Australian Indigenous Law Reporter
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Australian Indigenous Law Reporter |
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Daniel Guttman*
This article investigates the similarities and differences between the Australian and Canadian approaches to native title (‘Aboriginal title’ in Canada), by examining the obligations imposed on governments – by courts or legislation – in each country in the situation where native title has been asserted but has not been determined by a court to exist (‘pre-proof’ obligations).
I begin by examining the common law pre-proof regime in Canada, which consists of duties to consult and accommodate, as recently set-out by the Supreme Court of Canada in Haïda Nation v British Columbia (Minister of Forests)1 (‘Haïda Nation’). I will consider the source of the duty to consult in Canada, the content of that duty, and when that duty is imposed on the government. I will then analyse how lower courts in Canada have applied the principles relating to the duty to consult and accommodate in the short time since the Haïda Nation decision.
I then turn to the future act regime that governs pre-proof matters in Australia, as set out in the Native Title Act 1993 (Cth) (‘NTA’). I will focus on four aspects of the regime. First, the imposition of different procedural obligations on the government depending on the type of future act proposed, and second, the requirement that native title claimants meet the test for ‘registration’ of their claim before any pre-proof protection accrues. Then I will consider the administrative National Native Title Tribunal, created by the NTA to resolves disputes related to certain high impact future acts and finally, the Indigenous Land Use Agreement registry created by the NTA.
Next, I compare the level of pre-proof protection in Canada with its Australian counterpart. The focus of this comparison will be on the advantages and disadvantages of each scheme. In particular, I describe how the procedural obligations, including the ‘right to negotiate’ (as originally set out in the NTA in 1993, and in the more restricted form set out in the 1998 amendments to the NTA) fall far short of the ‘procedural obligations’ imposed under the rubric of the duty to consult in Canada. The NTA requires satisfaction of a ‘high threshold’ test for registration before the statute gives any pre-proof protection, severely limits the situations in which the right to negotiate applies, and limits its content when the right to negotiate does apply.
As the Supreme Court in Haïda Nation has invited federal and provincial governments to enact a statutory scheme, I conclude by discussing what the components of a Canadian statutory scheme should look like, given the lessons learned from the Australian system.
The common law scheme developed by the Court in Haïda Nation, which is still in its infancy,2 provides more protection to Aboriginal claimants pre-proof than the NTA. I begin by setting out the principles established in Haïda Nation that relate to the government’s duty to consult Aboriginal claimants who have asserted Aboriginal rights (including Aboriginal title) before they have established their Aboriginal title claim in court.
In Canada, pre-proof matters are regulated by the common law. The Supreme Court provided a framework for pre-proof matters for the first time in Haïda Nation, which was released on 18 November 2004. In Haïda Nation, the Supreme Court held that the Government has a legal duty to consult, and in some cases accommodate, Aboriginal peoples prior to making decisions that might adversely affect their asserted, and seriously pursued, but as yet unproven Aboriginal rights and title claims.
With respect to the origin of the duty to consult, the Court stated that the duty is grounded in the principles of the honour of the Crown and reconciliation, which are embodied in the recognition of Aboriginal and treaty rights in s 35 of the Constitution Act, 1982. As the Chief Justice stated:
the duty to consult and accommodate is part of a process of fair dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution. Consultation and accommodation before final claims resolution, while challenging, is not impossible, and indeed is an essential corollary to the honourable process of reconciliation that s 35 demands. It preserves the Aboriginal interest pending claims resolution and fosters a relationship between the parties that makes possible negotiations, the preferred process for achieving ultimate reconciliation …3
Where a right is asserted but not proven, the Honour of the Crown does not require the Crown to Act as a fiduciary. However, the Government cannot ‘cavalierly run roughshod’ over Aboriginal interests when these interests are being seriously pursued.4 The duty arises when the Crown has knowledge (real or constructive) of the potential existence of the Aboriginal title and contemplates conduct that might adversely affect it.5
With respect to the content of the duty to consult, what is demanded depends on the circumstances and will therefore vary from case to case. The court specified that the requirement of consultation in each case will be proportionate to the strength of the claim, based on a preliminary assessment, and to the seriousness of the potential adverse affect upon the title claimed.6 There is no duty to come to agreement – what is required is a meaningful process of consultation in good faith.7 In each case, the government must do what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal people with respect to the interests at stake.8
Consultation may reveal a duty to accommodate.9 Where accommodation is required in making decisions that may adversely affect claimed rights, the Crown must balance Aboriginal concerns with the potential impact of the decision on the claimed rights and with other societal interests.10
In Haïda Nation, the result of applying the duty to consult principles was straightforward. The government had failed to consult the Haïda Nation at all, in a situation where the claim was supported by a prima facie case, and the proposed action of the government (the renewal of a tree farm license) had potentially serious consequences on that claim. While the Court stated that the honour of the Crown ‘may require’ significant accommodation,11 the Court did not expand on how the principles would be applied where the government had engaged in some consultation. However, in Taku River Tlinglit First Nation v British Columbia (Project Assessment Director)12 (‘Taku River’), the companion case to Haïda Nation, the Supreme Court’s thorough analysis revealed how courts are to evaluate whether a government has satisfied its duty to consult and accommodate in a given case.
In Taku River, the question was whether the government had satisfied the duty to consult and accommodate the Taku River Tlingit First Nation (‘TRTFN’) before granting a project approval certificate to Redfern, a mining company.
The facts of Taku River were as follows. In 1994, Redfern sought permission from the government of British Columbia to re-open an old mine. Part of Redfern’s application to re-open the mine involved a plan to build a 160 kilometre road through the traditional territory of the TRTFN. The TRTFN objected to the company’s plan, citing concerns about the potential effect on wildlife, traditional land use (since the road was to pass through an area critical to the TRTFN’s economy), and arguing that the road would act as a magnet for further development.
After satisfying the mandatory statutory processes,13 the government approved the application in 1998, subject to detailed terms and conditions. The case arose when the TRTFN launched court proceedings to quash the government’s decision to approve Redfern’s application. Both the lower court and Court of Appeal in British Columbia held that the government had failed to discharge its duty to consult. However, the Supreme Court of Canada reversed this decision, finding that the government had in fact satisfied its duty.
In its decision, the Supreme Court reiterated the principles set out in Haïda Nation and emphasised that the Crown’s duty to act honourably cannot be interpreted narrowly or technically.14 It recognised that responsiveness is a key requirement of consultation and accommodation.15 However, as there is no duty to reach agreement, a failure to agree does not imply a breach of the obligation to consult in good faith.16 Accommodation requires that concerns be balanced reasonably with the potential impact of the particular decision on those concerns and with competing societal concerns. Compromise is inherent to the reconciliation process.17
The Court recognised that the TRTFN’s claim was strong and there was a high potential that the proposed future act would negatively impact the TRTFN. Thus, the Court concluded the Crown had a duty to accommodate the TRTFN. However, the Court found ultimately against the TRTFN as it was satisfied that the process the government had conducted, which was required by the Environmental Assessment Act,18 satisfied the Crown’s duty to consult and accommodate. The government had satisfied its duty to consult and accommodate for three main reasons.
First, there had been meaningful consultation.19 The TRTFN was part of the Project Committee established by the Environmental Assessment Act process and participated fully in the three and a half year environmental review process. The TRTFN were invited to participate in and given funding to attend working groups dealing with Aboriginal concerns and transportation options.
Second, the Government of British Columbia had accommodated the concerns of the TRTFN.20 The government adapted the review process, including the imposition of additional requirements on Redfern. In addition, the Crown undertook additional measures to satisfy TRTFN concerns such as funding a wildlife monitoring program and employing a consultant acceptable to the TRTFN to perform a traditional land use study and produce a report and an addendum to that report to address further TRTFN concerns.
Finally, TRTFN concerns were considered in the decision-making process and affected the outcome.21 The report that went to the Minister for his approval explicitly identified TRTFN concerns and suggested mitigation measures. Thus the TRTFN’s views were put before the decision makers and while the final project approval did not fully reflect the TRTFN’s position, it did address their immediate and long-term concerns. The project was approved subject to detailed terms and conditions.22 The approval also recommended the creation of a wildlife management zone along the access corridor, regulations to control access to the road and a Joint Management Committee for the road with the TRTFN; and the report recognised that in all likelihood, additional accommodation would be required as the project developed and more information was acquired.
