native title (see Chapter 8)

Section 24GB

Acts permitting primary production on non-exclusive agricultural or pastoral leases (see Chapter 9)



Section 24GD

Acts permitting off-farm acts etc. directly connected to primary production activities (see Chapter 9)

Section 24GE

The granting of rights to third parties etc. on non-exclusive agricultural or pastoral leases (see Chapter 9)

Section 24HA

Management of water and airspace (see Chapter 10)

Section 24IA

Acts involving renewals and extensions etc. of acts - e.g. the renewal of a pastoral or mining lease (see Chapter 11)

Section 24JA

Acts involving reservations (see Chapter 12)

Section 24KA

Acts involving facilities for services to the public (see Chapter 13)

Section 24LA

Low impact future acts (see Chapter 14)

Approved exploration etc. acts are not covered by the right to negotiate provisions

19.11      The right to negotiate provisions also do not apply to a future act that is determined in writing by the Commonwealth Minister to be an ‘approved exploration etc. act’ [paragraph 26(2)(b)] .  Such a determination is a disallowable instrument [section 214] .  Approved exploration etc. acts are, broadly, future acts allowing mining exploration, prospecting, fossicking or quarrying that are unlikely to have a significant impact on an area and that meet certain requirements relating to consultation with determined native title holders or claimants.

When can the Commonwealth Minister make a determination that a future act is an approved exploration etc. act?

19.12      The Commonwealth Minister can only determine that a future act is an approved exploration etc. act if five conditions are met.  However, the Minister may make such a determination for a class of future acts, for instance all exploration licences given under a particular State or Territory law. [Schedule 1, item 9, subsection 26A(1)] .  These conditions are set out below.

First condition - the act relates to mining but only allows exploration, prospecting, fossicking or quarrying

19.13      The act, or those in the class, must be the creation or variation of a right to mine where the right, as created or varied, consists of a right to explore, prospect, fossick or quarry [subsection 26A(2)] .  This means that an act dealing with any other type of right to mine cannot be determined to be an approved exploration etc. act.

Second condition - the act is unlikely to have a significant impact on the land or waters concerned

19.14      The Commonwealth Minister must consider that the act, or those in the class, are unlikely to have a significant impact on the land or waters that will be affected by the act or acts [subsection 26A(3)] .  To remove doubt, the Bill specifically provides that the fact that drilling may be authorised does not prevent the act meeting the condition [subsection 26A(4)] .

19.15      Where the Minister’s determination is made for a class of acts, such as the granting of exploration titles under legislation, the second condition may be met, for instance, if exploration licences of the relevant kind impose sufficient limitations on the removal of earth.

Third condition - consideration of views of representative Aboriginal/Torres Strait Islander bodies and the public about determination

19.16      The Minister must have notified any relevant representative Aboriginal/Torres Strait Islander body and the public about the proposed determination, invited submissions from them on the proposed scheme and considered any submissions made in response.  The notification must be done in the way determined in accordance with section 252 of the NTA [subsection 26A(5)] .  Where the determination relates to a class of acts this requirement only applies to the ministerial determination not each time an individual act is done in accordance with the determination.

Fourth condition - procedural rights of native title holders and claimants and representative Aboriginal/Torres Strait Islander bodies

19.17      The Minister must be satisfied that, if the determination is made, all relevant registered native title bodies corporate, registered native title claimants and representative Aboriginal/Torres Strait Islander bodies will have the procedural rights set out below.

·       They must have a right to be notified that the act or each act included in the class is to be done, whether or not others have such a right.  [Paragraph 26A(6)(a)] .

·       They must also have a right to be heard by an independent person or body about whether and how the act is to be done, if this right is available to other persons with an interest in land in that State or Territory in similar circumstances [paragraph 26A(6)(b)] .  This is not a right to negotiate and does not give native title holders a veto.  Paragraph 26A(6)(b) will ensure that if, for instance, a pastoralist or holder of a freehold title has a right under State legislation to be heard in a Mining Warden’s Court in relation to the grant of an exploration title, then the relevant native title holders, claimants and representative bodies must also have such a right.  The fact that in reality there may be no freeholders or pastoralists in the particular area is not relevant to that issue.  If, on the other hand, no titleholder has such a right in relation to the grant of the exploration title, then it is not necessary for the native title holders etc. to have such a right.

19.18      Also, for the purpose of minimising the impact of the act on the exercise of native title rights and interests, there must be either :

·       a legal right for all relevant registered native title bodies corporate and registered native title claimants to be consulted appropriately, unless they indicate that they do not want to be consulted [subparagraph 26A(6)(c)(i)] ; or

·       procedures in place so that such persons or bodies will be appropriately consulted [subparagraph 26A(6)(c)(ii)] .

19.19      These alternatives reflect the variety of jurisdictions from which a determination can be sought.  Some jurisdictions may have these arrangements set out in legislation while others may have in place administrative procedures to do the same.  In either case, there must be a requirement for such consultation, whether or not others have such a right.  Submissions to the Government have indicated that actual or potential native title holders wish to be consulted in relation to access to their land, even where that access will have no significant impact on the land.  This requirement recognises the special concerns of native title holders in this regard.

19.20      The Bill also sets out particular matters which the consultations need to cover and which are relevant to the Minister being satisfied there will be consultations with native title holders for the fourth condition to be met [Subsection 26A(7)] .  Factors set out in the subsection relate to:

·       the identification and protection of areas or sites of significance to native title holders [paragraph 26A(7)(a)] ;

·       access to the land or waters by persons acting in accordance with the mining right and native title holders [paragraph 26A(7)(b)] ; and

·       the way in which anything that is to be done in accordance with the mining right (and which affects native title) is to be done [paragraph 26A(6)(c)] .

Revocation of a determination that an act is an approved exploration etc. act

19.21      The Bill provides for the revocation of a determination that an act or acts are an approved exploration etc. act.  In essence, this revocation can occur when the Commonwealth Minister considers that the effects of the act or acts are such that it would no longer meet the conditions for it to be an approved exploration etc. act [subsection 26A(8)] .  For example, the Minister might consider that the native title holders no longer have a right or are not being consulted (see subsection 26A(6)).  Where the Minister does reach the view required for subsection 26A(8) to operate, the consequences set out in Table 19.5 apply.  Such a revocation is a disallowable instrument [section 214] .

Table 19.5

Future act is done by a State or Territory

Future act is done by the Commonwealth

The Commonwealth Minister must advise the State or Territory Minister in writing that he or she no longer considers the act meets the necessary conditions.

At the end of 90 days after giving the advice, the Commonwealth Minister must revoke the determination in writing if the conditions in section 26A are still not satisfied.  The 90 day period can be extended by the Commonwealth Minister.

[Paragraph 26A(8)(a)]

The Commonwealth Minister must revoke the determination in writing.

[Paragraph 26A(8)(b)]

Approved gold or tin mining acts are not covered by the right to negotiate provisions

19.22      The right to negotiate provisions also do not apply to a future act that is determined in writing by the Commonwealth Minister to be an approved gold or tin mining act [paragraph 26(2)(c)] .  Such a determination is a disallowable instrument [section 214] .  Approved gold or tin mining acts are, broadly, future acts allowing alluvial mining for gold or tin where land affected by the mining has to be rehabilitated and where certain requirements relating to consultation with determined native title holders or claimants are met.  These acts are excluded from the right to negotiate because of the nature of alluvial mining, which involves short time spans for operations and frequent moves.

When can the Commonwealth Minister make a determination that a future act is an approved gold or tin mining act?

19.23      The Commonwealth Minister can only determine that a future act is an approved gold or tin mining act if six conditions are met.  Unlike acts to which section 26A can apply, the determination can only be made for a class of future act.  The act must be the creation or variation of a right by a State or Territory [Schedule 1, item 9, subsection 26B(1)] .  The conditions are set out below.

First condition - State or Territory Minister requests determination

19.24      A State Minister or a Territory Minister must request, in writing, that the Commonwealth Minister make a determination that the class of acts are approved gold or tin mining acts.  [Subsection 26B(2)]

Second condition - the act relates to mining for gold or tin in surface alluvium

19.25      The acts in the class must be the creation or variation of a right where the right, as created or varied, consists of a right to mine gold or tin in surface alluvium [subsection 26B(3)] .  Surface alluvium can be described as material (e.g. sand, mud or rocks) that has been deposited by the action of water and which is found on the surface of land (including beaches) or lake or river beds.

Third condition - the gold or tin is recovered by a washing or aeration process

19.26      The recovery of the gold or tin from the material that is mined must be done by a washing or aeration process [subsection 26B(4)] .  The mining of gold or tin by other means cannot be excluded under section 26B.  This means, for example, that mining operations are not covered if the recovery of the gold or tin is by the crushing of ore.  The reference to ‘aeration’ was inserted by Government amendment (35) which was made by the Senate and is included in the Bill.

Fourth condition - the land or waters concerned will be rehabilitated

19.27      The persons given the rights to mine must be required, by or under a State or Territory law, to rehabilitate any land or waters which are affected by the mining and in relation to which native title may exist.  The requirement to rehabilitate must be for the purpose of minimising the impact of the mining on the land or waters [subsection 26B(5)] .

Fifth condition - consideration of views of representative Aboriginal/Torres Strait Islander bodies and the public about determination

19.28      This condition is the same as that which applies to determinations of approved exploration etc. acts under proposed subsection 26A(5) (refer to paragraph 19.16).  [Subsection 26B(6)]

Sixth condition - procedural rights of native title holders and representative Aboriginal/Torres Strait Islander bodies in relation to particular acts

19.29      This condition is essentially the same as that which applies to determinations of approved exploration etc. acts under proposed subsection 26A(6) (refer to paragraphs 19.17 to 19.20).  However, the specific matters that the consultations may cover include rehabilitation and anything else, regardless of whether it affects native title, that is to be done in accordance with the mining right.  [Subsections 26B(7) and (8)]

Revocation of a determination that an act is an approved gold or tin mining act

19.30      The Bill provides for the revocation of a determination that acts are approved gold or tin mining acts.  In essence, this revocation can occur when the Commonwealth Minister considers that the effects of the acts are such that they would no longer meet the conditions for them to be approved gold or tin mining acts [subsection 26B(9)] .  Such a revocation is a disallowable instrument [section 214] .

19.31      Where the Minister does reach the view required for subsection 26B(9) to operate, he or she must advise the State or Territory Minister in writing that he or she no longer considers the act meets the necessary conditions.  At the end of 90 days after giving the advice, the Commonwealth Minister must revoke the determination in writing if the conditions in section 26B are still not satisfied.  The 90 day period can be extended by the Commonwealth Minister.

Certain acts relating to approved opal or gem mining areas are not covered by the right to negotiate provisions

19.32      The right to negotiate provisions also do not apply to certain future acts that are done in relation to approved opal and gem mining areas [paragraph 26(2)(d); Schedule 1, item 9, section 26C] .  These are essentially acts allowing small scale opal or gem mining and exploration or prospecting for opals and gems in areas that have been determined by the Commonwealth Minister to be approved opal or gem mining areas.  These acts are excluded because of the small scale and low impact of the mining concerned.

19.33      The Senate made Government amendment (36) which is included in the Bill.  This amendment enables certain acts that consist of the creation or variation of a right to mine to be excluded from the right to negotiate if the act:

·       is not a right to explore or prospect; and

·       relates solely to an area wholly within an ‘approved opal or gem mining area’; and

·       allows mining only for opals or gems or mining that consists of puddling in respect of opals or gems (‘puddling’ is the washing process by which opals and gems are separated from surrounding clay); and

·       allows that mining in an area no larger than 5 hectares; and

·       is conferred for a period of no more than 5 years; and

·       is renewable for periods of no more than 5 years. [Subsection 26C(1)]

19.34      Government amendment (36) also inserts a new subsection 26C(1A) that will enable exploration or prospecting for opals or gems in an area no larger than 500 hectares wholly within an ‘approved opal or gem mining area’ to be excluded from the right to negotiate if the conditions set out in that subsection are satisfied.

 

What is an approved opal or gem mining area?

19.35      An ‘approved opal or gem mining area’ is a specified area of land or waters that the Commonwealth Minister has determined in writing to be an approved opal or gem mining area [subsection 26C(2)] .  Such a determination is a disallowable instrument [section 214] .  The Minister can only make such a determination if four conditions are satisfied.

19.36      A determination does not prevent the grant of other types of mining rights in the area but such grants would not be exempt from the right to negotiate for this reason alone.

First condition - State or Territory Minister requests determination

19.37      A State Minister or a Territory Minister must request, in writing, that the Commonwealth Minister make a determination for the area concerned.  [Subsection 26C(3)]

Second condition - area to be used for small scale opal or gem mining

19.38      The Commonwealth Minister needs to consider that the area concerned will actually be used in the future for small scale opal or gem mining.  To this end, he or she must be satisfied that at least some mining rights with certain characteristics will be conferred in the future. 

19.39      The Senate made Government amendment (37) which is included in the Bill.  This amendment sets out the second condition in relation to which the Commonwealth Minister must be satisfied before he or she makes a determination that an area is an ‘approved opal or gem mining area’ for the purposes of proposed section 26C.  The replacement is necessary as a result of amendments to subsection 26C(1).  The amendment requires that in order for the second condition to be satisfied, the Commonwealth Minister must be satisfied that, among other things, in the future at least some rights will be conferred to mine in the proposed ‘approved opal or gem mining area’ that allow:

·       mining only for opals or gems (other than mining that consists of exploration, prospecting or puddling) in an area no larger than 5 hectares [subparagraph 26C(4)(c)(i)] ; or

·       mining that consists of puddling in respect of opals or gems in an area no larger than 5 hectares [subparagraph 26C(4)(c)(ii) ; or

·       mining consisting of exploration or prospecting for opals or gems in an area no larger than 500 hectares [subparagraph 26C(4)(c)(iii)] .

The Commonwealth Minister must also be satisfied those rights will be conferred for a period of no longer than 5 years and, if renewable, may not be renewed for more than 5 years each time [paragraphs 26C(4) (d) and (e)] .

19.40      In reaching these conclusions, the Minister must have regard to any mining rights previously conferred in the area and any other relevant matter.  [Paragraphs 26C(4)(a) and (b)]   The other matters may include, for example, information about the use of the land in the past for gem or opal mining, any undertakings given by the State or Territory Minister about how the area will be used in the future and the nature of any State or Territory legislation regulating the issue of rights to mine.

Third condition - consultation by State or Territory Minister with actual or potential native title holders and representative Aboriginal/Torres Strait Islander bodies

19.41      The State or Territory Minister must have notified the public and any relevant registered native title body corporate, registered native title claimant and representative Aboriginal/Torres Strait Islander body about his or her intention to request the Commonwealth Minister to make a determination.  [Paragraph 26C(5)(a)]

19.42      The State or Territory Minister must have invited submissions, from those referred to in paragraph 19.39, on the proposed request and considered any submissions made in response.  The matters on which submissions can be requested include, but are not limited to, the area covered by the request and the processes for the identification and protection of any areas or sites in the proposed area that are of significance to native title holders in accordance with their traditional laws and customs.  [Paragraphs 26C(5)(b) and (c)]

Fourth condition - opal or gem mining currently being carried on

19.43      The Senate made Government amendment (37A) which is included in the Bill.  This amendment to section 26C inserts new subsection 26C(5A).  Subsection 26C(5A) contains a fourth condition in relation to which the Commonwealth Minister must be satisfied before he or she makes a determination that an area is an ‘approved opal or gem mining area’ for the purposes of section 26C.  This condition requires that the Commonwealth Minister be satisfied that opal or gem mining is currently being carried on in the whole or a substantial part of the proposed ‘approved opal or gem mining area’.  The Senate also made Government amendments (36A) and (37B) which are included in the Bill (see subsections 26C(2) and 26C(6) respectively).  These amendments are consequential on Government amendment (37A).

