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Nettheim, Garth --- "Nailing Down Native Title" [1997] IndigLawB 57; (1997) 4(3) Indigenous Law Bulletin 13

Nailing Down Native Title

by Garth Nettheim

The first published version of the Prime Minister's planned response to the High Court's Wik decision was dated 30 April 1997. A second version was dated 8 May 1997. The 10 points still fitted on two pages, and some were expressed so sketchily as to be unclear in their intention or scope. A fuller statement was released on 23 May, which not only clarified points earlier raised, but also developed further proposals to reduce the potential impact of native title rights and interests on non-indigenous interests. Final assessment must await the legislative draft Bill.

That bill will incorporate also the amendments to the Native Title Act 1993 (Cth) (`the NTA') proposed in June and October last year, as well as the Wik-specific amendments. Indeed, the 10 point plan includes considerable reference to the 1996 proposals. The Government hopes that the Bill will be ready for introduction at the beginning of the sittings of Parliament which commence on 25 August 1997, with the Bill passed by the end of the year, though the Department of Prime Minister and Cabinet concedes that this is `a somewhat optimistic timetable'.

Principal features of the myriad 1996 proposals included:

The Prime Minister's 10 point plan has the features below, as set out in the 8 May announcement, augmented by the 23 May statement.

Point 1: Validation for acts between 1 January 1994 and 23 December 1996

This point concerns validation of acts or grants by governments made in relation to `non-vacant Crown land' in the period between passage of the NTA and the Wik decision. This apparently unconditional validation rewards governments (such as that of Queensland) which chose to ignore the possibility that native title might survive on pastoral lease lands. Compensation for any effects on native title will be provided at taxpayer expense. The 23 May statement proposes that the Commonwealth provide 75% and the States/Territories 25%.

Point 2: Confirmation of extinguishment on

`exclusive' tenures

Under the 30 April paper, States and Territories would be given authority to confirm the extinguishment of native title on pre-1994 `exclusive tenures' such as freehold, residential, commercial and public works--also agricultural leases `to the extent that it can reasonably be said that ... exclusive possession must have been intended'. This appeared to be consistent with the High Court decisions in Mabo [No 2] and Wik.

But a sentence added in the 8 May version, designed to satisfy National Party agitation, suggests a much wider operation. It reads `Any current or former pastoral lease conferring exclusive possession would also be included'. This seems to leave it open to States and Territories to declare legislatively that pastoral leases extinguish native title (as Queensland purported to do in 1994). It also applies to `former' pastoral leases; as such it appears to be designed to benefit not pastoralists, but miners.

The statement of 23 May indicates that any such extinguishment is to be permanent. This goes beyond common law (which provides that extinguishment occurs only to the extent of inconsistency) and the Wik decision (which leaves open the possibility that, on the expiry of other interests, native title interests may revive). The amendment is to apply retroactively to claims previously lodged.

Point 3: Provision of government services

The 10 point plan states `Impediments to the provision of government services in relation to land on which native title may exist would be removed'. The intent of this point is not clear. An earlier version said: `Aborigines would lose the right to negotiate over third-party acquisition of land in towns and cities and would be unable to impede the provision of municipal services'. So a prime concern at that time appeared to be with the (time-limited) RTN process within urban boundaries, for sub-divisions and the like. It may have been a specific response to the Northern Territory Chief Minister's over-reaction to the Larrakia claim in the Darwin area.

But the 23 May statement relates the proposal particularly to `rural and remote areas of South Australia, Queensland, Western Australia and Northern Territory'. Native title is not to be extinguished under this proposal--apparently only the right to negotiate. But any effect on native title is to be compensable.

Point 4: Native title and pastoral leases

The 10 point plan states :`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.'

The Wik decision did not decide that native title rights which are inconsistent with those of the pastoralist are extinguished, let alone permanently extinguished:

So, what is contemplated is a large-scale statutory extinguishment of property rights over much of Australia.