The principles established by the Supreme Court in Haïda Nation have already been applied in two recent cases in British Columbia: Gitanyow First Nation v British Columbia (Minister of Forests)23 (‘Gitanyow’) and Musqueam Indian Band v British Columbia (Minister of Sustainable Resource Management)24 (‘Musqueam’). These are examined in turn below.25
In 2002, the Gitanyow, along with two other Indian Bands, brought a petition challenging a decision of the Minister of Forests in which he consented to the change of control of a timber company, Skeena, which had a tree farm and forest licenses in the Bands’ traditional territory. The original petition came before Tysoe J. In a decision indexed as Gitxsan and other First Nations v British Columbia (Minister of Forests),26 he found that each of the three First Nations had a good prima facie claim of Aboriginal title with respect to at least part of the areas included in the lands covered by the licenses. Justice Tysoe also found that the Minister had not satisfied his duty to consult. However, Tysoe J did not quash the Minister’s decision because he held the Minister should be given further opportunity to fulfil his duty. In the event any of the First Nations were unsatisfied with the accommodation offered by the Minister, they could return to Court.
In this motion, the Gitanyow returned before Tysoe J as they were not satisfied with the level of accommodation the Minister had offered in the two years since the initial decision and applied for a declaration that the Minister had failed to provide meaningful and adequate consultation along with other relief.27
The Court again held that the Minister’s consultation was inadequate.28 Though the government had engaged in comprehensive negotiations for a Forest and Range Agreement, that agreement was a broader financial accommodation that encompassed much more than the change of control and dealt primarily with the future dealings of the tree farm and forest licences. As Tysoe J stated:
I cannot decide whether the Province has fulfilled its duty on the basis of the negotiations on the Forestry and Range Agreements because the parties have been negotiating something different from an accommodation pursuant to the Crown’s duty in relation to the change of control ... the Crown’s offer to enter into the Forest and Range Agreement will not fulfill the Crown’s duty in respect of the Skeena change of control unless the Gitanyow are prepared to accept the offer.29
He also found that the Crown had ‘not yet filled its duty of consultation’ with respect to unfulfilled silviculture obligations, which related to the replenishment of timber already harvested in territory claimed by the Gitanyow. In the result, he did not quash the Minister’s decision but encouraged the parties to resume negotiations, while noting that the Gitanyow ‘will continue to have liberty to re-apply for an order quashing or setting aside the consent of the Minister to the change of control’.30
In this case, the British Columbia Court of Appeal reversed the ruling of the lower court, and held that the government had breached its duty to consult. The government had conveyed the lands in question to the University of British Columbia. The Musqueam objected to the government’s sale of the land to a third party because it was one of the very few parcels of land in their traditional territory that was potentially available for treaty settlement purposes.
The government conceded that the Musqueam had established a prima facie case for Aboriginal title and that it had failed to consult prior to the sale negotiation with the University.31 The lower court judge dismissed the Musqueam motion despite this concession, finding that the consultations did occur in a bona fide manner after the Musqueam had initiated their motion and that the duty to consult was satisfied through the government’s ‘offer of economic compensation’.32
On appeal, the court unanimously overturned the lower court. The majority opinion was given by Hall JA. Applying the principles established in Haïda Nation, he found that the duty owed to the Musqueam was at the ‘more expansive end of the spectrum’,33 and thus that the Musqueam were entitled to a meaningful consultation process to explore avenues of accommodation:
If this was only a case where notice was required, the consultation would have been sufficient. However, in the present case, I consider the consultation was left until a too advanced stage in the proposed sale transaction ... there is ultimately no obligation on parties to agree after due consultation but in my view a decent regard must be had for transparent and informed discussion. Of course, legitimate time constraints may exist in some cases where the luxury of stately progress towards a business decision does not exist, but such urgency was not readily apparent in the present case ... the Musqueam should have had the benefit of an earlier consultation process as opposed to a series of counter-offers following the decision ... to proceed with the sale.34
In the result, Hall JA ordered the suspension of the sale for two years and noted this ‘time frame should provide ample opportunity for the parties to reach agreement’.35
Unlike the common law scheme that exclusively governs pre-proof issues in Canada, Australia’s native title pre-proof obligations are set out in legislation. The Commonwealth Native Title Act was passed in 1993 by the Labour government, in response to the High Court’s decision in Mabo v Queensland (No 2)36 (‘Mabo’), which was the first Australian case to recognise that native title rights may survive under Australian common law.37 The NTA was dramatically overhauled in 1998 by the newly elected Howard government, partly in response to the High Court’s decision in Wik Peoples v Queensland.38 The statute is now 500 pages long, and navigating its provisions has been described as akin to exploring an ‘impenetrable jungle’.39
One of the original purposes of the NTA was to create a legislative process that would allow mining and development on land that was subject to a native title claim.40 This was accomplished in the ‘future act’ regime which is found in pt 2, div 3 of the NTA. This regime was designed to apply to future acts affecting land that has already been determined to be subject to native title, and to land which is the subject of a native title claim. Thus, the future acts regime was designed to protect native title claimants as well as Native Title holders – that is, those who have proved their claim in court. The purpose of the future act regime is to encourage developers, native title claimants and government to pursue development activities on native title land through cooperation and negotiation, rather than confrontation and litigation.
As its overview provision makes clear, pt 2, div 3 of the NTA is limited to dealing with future acts.41 A future act is defined as any act42 taking place after 1 January 1994, or the enactment of any legislation after 1 July 1993, that to any extent extinguishes native title rights and interests or is inconsistent with their continued existence, enjoyment or exercise.43
The NTA provides that, to the extent that a future act affects native title, it will be valid if covered by certain provisions of the Division, and invalid if not.44 Section 24AA(4) establishes a number of types of future acts and provides that a future act is valid if covered under one of several subdivisions. Among other things, the subdivisions cover acts made pursuant to non-claimant applications,45 acts of primary production,46 acts that pertain to management of water and airspace,47 acts that are renewals or extensions,48 acts concerning developments on reserves and leases,49 acts relating to public infrastructure,50 low impact future acts,51 acts relating to the creation of a mine or compulsory acquisition of land52 and offshore future acts.53
The NTA imposes different obligations on the government depending on the type of future act contemplated. Each subdivision sets out the procedural obligations that apply to the type of act that falls within that particular subdivision. If a future act is not valid under one of the subdivisions of the act, it is not valid except with the agreement of the native title claimants.54 A future act that falls into more than one subdivision is to be governed by the subdivision closest to the top of the list. For the most part, the obligations imposed are less at the top of the list and more onerous towards the bottom. Obligations for acts that fall into subdivisions F–L are light (‘duty of notice’ and ‘opportunity to comment’, which are discussed below in section 5b). The obligations imposed on government for acts that fall into subdivision M are the strongest, attracting the right to negotiate which is set out in subdivision P.
Thus, under the NTA, the extent of the obligation imposed on government corresponds to the category of future act that the proposed act falls into. The imposition of a range of procedural rights depending on the type of future act proposed is said to be designed to balance native title and other interests through ‘a careful grading of rights’:
persons with determined or possible native title interests in the land are to have carefully graded rights to be notified beforehand and also have carefully graded rights to have attention given by the decision-maker to their views about the doing of the act. These deliberately structured differences between the various entitlements to be notified of and to respond to proposals to future acts are … more than mere semantic differences.55
Theoretically, the future act regime applies to future acts affecting land and waters that are the subject of a native title claim, as well as land that has already been determined to be subject to native title.56 However, before native title claimants who have lodged an application in the Federal Court can access the future act regime, they must have their claim registered by the Registrar of Native Title Claims. This has proven to be a procedural and substantive hurdle to receiving pre-proof protection, and in many cases has deprived claimants of any interim protection at all.