Revocation of a determination that an area is an approved opal or gem mining area

19.44      The Bill provides for the revocation of a determination that an area is an approved opal or gem mining area.  In essence, this revocation can occur when the Commonwealth Minister considers that the situation is such that the area would no longer meet the conditions for it to be an approved opal or gem mining area [subsection 26C(6)] .  Such a revocation is a disallowable instrument [section 214] .

19.45      Where the Minister does reach the view required for subsection 26C(6) to operate, he or she must advise the State or Territory Minister in writing that he or she no longer considers the necessary conditions are met.  At the end of 90 days after giving the advice, the Commonwealth Minister must revoke the determination in writing if the four conditions in section 26C are still not satisfied.  The 90 day period can be extended by the Commonwealth Minister

Renewals etc. of existing rights to mine are not covered by the right to negotiate provisions

19.46      The Bill provides that the grant of a right to mine that is valid or has gone through the right to negotiate process will not have to go through the process again when the right is renewed etc.  To this end, a future act that is the creation of a right to mine will not be an act to which the right to negotiate provisions apply if it meets the requirements below.

·       The right must be created by the renewal, re-grant, re-making or extension of the term of an earlier right to mine.  [Schedule 1, item 9, paragraph 26D(1)(a)]

·       The area of land or waters covered by the earlier right to mine must not be extended by the renewal etc.  [Paragraph 26D(1)(c)]

·       The earlier right to mine must have been either of the things in Table 19.6.

Table 19.6

Nature of earlier right

Comments

A right to mine created on or before 23 December 1996 by a valid act.

[Subparagraph 26D(1)(b)(i)]

This validity can arise because of Division 2 of Part 2 (which validates past acts) or proposed Division 2A of Part 2 (which, if enacted, will validate intermediate period acts). [47]

A right to mine created by an act to which the right to negotiate provisions applied that was not invalid to any extent because the right to negotiate procedures were followed

[Subparagraph 26D(1)(b)(ii)]

Proposed section 28 (discussed in Chapter 20) says when an act covered by the right to negotiate provisions will be invalid because the necessary procedures have not been followed.

An example would be a mining lease granted after 23 December 1996 that was valid under Subdivision M because it met the freehold test and for which the right to negotiate procedures in Subdivision P were completed.  The lease could be renewed, or its term extended, without the right to negotiate procedures having to be met again.



The creation of mining rights in accordance with agreements or determinations about exploration or prospecting rights are not covered by the right to negotiate provisions

19.47      In cases when a future act that is the grant of a right to prospect or explore (called the earlier act ) goes through the right to negotiate process, an agreement or determination will arise out of that process.   The agreement or determination may contemplate that a subsequent right to mine can be created where certain conditions are met (whether before or after the subsequent right is created).  The Bill provides that a future act (called the later act ) that is the creation of that subsequent right to mine is not covered by Subdivision P and will not, therefore, have to also go through the right to negotiate process.  This will allow a single right to negotiate where the first encompassed all relevant matters relating to the later act.  [Paragraphs 26D(2)(a), (b) and (c)]

19.48      However, the later act will only be excluded from the right to negotiate provisions if the conditions in the agreement or determination that have to be met by non-native title parties before the later act is done are met by those parties [paragraph 26D(2)(d)] .  If these conditions are not met, the later act would be covered by Subdivision P and the right to negotiate processes would have to be met.  Subsection 26D(2) ensures that ‘conjunctive’ agreements can be negotiated where the parties agree.

Future acts in towns and cities are not covered by the right to negotiate provisions

19.49      A future act that relates solely to land or waters within a town or city is not covered by the right to negotiate provisions [paragraph 26(2)(f)] .  An example would be the compulsory acquisition of land within a town or city that is to be granted to a private sector party for the construction of a shopping centre or residential development.

What is a town or city?

19.50      A definition of the term ‘town or city’ is inserted by the Bill [Schedule 1, item 50, section 251C] .  The definition looks at whether an area was a town or city on 23 December 1996 (the date of the Wik decision).  This means, for example, that any valid compulsory acquisition of native title could still be subject to the right to negotiate processes if it took place after 23 December 1996 in relation to an area that was not part of a town or city at that time but which became part of a town or city afterwards.

19.51      Whether an area is a ‘town or city’ depends on the State or Territory in which the area is located.  An area will not be a town or city except as defined in section 251C (i.e. the ordinary meaning of the term is excluded).  [Subsection 251C(6)]

General principle

19.52      The general principle is that an area is a ‘town or city’ if the Commonwealth Minister makes a written determination to that effect.  However, for this to be done, the Commonwealth Minister must hold the opinion that the area was a town or city on 23 December 1996 [subsection 251C(5)] .  A written determination of the Minister under subsection 251C(5) is a disallowable instrument [section 214] .

Areas in Western Australia, South Australia and the Northern Territory

19.53      For Western Australia, South Australia and the Northern Territory there are additional areas that are defined as a ‘town or city’, as set out in the Bill [subsections 251C(1), (2) and (3)] .  These are areas defined under Crown land, local government or other planning and development legislation of the State or Territory.  This approach is similar to that used to define ‘town’ in section 3 of the Aboriginal Land Rights (Northern Territory) Act 1976 .

19.54      However, the Commonwealth Minister may make a written determination that an area in Western Australia, South Australia or the Northern Territory is not a town or city even if it is covered by these provisions [subsection 251C(4)] .  Such a written determination is a disallowable instrument [section 214] .  Subsection 251C(4) will provide a mechanism to ensure that an area is not inappropriately excluded from the right to negotiate.



Overview

20.1        Subdivision P of Division 3 inserted by item 9 of Schedule 1 also includes the processes that have to be followed once it has been determined that a future act is an act to which the right to negotiate provisions (i.e. Subdivision P) apply.  This Chapter explains those processes in detail (Chapter 18 provides an overview of them).

20.2        As discussed in Chapter 18, many of the provisions in Subdivision P are re-enacted forms of existing provisions.  This Chapter does not give a detailed explanation of the provisions that are re-enacted in the same form as in the existing NTA.

Meaning of important terms used in the provisions dealing with right to negotiate processes

20.3        There are certain important terms used in Subdivision P which are central to the operation of the right to negotiate provisions.  The meaning of these terms is set out below.

What is an arbitral body?

20.4        An arbitral body is essentially a body that can arbitrate between parties if an agreement cannot be negotiated about whether a future act can be done.  Existing section 27 of the NTA defines an ‘arbitral body’ and this definition is re-enacted by the Bill.  In most cases it is the National Native Title Tribunal (NNTT).  However, for future acts proposed to be done by a State or Territory, it is any recognised State/Territory body of that State or Territory, if a law of the State or Territory so provides. [48]   [Schedule 1, item 9, section 27]

What is a negotiation party?

20.5        The negotiation parties are those persons who must negotiate about whether a future act subject to the right to negotiate provisions should be done.  A definition of ‘negotiation party’ is already in the NTA.  The Bill moves the definition into the right to negotiate provisions.  A negotiation party is the ‘Government party’, any ‘native title party’ and any ‘grantee party’ [Schedule 1, item 9, section 30A] .  The Bill replaces the existing definition in section 253 with a reference to section 30A [Schedule 1, item 58] .

What is a Government party?

20.6        As under the existing NTA, the Government party is the government that will do the future act that is covered by the right to negotiate provisions and who has to notify various parties, in accordance with section 29, that the act is to be done.  It can be the Commonwealth, a State or a Territory.  [Schedule 1, item 9, paragraph 26(1)(b)]

What is a native title party?

20.7        Native title parties are the registered native title claimants and registered native title bodies corporate, who have to be notified (under section 29) by the Government party that a future act covered by the right to negotiate provisions is to be done.  Native title parties also include indigenous people who become registered native title holders or claimants within 4 months after the notification by the Government party (or grantee party in the case of a public notice), provided in relation to claimants, that the application containing the claim was filed within three months of notification.  The native title parties are set out in Table 20.1.

Table 20.1

Native title party

Comments

Any registered native title body corporate for any of the land or waters that will be affected by the future act to which the right to negotiate provisions apply

[Schedule 1, item 9, paragraph 29(2)(a)]

Note that this does not alter the position under the current NTA.

The term ‘registered native title body corporate’ is already defined under existing section 253 of the NTA.  It is a body corporate that is registered on the National Native Title Register and that either holds the native title on trust or acts as the agent or representative of the native title holders in relation to particular land or waters.

Any registered native title claimant for any of the land or waters that will be affected by the future act to which the right to negotiate provisions apply

[Subparagraph 29(2)(b)(i))]

Note that this does not alter the position under the current NTA.

There will only be registered native title claimants if there are not registered native title bodies corporate for all of the land or waters affected by the act.  [Subparagraph 29(2)(b)(i))]

The term ‘registered native title claimant’ is already defined under existing section 253 of the NTA.  It is a person who has been registered on the Register of Native Title Claims as claiming native title to particular land or waters.



Table 20.1 (continued

Native title party

Comments

Any person who, within 4 months after the notification day, becomes a registered native title claimant for any of the land or waters that will be affected by the future act to which the right to negotiate provisions apply having made an application within 3 months.

[Schedule 1, item 9, paragraph 30(1)(a)]

This provision, which gives the Registrar of the National Native Title Tribunal one extra month within which to consider the claim for registration purposes, was contained in Government amendment (39) which was made by the Senate and is included in the Bill.  Of course claimants with a claim which is already registered are also parties to the right to negotiate.

Note that this does not alter the position under the current NTA except that the period is extended to 3 months from 2 months.

The ‘notification day’ is the day specified in the notice given by the Government party (or public notice given by the grantee party).

Under section 29, the Government party must notify certain parties and others before it does a future act to which the right to negotiate applies.  This is discussed below.

Any body corporate that, within 3 months after the notification day, becomes a registered native title body corporate for any of the land or waters that will be affected by the future act to which the right to negotiate provisions apply.  [Paragraph 30(1)(b)]  ( Government amendment (39) , which was made by the Senate and included in the Bill, slightly changed the way in which the 3 month notification period is referred to.

Note that this does not alter the position under the current NTA except that the period is extended to 3 months from 2 months.

Any body corporate that becomes a registered native title body corporate for any of the land or waters that will be affected by the future act to which the right to negotiate provisions apply:

·        more than 3 months after the notification day; and

·        because of a native title claim that was entered on the Register of Native Title Claims within that 3 month period.

[Paragraph 30(1)(c)]

This is new and means that native title holders who had a registered native title claim before the end of the 3 month period will continue to be represented in negotiations if their claim is subsequently successful through a determination of native title.

20.8        A person will no longer be a native title party when they are no longer a registered native title claimant for any of the land or waters that will be affected by the future act to which the right to negotiate provisions apply [subsection 30(2)] .  Thus, if the claimant’s native title claim is unsuccessful or is taken off the Register of Native Title Claims, the person will no longer be a negotiation party.  However, if the claim is removed because it is successful, the registered native title body corporate for the native title party will represent the native title holders for the purposes of the right to negotiate processes.

What is a grantee party?

20.9        As under the existing NTA, the ‘grantee party’ is the person at whose request, or upon whose application, the future act to which the right to negotiate provisions apply would be done [paragraph 29(2)(c)] .  An example would be a mining company that has applied for a mining lease to be issued to them.  A consequential amendment is made to the definition of ‘grantee party’ in section 253 to reflect the renumbering of paragraphs within section 29 [Schedule 1, item 54] .

What is a relevant Minister?

20.10      A relevant Minister is the Minister who can make determinations about whether procedures under the right to negotiate provisions should be fast-tracked.

20.11      The Commonwealth Minister will be the ‘relevant Minister’ if the arbitral body for the future act concerned is the NNTT [Schedule 1, item 9, subsection 27A(1)] .  However, if the arbitral body for the future act is a recognised State/Territory body, the ‘relevant Minister’ is the State Minister or the Territory Minister of the State or Territory concerned [subsection 27A(2)] .

What are project acts?

20.12      Project acts are 2 or more acts that are identified as part of the same project and which will be dealt with together under the right to negotiate provisions.  The project act amendments were proposed in 1996.  Two or more future acts to which the right to negotiate provisions apply will be project acts if the conditions set out below are satisfied.

·       The notice under section 29 given by the Government party (or grantee party in the case of a public notice) must identify a project to be carried on in a specified area of land or waters.  [Paragraph 29(9)(a)]

·       The 2 or more acts must constitute the project or form part of it.  It is irrelevant whether the notice under section 29 separately specifies the area that each of the acts will affect.  [Paragraph 29(9)(b)]

·       The arbitral body for each of the acts must be the same.  [Paragraph 29(9)(c)]

·       The notice under section 29 must say that each of the acts are project acts for the purposes of Subdivision P.  [Paragraph 29(9)(d)]

20.13      Notwithstanding this, the 2 or more acts will not be project acts if the notice under section 29 states that any one or more of the acts attracts the expedited procedure [subsection 29(10)] .  The ‘expedited procedure’, discussed below, is one way in which the right to negotiate process can be fast-tracked.

Notification of parties affected by a future act covered by the right to negotiate provisions

20.14      Existing section 29 of the NTA sets out the notification requirements that have to be met before future acts to which the right to negotiate provisions apply can be done.  The Bill re-enacts most of the existing section 29 but also adds a number of matters, including those proposed by the Government in 1996.

20.15      Subject to subsection 29(3), the Government party which will do the future act covered by the right to negotiate provisions must give notice of the act in accordance with section 29 [Schedule 1, item 9, subsection 29(1)] .  This item replaces existing subsection 29(1) and was proposed in the 1996 amendments.  The replacement requires notice to be given before the act is done, rather than the previous formulation which provided for notice by the Government party of its intention to do the act.  Greater flexibility is thereby given to Governments in the timing of section 29 notices.

Who must be notified?

20.16      Table 20.2 sets out the persons to whom a notice by the Government party under section 29 must be given.  These are in essence the same parties who must be notified under the existing section 29 of the NTA.

Table 20.2

Person who must be notified by the Government party

Comments

Any persons or bodies who are native title parties at the time of notification

[Paragraph 29(2)(a) and subparagraph 29(2)(b)(i)]

These are the native title parties discussed in the first 2 rows of Table 20.1.

Any representative Aboriginal/Torres Strait Islander body for any of the land or waters that will be affected by the future act to which the right to negotiate provisions apply

[Subparagraph 29(2)(b)(ii))]

The representative Aboriginal/Torres Strait Islander body will only be a native title party if there are not registered native title bodies corporate for all of the land or waters affected by the act.  [Subparagraph 29(2)(b)(ii))]

The term ‘representative Aboriginal/Torres Strait Islander body’ is already defined under existing section 253 of the NTA.  A body is a representative Aboriginal/Torres Strait Islander body for an area if the Commonwealth Minister has made a determination to that effect (see section 202 of the NTA).  Note that Schedule 3 of the Bill makes changes to the provisions dealing with representative bodies (see Chapter 33 and 34).

The grantee party

[Paragraph 29(2)(c)]

The meaning of grantee party is discussed in paragraph 20.9.



The registrar or the proper officer of the arbitral body

[Paragraph 29(2)(d)]

This represents a technical correction to the provision in that the registrar or proper officer must be notified, rather than the arbitral body itself.  This was proposed in the 1996 amendments.

The meaning of the term ‘arbitral body’ is discussed in paragraph 20.4.

There must also be public notification

20.17      The Government party or grantee party must also notify the public that the act is to be done.  The notification must be done in the way determined in accordance with section 252 of the NTA.  However, public notification is not needed if there are one or more registered native title bodies corporate for all of the land or waters in relation to which the act is to be done.  [Subsection 29(3)]

20.18      The public notification requirement gives potential native title holders the opportunity to lodge and have registered a native title claim before the future act covered by the right to negotiation provisions is done.  This gives them a 3 month opportunity to become native title parties for the purposes of the right to negotiate procedures (see Table 20.1).  However, if registered native title bodies corporate cover the whole area, there will not be any other potential native title holders.

