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Monday, 9 March 1998
Page: 781

Mr WILLIAMS (Attorney-General) (5:45 PM) —I move:

That the bill be now read a second time.


When I introduced the Native Title Amendment Bill 1997 into the House of Representatives on 4 September 1997, I outlined the circumstances which made amendment of the Native Title Act 1993 essential and how each of the major provisions in the bill would address the inadequacies of that act, particularly following the Wik decision in December 1996. Very briefly, in common with that bill, this bill is designed to achieve the following outcomes:

. to provide an application and determination system which is constitutionally secure and which will enable the states and territories to develop their own systems for dealing with native title matters provided they comply with national standards;

. to ensure that action taken by governments and others between the commencement of the act in 1994 and the Wik decision in December 1996 should not be invalid because of a legitimate and reasonable assumption that the grant of a pastoral lease extinguished native title, an assumption subsequently found to be wrong;

. to bring a greater level of certainty to all Australians by providing, where it can reasonably be said that native title has been extinguished by types of government grants, that this extinguishment is confirmed, rather than leave individual grants to be litigated on a case by case basis;

. to make it clear in the act itself what acts can be done on land and waters that may be subject to native title, including the provision of services to the public, the renewal of leases and licences, the regulation and management of water and the implementation of past reservations of land, and to apply the non-extinguishment principle in relation to those acts;

. in the case of pastoral lease land, to specify the kinds of activities that can be carried on by pastoralists, and to reflect the Wik decision by expressly providing that those activities prevail over native title rights and interests, but do not extinguish them;

. to protect any existing access of native title claimants to pastoral lease land while claims are being determined;

. to limit application of the special statutory right to negotiate process to those areas where it was intended to apply—vacant crown land where there are no competing third party interests; to reduce unnecessary delay in that process; and to put in place a registration test for claims which ensures that those negotiating with developers have a credible claim;

. to provide a legally certain, procedurally straightforward and comprehensive agreements framework; and, finally

. to help bring about an effective native title system by ensuring that native title representative bodies are efficient, effective and accountable.

The 1997 bill resulted from 18 months of consultations and discussions with all sectors of Australian society potentially affected by native title and represented an honest compromise based on the outcome of those discussions. The bill's broad policy approach and the processes which led to its development are more fully outlined in my second reading speech to the House on 4 September 1997.

The government has at all stages indicated it is prepared to consider changes which would improve workability and reduce uncertainty, provided they did not tip the balance of interests so carefully reflected in the 10-point plan, and then in the bill. Indeed, a substantial number of government amendments were moved to the bill during the Senate debate in December 1997 for that purpose.

The government's judgment about the fairness of the 1997 bill has been largely vindicated by the acceptance by the Senate of substantial parts of the bill including those dealing with indigenous land use agreements, representative bodies, the confirmation of past extinguishment, the validation of acts before Wik, and the future act provisions, with either no changes, or only minor changes.

It is noteworthy that notwithstanding the early harsh criticism from the opposition of a wide range of these provisions, the Leader of the Opposition has now indicated support for that Senate outcome. However, the Senate made a number of changes in areas we regard as vital to the act's workability. The government cannot accept these amendments for reasons described in more detail below.

The Prime Minister indicated when the 1997 bill was laid aside by the House of Representatives that the Senate would, after three months, be asked to consider that bill again. The Prime Minister also indicated that, if it became apparent that the only way in which the bill could be passed was to use the constitution's processes for resolving disagreements between the houses, the government would be prepared to take that course. The Prime Minister also indicated his hope that this option would prove to be unnecessary.

A history of the bill

Apart from incorporating a number of amendments made by the Senate in December 1997, this bill is the same as the Native Title Amendment Bill 1997 passed by the House of Representatives on 29 October 1997. The 1997 bill itself contained the substance of the Native Title Amendment Bill 1996, which I had introduced into the House on 27 June 1996. It also contained proposed government amendments to the bill released in October 1996, dealing with the right to negotiate, indigenous land use agreements and representative bodies.

The main additions in the 1997 bill were of course the amendments developed by the government, following negotiations with interest groups, about the best way to respond to the uncertainties created by the Wik decision of December 1996.