Before the Native Title Registrar can accept a claim for registration, the criteria set out in the NTA must be satisfied. Originally, the NTA set a ‘low threshold’ for registration.57 However, the 1998 amendments raised the bar for registration by replacing the ‘low threshold’ test with a ‘high threshold test’. Sections 190B–190C of the NTA now require claimants to set out the factual basis of their claim, to provide a description of the claim area, and to demonstrate their identity and authority to act as claimants. The registrar must also be satisfied that at least one member of the claim group meets the test for physical connection with the land, that at least some of the native title rights can be made out and that native title has not been extinguished in any of the areas claimed. Acceptance by the registrar is the only way for applicants to gain the procedural protections offered by the NTA.
The ‘high threshold’ test set out in the NTA for registration is thus a significant barrier to receiving any pre-proof protection. Indeed, it has been argued that in some respects it is a more difficult to meet than the requirements of the pre-proof test, than to make out native title itself.58 A comparison with the Canadian system, where even claimants with weak claims receive a duty of notice, demonstrates that the ‘high threshold’ test creates an unnecessarily high bar to pre-proof protection.
In addition to the rights given to those who hold freehold title in land, the original NTA gave native title holders and claimants the ‘right to negotiate’ in situations where the government proposed the creation of a mine or the compulsory acquisition of land.59 However, with the 1998 amendments to the NTA, the government has only limited obligations, founded in a ‘right to consult’ or ‘an opportunity to comment’,60 in most situations where a future act that affects native title land has been proposed. This is because the ‘right to negotiate’, which was a cornerstone of the compromise reached in the original NTA, has been severally restricted by the 1998 amendments. As we will see below, the right to negotiate – both in its content and scope of application – falls well short of the duty to consult and accommodate imposed by the Canadian Supreme Court.
The Preamble to the NTA, which still exists in its original form, states that:
Justice requires that, if acts that extinguish native title are to be validated or to be allowed, compensation on just terms, and with a special right to negotiate its form, must be provided to the holders of native title … In future, acts that affect native title should only be able to be validly done if, typically, they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of native title holders through a special right to negotiate.
The idea of a duty to negotiate in good faith was drawn from US industrial relations jurisprudence. It was used in the NTA as an alternative to requiring native title holder consent for future acts.61 The purpose of the right is to encourage the parties to reach a negotiated settlement concerning conditions for the approval of high impact future acts.
When the NTA was originally adopted in 1993, the right to negotiate was a central part of the agreement struck between Indigenous negotiators and the government. In return for the validation of past acts, Aboriginal groups were to receive a right to negotiate when third parties and the government proposed future acts that would affect native title lands. In the original NTA, the right to negotiate was accorded ‘to acts that pass the freehold test’. However, the 1998 amendments severely restricted the right to negotiate. By restricting its application, the contribution of the right to negotiate to pre-proof protection has been vastly reduced.62 Moreover, as I examine below, the right to negotiate offers muted protection even in the limited circumstances where it does apply.
The ‘right to negotiate’ imposes a duty on the government (as well as on claimants and third parties) to negotiate in good faith. It is set out in s 31(1) of the NTA, which states:
31(1) Unless the notice includes a statement that the Government party considers the act attracts the expedited procedure:63
(a) The government party must give all native title parties an opportunity to make submissions to it, in writing or orally, regarding the act; and
(b) the negotiation parties must negotiate in good faith with a view to obtaining the agreement of each of the native title parties to:
(i) the doing of the act; or
(ii) the doing of the act subject to conditions to be complied with by any of the parties.
While approval for a future act will be invalid if it is granted without fulfilment of the duty to negotiate,64 it is readily apparent that the duty to negotiate offers only limited protection. The NTA specifies that the right to negotiate is directed to obtaining the agreement of native title parties to the doing of the act, with or without conditions,65 which undermines the negotiating position of native title claimants. Negotiations ‘must necessarily be about the terms and conditions upon which the native title parties would be prepared to agree’66 to the act, not about the terms and conditions of an agreement that the act not be done. As noted by Bartlett, this is quite restrictive as it
assumes that there is no right to question the doing of the act. It is contrary to the NTA’s power to refuse to allow an act to be done and discounts the ability of a NT holder at common law to enjoin inconsistent acts. It assumes that the only matter to be negotiated is the manner of compensation. It undermines the process of negotiation towards the settlement of disputes.67
Further, the obligation imposed by the ‘right to negotiate’ is in fact limited to a duty to negotiate for the limited period of six months. After that period, the NTA makes provision for a government or non-native negotiation party to apply to a tribunal to have the future act approved.68 This is in stark contrast to the duty imposed by Canadian courts, which is not time limited. In fact, in the recent Musqueam decision, the Court has required a minimum two year negotiation period. Moreover, as my examination of the National Native Title Tribunal below demonstrates, claimants have little hope of preventing future acts where the government has acted in good faith during the six month negotiation period.
The NTA creates a specialised tribunal, which acts as an impartial decision-maker that can resolve disputes related to the limited category of future acts that attract the right to negotiate.69 This tribunal was intended to reflect an informal approach to dispute resolution, which would provide a more efficient and a less adversarial process than the court process. Thus, the National Native Title Tribunal (‘NNTT’) was created by the NTA to operate in a ‘fair, just, economical, informed and prompt way’.70
In relation to the future acts regime, the main functions of the NNTT are threefold. First, the NNTT mediates cases involving future acts when called upon to do so by the parties; second, it arbitrates those future act cases involving the right to negotiate, where efforts to secure a negotiated settlement have failed; and third, the NNTT makes determinations related to the expedited process.71
The NNTT’s jurisdiction to determine whether a future act may be done is set out in s 38 of the NTA. Under s 38, the Tribunal can approve the act, approve the act with conditions, or determine that the act cannot be done because the government failed to negotiate in good faith. A party may apply to the NNTT for a determination where good faith negotiations of at least six months in duration have not resulted in a negotiated agreement. The determinations of the NNTT that a future act may be done or not done are subject to review in the federal court.
The criteria that the NNTT must consider when deciding whether to approve an act are also set out in s 39 of the NTA. Under s 39(1)(a), the NNTT must consider the impact of the proposed act on native title claimants by looking at the act’s effect on:
(i) the enjoyment by the native title parties of their registered native title rights and interests;
(ii) the way of life, culture and traditions of any of those parties;
(iii) the development of the social, cultural, and economic structures of any of those parties;
(iv) the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and
(v) any area or site … of particular significance to the native title parties in accordance with their traditions.
On the other hand, the NNTT must also consider non-claimant interests. Section 39(2) of the NTA specifies that the Tribunal is to take account of:
(a) existing non-native title rights and interests in relation to the lands or waters concerned; and
(b) existing use of the lands or waters concerned by persons other than the native title parties.
The NTA usefully sets out the factors that should be considered in determining the impact of a future act on native title claimants and appropriately considers non-native title interests. However, the NTA does not expressly state how the Tribunal is to weigh the interests of native title claimants with non-claimant interests.72 In the absence of such a test, the Tribunal has relied on s 31(1), which states that negotiations are to be directed towards the doing of the act, to tilt the balance against native title claimants.
A good illustration of the failure to articulate the way that claimant interests are to be balanced against other interests is found in the decision of the NNTT in Northern Territory v Risk.73 In this case, the proposed future act was the compulsory acquisition of a 4400 hectare area of land and water at Wickham Point in the Northern Territory, by the Northern Territory government.74 The land was low-lying and mainly consisted of mud flats and mangrove swamps, with only 600 hectares that were potentially able to be developed. The purpose of the acquisition was to make the land available for the creation of a liquified natural gas plant.
The future act application was necessary as two indigenous groups had claimed native title to lands and water at Wickham Point. These groups did not object to the compulsory acquisition of the land needed for the establishment of the Plant.75 However, they objected to the acquisition of the other 3800 hectares of land for a buffer zone.