What must be included in or with the notice?

20.19      The Bill adds to section 29 a number of matters that have to be dealt with in notices.  These were all proposed by the Government in the 1996 amendments.

A notice must specify a notification day

20.20      The Bill requires a day, known as the notification day , to be specified in the notice (including the notice to the public) [paragraph 29(4)(a)] .  This is vital for ascertaining the end of the 3 month notification period for responding to a notice under the section.  The Bill also makes it clear that each notice must have the same notification day [subsection 29(5)] .

20.21      The Bill provides rules on what the notification day must be.  It must be the day by which the Government party thinks the notice will be received by, or come to the attention of, all the persons and bodies listed in Table 20.2 or the public (whichever is relevant).  [Subsection 29(6)]

A notice must include a statement that persons have 3 months to take steps to become native title parties

20.22      The notice (including the notice to the public) must also say that persons have until 3 months after the notification day to take certain steps necessary to become native title parties under section 30 [paragraph 29(4)(b)] .  Native title parties under section 30 are discussed in the last three rows of Table 20.1.

A notice must be accompanied by prescribed documents and information

20.23      The notice (including the notice to the public) must be accompanied by any documents and include any information prescribed by the regulations [paragraph 29(4)(c)] .  The prescribed information will enable the native title parties to properly make decisions about whether their interests are likely to be affected by the act and the possible extent of that effect, and will add to the information available for the purposes of negotiations under Subdivision P.

Statement about expedited procedure

20.24      As under the existing NTA, a notice under section 29 may specify that the Government party thinks the act will attract the expedited procedure.  [Subsection 29(7)]

Multiple acts

20.25      The Bill makes it clear that one notice can deal with two or more acts     [subsection 29(8)] .  Such acts need not be related, however, when they are related the notice may include a statement that the acts are project acts.  The meaning of the term ‘project acts’ is discussed in paragraphs 20.12 and 20.13.  An act covered by the right to negotiate provisions is invalid unless certain requirements are met before it is done .

20.26      The Bill substantially re-enacts existing section 28 of the NTA but now provides that an act subject to the right to negotiate is invalid to the extent it affects native title unless one of a number of requirements are met [Schedule 1, item 9, section 28] .  In essence, the right to negotiate processes for a future act can be satisfied in one of four ways under Subdivision P, as follows:

·       the absence of any native title party at the end of the 4 month registration period or at a later date, immediately before the act is done.  The Senate made Government amendment (38) which is included in the Bill.  This amendment has been included because paragraph 30(1)(a) gives native title claimants an extra month in which to have their claims registered provided that their claim was made within three months of the ‘notification day’;

·       a negotiated agreement between the negotiation parties;

·       the expedited procedure applies; or

·       a determination or declaration by a relevant Minister or an arbitral body.

20.27      Currently, if a permissible future act is rendered invalid under section 28 because of a failure to comply with the right to negotiate provisions, the act is wholly invalid.  The Bill amends subsection 28(1) so that if, as a result of failure to follow the right to negotiate processes a future act is invalid, it is only invalid to the extent that native title is affected by that act [subsection 28(1)] . [49]   This means that if, for instance, a mining lease is granted without going through the right to negotiate and it is subsequently determined that native title exists over some part of the area covered by the lease, the lease is only invalid in relation to that part of the area.

What are the requirements for the future act to be valid?

20.28      Table 20.3 sets out the requirements, one of which has to be met if a future act covered by the right to negotiate provisions is to be valid.  The table also indicates which of the requirements are new.



Table 20.3

Requirement

Comments

At the end of 4 months after the notification day, there must be no native title parties for any of the land or waters that will be affected by the act

[Paragraph 28(1)(a)]

This is an existing requirement except that 4 months is substituted in place of 2 months.

After the end of 4 months after the notification day but immediately before the act is done, there must be no native title party for any of the land or waters that will be affected by the act

[Paragraph 28(1)(b)]

This is a new requirement that was proposed in the 1996 amendments.

This requirement ensures that where a native title party’s application is removed from the Register of Native Title Claims (whether because it has been withdrawn or otherwise) the proposed act may then be done with certainty about its validity without further recourse to the right to negotiate.

If, however, there has been a determination or agreement in relation to the act to which the native title claimant had been a party, then the terms of that agreement or determination continue to have effect in relation to the act.

The requirement also preserves the right to negotiate of native title claimants who succeed in gaining a determination of native title since the expression ‘native title parties’ includes those who were registered claimants within the notification period and are later determined to hold native title in relation to the land or waters affected by the proposed act (see the last row in Table 20.1).

Subsection 32(2) must allow the act to be done

[Paragraph 28(1)(c)]

This is an existing requirement.

Subsection 32(2) provides that a Government party may do the act if they have said in their section 29 notice that the expedited procedure applies and the native title parties do not object to that under subsection 32(3) within 4 months.

A determination must be made under subsection 32(4) that the act attracts the expedited procedure

[Paragraph 28(1)(d)]

This is an existing requirement.

Subsection 32(4) allows the arbitral body to determine that the expedited procedure applies to the act where one or more of the native title parties objects under subsection 32(3).



Any objections by native title parties under subsection 32(3) must have been withdrawn under subsection 32(6)

[Paragraph 28(1)(e)]

Subsection 32(6) allows a native title party to withdraw an objection made under subsection 32(3).

This is a new requirement consequent on changes to the expedited procedure provisions which allow native title parties to withdraw objections.  It is consistent with the policy underlying the requirements under paragraphs 28(1)(c) and (d).



Table 20.3 (continued)

Requirement

Comments

An agreement of the kind mentioned in paragraph 31(1)(b) must be made

[Paragraph 28(1)(f)]

Section 31 allows the negotiation parties to negotiate an agreement about whether the act should be done.

This requirement has been modified slightly for technical reasons consequential upon minor changes to the provisions dealing with agreements under the right to negotiate process.



A determination must be made under sections 34A, 36A or 38 that the act may be done, or may be done subject to compliance with conditions

[Paragraph 29(1)(g)]

This requirement ensures the validity of acts authorised by determinations by the Minister in relation to early intervention for urgent, significant acts under section 34A, and determinations by the Minister under section 36A when the arbitral body has not made a determination in a reasonable time, or determinations by the arbitral body under section 38.

It has been modified to take account of the new procedures under sections 34A and 36A.

An arbitral body determination that an act cannot be done must have been overturned in accordance with section 42

[Paragraph 29(1)(h)]

This is an existing requirement.

Section 42 allows a relevant Minister to overrule a determination of an arbitral body in some circumstances.

Breach of a Government party’s undertaking to a trustee

20.29      Notwithstanding that the Government has complied with the right to negotiate process, if after informing a trustee who is holding an amount under Subdivision P that the Government is no longer proposing to do the act, the Government does the act, the act is invalid to the extent it affects native title.  The Government must go through the right to negotiate process again to ensure validity [subsection 28(2)] .  This is substantially a re-enactment of existing subsection 28(2).

Normal negotiation procedure for future acts covered by the right to negotiate provisions

20.30      Existing section 31 of the NTA sets out the normal negotiation procedure that has to be followed by parties where the right to negotiate provisions apply to a future act.  This section is substantially re-enacted by the Bill.  The only changes are those proposed in the 1996 amendments (discussed below).  [Schedule 1, item 9, section 31]

All negotiation parties must negotiate in good faith

20.31      These changes relate to the requirement to negotiate in good faith.  The current requirement is that only the Government party must negotiate in good faith.  The Bill extends this requirement to all negotiation parties.  New subsection 31(2) provides that where any of the negotiation parties refuses or fails to negotiate about matters which are unrelated to the effect of the future act on determined or claimed native title rights and interests, this will not constitute a failure to negotiate in good faith.  This ensures that the negotiations should focus on relevant matters.  [Subsection 31(2)]

Things that the negotiations can include

20.32      Existing section 33 of the NTA, which provides that certain things can be considered in negotiations, is re-enacted by the Bill [Schedule 1, item 9, subsection 33(1)] .  However, an additional provision has been added to section 33, as proposed in the 1996 amendments.

20.33      This addition provides that, in negotiations under the Subdivision P, matters such as the following may be taken into account:

·       the extent of existing non-native title rights and interests in relation to the land or waters concerned and the practical effect of the exercise of those rights and interests on the exercise of any native title rights and interests;

·       the existing use of the area by persons other than native title parties and the practical effect of that use on the exercise of any native title rights and interests.  [Subsection 33(2)]

Expedited procedure for future acts covered by the right to negotiate provisions

20.34      The expedited procedure provision (section 32) under the existing NTA is re-enacted with some changes [Schedule 1, item 9, section 32] .  In essence the expedited procedure allows future acts covered by the right to negotiate provisions to be done without negotiations taking place if native title parties do not object, are unsuccessful in their objections or withdraw their objections.

20.35      The Senate made Government amendment (40) which is included in the Bill.  This amendment has been included because it is consequential upon the change providing that native title parties to a right to negotiate are claimants who:

·       make a claim before 3 months from the ‘notification day’ in relation to the right to negotiate; and

·       are registered before 4 months of that day. 

Section 32 accommodates these new time requirements.

The normal negotiation procedures apply where the expedited procedure is determined not to apply

20.36      Existing subsection 32(5) is replaced by a new subsection (5) which ensures that the normal right to negotiate processes under section 31, including the requirement to negotiate in good faith, will apply where the arbitral body determines that the future act does not attract the expedited procedure.  This change was proposed in the 1996 amendments.  [Subsection 32(5)]

Native title parties can withdraw objections against the expedited procedure

20.37      Another change in the Bill will allow native title parties to withdraw any objections they have made against the expedited procedure applying.  If all such objections are withdrawn, the Government party may validly do the act.  [Subsection 32(6)]

The Government party can withdraw its statement that the expedited procedure applies

20.38      The Bill also makes a change by allowing the Government party to withdraw the statement in its section 29 notice that the expedited procedure applies to the act in question.  The Government party must give notice to the negotiation parties if this is to be done.  Where the statement is withdrawn in this way, the normal negotiation procedure under subsection 31(1) of the NTA applies.  This allows the parties to go straight to the normal negotiation procedure without the need for:

·       a hearing by the arbitral body on the issue of whether the expedited procedure did in fact apply; or

·       a new section 29 notice to be given.  [Subsection 32(7)]

When an act attracts the expedited procedure

20.39      Existing section 237 sets out the circumstances when an act attracts the expedited procedure.  If native title parties object to the expedited procedure for a particular future act, the arbitral body must determine whether the act meets the requirements set out in section 237.  Some changes are being made to section 237 as set out below (these were proposed in the 1996 amendments).

·       The first change addresses a Federal Court decision ( Ward v. Western Australia (1996) 136 ALR 557) and provides that an act will only attract the expedited procedure in section 32 if it is not likely to (rather than ‘does not’) interfere directly with the physical aspects of community life.  If there is evidence that the act will interfere with native title claimants’ physical ability to enjoy their native title rights, for example placing an impediment to hunting, fishing or gathering or the ability to conduct religious ceremonies, the expedited procedure will not apply.  [Schedule 1, item 42]

·       The other changes confirm that, because it is not possible for the arbitral body to know the actual effect of a future act in deciding whether it attracts the expedited procedure, the arbitral body must undertake a predictive assessment, and look at what is likely to occur.  [Schedule 1, items 43 and 44]

Agreements have no effect where various ministerial or arbitral body determinations are made

20.40      The current right to negotiate provisions envisage two outcomes to the right to negotiate procedures: either an agreement between the negotiation parties or a determination by the arbitral body.  Existing section 34 of the NTA ensures that whichever outcome is arrived at first takes effect.  Thus a negotiated agreement under section 31 between negotiation parties will not have any effect where a determination has been made by an arbitral body under section 38.

20.41      The re-enacted section 34 maintains this provision but two additions are being made.  These will ensure a ministerial determination under proposed sections 34A or 36A is effective, instead of an agreement, where the determination is made first.  [Schedule 1, item 9, section 34]

Arbitral body determinations for future acts covered by the right to negotiate provisions

20.42      The Bill substantially re-enacts the existing provisions that deal with arbitral body determinations about future acts that are covered by the right to negotiate provisions.

Applications for an arbitral body determination

20.43      Existing section 35 of the NTA sets the circumstances when a negotiation party may apply to an arbitral body for a determination that a future act can, or cannot, be done.  The Bill makes a number of changes through the re-enacted section 35, some of which were proposed in the 1996 amendments.  [Schedule 1, item 9, section 35]

When can an application for an arbitral body determination be made?

20.44      The new procedures for making applications provide that a negotiation party may apply to the arbitral body for a determination under section 38 if all of the following apply:

·       at least six months have passed since the notice under section 29 was given [paragraph 35(1)(a)].  (The Senate made Government amendment (42) which is included in the Bill.  This amendment to paragraph 35(1)(a) gives negotiation parties 6 months to negotiate before one of the parties can apply for a determination); and

·       no previous agreement about the act has been made under the right to negotiate provisions (this is an agreement negotiated under the normal negotiation procedures set out in section 31) [paragraph 35(1)(b)] ; and

·       there has been no determination by the relevant Minister about the act under section 34A (which allows a ministerial determination for urgent and significant future acts) [paragraph 35(1)(c)] .

20.45      The six month minimum period will apply to negotiations in relation to all future acts that are subject to the right to negotiate process.  (An application for an arbitral body determination under section 35 can be withdrawn .)

20.46      The Bill will also make another change to section 35 so that applications for arbitral body determinations can be withdrawn.  The application can only be withdrawn before the arbitral body has made a determination under section 38 and before any ministerial determination under sections 34A or 36A has been made.  [Subsection 35(2)]

Timing of the arbitral body determination

20.47      Existing section 36 of the NTA sets down rules for the timing of arbitral body determinations.  The general rule is that such determinations must be made as soon as practicable.  The Bill re-enacts section 36 with a number of additions, as set out below.  [Schedule 1, item 9, section 36]

The arbitral body can make the determination even if the non-applicant parties did not negotiate in good faith

20.48      The arbitral body is obliged to make a determination, even if negotiation parties have not negotiated in good faith.  This does not apply where the party applying for the determination has not negotiated in good faith.  This ensures that parties cannot ‘sit on their hands’ for the 4 months waiting to apply to the arbitral body.  [Subsection 36(2)]

The NNTT must report to the Commonwealth Minister where a determination is delayed

20.49      A special rule is included for cases where the arbitral body is the NNTT and a determination is not made within four months after an application for one has been made.  In this case, the NNTT is required, as soon as practicable after that time, to give written advice to the Commonwealth Minister on the reasons for the delay and include an estimate of when the determination is likely to be made.  This is a modified version of a provision in the existing section 36.  [Subsection 36(3)]

The relevant Minister may request an arbitral body to make a determination within a specified period

20.50      Another special rule is included to deal with cases where there is some urgency about the making of a determination.  The relevant Minister will be allowed to give a written notice to the arbitral body requesting that it make its determination within the period specified in the notice.  The specified period must extend beyond the 4 month period within which the arbitral body should make a determination as provided for in section 36.  If the determination is not made within the specified period, the relevant Minister may be able to make a ministerial determination about the future act under section 36A (see paragraphs 20.76 to 20.83).

20.51      Such a notice may be given at any time after a party to the right to negotiate procedure has asked the arbitral body to make a determination under section 35, but not after there has been an agreement between the parties or a determination by the arbitral body about the act.  [Subsection 36(4)]

An arbitral body determination cannot be made if there is an agreement or a ministerial determination

20.52      The Bill re-enacts section 37 which is of similar effect to the existing section 37 of the NTA but which ensures that an arbitral body cannot make a determination about an act if either an agreement or a ministerial determination in relation to the same act has already been made.  Together with section 34 and subsections 34A(2) and 36A(1), this section ensures that whichever of a determination or an agreement about a future act occurs first, prevents a later outcome made about the same act being effective.  [Schedule 1, item 9, section 37]

What kinds of determination can be made by an arbitral body?