The Government goes on to acknowledge that the upgrading of pastoral leases to perpetual or `exclusive' leases or freehold would involve the acquisition of property and the provision of `just terms' compensation. But it also proposes to authorise any activities on pastoral leases that are pursuant to or incidental to `primary production', provided that the dominant purpose of the use of the land is primary production. `Primary production' as defined in the income tax legislation includes cultivation, fishing, forestry or horticulture--such activities could significantly affect the exercise of native title rights and interests. (The 23 May statement covers not only `activities' but `improvements'.) Any right to negotiate is excluded in regard to such activities. Protection (from the right to negotiate) is also to be extended, under the 23 May statement, to activities `off-lease' which are incidental to the (extended definition of) primary production activities on the lease `such as associated grazing licences and access rights to water'.

None of this is warranted by the marginal uncertainty for pastoralists suggested in the wake of Wik.

The 23 May statement reiterates what was said in Wik, that the rights of the leaseholder would continue to prevail over those of any native title holder. (As noted, the rights of the leaseholder are to be expanded). `Native title holders or claimants will not be able to interfere with such management decisions as the siting of a dam.' This was seen by some legal advisers to be in doubt as a result of the Wik decision, but Aboriginal and Torres Strait Islander Representative Bodies have offered to support an amendment to confirm the right of pastoralists to excavate dams without the consent of native title holders.

The `right to negotiate' under the NTA applies where a government proposes to compulsorily acquire native title rights for the benefit of third parties. This is to be removed where the State or Territory provides `alternative procedural rights to native title holders equivalent to those available to the lessee'. It is noted that this will `facilitate the acquisition of native title for the purpose of upgrading a lease', but the 23 May statement adds that `these land management issues will remain a matter for the relevant State or Territory government'.

The empowerment of State or Territory governments to upgrade a lease to freehold or to other forms of exclusive tenure (for example, for `horticulture or other high intensity agriculture') over part or the whole of a lease is underlined in the 23 May statement, by noting the need for acquisition of any native title rights and payment of compensation by the relevant government. Where a leaseholder has `an existing legally enforceable right to convert to freehold', the amendments would confirm that this can be done `without the involvement of native title holders or claimants'.

Point 5: Statutory access rights

Pending determination of a native title claim, `registered claimants' will be given a statutory right of access to pastoral lease land, but this grand concession is to apply only where they can `demonstrate that they currently have physical access' to the land, either under statutory reservations in WA, SA and the NT, or as a result of `long-standing practice'. But to gain even this limited interim statutory access right, native title holders will have to satisfy the revised `registration test'.

In determining a native title claim in relation to pastoral lease land, the court must set out the native title rights (if any) that may co-exist. State or local arrangements would be needed to settle how co-existing rights might be exercised.

Point 6: Future mining activity

This point begins by referring to 1996 proposals in relation to mining on `vacant Crown land' and the `right to negotiate' processes--a higher registration test, no application to exploration, only one RTN per project.

Provisions under point (2) for `exclusive' tenures would extinguish native title and would cut out right to negotiate processes altogether.

For mining on other `non-exclusive' tenures, such as current or former pastoral leasehold land, and national parks (reference to national parks is deleted in the 23 May statement), the RTN would continue to apply. However, States and Territories would be free to displace the RTN by enacting a statutory regime `acceptable to the Commonwealth' (reference to Commonwealth oversight is deleted in the 23 May statement) which includes `procedural rights at least equivalent to other parties with an interest in the land', and compensation. The NTA already requires such equivalent procedural rights and compensation; the RTN is an `add-on' by way of a limited recognition of the special quality of the relationship of indigenous peoples to their land.

The May 23 statement adds: `A mechanism would be included for dealing with mining operations for which the "right to negotiate" is impractical, such as tin, alluvial gold and opal mining'.

Overall, little will remain of the `right to negotiate'.

Point 7: Future government and

commercial development

Various points are brought together under this heading.