The case was decided under the provisions of the NTA as originally enacted.76 In making its determination about whether the land, including the buffer zone, could be compulsorily acquired, the NNTT looked at the effect of the future act on native title by applying the s 39(1)(a) criteria, and found that the creation of the plant would profoundly affect the native title claim. However, applying s 38(1)(d), it found that the creation of the plant would also significantly promote non-native interests. Without articulating a formula to weigh claimant and non-claimant interests against each other, and with little other analysis, the NNTT approved the government’s application to acquire the land, subject to some conditions,77 stating:
It is clear, in my view, that the proposed act will have significant adverse impact upon the native title parties. It is equally clear that the proposed act, if it leads to the envisaged developments, will result in very substantial economic benefits and public benefits. When all considerations are put in the balance, the result points very strongly to a determination that the act may proceed.78
The above illustrates how native title claimant interests are often outweighed by competing non-claimant interests under the NTA. The absence of express direction on how to balance these interests is a serious failing of the NTA, and experience has shown that in the absence of a balancing test, the NNTT has unfairly skewed the balance in favour of non-claimant interests.79 It is not surprising that, with the emphasis on approving the future act (set out in s 31 of the NTA), and the absence of recognition in the NTA, the NNTT has never decided that an act cannot be done on the basis that a native title claimant’s interests outweigh other competing interests. As Bartlett recognises, ‘[t]he NNTT has yet to make a determination that an act must not be done, even where there has been a gross lack of information and evidence as to the effect of proposed grants of mining leases on native title rights and interests’.80
Since native title claimants have had no success in convincing the NNTT to decide that an act should not be done because the impact on native title claimants outweighs the benefits conferred on other parties, claimants seeking to prevent a future act have often resorted to arguing that the act should not be approved because the government has failed to negotiate in good faith.
When determining whether a party has satisfied its duty to negotiate in good faith, the NNTT has drawn on industrial relations jurisprudence to inform its application of s 31 of the NTA.81 The requirement to negotiate in good faith with a view to obtaining an agreement is essentially directed to the mandating of a process, not a substantive result. The NNTT has stated that this duty requires negotiations with an open mind and genuine desire to reach agreement, and that, accordingly, going through the motions will not be sufficient.82 While good faith requires some preparedness to shift position or compromise, it does not impose an obligation to capitulate, to accept the other side’s position, or to reach an agreement.
In the words of the federal court, the duty requires negotiation with an ‘open mind, willingness to listen, and willingness to compromise, to reach an agreement under which the native title claimant will agree to Government doing the act it proposes’.83 The Federal Court has said the Crown must have a subjective intention to seek to reach an agreement, and to determine this, the Tribunal may consider whether a party’s conduct is reasonable. The tribunal must consider the conduct of a party as a whole, in the entire circumstances of the case.
An interesting examination of the obligation to negotiate in good faith was undertaken by the NNTT in Minister for Mines v Taylor.84 In this case, the NNTT found the government had not satisfied the duty to negotiate in good faith because the State government had failed to organise meetings, facilitate and engage in discussions, make any proposals as to how an agreement might be reached and respond in a reasonable time to communications. In that case, the tribunal set out the following as indicia for determining whether a party has negotiated in good faith:
1) Delays created by government
2) Any offers made by government
3) Communication between the parties
4) Not striving to reach agreement
5) Obstructing negotiations
6) Provision of Information (failing to answer reasonable requests for information or to disclose relevant facts)
As discussed, a proposed future act will not attract the right to negotiate in most cases, as the NTA only applies that right to the creation of a mine or the compulsory acquisition of land. Thus, lesser procedural rights are more likely to apply, such as a right to notice, an opportunity to comment, and compensation.85
The courts have given very little scope to the procedural rights that are short of the right to negotiate. This is illustrated by the relatively recent case of Harris v Great Barrier Reef Marine Park Authority.86 In this case the native title claimants appealed a lower court judgment that narrowly interpreted the ‘opportunity to comment’ in s 24HA(7) of the NTA.
In addition to a land claim, the claimants (two members of the Gurubana Gunggandji People) claimed 840 square kilometres of the sea off Cairns, incorporating Fitzroy island. It was common ground that the claimants were entitled to a right of notice and opportunity to comment on the proposed future acts. The issue was therefore the adequacy of the notice that had been provided to the claimants. The Claimants received 109 notices of applications and were given 28 days to provide comment. The majority of the notices concerned proposed tourist activities,87 and none of the notices purported to identify an area or location within the Claimants’ claim area. The majority of the notices provide little more than a blanket description of areas specifying whole zones in a Section or Sections themselves. The Claimants argued that the refusal of the Authority to provide them with sufficient information denied them the opportunity to comment that they were entitled to under the statute.88
The Court found that the Authority had sufficiently complied with its statutory obligations by giving the notifications and by inviting the native title claimants to comment on the possible grant of the permit identified in those notifications. The court actually concluded that ‘the Authority has in fact provided more information to the appellants than the sub-section requires’.89 It explained:
The opportunity ‘to comment’ on a proposed act provided for by s 24HA(7)(b) in terms suggests that those with that right have only an entitlement to explain why, in their opinion, the act should not be done at all or only on conditions and to draw to the attention of the decision-maker information which they possess and which they consider the decision-maker should know about before doing the act. The right under s 24HA(7)(b) is, we think, a right to proffer information and argument to the decision-maker that it can make such use of as it considers appropriate. The sub-section does not confer any greater right on the native title interests. It is not a right to participate in the decision whether to issue the permit or a right that entitles the recipients to seek information from the decision-maker necessary to satisfy those interests about matters of concern to them.90
According to this judgment, the opportunity to comment is little more than a procedural hurdle for governments to overcome. This case also illustrates the narrow manner in which courts have interpreted the procedural obligations imposed by the NTA. It is clear that claimants will receive little protection from the procedural obligations that apply in the many cases where the future act proposed does not attract the right to negotiate.
The NTA first made provision for native title agreements, referred to as Indigenous Land Use Agreements (‘ILUAs’), following the 1998 amendments. Section 24C sets out in detail the three kinds of ILUAs that can be made, the subject matter that can be dealt with and the parties that may make the agreement. Following registration, an ILUA is contractually binding on all the parties. Depending on the identity of the parties and the subject matter, there are three types of ILUA. Body Corporate Agreements are restricted to situations where the agreement at issue is limited to land which has all been found to be the subject to native title. Area Agreements and Alternative Procedure Agreements are used for any pre-proof matter. As of 9 May 2005, 160 ILUAs had been registered, of which 145 were area agreements.91
The content of area agreements may range widely. Among other things, s 24CB specifies that area agreements may be related to one of the following:92
the doing, or the doing subject to conditions (which may be about procedural matters), of particular future acts, or future acts included in classes; … the relationship between native title rights and interests and other rights and interests in relation to the area; … the manner of exercise of any native title rights and interests in relation to the area; extinguishing native title rights and interests in relation to land or waters in the area by the surrender of those lands … [to the government]; ... compensation for any … act; … or any other matter relating to native title rights in the area.
ILUAs do not have to deal with native title at all, and often contain a clause to the effect that native title is neither acknowledged or denied. As McRae et al note:
Unlike common law agreements, an ILUA binds all native title holders in the area even if they are not parties to the agreement. This has raised the issue of intergenerational equity, with the Parliamentary Joint Committee noting that ‘the enforceability of ILUAs against the successors in title to non-indigenous parties relies on the contractual terms of the agreement’.93
Once an ILUA is concluded, any party may apply to the Registrar to have it registered. An ILUA takes effect according to its terms and will generally take effect as a contract at common law binding the parties to the agreement.94
The benefits of ILUAs are considered to include legal certainty, lower cost, maintenance of good relations between the parties, detailed coverage of the agreements, solutions at a local level, and flexibility.95 While they may have been positive outcomes for native title claimants, and the negotiation of ILUAs has described as an ‘empowering process’, it has been noted that ‘the lack of resources available to Aboriginal claimants and Native Title Representative Bodies and local governments is diluting the effectiveness’96 of the ILUA process. Concerns have also been raised regarding the length of time that it can take to negotiate an ILUA.97
This discussion leads to the point that the pre-proof regime currently set out in the NTA does not afford native title claimants the level of protection imposed by Canadian courts through the duty to consult. The NTA falls short in six key areas.
First, the registration requirement creates a procedural barrier to the accrual of pre-proof rights. Second, the procedural obligation imposed by the NTA is determined by looking at the type of future act proposed, rather than examining the actual impact of that act and considering the strength of the claimants’ native title claim. Third, the only procedural obligation with any substance imposed by the NTA – the duty to negotiate – applies to an extremely limited set of future acts (the creation of mines and compulsory acquisition of land) and is time limited to six months. Fourth, the focus in the NTA is on good faith negotiations directed at agreeing to conditions under which the act may be done rather than on whether the government has fulfilled its duty to consult and accommodate. Fifth, the failure of the NTA to set out a test for balancing non-native and native rights results in future acts being approved where non-native interests would be advanced, regardless of the impact to the native title claimant’s interest. And finally, the other procedural obligations imposed by the NTA have little substance.