20.53      Existing section 38 of the NTA sets out the kinds of determinations that can be made by an arbitral body.  The Bill re-enacts section 38 in the same form [Schedule 1, item 9, section 38] .  Broadly, the determinations can be that the future act covered by the right to negotiate provisions not be done or that it can be done (including subject to conditions).  Also there are provisions to ensure that conditions cannot be made about certain types of payments to the native title parties.

What criteria must the arbitral body consider in making a determination?

20.54      Existing section 39 of the NTA sets out the criteria that must be considered by an arbitral body in making a determination about a future act.  The criteria mainly relate to the affect the act would have on native title and the interests of the native title parties and the public interest in doing the act.  The Bill re-enacts section 39 with a number of changes [Schedule 1, item 9, section 39] .  The changes that are significant are set out below.  These changes were proposed in the 1996 amendments.

Effect of the act on enjoyment of determined or claimed native title

20.55      The Bill removes any implication that the arbitral body is required to make a finding in relation to the existence of native title rights and interests in a right to negotiate determination.  The Bill makes it clear that the arbitral body is required to assess the effect of the proposed act on the enjoyment by native title parties of their determined or claimed native title rights and interests rather than any native title that may exist.  [Subparagraph 39(1)(a)(i)]

Effect of the act on natural environment no longer a listed consideration

20.56      The re-enacted section 39 does not include the criteria which required the arbitral body to consider environmental matters in relation to the future act.  Such assessments are more properly made in State and Territory environmental processes undertaken prior to the grant of a right, such as a mining lease.

20.57      If there are particular environmental concerns which may need to be taken into account because of the particular effect on native title, the arbitral body retains the ability to consider them under paragraph 39(1)(f).

The detriment on persons other than native title parties if the act is not done

20.58      The Bill requires the arbitral body to take into account any economic or other detriment to any person, other than a native title party, if the act is not done.  [Paragraph 39(1)(d)]

Consideration of existing non-native title rights and interests in, and uses of, the land or waters

20.59      The re-enacted section 39 provides that the arbitral body is required to take into account certain things in assessing the effect of the act on any of the matters in paragraph 39(1)(a) (which deals with the effect of the act on native title and the social and cultural interests of native title parties).  The things are the nature and extent of existing rights and interests in relation to the land or waters which are not native title rights and interests as well as existing use of the land or waters by persons other than native title parties.  This is intended to provide a more balanced context for the arbitral body in making its decision.  [Subsection 39(2)]

Agreement on any matters to be considered

20.60      The re-enacted section 39 requires the arbitral body, in making its determination, to take account of any agreement reached by the parties on particular issues during the negotiating stage.  However, this agreement can only be considered with the consent of all the negotiation parties.  If there is any such agreement the arbitral body need not take into account or separately inquire into the matters that it would normally need to consider to the extent that the agreement covers such matters.  [Subsection 39(4)]

Issues previously decided cannot be reopened

20.61      The Bill essentially re-enacts existing section 40 of the NTA [Schedule 1, item 9, section 40] .  This section provides that a previously decided issue relating to the grant of a right to mine cannot be renegotiated in certain cases without the leave of the arbitral body.

What is the effect of an arbitral body determination or an agreement?

20.62      Existing section 41 of the NTA sets out the effect of an arbitral body determination or an agreement made in accordance with the right to negotiate provisions.  Broadly the negotiation parties and all members of an affected native title claim group are bound by any conditions in such a determination or agreement as if it were a contract between them.  The Bill re-enacts section 41 but makes some changes [Schedule 1, item 9, section 41] .

20.63      The change that is significant was proposed in the 1996 amendments and relates to the situation where a condition of a determination by an arbitral body is that an amount be held on trust [subsection 41(3)] .  There are two types of conditions that an arbitral body may impose or make in relation to payment of moneys, as follows.

·       A trust condition, that is a condition that an amount be held in trust.  This is not an actual determination of compensation; rather it may be an estimate of compensation that may be payable.  Such an amount must be determined by the arbitral body and held in trust until dealt with in accordance with section 52 of the NTA.

·       Other conditions with regard to amounts payable, but which do not relate to compensation.

20.64      If the NNTT is the arbitral body, it cannot determine actual compensation.  It can make a trust condition in which case the amount will be dealt with in accordance with section 52.  Otherwise compensation is as agreed or as determined by the Federal Court on application under sections 50 and 61.  If the NNTT is not the arbitral body, it is possible that the recognised State/Territory body may under State/Territory law be able to determine compensation.

Ministerial determinations for future acts covered by the right to negotiate provisions

20.65      The Bill will include two new provisions that allow a relevant Minister to make a determination about a future act to which the right to negotiate provisions apply.  These were both proposed in the 1996 amendments.

20.66      The meaning of the term ‘relevant Minister’ is discussed in paragraphs 20.10 and 20.11.  It can be either the Commonwealth Minister or a State or Territory Minister, depending on whether the arbitral body is the NNTT or a recognised State/Territory body.

Tabling of a ministerial determination in Parliament

20.67      The Bill provides for the tabling in Parliament of ministerial determinations under sections 34A and 36A.  Both the determination, and a statement of reasons, must be tabled within 15 sitting days by the relevant Minister in the House or both Houses of Parliament of the jurisdiction concerned.  [Schedule 1, item 9, subsection 36C(7)]

20.68      The public accountability of the relevant Minister will help to ensure that determinations are made only where the particular circumstances justify an early intervention in of the right to negotiate procedures.  However, a ministerial determination under sections 34A and 36A is not a disallowable instrument.

Ministerial determination in cases of urgent and significant future acts

20.69      The first kind of ministerial determination can be made where the relevant Minister considers that there is a proposed future act of significance that is subject to the right to negotiate and the processes need to be resolved urgently to allow the act to proceed, or to create certainty where it is not appropriate that the act be done.  [Schedule 1, item 9, section 34A]

20.70      There are various requirements that must be met before a relevant Minister can make a determination under section 34A.  These requirements, explained below, relate to the time when the determination can be made, consultation with relevant parties, whether the right to negotiate has been satisfied by other processes and various matters about which the Minister must be satisfied.

The 4 month registration period must have elapsed

20.71      The Minister must not make a determination under section 34A until the period during which a claim can be registered in response to the section 29 notice (4 months) has expired.  It is only at this time that it is possible to ascertain the parties to that particular right to negotiate process [subsection 34A(1)].  The Senate made Government amendment (41) which is included in the Bill to reflect the timeframes mentioned in paragraph 30(1)(a).

Consultation processes must be undertaken

20.72      The relevant Minister must comply with the requirements set out in section 36B.  These requirements relate to giving notice to the arbitral body and negotiation parties to provide material and make submissions and are explained in paragraphs 20.84 to 20.92.  [Subsection 34A(1)]

The right to negotiate must not have been dealt with by other means etc.

20.73      The Minister cannot make a determination if the things set out in Table 20.4 exist.

Table 20.4

Thing that cannot exist if a determination under section 34A is to be made for an act

Comments

A previous agreement about the act under the right to negotiate provisions

[Paragraph 34A(2)(a)]

This is an agreement negotiated under the normal negotiation procedures set out in section 31.

A previous determination under section 36A or 38 has been made about the act

[Paragraph 34A(2)(b)]

Section 36A allows a relevant Minister to make a determination about a future act subject to the right to negotiate provisions where an arbitral body determination is taking too long.

Section 38 allows an arbitral body to make a determination.

The native title holders do not have, under subsection 24MD(6), procedural rights that ordinary title holders would have in relation to the act.

[Paragraph 34A(2)(c)]

This ensures that the native title holders cannot be disadvantaged in comparison with other landholders.

Subsection 24MD(6) ensures that native title holders have the same procedural rights in relation to onshore future acts as they would have if they instead held ordinary title in the land concerned.  These procedural rights do not usually apply to acts covered by the right to negotiate provisions, but given that the right to negotiate provisions will be curtailed by the ministerial intervention, other procedural rights for native title holders are required.

The relevant Minister must have formed certain opinions

20.74      The relevant Minister must have formed an opinion about various specified matters if he or she is to make a determination under section 34A.  The matters depend on whether the determination is that the future act may, or may not, be done.  Table 20.5 sets out these matters.  However, the fact that these matters are specified in the legislation does not prevent the relevant Minister from having regard to other matters in reaching is or her decision about a determination [subsection 34A(5)] .

20.75      If the determination is that the act may be done, the relevant Minister can make the doing of the act subject to conditions.

Table 20.5

Matters where the determination is that the future act can be done (whether or not subject to conditions)

Matters where the determination is that the future cannot can be done

The relevant Minister must consider that:

·        the act is likely to be of ‘substantial economic benefit to Australia’; and

·        the economic benefit will be substantially reduced or will not arise if the Minister does not make a determination at that time; and

·        if the act is done, or done subject to conditions, there will be significant benefits to relevant native title holders; and

·        it is in the national interest and/or in the State/Territory interest to make a determination at that time, depending on the identity of the relevant Minister (a determination by a State or Territory Minister must be in the interests of the State or Territory and a determination by the Commonwealth Minister must be both in the national interest and, when the act is attributable to a State or Territory, must also be in the interests of that State or Territory).

[Subsection 34A(3)]

The relevant Minister must consider that it is in the national interest and/or in the State/Territory interest to make a determination at that time, depending on the identity of the relevant Minister (a determination by a State or Territory Minister must be in the interests of the State or Territory and a determination by the Commonwealth Minister must be both in the national interest and, when the act is attributable to a State or Territory, must also be in the interests of that State or Territory).

[Subsection 34A(4)]

20.76      A State or Territory Minister may only make a determination under section 34A when that State or Territory has a recognised State/Territory body as an arbitral body (see the explanation of the term ‘relevant Minister’ in paragraphs 20.10 and 20.11).  Until that time, only the Commonwealth Minister can make any such determination.  If the State or Territory has established an alternative regime which has been approved under section 43, a power of intervention can be included provided that it is of a similar nature to section 34A (see Chapter 21).

Ministerial determination in cases where an arbitral body determination is delayed

20.77      The second kind of ministerial determination will enable the Minister to make a determination about a future act where the arbitral body has not made a determination after having been given notice of the need to do so within a set time period.  [Schedule 1, item 9, section 36A]

20.78      There may be a significant gap in time between the application by a party for an arbitral body determination about a future act under section 35 and the making of a determination by the arbitral body.  The arbitral body may fail to make a determination within a reasonable period and a stalemate could result, because without a determination or agreement the future act cannot be done.  The Minister, were this situation to arise under the current NTA, has no power to intervene.  Under section 42 the Minister’s power is only to override a determination and not to make the determination if, for some reason, the arbitral body fails to do so or fails to do so within a reasonable period.

20.79      There are various requirements that must be met before a relevant Minister can make a determination under section 36A.  These requirements, explained below, relate to whether the arbitral body has made a determination within the required time frame, whether there has been consultation with relevant parties, whether procedural rights have been accorded by other processes and various other matters about which the Minister must be satisfied.

The arbitral body must not have made a determination within the time specified in the relevant Minister’s notice

20.80      As discussed in paragraphs 20.49 and 20.50, the relevant Minister may give an arbitral body a notice under subsection 36(4) requesting it to make a determination about a future act within a specified period.  The relevant Minister can only make a determination under section 36A if the arbitral body has not made its determination within that specified time.  [Paragraph 36A(1)(a)]

The right to negotiate must not have been dealt with by other means etc.

20.81      The relevant Minister also cannot make a determination if either of the circumstances set out in Table 20.6 exist.

Table 20.6

Circumstance that cannot exist if a determination under section 36A is to be made for an act

Comments

A previous agreement about the act under the right to negotiate provisions

[Paragraph 36A(1)(b)]

This is an agreement negotiated under the normal negotiation procedures set out in section 31.  This might occur where a party has withdrawn (under subsection 35(2)) an application for an arbitral body determination and the parties have reached an agreement.

A previous determination under section 34A has been made about the act

[Paragraph 36A(1)(c)]

Section 34A, explained above, allows a relevant Minister to make a determination in urgent and significant cases about a future act subject to the right to negotiate provisions.

Consultation processes must be undertaken

20.82      The relevant Minister must comply with the requirements set out in section 36B.  These requirements relate to giving notice to the arbitral body and negotiation parties to provide material and make submissions and are explained in paragraphs 20.84 to 20.92.  [Paragraph 36A(1)(d)]

The relevant Minister must have formed certain opinions

20.83      The relevant Minister must have formed an opinion about the specified matters set out below if he or she is to make a determination under section 36A.  However, the fact that these matters are specified in the legislation does not prevent the relevant Minister from having regard to other matters in reaching is or her decision about a determination [subsection 36A(3)] .

·       The Minister must consider that the arbitral body is unlikely to make its determination within a reasonable period.  In reaching this opinion, the Minister can have regard to all relevant circumstances (e.g. any statements by officers of the arbitral body about when a determination could be made).  [Paragraph 36A(2)(a)]

·       A determination by a State or Territory Minister must be in the interests of the State or Territory and a determination by the Commonwealth Minister must be both in the national interest and, when the act is attributable to a State or Territory, must also be in the interests of that State or Territory.  [Paragraphs 36A(2)(b) and (c)]

20.84      As with ministerial determinations under section 34A, a State or Territory Minister may only make a determination under section 36A when that State or Territory has a recognised State/Territory body as an arbitral body approved under section 251 of the NTA (see the explanation of ‘relevant Minister’ in paragraphs 20.10 and 20.11).  Until that time, for acts relating to a State or Territory where a determination under section 36A is desired, the Commonwealth Minister must make any such determination.  If the State or Territory has established an alternative regime which has been approved under section 43, a power of intervention can be included provided that it is of a similar nature to section 36A (see Chapter 21).

Consultation before ministerial determinations are made

20.85      The Bill sets out the notification and consultation process the relevant Minister must follow before making a determination under sections 34A or 36A [Schedule 1, item 9, section 36B] .  The Minister must undertake these consultation processes before making such a determination.

Written notice of a proposed determination needs to be given to the arbitral body

When must a notice be given to the arbitral body?

20.86      The relevant Minister must, in certain circumstances, give a written notice to the arbitral body for the future act about which a determination is proposed.  The notice must be given in all cases where a determination under section 36A is proposed [paragraph 36B(2)(b)] .  However, for a proposed determination under section 34A, the notice only needs to be given if a negotiation party has made an application under section 35 for an arbitral body determination [paragraph 36B(2)(a)] .

What must the notice be about?

20.87      The written notice to the arbitral body must request it to give the Minister, and each negotiation party, a summary of all material about the future act presented to the arbitral body.  The summary needs to be given by the day specified in the notice.  The material concerned is all of the material given to the arbitral body in the course of it considering whether to make a determination under section 38.  [Subsection 36B(2)]

Written notice of a proposed determination needs to be given to the negotiation parties

20.88      The relevant Minister must also give each negotiation party a written notice that he or she is considering making a determination.  The notice must state that:

·       each negotiation party may give the Minister a submission or other material on the matter by the day specified in the notice [paragraph 36B(3)(a)] ; and

·       the negotiation party is required to give copies to each other negotiation party if such a submission or other material is given to the Minister [paragraph 36B(3)(b)] ; and

·       within seven days of the specified day, the negotiation party may then provide the Minister with any further submission or other material, in response to submissions of other negotiation parties or the arbitral body, which they would like the Minister to take into account [paragraph 36B(3)(c)] .

The specified day needs to be the same for each notice

20.89      The specified day in every notice given by the relevant Minister to the arbitral body and all negotiation parties must be the same.  This will ensure that all those with an interest will be working within the same timeframes.  [Subsection 36B(4)]

What must the specified day be?