Immediately the Native Title Amendment Bill 1997 was introduced into the House on 4 September 1997, its contents were referred to the parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund for report by 27 October 1997. The committee undertook an extensive inquiry, holding public hearings over twelve days, visiting Broome, Alice Springs and Cairns. The fact it received over 1,700 written submissions is indicative of the immense public interest in the bill.

The committee's reports were tabled in the House on 27 October 1997 and in the Senate on 28 October 1997 with the majority report recommending that the bill be adopted, and that the government consider making amendments in four areas. The relevant amendments were moved by the government in the Senate and accepted. The bill was passed by the House on 29 October 1997, the House having agreed to the inclusion of a new schedule of exclusive possession tenures.

The Senate had already agreed on 2 October 1997 that the provisions of the bill should be referred to the Senate Legal and Constitutional Legislation Committee for inquiry and report on the constitutionality and constitutional bases of the bill. After receiving submissions from 29 bodies and individuals and hearing evidence from 11 of these, the committee reported on 10 November 1997 with the majority concluding that, on balance, the High Court would find the bill constitutionally valid. The committee recommended, however, that the relevant provisions of the bill be reviewed to confirm that the legislation met the constitutional requirement for the acquisition of property on just terms.

What happened in the Senate

The bill was introduced into the Senate on 11 November 1997 with non-government parties and Senator Harradine indicating they would be moving a total of over 750 amendments; in the case of the opposition, the Greens and Democrats these involved a substantial rewrite of the bill. In response to the recommendations of the parliamentary joint committee and the Legal and Constitutional Legislation Committee, the government released its own amendments to the bill designed to address some of the legal and policy issues raised in their respective reports.

Additional amendments were also introduced by the government arising out of discussions with the opposition and Senator Harradine during the Senate debate. It is important that specific mention is made of the more significant of these government amendments because, in the heat of the debate last year, they did not receive the recognition they deserved as effective measures for dealing with the issues raised in evidence to the committees.

For instance, the bill's validation provisions were amended to require notification of mining leases granted in the period from 1 January 1994 to the date of the Wik decision—schedule 1, section 22EA in this bill. The confirmation of extinguishment provisions were amended to put beyond doubt that Aboriginal land, national parks and conservation areas and stock routes were not included—schedule 1, section 23B in this bill. In part to address the issue of just terms compensation, a requirement for notification of native title holders of the doing of specific future acts—such as agricultural and forestry activity—and a general regulation-making power for notification of such acts, were both included.

The operation of the sunset clause on compensation claims was made subject to notification of native title holders affected by the compensable act—schedule 2, section 50(2A) in this bill. Provisions were also included to ensure that any compulsory acquisition of native title rights and interests must be done in a non-discriminatory manner, and that the requirement to pay just terms compensation for acquisitions would apply to the states and territories as well as the Commonwealth.

The capacity of governments to grant pastoralists new primary production rights was clarified, in particular by ensuring that if more than 50 per cent of a pastoral lease of over 5,000 hectares was to be used for non-pastoral purposes any native title must be acquired by agreement or in a non-discriminatory manner—schedule 1, subsection 24GB(4) in this bill.

In response to concerns about the registration test, and to encourage negotiated rather than arbitrated outcomes in the right to negotiate process, the Registrar was given an extra month to consider claims for registration, and the parties were given six months to negotiate an outcome.

As a result of discussions with the Aboriginal and Torres Strait Islander Commission, a number of changes were also made to the comprehensive representative body provisions to clarify their operation and ensure proper accountability.

Perhaps most significantly, so far as indigenous criticism was concerned, the government met the argument that the bill failed to take account of the issue of `historic' pastoral leases. Proposed sections 47A and 47B in schedule 1 will enable indigenous people who are in occupation of an area where there are no longer any competing third party rights to claim native title and have the court disregard the tenure history of the area in determining that claim.