On the other hand, some aspects of the NTA, including appropriate provisions related to the creation of a specialised tribunal and facilitation of indigenous land use agreements would, if incorporated into a Canadian statute, help to further the reconciliation process. As such, the NTA offers a starting point for the drafting of a Canadian statute. The following section considers the appropriateness of a statute to govern pre-proof matters in the Canadian context, in light of the Australian experience.
In Haïda Nation, the Supreme Court of Canada expressly invited the government to establish a framework to ensure that the interests of native title claimants receive an appropriate level of pre-proof protection. The Court stated:
It is open to governments to set up regulatory schemes to address the procedural requirements appropriate to different problems at different stages, thereby strengthening the reconciliation process and reducing recourse to the courts … [British Columbia’s Provincial Policy for Consultation,] while falling short of a regulatory scheme, may guard against unstructured discretion and provide a guide for decision-makers.98
The Court had previously emphasised that a government regulatory regime would provide a particularly appropriate means for dealing with complex cases, stating that ‘the government may wish to adopt dispute resolution procedures like mediation or administrative regimes with impartial decision-makers in complex or difficult cases’.99 Thus, the Court has expressly invited the government to enact by statute a regulatory regime to address future acts, which could include a tribunal that would resolve disputes and/or facilitate mediation between the parties.
As the Supreme Court has noted, legislation that established the pre-proof obligations of government would certainly have the potential to strengthen the reconciliation process. By reducing uncertainty and encouraging settlement, it could reduce recourse to the courts. However, the Australian experience has shown that legislation passed by politicians in relation to Aboriginal issues is subject to the popular sentiment of the day and, therefore, legislation may not provide as much pre-proof protection to native title claimants as the common law. The Australian experience also illustrates that, even where initial legislation effectively safeguards Aboriginal concerns, the obvious fact that legislation is subject to amendment may turn useful legislation into a tool for watering down protection. Given these concerns, it is legitimate to ask whether native title claimants are better off having their pre-proof issues decided under the common law, free from the influence of legislation.
To consider this question, we must first examine the various drawbacks of leaving matters to be decided by the common law, which presumably motivated the Supreme Court to express encouragement for legislation. A primary disadvantage of the absence of a statute to give guidance on the law is the difficulty for the parties, especially at this stage in the jurisprudence, to ascertain the strength of their legal position. Given the uncertainty that lies in the assessment of their legal positions, parties may wish to test their position in court, which may lead to fewer settlements and costly litigation.
On the other hand, there are also advantages associated with leaving pre-proof matters exclusively to the courts and the common law. Due to the incremental development of the common law, it can self-correct over time. Further, the common law is more insulated from political considerations than legislation.100 In addition, while the common law may not clearly set out the strength of legal rights in the myriad of possible pre-proof situations, it is extremely unlikely to lead to the ‘impenetrable jungle’ of law now in place in Australia, where claimants, non-claimants and even judges are burdened by the complexities and procedural requirements of the NTA.
The primary advantage of enacting legislation, in addition to setting out a comprehensive scheme to govern pre-proof matters, is that legislation allows for creativity and would allow for administrative dispute resolution of pre-proof matters (subject to the review of the courts). Alternative methods of dispute resolution would allow parties to have disputes settled in a more informal, efficient, and less costly manner. The disadvantages of legislation are illustrated by the weaknesses of the NTA, which we have examined above. Legislation, as an act of the government of the day, may well reflect the view of the majority of voters and legislation that benefited from community input and negotiation may reflect all perspectives. However, the content of legislation is motivated by current political sentiment and experience has shown that the perspective of a minority group is often given little priority.
In light of the foregoing analysis, a strong argument could be made that pre-proof protection is better safeguarded by the common law in a situation when there is no constitutional protection for native rights. Certainly the Australian experience demonstrates that legislation may lead to a watering down of rights. However, the Canadian experience in other areas since the advent of the Canadian Charter of Rights and Freedoms101 (‘Charter’) and the recognition of Aboriginal rights in s 35 of the Constitution Act, 1982, have shown that theoretical concerns related to the watering down of rights in legislation are muted where constitutional protection of minority rights exists. Thus, in my view, notwithstanding the Australian experience of weaker protection from legislation, a well thought out statute governing pre-proof protection would be a welcome addition to the governance of pre-proof issues in Canada. Of course, in the Canadian context, any statutory provision purporting to regulate pre-proof protection would be invalid unless it was consistent with the constitutional recognition of Aboriginal rights entrenched in s 35 of the Constitution Act, 1982. The significance of this constitutional constraint on the content of a statute governing pre-proof issues is examined below.
In Canada, s 35 of the Constitution Act, 1982 recognises and affirms Aboriginal rights (including Aboriginal title) and treaty rights. This recognition and affirmation for Aboriginal rights (including title) protects native title from post-1982 extinguishment. In combination with ss 91–92 of the Constitution Act, 1867, it also prevents provinces from extinguishing Aboriginal rights. Governments may infringe Aboriginal rights (including title) only where justified. To establish that an infringement is justified, government must demonstrate that the test for justification – that the infringing measure has an important purpose and that the measure infringes the Aboriginal right as little as possible – is satisfied.102
Thus, federal or provincial legislation that purported to regulate pre-proof issues would have to be consistent with s 35 of the Constitution Act, 1982, as well as the principles applied in Haïda Nation that relate to the duty of the Crown to act honourably. If the current NTA were enacted in Canada, several strong arguments could be raised to challenge its validity in Canada, on the basis that the Act would be inconsistent with the constitutional guarantee in s 35 of the Constitution Act, 1982 and/or the Crown’s duty to act honourably.
It is with this constitutional back-drop, and the principles established in Haïda Nation relating to the Crown’s duty to act honourably, that the content of a Canadian statute governing pre-proof obligations of governments must be considered.103 In my view, the ideal statute governing pre-proof matters would satisfy four criteria. First, it would impose different procedural obligations on government depending on the nature of the future act proposed104 and the strength of the claim for Aboriginal title. Second, it would provide for a mandatory process of mediation of disputes. Third, it would allow for negotiated agreements to be registered under the Act. Finally, it would create a tribunal to resolve disputes as to whether the government had met its obligation to consult in cases where no settlement is reached.
A Canadian statutory scheme imposing procedural requirements on the government would need to follow the guidelines established in Haïda Nation, or risk being struck down as inconsistent with the Crown’s duty to act honourably. Haïda Nation establishes that the extent of the obligations on the government pre-proof depend on the nature of the proposed act and the strength of the Aboriginal claim. Like the NTA, a Canadian statute could set different obligations on the government105 depending on the nature of the proposed act, as long as the statute also considered the strength of the Aboriginal title claim in determining the appropriate level of obligation.
In order to accomplish this, there are two obvious approaches a Canadian statute could take.106 The first would be to adapt the structure of the existing NTA, which breaks future acts into categories, then imposes the same level of obligations for all acts in that category regardless of their impact or significance to Aboriginal peoples. This structure would treat all future acts of a certain type alike, on the assumption that the impact on a claim to native title of all acts of a certain type do not vary in any significant way.107 On acts which fall into a category (like the creation of a mine) which by their very nature have the highest impact on land, the statute would have to impose the duty to consult and accommodate on government. On the other hand, acts that would have little impact on land, such as beekeeping or the collecting of firewood, could give rise to only light obligations, such as a duty of notice. This would satisfy both Haïda Nation and constitutional concerns.
The second approach would be for a statute to categorise future acts according to the impact or significance that the future act will have on the claim of Aboriginal peoples. For instance, an act structured in this way might break future acts down into high, low and medium categories of act.
Each impact level would be defined in the statute, after consideration of the act’s impact. The act could set out the factors to be considered, which could include the impact the act will have on land, wildlife, pollution, cultural and sacred sites; way of life, culture and traditions of the claimants; the Aboriginal economy in the region; and potential of benefit for Aboriginal community.108 The statute would dictate that the impact of a future act is to be measured in relation to its likely effect on these factors.
