Australian Indigenous Law Reporter
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In partial response to the decision of the High Court of Australia in Mabo v Queensland (Mabo (No. 2)) [1992] HCA 23; (1992) 175 CLR 1, the Commonwealth Parliament enacted the Native Title Act 1993 (Cth) which commenced operation on 1 January 1994.
During 1995 the Commonwealth Government introduced a bill to amend the Native Title Act (the NTA) in various particulars, but this bill had not been enacted when there was a change in government following national elections in March 1996.
In June 1996 the Commonwealth Government introduced its own bill to amend the NTA, and, in October 1996, it published an exposure draft of further amendments. These had not been debated when, on 23 December 1996, the High Court handed down its decision in The Wik Peoples v Queensland (1996) 141 ALR 129; (1997) 2(1) AILR 35.
After a series of consultations, the Commonwealth Government published an outline of its proposed response to the Wik decision at the end of April 1997. This became known as The 10 Point Plan, and is set out below. Shortly beforehand the National Indigenous Working Group on Native Title published its own proposals concerning changes to the NTA including responses to the Wik decision. (That decision was to the effect that pastoral leases do not necessarily extinguish native title rights and interests). The Executive Summary to the NIWG document is also set out.
April 1997
The Government proposes many amendments to the Native Title Act which should be negotiated with the National Indigenous Working Group on Native Title.
The Indigenous position addresses proposals both for a legislative response to Wik and the Government's amendments to the Native Title Act.
The National Indigenous Working Group negotiation position is based on these key principles:
* Respect for property rights of all titleholders on a non-discriminatory basis
* The principles of non-discrimination, as set out in the Racial Discrimination Act 1975, must be respected
* No extinguishment of native title without informed consent of native titleholders
* Continuing protection of native title under the Native Title Act
* No de facto extinguishment of native title by
* unreasonable threshold test for the acceptance of claims
* minimisation of native title rights through codification
* "physical connection" tests
* imposition of sunset clauses on claims
* precluding towns, cities and waterways from claims or the right to negotiate process
* Native titleholders have a right to negotiate over development on native title land.
The NIWG believes that Indigenous people must have the right to negotiate changes which affect their fundamental legal rights.
* Coexistence of rights on pastoral leases
The Indigenous position recognises the legitimate rights of all parties and confirms the rights of pastoralists and native titleholders. Coexistence issues can be best resolved by negotiated agreements.
The proposal to broaden permitted land uses on pastoral leases under a definition of primary production will effectively upgrade leases while blocking and extinguishing native title.
The NIWG agrees that native title claimants should have to make out a reasonable case before lodging a claim, but the Govemment's proposed test is too extreme.
The right to negotiate enables Indigenous peoples to protect their culture, and participate in development and economic activity. The Government proposes to severely limit this right and in some cases, remove it altogether, such as for mining lease renewals. The NIWG opposes amendments that propose unreasonable Ministerial intervention and powers, exclusion of spiritual attachment in assessing interference of developments in community life, shortening negotiating times and excluding profit sharing arrangements from arbitral determinations.
The NIWG has developed a model which is flexible, simple and efficient for negotiating regional and site-specific agreements and which provides certainty for all parties.
The NIWG is proposing enhanced recognition of and functions for Representative Bodies by providing statutory mandatory functions for them under the Native Title Act. The Government's amendments won't address the problem of multiple claims being lodged.
The Government proposal for a process of re-recognition of Representative Bodies will also cause problems and uncertainty. The proposed functions of Representative Bodies will not achieve good outcomes.
The NIWG supports accountability of Representative Bodies, but the further accountability requirements the Government wants to impose will be oppressive and unproductive. The current system is workable and already meets general standards of accountability. Proper accountability is best achieved by making Representative Bodies fully answerable to their constituents.
The NIWG rejects blanket validation of potentially invalid interests granted in land since 1 January 1994. This would reward flagrant breaches of the law by some Governments. Validation of such grants should be through the Future Act regime of the Native Title Act or through regional agreements. The Working Group proposes a process for speedy and fair resolution of compensation claims.
Native Title rights are the key to addressing the economic disparity between Indigenous and non-Indigenous Australians which will otherwise widen significantly in the next decade. The NIWG has developed an economic package to establish a capital base to enable indigenous participation in development and investment on native title lands. Such an economic package cannot be seen as any form of compensation for loss or impairment of native title rights.
Procedures for recognising native title on land already set aside for Aboriginal use should be streamlined. The new system will be cheaper and provide for compensation for non-indigenous interests.
Heritage protection laws are vital for the protection of native title rights. The NIWG wants a national model for heritage protection with criteria for minimum standards for complementary State standards as recommended in the Evatt Report on the Review of Commonwealth Aboriginal Heritage Protection Legislation.
* See (1997) 2 (3) AILR for the Evatt Report.
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.
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.
Impediments to the provision of government services in relation to land on which native title may exist would be removed.
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'1 would be allowed on pastoral leases 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).
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.
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 (eg 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).
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 (eg 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.
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.
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.
Measures would be introduced to facilitate the negotiation of voluntary but binding agreements as an alternative to more formal native title machinery.
Definition of Primary Production
Income Tax Assessment Act 1936 -- section 6:
`primary production' means production resulting directly from -
(a) the cultivation of land;
(b) the maintenance of animals or poultry for the purpose of selling them or their bodily produce, including natural increase;
(c) fishing operations;
(d) forest operations; or
(e) horticulture;
and includes the manufacture of dairy produce by the person who produced the raw material used in that manufacture.
The Commonwealth Government has decided to integrate the amendments it had proposed to the NTA in 1996 with the Wik-specific amendments heralded in The 10 Point Plan. Draft legislation was released at the end of June 1997. The Government proposes that the Bill be debated in the second half of the year and hopes to have it enacted by the end of the year.
Endnotes
1. This will be based on the definition in the Income Tax Assessment Act 1936, a copy of which is attached.
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/1997/25.html