20.90      The day specified in the notice must be the day by which the relevant Minister thinks the notice will be received by, or come to the attention of, all the persons notified.  [Subsection 36B(4)]

Giving notices is enough to meet natural justice requirements

20.91      The Bill makes it clear that there is no additional requirement for any person to be given a further hearing before the Minister makes the determination if the relevant Minister complies with the obligations to give notice to parties and to receive submissions in accordance the contents of those notices.  [Subsection 36B(5)]

The relevant Minister must consider the submissions and material provided in response to notices

20.92      The Bill provides that the Minister must take into account any report given by the arbitral body, and any submissions and other material provided by the negotiation parties, within the time limits set by his or her notices to them.  However, the relevant Minister need only consider the submission and material of a negotiation party if there has been compliance by that party with the obligation to provide other parties with copies of submissions etc.  The Minister is also given a discretion to take into account any other matter or thing if he or she so chooses.  [Subsection 36B(6)]

The relevant Minister can make a determination even if no submissions etc. have been given

20.93      The Bill ensures that the Minister’s power to make the determination is not limited by the fact that submissions or other material have not been received from the negotiation parties within the time limits set out in his or her notices to them.  [Subsection 36B(7)]

Rules about the making of ministerial determinations

The relevant Minister does not have to make a determination under sections 34A or 36A

20.94      The relevant Minister is under no duty in any circumstances to make a determination under section 34A or section 36A even where he or she has given notice, received submissions or been requested by a negotiation party to make such a determination [Schedule 1, item 9, subsection 36C(2)] .  This accounts for the fact that the Minister may not consider it appropriate to make a determination after considering all relevant matters and may decide instead that other right to negotiate processes should take their course.

The relevant Minister must make a determination personally

20.95      The Bill ensures that a determination under sections 34A or 36A must be made by the relevant Minister personally - it may not be delegated [subsection 36C(3)] .  Because intervention through a ministerial determination displaces the normal procedures set out in the NTA, it is appropriate that the Minister make the decision personally.

What kinds of ministerial determination can be made?

20.96      The Bill sets out the kinds of determinations which may be made by the relevant Minister under sections 34A and 36A.  These are the same kinds of determination that can be made by an arbitral body.  The determination can be that the future act in question cannot be done, or that it can be done, or that it can be done subject to conditions.  [Subsection 36C(4)]

Fulfilment of a condition that an amount be paid and held in trust

20.97      The Bill sets out a rule for conditions about payments that are to be held on trust.  This rule will apply where there is a condition in a ministerial determination that an amount is to be paid and held in trust.  To this end, the Bill includes a provision that applies in the same way as subsection 41(3) applies to arbitral body determinations (see the discussion of that provision in paragraphs 20.62 and 20.63).  [Subsection 36C(5)]

Conditions in a ministerial determination have contractual effect if the future act is done

20.98      The Bill provides that any conditions imposed in a ministerial determination under sections 34A and 36A have the effect of a contract between the negotiation parties, but only where the future act that is the subject of the determination is actually done.  [Subsection 36C(6)]

20.99      For the purposes of subsection 36C(6) only, all members of a native title claim group (see paragraph 20.99) are deemed to be negotiation parties where there is a registered native title claimant who is a negotiation party [subsection 36C(6)] .  In this way the contractual conditions bind the native title claim group.  This will prevent uncertainty from arising about whether conditions benefit and bind all native title holders included in the claim.  This is to the same effect as the existing conditions in the NTA for enforcing arbitral body determinations (see subsection 41(2)).

What is a native title claim group?

20.100    The concept of a native title claim group is added to section 253 of the NTA by Schedule 2 of this Bill (see Chapter 25).  The meaning of the term ‘native title claim group’ depends on where the native title claim in question is being considered, as set out in Table 20.7.  [Schedule 2, item 95]

Table 20.7

Body to which a claim in an application for determination of native title has been made

Native title claim group

The Federal Court

All the persons who claim in the application to the Federal Court to hold the common or group rights that comprise particular native title. [50]

A recognised State/Territory body

The person or persons making the claim, or on whose behalf the claim is made.

Copies of ministerial and arbitral body determinations and agreements

20.101    The Bill inserts a new provision into the NTA to deal with the giving of copies of determinations and agreements to relevant persons [Schedule 1, item 9, section 41A] .  This change was also proposed in the 1996 amendments and will ensure that all relevant parties can be made aware of decisions affecting them.

Agreements made by negotiation parties

20.102    A copy of an agreement negotiated between the negotiation parties must be given, by those parties, to the arbitral body for the future act concerned.  The parties must also give written advice to the relevant Minister that such an agreement has been made.  [Subsection 41A(1)]

Ministerial determinations

20.103    Copies of a determination made by a relevant Minister under sections 34A or 36A must be given by the Minister to the negotiation parties and the arbitral body for the future act concerned.  [Subsection 41A(2)]

Arbitral body determinations

20.104    Copies of an arbitral body determination under section 38 must be given to the negotiation parties and the relevant Minister.  [Subsection 41A(3)]

Overruling of arbitral body determinations by a minister

20.105    Existing section 42 of the NTA allows a Commonwealth, State or Territory Minister to overrule, in certain circumstances, a determination made by an arbitral body under section 38.  Broadly this can be done where it is in the national and/or State or Territory interest.  A Minister’s declaration overruling a determination can set down conditions to be complied with by the negotiation parties.  The Bill re-enacts section 42 in substantially the same form but makes some changes [Schedule 1, item 9, section 42] .

20.106    The change that is significant was proposed in the 1996 amendments and relates to the situation where a condition of a determination by an arbitral body is that an amount be held on trust.  This change, like that to section 41, is being made so that the NTA distinguishes clearly between compensation payable under legislation and amounts that are payable through the right to negotiate processes.  To this end, the Bill inserts a provision (to replace existing subsections 42(5) and (6)) that applies in the same way as subsection 41(3) applies to arbitral body determinations (see the discussion of that provision at paragraphs 20.62 and 20.63).  [Subsection 42(5)]

20.107    Another change to section 42 provides that the Commonwealth Minister cannot overrule a determination by the NNTT that the expedited procedure applies, notwithstanding an objection by native title parties.  [Subsection 42(2)]

Treatment of project acts

20.108    The Bill provides that project acts are treated as a single act for the purposes of the application of the right to negotiate provisions [Schedule 1, item 9, section 42A] .  The meaning of the term ‘project acts’ is explained in paragraphs 20.12 and 20.13.

20.109    The Bill makes it clear, however, that an agreement negotiated between negotiation parties, or a ministerial or arbitral body determination, can provide separate conditions for each of the acts that are project acts.  [Subsection 42A(3)]

20.110    The changes dealing with project acts have the advantage of ensuring that the right to negotiate procedures for a number of related project acts can be undertaken together for the whole project.  However, the characterisation of project acts as ‘one’ for the purpose of the right to negotiate does not prevent different conditions being applied to the constituent acts, nor will the amendments require a large and diverse project to be treated as one act/project.  It will be up to the Government party issuing the section 29 notice to determine the acts to be covered in a notice and to decide whether a large project might be better dealt with as two or more separate projects.

Consequential changes to the provisions dealing with trust amounts

20.111    As discussed in this Chapter, the Bill makes some changes to the arrangements for situations where an arbitral body or ministerial determination requires an amount to be paid to a trustee until it can be paid in accordance with the NTA (refer to paragraphs 20.62, 20.63, 20.96 and 20.105).  The Bill alters the arrangements for the payment of these amounts to make it clear that the amounts paid are not compensation determined under Division 5 of Part 2 but are amounts that represent an estimate of the compensation that will become payable.

20.112    A number of consequential amendments are made to the NTA to deal with these trust amounts, as set out in Table 20.8.

Table 20.8

NTA provision amended

Explanation

Subsection 52(1)

Subsection 52(1) is amended by removing the term ‘negotiated compensation’ from the subsection and replacing it with the term ‘trust amount’.  The use of the term ‘compensation’ is misleading.  The amount may be an estimate of compensation payable, but compensation under the NTA can only be finally determined by agreement (paragraph 52(1)(c)) or by the process set out in Part 3 (paragraph 52(1)(d)) or some other court process (paragraph 52(1)(e)).  Compensation under State or Territory legislation may be determined by other processes.

This form of wording avoids any implication that the arbitral body is required to make an assessment of the actual effect of the act on native title and an accurate assessment of the real compensation liability.

The Bill also indicates that the heading to section 52 is altered by substituting the term ‘payment’ for ‘compensation’.

[Schedule 1, item 20]

Subparagraph 52(1)(c)(ii)

This Bill repeals subparagraph 52(1)(c)(ii) and replaces it with new subparagraphs (1)(c)(ii) and (iii).  Subparagraph (1)(c)(ii) provides that the registered native title body corporate may advise the trustee that it wishes to accept the trust amount instead of any compensation to which native title holders might be entitled under Division 3.

Subparagraph (1)(c)(iii) provides that the person who paid the trust amount must agree to that amount being accepted by the native title body corporate instead of any compensation to which the native title holders may be entitled under Division 3.  If the parties do not agree that the ‘trust amount’ is appropriate compensation then the matter needs to be determined under Part 3 (see paragraph 52(1)(d) of the NTA).

[Schedule 1, item 22]



Paragraph 52(1)(e) and subsections 52(2) to 52(7)

The changes to these provisions reflect the change in terminology describing amounts put aside as the result of an arbitration at the end of a right to negotiation process.  For the reasons outlined above the term ‘negotiated compensation’ has been replaced with ‘trust amount’.

[Schedule 1, items 24 and 25]

Paragraph 52(3)(b)

The change to paragraph 52(3)(b) is a technical correction to the NTA and reflects the fact that the only entitlement to compensation arises under Division 3 of Part 2.

[Schedule 1, item 26]



Overview

21.1        The Bill allows the States and Territories to establish their own right to negotiate regimes as an alternative to the right to negotiate provisions in the NTA.  There are two kinds of alternatives that are possible.

21.2        Firstly, section 43 in the Bill allows a State or Territory to have a right to negotiate regime that replaces the NTA regime for future acts covered by the right to negotiate no matter what areas the act can take place in.  This will apply where the alternative State or Territory regime meets certain requirements.  The new section 43 is substantially a re-enactment of the existing section 43 of the NTA.

21.3        Secondly, the Bill introduces a new system to allow the States and Territories to introduce provisions as an alternative to the NTA right to negotiate provisions but only for future acts affecting what are called 'leased or reserved areas'.  The alternative provisions must meet certain requirements to be effective.

21.4        This new system implements points 6 and 7 of the Ten Point Plan.  Before the decision in Wik it was assumed that native title did not exist in many leased areas and that, therefore, the right to negotiate did not apply.  We now know that native title can exist on pastoral lease land.  But on such land, and reserved and used land, it will be at most only a co-existing right.  The new system for alternative State or Territory provisions in these circumstances ensures workability of land management systems whilst treating co-existing native title holders in the same way as other persons who hold other interests in land

21.5        The new system allows the States and Territories to compulsorily acquire native title on leased or reserved land (mainly that covered by non-exclusive leases) for the purpose of conferring grants on persons other than the Government without the right to negotiate applying.  This can be done so long as the native title holders are given the same procedural rights as ordinary title holders, generally freeholders.

Satisfactory alternative State or Territory provisions may replace the right to negotiate provisions

21.6        Existing section 43 of the NTA provides that the States and Territories may enact their own laws as an alternative to the right to negotiate provisions.  Any such alternative provisions will be effective where the Commonwealth Minister determines in writing that a range of matters listed in section 43 are complied with.  The Bill re-enacts section 43 in substantially the same form [Schedule 1, item 9, section 43] .

21.7        Some changes are made to the re-enacted section 43, largely as a consequence of other changes that are being made to the right to negotiate provisions.  The changes that are significant are set out below.  Apart from the amendment to paragraph 43(2)(a), these changes were proposed in the 1996 amendments.

Expansion of parties to whom notification must be given

21.8        The Senate made Opposition amendment (175) which is included in the Bill.  This amendment to paragraph 43(2)(a) requires that an alternative State or Territory regime under section 43 must contain appropriate procedures for notifying representative Aboriginal/Torres Strait Islander bodies.  This is in addition to procedures for notifying the persons listed in paragraph 43(2)(a) of the current NTA.

Change to matters to be considered by State or Territory body determining an objection

21.9        Under the existing section 43, the alternative State or Territory provisions must allow certain native title parties to object against the doing of a future act.  In determining such an objection, the State or Territory body concerned must take into account the same things as an arbitral body has to consider under section 39 and also ‘an appropriately broad range of other considerations’ (see existing paragraph 43(2)(g)).

21.10      The Bill changes paragraph 43(2)(g) and replaces it with a paragraph that requires the State or Territory body under the alternative provisions to make its determination based on the same criteria as in the amended section 39, including taking into account any areas of agreement between the parties.  It will no longer be necessary for the State or Territory body to take into account ‘an appropriately broad range of other considerations’.

The alternative provisions may allow ministerial determinations like those under sections 34A and 36A

21.11      The Bill ensures, in effect, that the alternative right to negotiate provisions of a State or Territory may include provisions similar to:

·       section 34A (dealing with early ministerial intervention to make a determination for urgent and significant acts); and

·       section 36A (dealing with Ministerial intervention when the arbitral body has failed to make a determination within a reasonable time).  [Paragraph 43(2)(k)]

21.12      If such provisions are included in the alternative regime, the power must be subject to requirements similar to those set out in sections 36B and 36C.  [Paragraph 43(2)(k)]

A determination by the Commonwealth Minister may be revoked

21.13      As discussed above, the Commonwealth Minister must determine that the State or Territory provisions comply with a number of matters before they will be effective.  The Bill provides that such a determination can now be revoked where a State or Territory right to negotiate regime is inappropriately amended.

21.14      The Commonwealth Minister must give written advice to the State or Territory Minister concerned if the alternative provisions are amended so that they no longer comply with the requirements listed in subsection 43(2).  After 90 days, the Minister must revoke the determination if the alternative provisions are still unsatisfactory.  The Minister can extend this 90 day period [subsection 43(3)] .  Such a revocation is a disallowable instrument [Schedule 1, item 34, section 214] .

The regulations may deal with transitional issues arising from an alternative regime

21.15      The Bill provides a mechanism to deal with transitional issues arising when an alternative State or Territory regime begins or ceases to be effective.  The regulations may prescribe modifications of the NTA to deal with transitional matters arising from the making, amendment or revocation of a determination by the Commonwealth Minister that an alternative regime meets the necessary requirements.  [Subsection 43(4)]

21.16      As an example, a transitional arrangement may be needed where there are processes already under way for a particular future act when an alternative State or Territory system is approved.  The regulations might determine whether the Commonwealth system would continue for that act or might allow the processes to be shifted into the State or Territory regime.

Special alternative State or Territory provisions for leased or reserved areas

21.17      To implement points 6 and 7 of the Ten Point Plan, the Bill also provides for another kind of alternative State or Territory regime for future acts that affect native title on certain types of land or waters.  This is mainly land or waters that are or were covered by a non-exclusive lease (such as a non-exclusive pastoral lease) or that are or have previously been reserved for a particular purpose.  [Schedule 1, item 9, sections 43A and 43B]

What is a leased or reserved area?

21.18      The Bill defines the land or waters that can be affected by the special alternative State or Territory provisions as leased or reserved areas [Subsection 43A(2)] .  There are two kinds of leased or reserved area: a non-exclusive area and a reserved area.

Non-exclusive areas

21.19      There are two requirements, set out below, for an area to be a 'non-exclusive area' and thus to fall into this category of 'leased or reserved area'.  [Paragraph 43A(2)(a)]

·       The area must be, or have been at any time (including before the NTA commenced), covered by a freehold estate in fee simple or by a lease.

·       All native title rights or interests that may have existed in relation to land or waters in the area must not have been extinguished.