A low impact act might be then defined as ‘an act that, is likely to have little impact on the Aboriginal claimants as its impact is transitory rather than permanent in nature’. A high impact act might be defined as ‘an act that will have a high impact on the Aboriginal claimants as the impact of the act will have a permanent and significant impact on the claim’. A middle level act could be described as an act that does not meet the definition of a high or low impact act.
Pursuant to Haïda Nation, depending on the impact of the act, the procedural obligation would vary. High impact acts would attract the duty to consult and accommodate. Low impact acts would attract the duty of notice and/or the opportunity to comment, depending on the strength of the claim for Aboriginal title. The duty to engage in meaningful consultation in good faith would be the procedural obligation imposed on middle impact acts.109 In each case, the test would be whether the Crown engaged in the requisite consultation as to satisfy its duty to act honourably.
Mediation would encourage parties to resolve their disputes through agreement, which is the best way to settle disputes. Mediation requires the parties to identify their interests and concerns, and assess carefully the extent to which they are willing to compromise. It provides an opportunity for parties to discuss possible solutions and allows for flexibility and creative thinking in reaching an agreement satisfactory to all parties.
The provision of mandatory mediation in a Canadian statute would reflect the goal of reconciliation as it would bring government and Aboriginal people together. It would also promote better relationships between government and Aboriginal peoples. Finally, mediation would help ensure that ‘all-or-nothing’ solutions of the type referred to in Haïda Nation would be minimised.110
The success of the Australian provisions regarding ILUAs suggest that a similar scheme should be duplicated in a Canadian pre-proof statute. ILUA provisions would give increased protection to negotiated agreements. If the ILUA scheme were to be included, the enacting government would have to consider what funding mechanisms were necessary and appropriate to ensure that Aboriginal groups were not at a disadvantage when negotiating such agreements.
The NTA usefully creates a tribunal to resolve disputes between the parties where there is a failure to reach a negotiated settlement. Building on the Australian model, a Canadian statute could create a tribunal that would have jurisdiction111 to decide whether to approve a future act, based on whether or not a government had satisfied its duty to consult, including the duty to negotiate in good faith. The statute could specify that decisions of the tribunal could be judicially reviewed or appealed to a court.
When determining whether the government had satisfied the duty to consult, the Canadian statue would specify that the tribunal is to consider all the circumstances of the case, including the factors identified in Taylor, for example, whether the government has made any reasonable offers, provided all the necessary information about the proposed act to Aboriginal groups, responded to Aboriginal offers and inquiries and/or created delay. The question to be answered would be whether the government had done what was required to maintain the honour of the Crown and to effect reconciliation between the Crown and Aboriginal people with respect to the interests at stake. Where the tribunal made a finding that the government had not satisfied its duty to consult, the statute would dictate that the tribunal is not to approve the future act. Where the tribunal finds that the government has satisfied the duty to consult and accommodate, the statute would authorise the tribunal to approve the act, subject to appropriate conditions.
This article has examined possible approaches to pre-proof native title by considering and comparing emerging Canadian jurisprudence with the Australian statutory scheme. While the common law related to pre-proof protection in Canada is still in its infancy, we have seen that, through Haïda Nation, the Supreme Court has established a framework that offers strong protection for native title interests pre-proof. By grounding the duty to consult in the honour of the Crown and the goal of reconciliation, and tying it to the recognition of Aboriginal and treaty rights in s 35 of the Constitution Act, 1982, the Supreme Court has ensured that pre-proof interests receive serious consideration in every case. The ultimate test established in Haïda Nation – whether through its consultation the government has done what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal people with respect to the interests at stake – is a flexible test that appropriately balances Aboriginal and non-Aboriginal interests and which should, if applied judiciously, serve to substantially protect claimant interests pre-proof. Lower courts in Canada, in the few decisions issued since Haïda Nation, appear to be following the direction set by the Supreme Court, holding the government accountable where the scope of consultation has been minimal.
In contrast to the Canadian common law scheme, the Australian legislation offers weaker pre-proof protection. The protections offered by the NTA were severely weakened by the 1998 amendments to that Act. The most substantial obligation imposed on government by the NTA – the ‘right to negotiate’ – applies only to in the rare instances where the proposed future act has the highest impact. Further, the duty it imposes – the duty to negotiate in good faith – is expressly time-limited to six months. The procedural obligations imposed in the NTA short of the right to negotiate, which apply to the vast majority of future acts cases, offer little protection to pre-proof native interests. Finally, to receive any pre-proof protection under the NTA, native title claimants must meet the ‘high threshold test’ for registration of their claim, which has proven to be a substantive and procedural obstacle to claimants receiving any protection at all.
The Australian experience under the NTA reveals that the Supreme Court of Canada’s invitation to the federal and provincial governments to enact a statutory scheme to govern pre-proof issues should be approached with caution. This invitation was extended without consideration of the Australian experience, which has shown that statutory schemes established to govern pre-proof issues may actually weaken rather than strengthen protection of Aboriginal interests. In light of the Australian experience, a strong argument could be made that pre-proof protection is better safeguarded by the common law in a situation when there is no constitutional protection for native rights.
However, in the Canadian context, with the constitutional guarantee of equality entrenched in s 15 of the Charter and the recognition of Aboriginal rights in s 35 of the Constitution Act, 1982, the possibility that legislation will water down pre-proof protection is muted. Any statute purporting to regulate pre-proof protection would be invalid to the extent it was inconsistent with the constitutional protections extended in s 35 of the Constitution Act, 1982 and the Charter. Thus, in my view, notwithstanding the Australian experience of weaker protection from legislation, a well-thought out statute governing pre-proof protection would be a welcome addition to the governance of pre-proof issues in Canada. Well-drafted legislation that codified and expanded on the Haïda Nation principles, would, as suggested by the Supreme Court of Canada, strengthen the reconciliation process – the ultimate aim of s 35 of the Constitution Act, 1982.
* Daniel Guttman is counsel at the Constitutional Law Branch of the Ministry of the Attorney General of Ontario in Toronto, Ontario, Canada. He graduated from the University of Windsor with an LLB in 1998. He clerked for the Hon Edgar Sexton at the Federal Court of Appeal in 1998–99 and for the Hon Michel Bastarche at the Supreme Court of Canada in 2000. Dan has argued cases at all levels of court including the Supreme Court of Canada. He is a sessional instructor at Osgoode Hall Law School (Civil Trial Advocacy) and at the University of Windsor (Constitutional Litigation). Dan is currently completing his LLM at the University of New South Wales. This paper is a modified version of a paper developed in the course of his LLM studies. The views expressed in this article are the author’s own and do not purport to represent the position of the Ministry of the Attorney General of Ontario.
2 See Musqueam v British Columbia, 2005 BCCA 28, [82], [100] (Hall JA). Justice Hall noted Chief Justice Lamer’s observation in Delgamuukw v British Columbia (Attorney General), [1997] 3 SCR 1010, that Canadian jurisprudence on aboriginal title is not greatly developed was still apt, and stated that in pre-proof cases courts ‘will seek to fashion fair and appropriate remedies for individual cases conscious that as yet we do not have much guidance by way of precedent but, as in other fields, the common law will simply have to develop to meet new circumstances’: [100].
3 Haïda Nation, 2004 SCC 73, [32], [38].
4 Ibid [27].
5 Ibid [35].
6 Ibid [18], [68].
7 Ibid [10], [42].
8 Ibid [45].
9 Ibid [47].
10 Ibid [50].
11 Ibid [25].
12 2004 SCC 74.
13 The British Columbia Mine Development Assessment Act, BC 1990, c 55 and the Environmental Assessment Act, RSBC 1996, c 119 required Redfern to obtain certain approvals before the mine could be re-opened. The requirement of an environmental assessment was not established specifically to address aboriginal issues.
14 Taku River, [2004] SCC 74, [24].
15 Ibid [25].
16 Ibid [22].
17 Ibid [2].
18 RSBC 1996, c 119 [rep 2002, c 43, s 58].
19 Taku River [2004] SCC 74, [38]–[39].
20 Ibid [2].
21 Ibid.
22 For example, the approval contemplated that the route of the road might need to be adjusted depending on the information that was revealed by more analysis.