It is worth noting that the Senate supported the vast majority of these government amendments. Any fair-minded observer will concede that these changes go a substantial way to meeting concerns raised about some provisions of the bill. It is also worth noting that, notwithstanding the sometimes heated and ill-informed public and media debate and the lengthy consideration by the committee of the whole—the total time for consideration by the Senate was over 56 hours—the Senate debate was generally characterised by its calmness, good spirit and professionalism.

The opposition combined with the government and Senator Harradine on 5 December 1997 to vote for the third reading of the bill, with 217 Senate amendments. This outcome represented a significant narrowing of the areas of disagreement. The opposition indicated its support for the bill's provisions which it had, until that time, denounced as racist and totally unacceptable. These provisions included:

. the comprehensive validation regime for acts between the commencement of the Native Title Act in 1994 and the Wik decision;

. subject to a number of additional relatively minor changes, the confirmation provisions, including the schedule of exclusive possession tenures;

. the primary production provisions which put beyond legal doubt what activities pastoralists are able to carry on; and

. the statutory access rights for registered native title claimants.

The general support by the Senate of many other initiatives included in the bill, such as the powers and functions of representative bodies, the regime for recognising indigenous land use agreements, and the new claims and determination process necessitated by the High Court's Brandy decision, was a welcome sign of the recognition of the substantial deficiencies of the current Native Title Act. However, the Senate also made a number of amendments proposed by non-government parties and independent senators which would severely undermine the workability of the act, and this is why the 1997 bill could not be finally dealt with.

The response of the House of Representatives

On 6 December 1997 the House of Representatives indicated its acceptance of 125 of the 217 amendments in the schedule and its rejection of 92. The House then agreed to lay the bill aside. There were four particular sets of amendments made by the Senate which were, and remain, unacceptable to the government—they relate to the registration test, the right to negotiate, the relationship between the Native Title Act and the Racial Discrimination Act and the sunset clause on applications for determinations of native title under the Native Title Act.

Also significant were those amendments relating to small claims, indigenous land use agreements, pastoralists' rights, the renewal of leases, the treatment of Crown to Crown grants, and the way in which state and territory tribunals should operate. The government made clear during consideration by the House of Representatives on 6 December 1997 of the Senate schedule of amendments its reasons for rejecting the registration test, right to negotiate, Racial Discrimination Act and sunset clause amendments. It is appropriate and timely for those reasons to be reiterated.

(i) Registration test

Everyone agrees, including indigenous representatives, that an effective registration test as the gateway to the statutory benefits which the act provides is essential. While the Brandy amendments in the bill have overcome the watering-down of the current threshold test by the Waanyi and Northern Territory v. Lane decisions, it is essential to the continuing acceptance of the right to negotiate process that only those people with a credible native title claim should participate.

Application of an improved test will go a long way to removing the ambit and unprepared claims which are now clogging the National Native Title Tribunal, causing uncertainty for state and local governments, involving thousands and thousands of respondents and dollars, delaying many resource developments and undermining the credibility of native title processes. The registration test adopted by the Senate, while an improvement on both the current situation and the wholly ineffective test originally proposed by the opposition, the Greens and Democrats in the Senate in December, would not provide the degree of scrutiny which those who will have to deal with registered claimants have a right to expect.

For instance, it would not expressly prevent registration of a claim over land which has been subject to a freehold grant or a residential lease. It would also allow claimants to be a party to negotiations on whether a mine should go ahead even though no member of the claim group can demonstrate that they have ever visited the area. A test which sets the bar too low and does not require the registrar to be prima facie satisfied in relation to all aspects of the native title rights and interests claimed will not effectively address the problem of claimants with limited prospects of success having access to the right to negotiate process.

It should be remembered that once a court has determined that native title exists, the native title holders will, as a matter of course, have access to the right to negotiate. The registration test is only relevant to those claimants who have yet to establish their claim in court. The government has therefore maintained the registration test previously passed by this House—schedule 2, sections 190A, 190B and 190C in the bill.

(ii) Right to negotiate

When introducing the bill in September 1997, I made the point that the right to negotiate procedures have failed to deliver the outcomes that were expected. The situation has not changed in the intervening six months.