Example of freehold estate that is a non-exclusive area

21.20      The Bill gives an example of a freehold estate in an area where native title may still exist.  It is Aboriginal land where the grant or vesting may not have extinguished native title (see proposed subsection 23B(9)).

21.21      Proposed section 23B provides for confirmation of extinguishment of native title in areas that have been the subject of a 'previous exclusive possession act' (such as the grant or vesting of a freehold estate on or before 23 December 1996). [51]   Subsection 23B(9) generally provides, however, that such a grant or vesting of a freehold estate to, in or for the benefit of Aboriginal peoples or Torres Strait Islanders is not affected by the proposed NTA provisions dealing with confirmation of past extinguishment of native title.  Judicial authority indicates that native title may not have been extinguished by a freehold grant of this kind.

Example of a lease that is a non-exclusive area

21.22      The Bill also gives an example of a lease in an area where native title may still exist.  It is a non-exclusive agricultural lease or a non-exclusive pastoral lease, including one covered by section 47 of the NTA.  If granted or vested before 23 December 1996, such leases only extinguish native title to the extent of any inconsistency between the native title rights and interests and the rights and interests granted under a lease. [52]

Certain reserved areas are also defined as leased or reserved areas

21.23      The Bill also defines certain reserved areas as included in the term 'leased or reserved areas'.  There are requirements, set out below, for an area to fall into this category of 'leased or reserved area'.  [Paragraph 43A(2)(b)]

·       The area is, or was at any time (including before the NTA commenced), covered by a reservation, proclamation, dedication, condition, permission or authority under which the whole or part of the land or waters in the area was to be used for public purposes generally, or for a particular purpose.

·       The proclamation was made or conferred by the Crown in right of the State or Territory or by the making, amendment or repeal of State or Territory legislation.

·       The area is, or was at any time (including before the NTA commenced), actually used for the public purposes or the particular purpose or for a similar purpose.

Example of a reserved area that is a 'leased or reserved area'

21.24      The Bill gives an example of a reserved area that is a 'leased or reserved area'.  It is an area containing a national park.

What kind of future acts can be covered by special alternative State or Territory provisions

21.25      The Bill sets out which future acts covered by the right to negotiate can potentially be subject to alternative provisions.  They are future acts:

·       attributable to the State or Territory concerned [subparagraph 43A(1)(a)(i)] ; and

·       which relate, to any extent, to an area of land or waters that is a leased or reserved area [Subparagraph 43A(1)(a)(ii)]

There are special rules for acts affecting both leased or reserved areas and other areas

21.26      Subparagraph 43A(1)(a)(ii) means that the future act can relate partly to a leased or reserved area and partly to another kind of area and still be able to be covered by alternative State or Territory provisions.  However, the Bill provides special rules for these kinds of acts in two cases  These rules are explained in Table 21.1

Table 21.1

Type of future act

Rule

A compulsory acquisition conferring on persons other than the Government party rights and interests in relation to the land or waters concerned other than a conferral for the purpose of providing an infrastructure facility

[Subsection 43A(7)]

(These are the acts covered by subparagraph 26(1)(c)(iii) discussed in Table 19.2 of Chapter 19)

The State or Territory alternative provisions cannot apply to such an act if it involves the acquisition of native title rights and interests for land or waters in both a leased or reserved area and another area.

Because of the nature of an acquisition it is appropriate that there be any notional splitting of the acquisition.

[Subsection 43A(7)]



Table 21.1 (continued)

Type of future act

Rule

The creation or variation of a right to mine in both a leased or reserved area and another area where alternative State or Territory provisions under section 43A would, apart from the rule opposite, have effect for that act

[Paragraphs 43B(a) and (b)]

The act is split into two separate acts for the purposes of the right to negotiate provisions.  The two acts are taken to be:

·        the creation or variation of the right to mine in the leased or reserved area; and

·        the creation or variation of that right to mine in the other area.  [Paragraph 43B(c)]

In effect this means that the act can be covered by the alternative State or Territory provisions to the extent that it relates to a leased or reserved area, and by the right to negotiate provisions to the extent that it does not.

The Bill deems the second act relating to the area that is not a leased or reserved area to be done when the right to mine is first exercised in that area [paragraph 43B(d)] .  This means that the right to negotiate processes will never have to be conducted if the person who is granted the mining right never exercises that right on the area that is not a leased or reserved area.  The ability of native title holders to exercise their native title rights and interests in the non-leased or reserved area would not be impaired in these cases.

When will alternative State or Territory provisions for leased or reserved areas be effective?

21.27      The Bill sets out the conditions that must be met before alternative State or Territory provisions for future acts affecting leased or reserved areas will be effective.  The Commonwealth Minister must make a written determination that the provisions meet certain requirements in the Bill [paragraph 43A(1)(b)] .  These depend on the nature of the future act concerned and are set out in Table 21.2.  Such a determination  is a disallowable instrument [section 214] .

21.28      The requirements are designed to give native title holders the same procedural rights as the holder of a freehold title in compulsory acquisition cases and, in other cases, the same procedural rights as other holders of an interest in the land or waters concerned.  This is not possible in the case of reserved areas because there are not any other interest holders.  In these cases, the Bill sets out the minimum procedural requirements that must be met for an act to be done validly.



Table 21.2

Type of future act

Requirements that must be met in the State or Territory provisions

A compulsory acquisition of native title in a leased or reserved area conferring on persons other than the Government party rights and interests in relation to the land or waters concerned other than a conferral for the purpose of providing an infrastructure facility

(These are the acts covered by subparagraph 26(1)(c)(iii) discussed in Table 19.2 of Chapter 19)

The alternative provisions must confer on the native title holders the same procedural rights they would have had if they had instead held ordinary title to the land, or to the land adjoining or surrounding the waters, affected by the act.  [Subsection 43A(3)]

The term ‘ordinary title’ is defined in section 253 of the NTA and in most cases means a freehold estate.

Any act that is not covered by subparagraph 26(1)(c)(iii) where the leased or reserved area affected is to any extent a 'non-exclusive area'

(The meaning of the term 'non-exclusive area' is explained in paragraphs 21.18 to 21.21).

An example of such an act is the grant of a mining lease over an area covered by a non-exclusive pastoral lease.

The alternative provisions must confer on the native title holders the same procedural rights as other holders of interests in the area concerned.  The nature of the rights depends on whether the area is covered by a freehold estate or a lease [subparagraph 43A(4)(a)(i)] .  For example, where the area on which the act is to be done is covered by a non-exclusive pastoral lease, native title holders have the same procedural rights as the holders of the lease.

The alternative provisions must also make provision for compensation for the act’s effect on the native title of the native title holders.  [Subparagraph 43A(4)(a)(ii)]

Any act that is not covered by subparagraph 26(1)(c)(iii) where all of the leased or reserved area affected is the subject of a reservation etc. covered by paragraph 43A(2)(b).

An example of such an act is the grant of a mining lease over an area that is a forestry reserve.

The alternative provisions must:

·        contain appropriate procedures for notifying registered native title bodies corporate, registered native title claimants and potential native title claimants for the area concerned of the future act that is to be done [subparagraph 43A(4)(b)(i)] ; and

·        give registered native title bodies corporate and registered native title claimants for the area concerned the right to object against the future act that is to be done and the right to be heard for that objection [subparagraph 43A(4)(b)(ii)] ; and

·        make provision for compensation for the act’s effect on the native title of the native title holders [subparagraph 43A(4)(b)(iii)]

The alternative State or Territory provisions may be different for different kinds of land or waters

21.29      The Bill allows the alternative provisions of a State or Territory to be different for different kinds of land or waters [Subsection 43A(5)] .  However, each set of provisions would have to satisfy the relevant conditions in subsections 43A(3) and (4) in order to be subject to a determination of the Commonwealth Minister.

Revocation of Commonwealth Minister's determination

21.30      The Bill includes a provision for the Commonwealth Minister to revoke a determination that alternative State or Territory provisions meet the requirements under subsections 43A(3) and (4).  This revocation provision works in the same way as that included in section 43 (see paragraphs 21.12 and 21.13) [subsection 43A(6)] .  Such a revocation is a disallowable instrument [section 214] .

Regulations making transitional provisions

21.31      The Bill includes a provision allowing the regulations to make transitional arrangements for cases where the Commonwealth Minister’s determination under section 43A is made, amended or revoked.  This provision works in the same way as the equivalent provision included in section 43 (see paragraphs 21.13 and 21.15).  [Subsection 43A(8)]



 

 

 

 

 

 



(Note: in this Chapter the term ‘indigenous land use agreement’ is referred to as ‘ILUA’)

Overview

22.1        Subdivisions B, C and D of Division 3 , inserted by item 9 of Schedule 1 set out the provisions for the making and registration of indigenous land use agreements (ILUAs).  Chapter 7 discussed the making of such agreements and the validity of future acts done in accordance with them.  This Chapter discusses the processes under Subdivisions B, C and D for having ILUAs registered.  As discussed in Chapter 7, a future act done in accordance with an ILUA is valid so long as details of the ILUA are on the Register of Indigenous Land Use Agreements.  Chapter 23 discusses the provisions establishing this Register.

22.2        As discussed in Chapter 7, there are three categories of ILUA: body corporate agreements, area agreements and alternative procedure agreements.  The requirements for an agreement to fit into these categories are set out in Table 7.1 of Chapter 7.  The registration processes are different for each kind of agreement and reflect their different nature.

22.3        The processes generally involve an application to the Native Title Registrar, a notice by the Registrar to relevant bodies and persons, objections against registration and registration by the Registrar subject to certain conditions being met.

Applications for registration of an ILUA

General requirement for all kinds of ILUA

22.4        The first stage of the process in getting an ILUA registered is for an application to be made to the Native Title Registrar (the Registrar).  Any party to any of the three kinds of ILUA can, with the agreement of all other parties to the ILUA, apply to the Registrar for the ILUA to be registered on the Register of Indigenous Land Use Agreements.  An application must be in writing and be accompanied by a copy of the ILUA and any other documents or information prescribed in the Regulations.  [Schedule 1, item 9, sections 24BG, 24CG and 24DH]

Additional requirement for area agreements

22.5        There is an additional requirement for applications for registration of an ILUA that is an area agreement.  This requirement relates to the need for the application to state that the agreement has been made with the authority of all actual or potential native title holders for the area in relation to which the agreement is made.

22.6        To this end, there are two alternative requirements, as set out below, one of which has to be met for the application for registration of an area agreement to be valid.

Certification by all representative Aboriginal/Torres Strait Islander bodies

22.7        The first alternative is that the agreement must have been certified by all representative Aboriginal/Torres Strait Islander bodies [53] (representative bodies) for the area covered by the agreement.  This certification would be done in accordance with the representative bodies’ functions under paragraph 202(4)(e).  [Paragraph 24CG(3)(a)]

22.8        Paragraph 202(4)(3) is inserted by Schedule 3 into the NTA.  It provides that one of the functions of a representative body is to certify applications for registration of ILUAs [Schedule 3, item 5] .  Under subsection 202(8) of the NTA, also inserted by Schedule 3 of the Bill, a representative body can only certify an ILUA if it is satisfied that:

·       all reasonable efforts have been made to identify all the actual or potential native title holders for the area covered by the agreement; and

·       all of the persons so identified have authorised the making of the agreement.  [Schedule 3, item 6]

Statement that all identified actual or potential native title holders have authorised the making of the agreement

22.9        The second alternative involves a process of identifying all actual or potential native title holders for the area covered by the agreement.  This requirement is met if the application for registration of the area agreement includes a statement that both of the conditions set out below are satisfied and also gives a further statement that briefly sets out why the Registrar should be satisfied these conditions are met.  [Paragraph 24CG(3)(b)]

·       All reasonable efforts must have been made to identify all persons who hold, or may hold, native title in relation to the land or waters in the area.  The reasonable efforts must include consulting all representative bodies for the area.  [Subparagraph 24CG(3)(b)(i)]

·       All of the persons identified by the process above must have authorised the making of the agreement.  [Subparagraph 24CG(3)(b)(ii)]

When do persons authorise the making of an ILUA?

22.10      The Bill inserts provisions that say when persons authorise the making of an ILUA [Schedule 1, item 50, section 251A; item 51] .  This is relevant to the authority that must be obtained in accordance with subparagraph 24CG(3)(b)(ii).  Table 22.1 sets out how the authority is given.

Table 22.1

Decision making process of the persons holding native title

Way in which the authority is given

There is a particular process of decision making under the traditional laws and customs of the group holding the native title to the area covered by the agreement for authorising things like agreements

The authority for the making of the agreement must be given in accordance with that process

[Paragraph 251A(a)]

There is no such process

The authority must be given in accordance with a process of decision making agreed to and adopted by the members of the group in relation to giving authority of that kind

[Paragraph 251A(b)]

Notification by the Registrar of ILUAs for which a registration application has been made

22.11      The second stage in the process of getting an ILUA registered is that the Registrar must notify certain persons and bodies of the agreement.  This can be done after a valid application for registration has been made [Schedule 1, item 9, sections 24BH, 24CH and 24DI] .  Table 22.2 on the following pages sets out the notification requirements for each of the three kinds of ILUA.  Explanations of some terms used in the notification requirements (such as the way in which the 3 month notice period is calculated) are set out after the table.

22.12      The purpose of requiring the Registrar to give notification is generally to give certain persons and bodies with an interest in the matters dealt with by the agreement the chance to object to the registration of the agreement.  This is particularly important in the case of area agreements since these agreements, once registered, will bind all native title holders even if they were not parties to the making of the agreement.



Table 22.2

Nature of the requirement

Body corporate agreements

Area agreements

Alternative procedure agreements

Notification of non-parties

The Registrar must give the notice to any of the following who are not parties to the agreement.

·        The Commonwealth Minister.

·        The State or Territory Minister if the agreement covers an area within the jurisdictional limits of the State or Territory concerned.

·        Any representative Aboriginal/Torres Strait Islander body for the area covered by the agreement.

·        Any local government body for the area covered by the agreement.

·        Any other person whom the Registrar thinks should be notified, having regard to the nature of the agreement.

[Paragraph 24BH(1)(a)]

The Registrar must give the notice to any of the following who are not parties to the agreement.

·        The Commonwealth Minister.

·        The State or Territory Minister if the agreement covers an area within the jurisdictional limits of the State or Territory concerned.

·        Any representative Aboriginal/Torres Strait Islander body for the area covered by the agreement.

·        Any local government body for the area covered by the agreement.

·        Any other person whom the Registrar thinks should be notified, having regard to the nature of the agreement.

[Paragraph 24CH(1)(a)]

The Registrar must give the notice to any of the following who are not parties to the agreement.

·        The Commonwealth Minister.

·        The State or Territory Minister if the agreement covers an area within the jurisdictional limits of the State or Territory concerned.

·        Any local government body for the area covered by the agreement.

·        Any other person whom the Registrar thinks should be notified, having regard to the nature of the agreement.

[Paragraph 24DI(1)(a)]

Public notification

There must be public notification.  The notification must be done in the way determined in accordance with section 252 of the NTA. [54]

[Paragraph 24BH(1)(b)]

There must be public notification.  The notification must be done in the way determined in accordance with section 252 of the NTA.

[Paragraph 24CH(1)(b)]

There must be public notification.  The notification must be done in the way determined in accordance with section 252 of the NTA.

[Paragraph 24DI(1)(b)]



Table 22.2 (continued)

Nature of the requirement

Body corporate agreements

Area agreements

Alternative procedure agreements

Contents of the notice

The notices (including the public notice) must do all of the following:

·        describe the area covered by the agreement;

·        state the name of each party to the agreement and the address at which the party can be contacted;

·        set out any statements included in the agreement of the kind mentioned in paragraphs 24EB(1)(b), (c) and (d).

[Subsection 24BH(2)]

The notices (including the public notice) must do all of the following:

·        describe the area covered by the agreement;

·        state the name of each party to the agreement and the address at which the party can be contacted;

·        set out any statements included in the agreement of the kind mentioned in paragraphs 24EB(1)(b), (c) and (d);

·        include a statement of the kind set out below.