Point 8: Management of water resources

and airspace

This point states that amendments would put beyond doubt the `ability of governments to regulate and manage surface and sub-surface water, off-shore resources and airspace, and the rights of those with interests under any such regulatory or management regimes'.

Section 212(1)(b) of the NTA already provides for confirmation of `any existing right of the Crown in that capacity to use, control and regulate the flow of water'. The addition of provisions relating to off-shore resources seems obscure, and there is some concern that it may be intended to foreclose native title claims relating to off-shore areas. The need for provision as to airspace is also mysterious.

The rights of existing interests in areas which might otherwise be subject to native title are already protected by the validation regimes in the current NTA and proposed amendments.

The 23 May statement refers to continuing discussions with States and Territories (but not, apparently, with indigenous bodies) about `the way in which the area between the high and low water mark is treated under the Act'.

9: Management of claims

Point 10: Agreements

This point provides: `Measures would be introduced to facilitate the negotiation of voluntary but binding agreements as an alternative to more formal native title machinery'. This appears to refer to proposals published in October 1996 for Indigenous Land Use Agreements, based on initiatives developed by indigenous peoples' organisations, industry groups and others. Such proposals are positive to all concerned. However, the substantial extinguishment of native title, and of the right to negotiate processes, will reduce incentives to governments and industry to enter into negotiations.

Appraisal

The 1996 amendment proposals go well beyond any identifiable problems of `workability' of the NTA.[1] The Prime Minister's 10 point plan goes well beyond any identifiable problems posed by the Wik decision[2]. Together they represent, not the one-line legislative extinguishment of native title on pastoral lease lands demanded by the National Party and the National Farmer's Federation, but a cumulative and substantial extinguishment of native title on those lands and elsewhere. They also represent, not a one-line abolition of the `right to negotiate' in respect of mining and other developments on native title land but, again, a cumulative and substantial dismantling of that right.

The final two pages of the 23 May statement set out the various reasons why the Government has deemed one-line extinguishment to be undesirable and, indeed, counter-productive. But those considerations have equal applicability to the fragmentary approach which the Government has proposed.

Single-line extinguishment of native title, and single-line repeal of RTN processes, would have presented clearer targets for challenge, but the fragmentary approach raises identical issues. Legally, it seems inevitable that the legislation will be challenged on Constitutional and other grounds, thus delaying the `certainty' which is the avowed aim of the operation. Taxpayers will face a massive bill for compensation, while pastoralists and mining companies stand to gain.

Politically, the legislative process in the Senate is unlikely to be smooth. In the meantime, social division in the Australian community is being exacerbated by these moves, as well as by other current developments.

The proposed amendments will infringe international human rights standards relating to property rights, cultural rights, equality rights, and participation rights. They will attract critical scrutiny from other nations which may well affect Australia's trading interests and other important aspects of our international relations.

All that is really needed for the Native Title Act is some legislative fine-tuning which could have been achieved, so as to accommodate all legitimate concerns, on the basis of negotiated agreement. It is a tragedy for us all that the Commonwealth Government has chosen, instead, to undertake such a substantial dismantling of native title.


Endnotes
[1]. Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report, July 1995-June 1996 (AGPS, Canberra, 1996); ATSIC, Proposed Amendments to the Native Title Act 1993. Issues for indigenous peoples (ATSIC, 1996); S Beckett, `Workability in Whose Interest? the Native Title Amendment Bill 1996' Vol 3, 84 Aboriginal Law Bulletin 4; S Beckett, `But Wait ... There's More! Federal Government Releases More Amendments to the Native Title Act', Vol 3, 87 Aboriginal Law Bulletin 8.

[2]. National Indigenous Working Group on Native Title, Co-existence--Negotiation and Certainty. Indigenous Position in Response to the Wik Decision and the Government's Proposed Amendments to the Native Title Act, 1993 (April, 1997); G Nettheim, `Responding to Wik: first, define the problem' 1997 (4) 1 Indigenous Law Bulletin 14.


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