At 16 January 1998, of the 2,186 mineral tenements in Western Australia which have become subject to the full right to negotiate, only 196 have been cleared for grant following lodgement of an agreement under section 34 of the act. The bill's amendments to the right to negotiate procedures, which were effectively rejected by the Senate, were designed to achieve two outcomes:

. to exclude the right to negotiate where it is inappropriate because of the nature of the rights to be granted, the minimal impact on the land or the limited native title rights that can potentially exist; and

. to streamline the process to reduce unnecessary delay and, where appropriate, to de volve greater responsibility to the states and territories to deal with these matters.

The effect of the Senate amendments to the right to negotiate provisions would be to maintain the full right to negotiate on pastoral lease land, on non-government infrastructure development, on exploration activities and on the renewal of mining leases—even though the grant of the lease may already have been subject to the right to negotiate process—and in towns and cities.

The right to negotiate is a significant brake on mining and public and private development activity. It is a right that no others with interests in land have. Because of this, the government believes that the right to negotiate should only operate where native title holders have significant interests in the land, interests analogous to ownership of that land. Where native title holders do not have such a high level of rights, and in particular where they can only have co-existing rights with others, then the full right to negotiate is inappropriate.

This bill still contains section 43A in schedule 1 which enables a state or territory to apply its own regime in relation to mining and relevant compulsory acquisitions where native title holders have limited co-existing rights. Of course those alternative regimes must meet specific criteria, including the provision of procedural rights to native title holders equivalent to the procedural rights of others.

(iii) Racial Discrimination Act

The Senate agreed to an amendment which would replace the current subsection 7(1) of the Native Title Act—which states that nothing in the act affects the operation of the Racial Discrimination Act 1975—with a provision which instead states that the Native Title Act is intended to be read and construed subject to the Racial Discrimination Act. Perhaps the most eloquent exposition of the arguments against this proposal was stated by Senator Harradine in the Senate on 5 December 1997:

It is unworkable because every provision in the legislation will have to be subject to the RDA. There will be endless litigation about it. Why did we not put it in the 1993 legislation? For the very reason that we ought not be putting it in here. The Labor government at that time knew that it was a nonsense to put a similar provision in the Native Title Act. If the Labor Party faced up to the real world now, they would realise that it would be, and is, not an appropriate thing to do if you want to have the legislation work for the benefit of indigenous people—native title holders—and in fairness to the rights of other persons. Under those circumstances, I do not intend to support the motion.

It is unclear what the amendment agreed to by the Senate actually means. On one view, it could mean that, notwithstanding a government had fully complied with all the requirements of the Native Title Act in relation to the granting or renewal of a particular lease or licence, and the act stated that the grant was valid, the grant may still be challenged in the courts as inconsistent with the Racial Discrimination Act and on that basis be held invalid.

On another view, it does no more than reflect what the High Court indicated in Western Australia v The Commonwealth, that is, that the Racial Discrimination Act is relevant in resolving ambiguities in the Native Title Act and in guiding the exercise of statutory discretions under that act.

The inherent ambiguity in the proposed amendment is the kind of political doublespeak which underpinned the deal done by the previous government in relation to pastoral leases in 1993—a mistake which this government has no intention of emulating. For this reason, the amendment should be rejected.

It cannot be in anyone's interests to have such a high level of uncertainty surrounding the relationship between the act and the Racial Discrimination Act. It is the obligation of this parliament to make clear, precise laws. Even the Labor dominated Senate Legal and Constitutional Affairs Committee concluded in 1993, in considering the 1993 Native Title Bill, that a similar formulation would be a recipe for uncertainty and recommended that it not be adopted.

It is reassuring to see that someone who could never be accused of supporting the government on native title matters recognises the uncertainty which the amendment would produce if the generally agreed aim of all parties for certainty and workability is to have any meaning. Father Frank Brennan said earlier this year that `Despite the populist appeal of this amendment, the Opposition parties should back down in the interests of certainty, justice and workability for all stakeholders'. This bill therefore maintains the existing provision in subsection 7(1) of the act.