The nature of the statement depends on whether representative Aboriginal/Torres Strait Islander bodies certified the application for registration.

If they did, the statement must say that, within the 3 month ‘notice period’, any person claiming to hold native title for the area covered by the agreement may make a written objection to the Registrar against registration of the agreement on the ground that the requirements of subsection 202(8) were not met for the certifying of the application.

If they did not , the statement must say that, within the 3 month ‘notice period’, any person claiming to hold native title for the area covered by the agreement may wish, in response to the notice, to make a native title claim.

[Subsection 24CH(2)]

The notices (including the public notice) must do all of the following:

·        describe the area covered by the agreement;

·        state the name of each party to the agreement and the address at which the party can be contacted;

·        set out any statements included in the agreement of the kind mentioned in paragraphs 24EB(1)(b), (c) and (d);

·        include a statement that, within the 3 month ‘notice period’, any person claiming to hold native title for the area covered by the agreement may obtain a copy of the agreement from the Registrar and make a written objection to the Registrar against registration of the agreement on the ground that it would not be fair and reasonable to do so.  [Subsection 24DI(2)]

The Registrar must supply a copy of the agreement to any person claiming to hold native title who requests a copy in response to the Registrar’s notice.  [Subsection 24DI(5)]



What do paragraphs 24EB(1)(b), (c) and (d) deal with?

22.13      As set out in Table 22.2, the Registrar’s notice must include any statements made in the ILUA in accordance with paragraphs 24EB(1)(b), (c) and (d).

22.14      Paragraph 24EB(1)(b) deals with a statement to the effect that the parties have consented to the doing of an act or a class of acts (any conditions must be stipulated).

22.15      Paragraph 24EB(1)(c) deals with a statement that the right to negotiate provisions are not intended to apply to the act or acts if the agreement authorises a future act to which the right to negotiate provisions (proposed Subdivision P of Division 3) would otherwise apply.

22.16      Paragraph 24EB(1)(d) deals with a statement that the parties intend native title to be extinguished by surrender if the agreement provides for the extinguishment (through surrender) of native title.

22.17      Where the statements are included, the consequences set out in section 24EB apply in relation to the act (see Chapter 7).

How is the 3 month notice period worked out?

22.18      As set out in Table 22.2, the notices by the Registrar for area agreements and alternative procedure agreements require the Registrar to include a statement that certain things can be done within a 3 month notice period.  This notice period is the period of 3 months commencing after the ‘notification day’.  [Paragraphs 24CH(2)(d) and 24DI(2)(d)]

What is the notification day?

22.19      The notification day is the day specified in the Registrar’s notice and each notice about a particular ILUA given to the persons and bodies listed in Table 22.2 must have the same notification day.  [Subsections 24CH(3) and 24DI(3)]

22.20      The Bill provides rules on what the notification day must be.  It must be the day by which the Registrar thinks the notice will be received by, or come to the attention of, all the persons and bodies listed in Table 22.2, including the public.  [Subsections 24CH(4) and 24DI(4)]

Objections against registration of an ILUA

22.21      The notices by the Registrar discussed above envisage that objections might be made against the registration of an area agreement or an alternative procedure agreement.  There is no specific objection process for a body corporate agreement because any party to such an agreement can advise the Registrar within one month of a notice being given that the agreement should not be registered (see discussion in paragraph 22.27).

Objections against registration of an area agreement

22.22      An objection procedure is available where the application for registration of an area agreement has been certified by all relevant Aboriginal/Torres Strait Islander bodies.  In this case, any person claiming to hold native title for the area covered by the agreement may make a written objection to the Registrar against its registration on the ground that the requirements of subsection 202(8) were not met for the certifying of the application. [55]   [Schedule 1, item 9, subsection 24CI(1)]

22.23      There is no objection procedure in the case of an area agreement that is not certified.  This is because the appropriate response of potential native title holders unhappy about the registration of such an agreement is to make a native title claim.  If such persons become registered native title claimants, they must become parties to the agreement before it can be registered (see discussion in paragraphs 22.33 to 22.35).  This means, in effect that their consent must be obtained before future acts done in accordance with the agreement are valid.

Objections against registration of an alternative procedure agreement

22.24      A written objection to the Registrar can be made against the registration of an alternative procedure agreement by any person claiming to hold native title for the area it covers.  The objection can be made on the ground that it would not be fair and reasonable to register the agreement.  [Schedule 1, item 9, subsection 24DJ(1)]

Parties may seek assistance in negotiating the withdrawal of an objection

22.25      The Bill envisages that the parties to an area agreement or an alternative procedure agreement may wish to negotiate with a person making an objection in order to get the objection withdrawn.  The parties may request the assistance of the NNTT or a recognised State/Territory body in doing this.  [Subsections 24CI(2) and 24DJ(2)]

When must the Registrar register an ILUA?

22.26      The final process in getting an ILUA registered generally involves the Registrar making a decision about whether that should happen.  To this end, the Bill sets out the duties of the Registrar to register an ILUA on the Register of Indigenous Land Use Agreements.  The Registrar must register an ILUA for which a registration application has been made, and a Registrar’s notice given, but only where certain conditions are met.  The conditions that apply depend on the kind of ILUA that is to be registered.

What are the registration conditions for a body corporate agreement?

22.27      The Registrar must register a body corporate agreement one month after he or she gives the notice discussed above.  However, this cannot be done if, within one month of the notice being given, any party to the agreement advises the Registrar that they do not wish the agreement to be registered [Schedule 1, item 9, section 24BI] .  This gives the parties a one month ‘cooling off’ period before the agreement takes effect as a registered agreement.

What are the registration conditions for an area agreement?

22.28      The Registrar must decide after the end of the 3 month notice period whether to register an area agreement on the Register of Indigenous Land Use Agreements [Schedule 1, item 9, section 24CJ] .  The conditions that must be satisfied for an area agreement to be registered depend on whether representative Aboriginal/Torres Strait Islander bodies have certified the application for registration.

Conditions where agreement certified by representative bodies

22.29      There are two conditions that must be met before an area agreement can be registered in a case where the application for registration of the agreement was certified by all relevant representative Aboriginal/Torres Strait Islander bodies.  [Schedule 1, item 9, section 24CK]

Consideration of objections against registration

22.30      The first condition is that either :

·       there has been no objection against registration of the agreement made within the 3 month notice period (or all such objections have been withdrawn) [paragraphs 24CK(2)(a) and (b)] ; or

·       the Registrar is satisfied that, despite the objection, the certification of the agreement by each representative Aboriginal/Torres Strait Islander body was done appropriately in accordance with subsection 202(8) [56] [paragraph 24CK(2)(c)] .

22.31      The Senate made Government amendment (17) which is included in the Bill.  This amendment inserts a new subsection 24CK(4) which sets out the information to which the Registrar must have regard in deciding whether the condition contained in paragraph 24CK(2)(c) is satisfied.  The amendment also provides that the Registrar may, but need not, take into account any other matter or thing.

 

Registered native title bodies corporate must be parties to the agreement

22.32      The second condition is that any registered native title bodies corporate for any area covered by the agreement must be a party to it if they exist as such when the Registrar proposes to register the agreement [subsection 24CK(3)] .  Effectively this means that those who are determined to hold native title in any part of the relevant area during the 3 month notice period will need to agree to the terms of the agreement.

Conditions where agreement not certified by representative bodies

22.33      There are two conditions that must be met before an area agreement can be registered in a case where the application for registration of the agreement was not certified by all relevant representative Aboriginal/Torres Strait Islander bodies [Schedule 1, item 9, section 24CL] .  This will be an area agreement which contains a statement showing the action taken for the purposes of identifying all relevant persons who hold or claim to hold native title in the area and how their authority for making the agreement has been obtained.

Certain persons must be parties to the agreement

22.34      The first condition relates to the persons who must be parties to the agreement before it can be registered.  The parties must include all registered native title claimants and registered native title bodies corporate in relation to any part of the area covered by the agreement who are on the Register of Native Title Claims or the Native Title Register at the end of the 3 month notice period.  [Paragraph 24CL(2)(a)]

22.35      The following must also be parties to the agreement:

·       any persons who lodged applications before the end of the 3 months and who become registered native title claimants after that date;

·       any persons who lodged their applications within the 3 month notice period and were refused registration but were later registered as the result of a successful appeal to the Federal Court (or a State/Territory equivalent) against the decision not to register their claim (where the appeal was lodged within 28 days of the giving of notice of non-registration - or a State/Territory equivalent).  [Paragraph 24CL(2)(b)]

22.36      The Bill also provides that the Registrar cannot register the agreement unless all of the persons covered by paragraph 24CL(2)(b) are known (these are the persons outlined in paragraph 22.34).  [Section 24CJ] .

The Registrar must consider that requirements about identifying and obtaining the authority of all actual or potential native title holders have been met

22.37      The second condition relates to the statement made in the registration application.  The Registrar must consider that all reasonable efforts have been made to ensure that native title holders have been identified and their authority has been obtained for the making of the agreement (see proposed section 251A).  In considering the matter the Registrar must take into account the statements in the application and any information provided by a representative body or others.  He or she may also, but need not, consider any other matter or thing.  [Subsections 24CL(3) and (4)]

What are the registration conditions for an alternative procedure agreement?

22.38      The Registrar must decide after the end of the 3 month notice period whether to register an alternative procedure agreement on the Register of Indigenous Land Use Agreements [Schedule 1, item 9, section 24DK] .  There are three conditions, one of which must be met before an alternative procedure agreement can be registered.  These relate to whether there have been any objections against registration of the agreement and whether any objections have merit.  [Schedule 1, item 9, section 24DL]

22.39      The conditions are that:

·       there has been no objection against registration of the agreement made within the 3 month notice period [paragraph 24DL(2)(a)] ; or

·       all such objections have been withdrawn [paragraph 24DL(2)(b)] ; or

·       none of the persons making an objection has satisfied the National Native Title Tribunal (NNTT) or a recognised State/Territory body that it would not be fair and reasonable to register the agreement [paragraph 24DL(2)(c)] .

Matters that the NNTT or recognised State/Territory body can consider in dealing with an objection

22.40      The Bill sets out the matters that the NNTT or recognised State/Territory body must have regard to in considering an objection against registration of an alternative procedure agreement.  They are:

·       the content of the agreement [subparagraph 24DL(2)(c)(i)] ; and

·       the effect of the agreement on native title rights and interests (e.g. whether it will unfairly inhibit the enjoyment of native title by any potential native title holder) [subparagraph 24DL(2)(c)(ii)] ; and

·       any benefits provided under the agreement to actual or potential native title holders and their successors, including the way in which those benefits are to be distributed (e.g. whether a distribution of benefits adequately compensates a native title holder for any loss of their ability to enjoy native title) [subparagraph 24DL(2)(c)(iii)] ; and

·       any other relevant circumstance [subparagraph 24DL(2)(c)(iv)] .

Substitute registration processes for alternative procedure agreements

22.41      The Bill allows regulations to make alternative provisions to sections 24DH to 24DL for the registration of alternative procedure agreements.  The regulations would not be a substitute for sections 24DH to 24DL in the case of all alternative procedure agreements.  Rather, the alternative provisions in regulations may provide registration processes for alternative procedure agreements with particular characteristics, leaving sections 24DH to 24DL to deal with other kinds of alternative procedure agreements.  [Schedule 1, item 9, section 24DM]

22.42      The regulation making power is included to give greater flexibility for the registration of alternative procedure agreements.  Any regulations would need to ensure that native title is appropriately protected.



(Note: in this Chapter the term ‘indigenous land use agreement’ is referred to as ‘ILUA’)

Overview

23.1        Part 8A establishes the Register of Indigenous Land Use Agreements.  The Register will contain details of ILUAs which satisfy the conditions for registration under Subdivision B, Subdivision C or Subdivision D of Division 3, Part 2.  The effects of registration are explained in Subdivision E of Division 3, Part 2 (see Chapter 7).  Part 8A  deals with the content of the Register, the way in which it is to be kept, the circumstances under which it is amended, access to its contents and delegation of the Registrar’s functions in relation to keeping the Register.

Register of Indigenous Land Use Agreements

23.2        The Register is to be established and maintained by the Native Title Registrar.  One of the ways it can be maintained is by computer [Schedule 1, item 30, section 199A] .  A definition of the term ‘Register of Indigenous Land Use Agreements’, describing it as the register kept under Part 8A, is inserted into section 253 of the NTA [Schedule 1, item 60] .

Contents of the Register

23.3        Whenever the Registrar is required to register an ILUA, he or she must place  certain details of the agreements on the Register [Schedule 1, item 30, subsection 199B(1)] .  These are:

·       a description of the area subject to the agreement;

·       the names of each party to the ILUA and the addresses at which they can be contacted;

·       the duration of the agreement, if it specifies one;

·       any statements in the agreement indicating that the parties have agreed to the doing of an act or class of act (and any conditions that are stipulated);

·       any statements in the agreement indicating that the right to negotiate is not intended to apply to acts to which the parties have consented under the agreement;

·       any statements in the agreement that the surrender of native title under the agreement is intended to extinguish native title rights and interests.

23.4        The Registrar has a discretion to include any other details considered to be appropriate for inclusion in the Register.  [Subsection 199B(2)]

23.5        Notices advising that an agreement involving a future act has been registered must be sent to everyone who was sent a notice about the making of the agreement.  The notice of registration must set out the details which have been included on the Register.  There is no requirement to notify the public generally of the registration of the agreement.  [Subsection 199B(3)]

Removal of details of agreement from Register

23.6        The Registrar is obliged to remove details of a registered ILUA in certain circumstances [Schedule 1, item 30, section 199C] .  Some of the circumstances are specific to particular types of agreement.  Table 23.1 explains which circumstances require the removal of each type of ILUA.

Table 23.1

Circumstance requiring removal

Body corporate agreements

Area agreements

Alternative procedure agreements

An approved determination of native title is made for all or part of the agreement area.  Under the determination, there are native title holders who are not the same as those previously determined to hold native title for the area.

,

 

 

The agreement was authorised under either of paragraphs 24CG(3)(a) or (b).  An approved determination of native title is made for all or part of the agreement area.  One or more of the native title holders under that determination did not authorise the agreement as mentioned above.

 

,

 

The agreement expires.

,

,

,

All the parties tell the Registrar in writing that they wish to terminate the agreement.

,

,

,

The Federal Court orders that the details be removed, following an application by either a party to the agreement or a representative body for the area, on the ground that the agreement was induced by fraud, undue influence or duress.

,

,

,

What is the effect of removing an ILUA from the register?

23.7        If an ILUA is removed from the Register, it no longer has contractual effect [Schedule 1, item 9, section 24EA] .  The ILUA will not validate any future acts contemplated by the agreement if they take place after the ILUA is de-registered.  Future acts which have already taken place under the agreement will remain valid [Schedule 1, item 9, section 24EB] .

Inspection of the Register

23.8        The Register can be inspected by the public during normal business hours, and there may be a fee for such inspection.  If the Register is kept on computer the access may be provided either through a computer terminal or by a print out of the contents of the Register.  [Schedule 1, item 30, section 199D]

Parts of the Register may be kept confidential

23.9        The Registrar may keep some parts of the information on the Register confidential where the parties have advised that this is their wish [Schedule 1, item 30, section 199E] .  The details required to be entered under subsection 199B(1) will not be confidential; these details are listed in paragraph 23.3 above.

Delegation by Registrar

23.9        The Registrar may delegate his or her powers in relation to the Register to a person or body in a State or Territory with the agreement of that State or Territory [Schedule 1, item 30, section 199F] .  This power may be used, for example, where there is a recognised State/Territory body for that jurisdiction under section 207A.