25 For a discussion of the cases on the duty to consult that were decided in 2004 without the benefit of the Supreme Court’s direction in Haïda Nation and Taku River, see Robert Janes, ‘Aboriginal Law Update’, BC Annual Review of Law & Practice 2005, available online at <http://www.cle.bc.ca/CLE/Analysis/Collection/05-30870-aboriginal> at 30 September 2005. I agree with Janes’ view that
The decisions of the Supreme Court of Canada do nothing to undermine the basis of these decisions and thus the consultation cases … will likely continue to develop in the same direction. In general, these cases suggest that the courts will be fairly aggressive about intervening where they perceive some fundamental flaw in the approach adopted by either the government or First Nations involved which would impede a lawfully negotiated resolution of the issues.
27 By this point, Skeena had gone into receivership and its tree farm license was one of its assets being sold.
28 The government had offered to pay the Gitanyow
$325 000 annually to address the economic component of the impact of the future act on the Gitanyow and also offered 400 000 cubic meters of timber.
29 Gitanyow, 2004 BCSC 1734, [55]–[56].
30 Ibid [67].
31 See Musqueam, 2005 BCCA 28, [44], where Southin JA recounts the history of the Musqueam effort to establish aboriginal title over the lands in question and refers to Musqueam v British Columbia, [1987] BCJ 2788 (QL) (SC), where she denied a similar request by the Musqueam for an injunction in relation to the University Endowment lands, see also Guerin v Canada [1984] 2 SCR 335.
32 The government proposed that in return for the sale of the land to the university, it would pay the Musqueam $550 000, 5% of revenue for a change in the restricted covenant, and at least two truckloads of timber. The core of Musqueam’s counter-offer was the band’s offer of $10 million for freehold title to the golf course land, to be paid at the earlier of 10 years time or the conclusion of a treaty with the provincial government.
33 Musqueam, 2005 BCCA 28, [94]; see also Justice Hall’s summary of Chief Justice McLachlin’s description of the spectrum: [73].
34 Ibid [95]; see also the concurring opinion of Southin JA: [68]. Justice Southin stated:
I do not accept that the evidence establishes any pressing present need of the University to obtain title to these lands. The lands are leased to a third party until 2015. Thus, the University cannot develop these lands now, for instance by constructing a new library … Thus this case bears no resemblance on its facts to the Taku case in which a private business had invested years of time and millions of dollars in seeking to develop a mine. … [Mines] bring employment to many, but also put revenue into the provincial coffers.
35 In obiter, Hall JA stated that the duty to accommodate was ‘a developing area of the law and it is too early to be at all categorical about the ambit of appropriate accommodative solutions that have to work not only for the First People but for all of the populace having a broad regard to the public interest’: ibid [97]. He speculated that in some cases the duty might involve the sharing of mineral or timber resources, employment agreements or land transfers. Justice Hall stated that there was a ‘fair probability that some species of economic compensation’ would be appropriate involving land ‘of the type of this long-established public golf course located in the built up area of a large metropolis’ but that ‘it was only fair that the consultation process seeking to find proper accommodation should be open, transparent and timely’ which had not been the case here: [98]. In a short judgement, Lowry JA adopted Justice Hall’s reasons but expressly refrained from endorsing his reasons relating to what may constitute ‘appropriate forms of interim accommodation in this case’: [104].
36 [1992] HCA 23; (1992) 175 CLR 1.
37 Ibid. The High Court’s historic decision in Mabo to recognise native title rights relied on the jurisprudence of other countries, including the Supreme Court of Canada’s seminal decision in Calder v British Columbia (Attorney General), [1973] SCR 313.
39 Wilson v Anderson (2002) 190 ALR 313, 345.
40 The NTA was also designed to validate titles issued since 1975, which were probably invalid under the Racial Discrimination Act 1975 (Cth), and to identify with certainty which land was subject to native title. See Heather McRae, Garth Nettheim, Laura Beacroft and Luke McNamara, Indigenous Legal Issues: Commentary and Materials (3rd ed, 2003), 247.
41 It states: ‘This Division deals mainly with future acts, which are defined in s 233. Acts that do not affect native title are not future acts; therefore this Division does not deal with them’.
42 The NTA defines ‘act’ as including the grant, issue, variation, extension, renewal, revocation or suspension of a licence, permit, authority or instrument and may be done by the Crown or any other person.
43 Native Title Act 1993 (Cth) s 228.
44 Native Title Act 1993 (Cth) s 24AA(2).
45 Native Title Act 1993 (Cth) s 24FA–FE.
46 Native Title Act 1993 (Cth) s 24GA–GE.
47 Native Title Act 1993 (Cth) s 24HA.
48 Native Title Act 1993 (Cth) s 24IA–ID.
49 Native Title Act 1993 (Cth) s 24JA–JB.
50 Native Title Act 1993 (Cth) s 24KA.
51 Native Title Act 1993 (Cth) s 24LA.
52 Native Title Act 1993 (Cth) s 24MA–MD. This subdivision is described as containing acts passing the ‘freehold test’. As Bartlett states: ‘Generally, only mining and petroleum dispositions and compulsory acquisitions can override a freehold estate, thereby satisfying the freehold test’: Richard Bartlett, Native Title Law in Australia (2000), 21.10. Thus, in practice, the creation of a mine or the compulsory acquisition of land are the only acts that pass this test, and are therefore the only acts that attract the right to negotiate: see Native Title Act 1993 (Cth) s 26(1). The right to negotiate is set out at Native Title Act 1993 (Cth) ss 25–44.
53 Native Title Act 1993 (Cth) s 24NA.
54 One example of a future act that does not fall into one of the existing subdivisions and therefore cannot be valid (except by agreement or compulsory acquisition) is a future act that amounts to a commercial lease over Native Title land.
55 Harris v Great Barrier Reef Marine Authority [2000] FCA 603; (2000) 98 FCR 60, [27].
56 Confirmed by the High Court in Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96. See also Western Australia/Daniel, NNTT WF02/17 and 18, 12 November 2002 (Sumner CJ), in which the tribunal stated that if the duty to negotiate is to bring about agreed settlements over the range of issues with which native title is concerned, it must be enforceable before judicial determination.
57 The original intention of registration was to provide a ‘strong indication’ of which Native Title claimants should have access to the protections of the future act regime. See Commonwealth of Australia, Mabo: the High Court Decision on Native Title, Discussion Paper, June 1993, 34: ‘the original object of the registration of claims was to identify legitimate claims’, with respect to which ‘any future dealings in relation to that land would be the assumption, until the claim was successful, that it would be successful’.
58 For example, the common law test for native title does not contain the requirement of physical connection to the claimed area whereas in the ‘high threshold’ registration test, the claimants must establish they have a physical connection to the claimed area, or would have had such a connection but for government action.
59 In Australia, those who hold freehold title to land do not have a veto over the grant of mining interests or the compulsory acquisition of land. Rather, they have a right to be notified, a right to object, and a right to compensation.
60 These rights are extremely limited as illustrated by the Federal Court’s decision in Harris v Great Barrier Reef Marine Park Authority [2000] FCA 603; (2000) 98 FCR 60, which is discussed below.
61 The proposal from Indigenous negotiators to give native title holders a veto was rejected.
62 The 1998 amendments restricted the application of the right to negotiate by inter alia, requiring a stricter registration test and allowing States and Territories to replace the right to negotiate with lesser rights where the future act issue relates to national parks or leases. Garth Nettheim, ‘The Search for Certainty and the Native Title Amendment Act 1998 (Cth)’ [1999] UNSWLawJl 7; (1999) 22(2) University of New South Wales Law Journal 564.
63 If the act attracts the expedited procedure, the right to negotiate does not apply, and there are no procedural obstacles to the doing of the act, ie, there is no duty to provide the claimants with an opportunity to make submissions. Section 237 of the NTA specifies that a future act will attract the expedited procedure if the act is ‘not likely to interfere’ directly with the carrying on of the community or social activities of the claimants, interfere with areas of particular significance to the claimants or involve major disturbance to any land or waters. In its original form, the threshold for application of the expedited procedure was higher, applying only where the future act ‘does not’ interfere rather than where it is ‘not likely to interfere’.