(iv) Sunset clause

As to the sunset clause, the government believes that it is important that some discipline be imposed on the claims process and that those potentially affected by that process can be assured that, at the end of a reasonable time, native title issues will have been finally resolved. Subsection 13(1A) in schedule 2 is therefore maintained. The provision requires only that claims under the act be made within six years of commencement of the amendments. It does not otherwise prevent native title claims being made in the courts or the exercise of common law rights.

Content of the Bill

As mentioned above, the content of the bill is the same as the Native Title Amendment Bill 1997 as it was passed by the House of Representatives on 29 October 1997, but with the addition of a number of amendments later made by the Senate. On 6 December 1997 the House indicated its acceptance of 125 Senate amendments, the majority of which were moved by the government during the Senate debate. It has become apparent, however, that a small number of these amendments may not in fact have been `made' by the Senate. Having carefully considered the matter, the government has decided not to include these amendments in the reintroduced bill.

Technical and drafting issues have arisen in relation to a number of the 25 non-government amendments accepted on 6 December 1997 which make it inappropriate for them to be incorporated into the bill. However, the government still supports the policy intent underlying those amendments and intends to move, or agree with, amendments designed to achieve the same outcome when the bill is debated in the Senate. Relevant non-government parties are being consulted on the form of the revised provisions.

Finally, in relation to the small number of remaining amendments, after careful reconsideration and discussions with the other parties, the government has decided that there are substantial policy reasons why these amendments should not be incorporated into the bill nor be supported as amendments in the Senate. Very briefly, the government does not support the following ALP-sponsored amendments in their current form:

. amendments which would prevent some of those whose interests are affected by a native title claim from being parties to the court processes (opposition amendments 242, 247, 248 and 249);

. an amendment to provide that resources may be a relevant factor in deciding whether it is reasonably practicable for a representative body to notify native title holders on matters affecting their interests (opposition amendment 382);

. an amendment which would render uncertain the compensation provisions as they apply where native title is only impaired (but not acquired) (opposition amendment 188);

. an amendment which would prevent the states and territories from including more than one future act to which the right to negotiate applies in the notification sent to native title holders and advertised in notices to the public (opposition amendment 131).

A total of 107 amendments have been incorporated and they are identified in the explanatory memorandum. The government will also be moving a number of new but minor technical and drafting amendments in the Senate.


In the six months since this bill was introduced into the House on 4 September 1997, over 80 new claims for native title have been made, but there are still only two determinations on the mainland. One of those, the Hopevale agreement involving 11 separate groups of native title claimants and the Queensland government, represents the way forward in native title matters. This is an approach which would be significantly boost ed if the indigenous land use agreement provisions were in place.

Since the bill was introduced, the Full Federal Court has held that parts of the Native Title Act which give the National Native Title Tribunal determinative powers are unconstitutional—an outcome which was anticipated but which makes enactment of the Brandy amendments more urgent.

Since the bill was introduced, the government's argument for legal certainty about the effect on native title of a freehold grant, and whether this effect is temporary or permanent, and the need for a new registration test, has been substantiated by the seeking of an injunction by native title claimants in the Northern Territory to prevent government development activity on land over which there is a registered claim within the city of Darwin.

I note that at the end of February the Federal Court upheld the position which the government sought to confirm in the bill—that native title is permanently extinguished by a freehold grant—a position initially opposed by the Opposition and which continues to be opposed by the Greens and Australian Democrats. The Federal Court also refused to grant the injunction.

Since the bill was introduced, action has been taken by native title claimants in the Federal Court in Queensland to close down a mine currently employing around 250 workers, the argument being that the relevant mining lease, not having gone through the right to negotiate procedures, is invalid. The government believes it is in the national interest that these issues be resolved as soon as possible and that all groups have the opportunity to get on with making the act work and securing practical outcomes.

The continuing controversy and uncertainty is damaging to the interests of all key groups and the government is aware of the community's frustration with the delay in securing passage of these important provisions. The government is confident that on further consideration, the Senate will support the bill and this long and difficult process can be brought to an honourable conclusion which is in the national interest.

I present an explanatory memorandum to the bill and recommend the bill to the House.

Debate (on motion by Mr Melham) adjourned.