Regulations about the Register of Indigenous Land Use Agreements and other Registers

23.10      A fee for inspecting the Register of Indigenous Land Use Agreements can be set by regulations, which can also provide for such a fee to be waived.  [Schedule 1, item 35, section 215]

23.11      Regulations can also be made to deal with the way in which the various registers under the NTA are to be maintained, and to deal with any other matter related to such registers [Schedule 1, item 36, section 215] .  The three registers under the NTA are the Register of Native Title Claims, the Register of Indigenous Land Use Agreements, and the National Native Title Register.



 

 

 

 

 

 



Overview

24.1        This Chapter sets out a number of miscellaneous amendments, made by Schedule 1 of the Bill, relating to native title.  The amendments deal with the following:

·       a revised section providing an overview of the NTA;

·       presentational changes to the provisions dealing with past acts;

·       repeal of the definition of ‘Compulsory Acquisition Act’;

·       compensation payable to native title holders;

·       disallowable instruments;

·       provisions relating to native title holders carrying on traditional activities;

·       definitions of particular kinds of interests in land used mainly in the provisions validating intermediate period acts and dealing with confirmation of past extinguishment of native title;

·       provisions defining public works and the land or waters on which they are constructed, established or situated;

·       other minor matters.

The Bill inserts a new overview of the NTA

24.2        Existing section 4 of the NTA contains an overview of the NTA.  The Bill repeals section 4 and replaces it with a new overview that reflects the changes being made by the Bill.  The new overview is in a more narrative style and should assist readers to gain a better overall picture of what the NTA does.  [Schedule 1, item 2, section 4]

Presentational changes to the provisions dealing with past acts

24.3        The Bill makes two presentational changes to the existing provisions in Division 2 of Part 2 of the NTA.  Firstly, the heading to the Division is changed from ‘Past acts and native title’ to ‘Validation of past acts’ [Schedule 1, item 6] .  This is a more accurate reflection of the function performed by Division 2 and is consistent with the heading to new Division 2A of Part 2 (which validates intermediate period acts).

24.4        Secondly, the Bill inserts a new section into Division 2 of Part 2 to give an overview of what it does [Schedule 1, item 7, section 13A] .  This makes the NTA more readable and is also consistent with new Divisions 2A, 2B and 3 of Part 2 which contain overview sections.

Repeal of the definition of ‘Compulsory Acquisition Act’

24.5        The Bill repeals the existing definition of ‘Compulsory Acquisition Act’ in section 253 of the NTA [Schedule 1, item 52] .  This is because the definition is no longer needed.

24.6        The definition of ‘Compulsory Acquisition Act’ is currently used in the ‘permissible future act’ test in the existing NTA.  The Bill re-enacts the relevant parts of that test in proposed Subdivisions M and N of new Division 3 (the provisions dealing with the freehold test and offshore future acts). [57]

24.7        Consequential amendments are made to the NTA provisions dealing with compensation to reflect the removal of the definition [Schedule 1, items 14, 15, 16, 17, 18 and 23] .  These amendments generally replace the references to the term ‘Compulsory Acquisition Act’ with references to a compulsory acquisition or a law under which a compulsory acquisition takes place.  These changes do not alter the substance of the provisions.

Compensation payable to native title holders

24.8        The Bill includes a provision to clarify the amount of compensation that native title holders can get under Division 5 of Part 2 of the NTA for extinguishment of their native title.  The maximum compensation native title holders can get in these circumstances will be capped at the same level that a person with freehold title would have got if their land was compulsorily acquired [Schedule 1, item 19, subsection 51A(1)] .  This provision equates native title with freehold title for the purposes of the compensation provisions but it does not mean that native title will be regarded in all circumstances as equivalent to freehold.  In addition, it does not mean that compensation would be payable at the capped level (e.g. compensation for the extinguishment of co-existing native title rights would probably be significantly less than the capped level).  The compensation needs to be assessed on a case-by-case basis having regard to the nature of the native title rights and interests affected.

24.9        The Bill makes it clear that the new provision does not displace ‘just terms’ compensation that needs to be paid to native title holders to meet constitutional requirements.  [Subsection 51A(1)]

‘Just terms’ compensation

24.10      The Senate made Government amendment (46) which is included in the Bill.  The amendments inserts Schedule 1 items 26A and 26B which amend section 53 of the current NTA.  Section 53 is a safety net providing ‘just terms’ compensation where the NTA does not already do so.  Items 26A and 26B ensure that section 53 applies in relation to all future acts, not just Commonwealth ones.  If the future act is attributable to a State or Territory, the State or Territory must pay the required compensation.

‘Just terms’ compensation for any acquisition of property by the Bill

24.11      The Senate made Government amendment (93) which is included in the Bill.  This amendment contains Schedule 5, item 27A Item 27A comprises Part 6A of Schedule 5 and deals with ‘just terms’ compensation. Item 27A ensures that to the extent the Bill once enacted may result in an acquisition of property for the purposes of section 51(xxxi) of the Constitution as a consequence of its effect, if any, on native title rights and interests, ‘just terms’ compensation is payable.  This amendment also ensures that the provision operates for all relevant future acts, not just Commonwealth ones.  If the future act is attributable to a State or Territory, the State or Territory must pay the required compensation.  (The Senate also made Government amendment (92) which is included in the Bill.  This amendment inserts a reference to Part 6A into Schedule 5, item 1 which sets out the contents of Schedule 5.)

Disallowable instruments

24.12      Existing section 214 of the NTA defines a number of instruments made in accordance with the NTA to be disallowable instruments.  Disallowable instruments may be disallowed by either House of Parliament in accordance with provisions in the Acts Interpretation Act 1901 .

24.13      Section 214 has been replaced by a new section 214 which lists a number of new kinds of instrument as disallowable instruments.  This reflects the changes that are being made to the NTA by the Bill.  Government amendment (49R) , which was made by the Senate and is included in the Bill, also adds determinations made under paragraphs 23HA(a), 24GB(9)(c), 24GD(6)(a), 24HA(7)(a), 24ID(3)(a) and 24JB(6)(a) to the list of disallowable instruments.  These determinations relate to new notification requirements.  Table 24.1 sets out the instruments that will be made disallowable by section 214.  [Schedule 1, item 34, section 214].

 

Table 24.1

New kind of instrument that is disallowable

What the instrument is about

Determination under paragraph 23HA(a)

This is a determination by the Commonwealth Minister about the way in which notice must be given of an act covered by subparagraph 23F(3)(c)(ii) to relevant representative Aboriginal/Torres Strait islander bodies, registered native title bodies corporate and registered native title claimants.  Subparagraph 23F(c)(ii) deals with previous non-exclusive possession acts which take place as the result of a written offer or commitment made before 23 December 1996.

Determination under paragraph 24GB(9)(c)

This is a determination by the Commonwealth Minister about the way in which a person proposing to do certain acts covered by section 24GB must notify relevant representative Aboriginal/Torres Strait islander bodies, registered native title bodies corporate and registered native title claimants.  These acts relate to forest operations, horticulture, acquaculture and, in some cases, agriculture.

Determination under paragraph 24GD(6)(a)

This is a determination by the Commonwealth Minister about the way in which a person proposing to do an act covered by section 24GD must notify relevant representative Aboriginal/Torres Strait islander bodies, registered native title bodies corporate and registered native title claimants.  Section 24GD deals with certain off-farm activities which are directly connected to primary production activities.

Determination under subparagraph 24GE(1)(f)(i)

 

 

 

 

This is a determination by the Commonwealth Minister about the way in which a person proposing to do an act covered by section 24GE must notify relevant representative Aboriginal/Torres Strait islander bodies, registered native title bodies corporate and registered native title claimants.  Section 24GE deals with the conferral of rights to remove certain natural resources from areas covered by non-exclusive agricultural or non-exclusive pastoral leases.

(Refer to Chapter 9).

Determination under paragraph 24HA(7)(a)

This is a determination by the Commonwealth Minister about the way in which a person proposing to do an act covered by subsection 24HA(2) must notify relevant representative Aboriginal/Torres Strait islander bodies, registered native title bodies corporate and registered native title claimants.  Subsection 24HA(2) deals with giving leases, permits, or licences in relation to the management or regulation of living aquatic resources or water.

 

 



Table 24.1 (continued)

New kind of instrument that is disallowable

What the instrument is about

Determination under paragraph 24ID(3)(a)

This is a determination by the Commonwealth Minister about the way in which a person proposing to do an act covered by paragraph 24IB(b) must notify relevant representative Aboriginal/Torres Strait islander bodies, registered native title bodies corporate and registered native title claimants.  Paragraph 24IB(b) deals with certain pre-existing right based acts.

Determination under paragraph 24JB(6)(a)

This is a determination by the Commonwealth Minister about the way in which a person proposing to do certain acts covered by section 24JA must notify relevant representative Aboriginal/Torres Strait islander bodies, registered native title bodies corporate and registered native title claimants.  The particular acts covered relate to the construction or establishment of a public work pursuant to a reservation.

Determinations under subsections 24KA(8), 24MD(7), 24NA(9)

These determinations relate to the giving of procedural rights to undetermined native title holders where they are required to be notified of certain acts.  The notification can be done in a way determined by the Commonwealth Minister.

(These are the same kind of instruments currently covered through paragraph 23(7)(c)).

(Refer to Chapters 13, 15 and 16).

Determination under subsection 26A(1)

This is a determination by the Commonwealth Minister that a future act or acts are ‘approved exploration etc. acts’ and therefore excluded from the right to negotiate provisions.

(Refer to Chapter 19).

Determination under subsection 26B(1)

This is a determination by the Commonwealth Minister that future acts are ‘approved gold or tin mining acts’ and therefore excluded from the right to negotiate provisions.

(Refer to Chapter 19).



Determination under subsection 26C(2)

This is a determination by the Commonwealth Minister that an area is an ‘approved opal or gem mining area’ for the purposes of the right to negotiate provisions.

(Refer to Chapter 19).

Determination under paragraph 43(1)(b)

This is a determination by the Commonwealth Minister that alternative State or Territory right to negotiate provisions meet certain requirements.

(This reflects an instrument that is currently disallowable under the NTA).

(Refer to Chapter 21).





Determination under paragraph 43A(1)(b)

This is a determination by the Commonwealth Minister that State or Territory provisions relating to leased or reserved areas, as an alternative to the right to negotiate provisions, meet certain requirements.

(Refer to Chapter 21).



Table 24.1 (continued)

New kind of instrument that is disallowable

What the instrument is about



Determination under subsection 202(1)

This is a determination by the Commonwealth Minister that a body is a representative Aboriginal/Torres Strait Islander body.

(This reflects an instrument that is currently disallowable under the NTA).

Determination under subsection 207A(1)

This is a determination by the Commonwealth Minister that a body is a recognised State/Territory body.  This reflects the determinations under subsection 251(1) of the existing NTA: section 251 is being renumbered as section 207A.

(Refer to Chapter 25).



Determination under subsection 207B(3)

This is a determination by the Commonwealth Minister that an equivalent State/Territory body can perform certain functions of the Native Title Registrar or the NNTT under the NTA.

(Refer to Chapter 27).

Determination under subsection 245(4)

This is a determination by the Commonwealth Minister that a city, town, private residence, building or works in an area covered by a mining lease is taken not to be covered by a separate lease.

(This reflects an instrument that is currently disallowable under the NTA).



Determination under subsection 251C(4) or (5)

This is a determination by the Commonwealth Minister that an area is, or is not, a ‘town or city’.  This is relevant to the right to negotiate provisions.

(Refer to Chapter 19).

Determination under subsection 252(1)

This is a determination by the Commonwealth Minister about how the public can be notified ‘in the determined way’.  This is relevant to the right to negotiate provisions and the provisions dealing with indigenous land use agreements.

(This reflects an instrument that is currently disallowable under the NTA).

Determination under paragraph (i) of the definition of ‘infrastructure facility’ in section 253

This is a determination by the Commonwealth Minister that a particular thing is an ‘infrastructure facility’.  This is relevant to the exclusion from the right to negotiate provisions of certain compulsory acquisitions for the purpose of conferring rights on third parties.

(Refer to Chapter 19).



Instrument under section 203AD

This is an instrument made by the Commonwealth Minister recognising an eligible body as a representative body.

(Refer to Chapter 33).



Table 24.1 (continued)

New kind of instrument that is disallowable

What the instrument is about



Approval under subparagraph 26(1)(c)(iv)

This is an approval by the Commonwealth Minister of a future act as an act to which the right to negotiate provisions apply.

(These are the same kind of approvals currently covered through paragraph 26(2)(e)).

(Refer to Chapter 19)







A revocation of a determination under subsection 26A(8), 26B(9), 26C(6), 43(3) or 43A(6) or paragraphs 207A(4)(b) or 207B(7)(d)

These are the determinations discussed above.

Provisions relating to the enjoyment of native title rights and interests

24.14      Existing section 211 of the NTA ensures that native title holders can carry on certain traditional activities without a licence, permit or other instrument notwithstanding Commonwealth, State or Territory laws that allow persons to carry on the activity only with a licence etc.  So, for example, where a law prohibits fishing without a permit, section 211 operates to allow native title holders to fish without a permit provided that fishing is part of their native title rights and is done in exercise or enjoyment of those rights on a non-commercial basis.

24.15      The Bill amends section 211 by providing that the requirement to get a licence etc. to conduct the traditional activity will still have to be met by native title holders where the law under which the licence etc. is granted or issued allows the grant or issue only for a research, environmental protection, public health or public safety purpose.  [Schedule 1, item 31]

24.16      This means, for example, where a law prohibits fishing for an endangered species of fish without a permit, and those permits are only to be granted for the purpose of research, then section 211 does not enable native title holders to fish for the endangered species of fish without a permit.

24.17      The Bill also inserts a note at the end of subsection 211(2) which puts it beyond doubt that in carrying on these activities, native title holders remain subject to laws of general application.  So, for example, where a law prevents all persons from lighting fires in certain circumstances (including persons who otherwise have a permit to do so), native title holders are also precluded from lighting fires notwithstanding section 211.  [Schedule 1, item 32]

Definitions of various interests in land

24.18      The Bill modifies and inserts various definitions of interests in land.  The definitions are mainly used in the provisions dealing with validation of intermediate period acts and confirmation of extinguishment of native title but some are used elsewhere.

Modified definition of agricultural lease to include aquaculture

24.19      The Bill modifies the existing definition of agricultural lease in section 247 of the NTA to include a lease allowing the land or waters which it covers to be used solely or partly for aquacultural purposes.  However, this change does not apply for the purposes of the provisions dealing with past acts (Division 2 of Part 2 of the NTA).  [Schedule 1, item 46]

What is aquaculture?

24.20      Aquaculture can be described as breeding, keeping and harvesting fish or shellfish and the propagation, maintenance, cultivation and harvesting of aquatic plants.

New definitions

24.21      Several new definitions of interests in land are added to the NTA, as set out in Table 24.2.

Table 24.2

Kind of interest

Definition

Scheduled interest

Anything set out in Schedule 1 to the NTA and any interest in relation to land or waters declared by the regulations for the purposes of paragraph 249C(1)(b) to be a Scheduled interest.  However, a particular regulation can only cover a single type of interest.

Schedule 4 to the Bill has been set aside to add the Schedule to the NTA.  However, the Bill, as introduced into the Parliament, does not include any interests in the Schedule.  Interests will be added to the Schedule, as a Government amendment to the Bill, when consultation about them with relevant parties is complete.

[Schedule 1, item 49, section 249C; Schedule 4, item 1]

Exclusive agricultural lease

An agricultural lease that confers a right of exclusive possession over the land or waters it covers or that is a Scheduled interest.  This is intended to cover agricultural leases for which, by reason of the grant or the nature of the purpose for which the land is used, exclusive possession must have been intended.

[Schedule 1, item 47, section 247A]



Non-exclusive agricultural lease

An agricultural lease that is not an exclusive agricultural lease.

[Schedule 1, item