64 Other procedural obligations do not necessarily invalidate acts that are done without adherence to the NTA.
65 A position reinforced by several judgments on this point: see, eg, Strickland and Nudding v Native Title Registrar [1999] FCA 1089; (1999) 106 LGERA 8, [7]–[8], [23] (French J); Western Australia v Native Title Registrar [1999] FCA 1591; (1999) 95 FCR 93, 99 (Carr J); Brownley v Western Australia (No 1) [1999] FCA 1139; (1999) 95 FCR 152, 160–3 (Lee J).
66 Northern Territory/Risk, NNTT DF97/1, 9 February 1998 (Professor Douglas Williamson QC).
67 See Bartlett, above n 52, 19.21.
68 This is made clear in s 35, which allows any negotiating party to apply to the NNTT for a determination that the act not be done under s 38 of the NTA if ‘at least 6 months have passed since the notification date’. Section 39 sets out the criteria the tribunal must consider when approving future acts.
69 The other primary functions of the NNTT are the mediation of applications for determination of native title or compensation, the determination of whether a future act attracts the expedited procedure and the mediation of future act disputes: Native Title Act 1993 (Cth) s 108.
70 The NTA specifies that states can enact legislation creating their own tribunal but that in the absence of such legislation, the applicable tribunal is the NNTT.
71 As set out on its website, the NNTT is an Australian Commonwealth Government agency set up under the NTA. It mediates native title claims under the direction of the Federal Court. On request, the Tribunal assists people in negotiations about proposed developments (future acts), such as mining. The Tribunal acts as an arbitrator or umpire in some situations where the people involved cannot reach agreement about proposed developments and also assists people who want to negotiate other sorts of agreements, such as ILUAs. The Tribunal is not a court and does not decide whether native title exists or not. Rather, its role is to provide a forum for agreement-making.
72 See Native Title Act 1993 (Cth) s 38.
73 [1998] NNTTA 11 (19 September 1998, Professor Douglas Williamson QC).
74 Wickham Point is at the tip of a peninsula which separates the Middle Arm from the Eastern Arm of Darwin Harbour. The land in question is located about 5 km SE from the heart of Darwin, directly across Darwin Harbour. The nearest community is a further 12 km east of Wickham Point.
75 The claimant’s agreement was subject to compensation, some input into the decision-making on mitigation measures for pollution and damage to the land, and the provision of access and employment opportunities.
76 The case arose after the 1998 amendments had been passed, but before they came into effect.
77 The conditions were related to access, cultural and environmental protection, liaison with the claimants, and employment and training. These conditions provided limited protections. For instance, under the condition related to cultural and environmental protection, the condition merely requires the government to remind developers of their existing statutory duties and to provide them with a copy of an existing heritage survey.
78 [1998] NNTTA 11 (19 September 1998, Professor Douglas Williamson QC).
79 That is, the tribunal may only decide that an act cannot be done on the basis that the government did not negotiate in good faith – not on the basis that the harm to the claimant’s interest outweighs other interests.
80 Bartlett, above n 52, 21.54.
81 The duty to negotiate in good faith draws upon long-standing industrial relations jurisprudence from the US. The US definition of good faith requires that the parties make a sincere effort to reach common ground. In Australia, this jurisprudence was first adopted in its industrial relations jurisprudence. A Full Bench of the Industrial Relations Commission has stated that negotiating in good faith would generally involve approaching negotiations with an open mind and a genuine desire to reach agreement as opposed to simply adopting a rigid pre-determined position and not demonstrating any preparedness to shift: see Bartlett, above n 52, 21.54.
82 See, eg, Re Minister for Lands, State of Western Australia and Marjorie Strickland (1997) 3 AILR 260.
83 Brownley v Western Australia [1999] FCA 1139 (19 August 1999, Lee J), [24] (emphasis added).
84 [1996] NNTTA 34; (1996) 134 FLR 211 at 224–5. For a full discussion of the indicia, see Bartlett, above n 52, 21.28 (esp notes 51–2).
85 However, the former rights do not apply to low impact acts.
87 For a full description of the notices, see Harris v Great Barrier Reef Marine Authority [2000] FCA 603; (2000) 98 FCR 60, [9]–[12].
88 The Federal Court rejected the claimants’ argument that the procedural obligations imposed by the statute – the duty of notice and to provide an opportunity to comment – required the Authority to comply with the common law rules of procedural fairness. Thus, the Court rejected the argument put forward by the claimants that the statute should be considered to give the claimants ‘a proper opportunity to advance all legitimate arguments to avert a decision that might profoundly affect their interests, an opportunity that in turn requires that they be given a proper notice of the case they have to meet … [and to] insist on the Authority providing them with extensive information’: ibid [19].
89 Ibid [17].
90 Ibid [38] (emphasis added).
91 Most of the area agreements are related to land in Queensland and the Northern Territory.
92 This is not an exhaustive list.
93 McRae et al, above n 40, 370, quoting the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Indigenous Land Use Agreements, Report No 19 (2001) [8.29], available online at <http://www.aph.gov.au/Senate/committee/ntlf_ctte/completed_inquiries/1999-02/report_19/report/contents.htm> at 12 October 2005.
94 The position of Indigenous groups, that an ILUA be given the force of a statutory instrument, was rejected by the government.
95 Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, above n 93, [8.9].
96 See McRae et al, above n 40, 371.
97 The evidence before the Parliamentary Joint Committee demonstrated that they regularly take years to complete.
98 Haïda Nation, 2004 SCC 73, [51].
99 Ibid [44].
100 Critics of judicial review might argue that the common law is governed by the highest court of appeal in the state, and therefore subject to the views of unelected judges (whose positions are protected by judicial independence). However, this consideration is tempered from the fact that courts such as the High Court of Australia and Supreme Court of Canada are limited to deciding cases that are brought before it, and tempered in Canada by notions of dialogue between the courts and Parliament and provincial Legislatures. See Peter Hogg and Allison Thornton, ‘The Charter Dialogue between Courts and Legislatures’ (1999) 5 Osgoode Hall Law Journal 75.
101 Constitution Act, 1982, sch B.
102 R v Sparrow, [1990] 1 SCR 1075.
103 In Canada, pursuant to s 91(27) of the Constitution Act, 1867, the federal government has exclusive jurisdiction to legislate in relation to ‘Indians and Indian Lands’. Legislation enacted by provincial governments may validly affect Indians and or Indian lands but cannot, in ‘pith and substance’, be in relation to Indians or Indian lands. Thus, as the court suggests in Haïda Nation, provincial governments may regulate pre-proof matters, subject to these constitutional limitations, a discussion of which is outside the scope of this article.
104 Like the NTA, it would identify the criteria the tribunal is to consider when determining the impact of a future act on native title claimants.
105 The Supreme Court of Canada gave its imprimatur to such an approach, by stating that different duties ‘may arise in different situations’: Haïda Nation, 2004 SCC 73, [43].
106 The goal would be to enact provisions which would ensure that the level of procedural obligation imposed by the act corresponds appropriately to the impact that that act would have on Aboriginal rights.
107 For instance, under the NTA, all acts of primary production are taken to have the same impact on Aboriginal claims and would therefore attract the same procedural obligations. Similarly all acts related to the management of water and airspace impose the same procedural obligations on government. Finally all offshore acts attract the same procedural obligations.
108 The list could also include the other criteria set out in s 39 of the NTA.
109 Thus, middle impact acts could attract, among other things, a duty of notice, a requirement to disclose relevant information, an opportunity to make submissions for consideration, a duty to consider the response and a requirement of written reasons identifying how Aboriginal concerns were addressed.
110 Haïda Nation, 2004 SCC 73, [14].
111 A statute that attempted to remove the jurisdiction of a court to consider injunctions of future acts would give rise to constitutional issues protecting the powers of courts. In Haïda Nation, the Supreme Court recognised that it remained open to the claimants to seek an interlocutory injunction. However, it identified that in many situations injunctions offered only imperfect relief.
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2005/38.html