Aboriginal Law Bulletin
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by Garth Nettheim
After a lengthy process of consultations launched by the Prime Minister on 27 October 1992,[1] the Native Title Act completed passage through both Houses of - the Commonwealth Parliament on 22 December. It received the Royal Assent on Christmas Eve, 24 December 1993. A special issue of the Gazette (No. 5402), dated 30 December 1993, contained the Governor-General's proclamation under s2(2) that the bulk of the Act would commence on 1 January 1994, and Part 10 of the Act on 1 July 1994. Part 10 consists of s201 which provides for the establishment of a National Aboriginal and Torres Strait Islander Land Fund. Details of the Fund, together with other elements of the promised 'social justice/reconciliation' package, have still to be worked out with Aboriginal and Torres Strait Islander organisations[2]
The main features of the Bill as introduced in the House of Representatives on 16 November 1993 were outlined in the December issue of the Aboriginal Law Bulletin.[3] The Bill was introduced into the Senate on 25 November 1993. The Opposition moved to have the Bill referred to a Select Committee for inquiry and report by early 1994. The Government, with the support of the Australian Democrats, attempted to head off the delay involved in the Opposition motion by referring the Bill, on 25 November, to the Senate Standing Committee on Legal and Constitutional Affairs. The Committee held hearings in several cities and reported in the second week of December.[4] Eventually, the two WA Green Senators decided not to support the Opposition's Select Committee proposal.
The Opposition resolved to oppose the Bill in its entirety and not to move or support any amendments. The Government itself tabled many amendments, some initiated within the Government itself, some proposed by industry groups, Aboriginal and Torres Strait Islander organisations and others. The Australian Democrats and the WA Green Senators also had long lists of amendments. The total number of proposed amendments exceeded 200.
The Opposition attempted to 'filibuster' the Senate debate which, eventually, became the longest debate in the Senate's history. It was brought to a close after agreements were finally reached among the Government, Democrat and Green Senators, and the Bill, as amended, was passed by the Senate late on 21 December. The Bill as amended was approved by the House of Representatives the following day.
The amendments are too numerous to detail here. Some are relatively minor and formal. Some involve changes in language to avoid possible Constitutional difficulties. Attention is focussed on the more significant changes.
The relationship between the Act and the Racial Discrimination Act 1975 (Cth) is clarified by a new s7 which reinforces the provision in the Preamble that the Act is intended as a 'special measure' within s8 of the RDA. Section 7 provides:
(I) Nothing in this Act affects the operation of the Racial Discrimination Act 1975.
(2) Subsection (1) does not affect the validation of past acts by or in accordance with this Act.
The Preamble itself has a new clause to the effect that governments should, where appropriate, - facilitate regional negotiations in relation to claims (or aspirations) to land and proposals for use of land for economic purposes. This supplements the very limited reference in the Act itself (s21(4)) to regional or local agreements.
A new Part 9 has been added to authorise the Commonwealth to enter into a written agreement to provide financial assistance to a State or Territory for compensation costs in validating 'past acts' under s19 and in establishing and administering any recognised State/Territory body or alternative machinery under s43(1).
Another new Part, Part 12, requires early establishment of a Parliamentary Joint Committee on Native Title for five years to inquire and report on the operation of the Act. Under s209 the Aboriginal and Torres Strait Islander Social Justice Commissioner is also given reporting functions in relation to the Act.
Extinguishment by Legislation.
A new sll(2) specifically limits extinguishment of native title by future legislative action to two classes of situation - those covered by Part 2 Division 3 dealing with 'future acts', and those that are covered by the provisions for validation of 'past acts'.
In addition, new ssl4(2) and 19(2) confine validation of 'past acts' of a legislative nature so as not to cover "(a) the grant or issue of any lease, licence, permit or authority; or (b) the creation of any interest in relation to land or waters" unless such grant, issue or creation itself falls within the definition of a 'past act'.
A new s235(7) (which proved, apparently, critical to final agreement in the Senate) includes within the definition of 'permissible future acts' renewals, etc., of commercial, agricultural, pastoral or residential leases, but does so under closely confined conditions.
Validation and Extinguishment. The important s15(1) spells out the effect (subject to various qualifications) of 'past acts' on native title: extinguishment in the case of Category A past acts; extinguishment to the extent of the inconsistency in the case of Category B past acts; and non-extinguishment in the case of Category C or D past acts. Section 15(2) adds a new qualification: such extinguishment as is affected by the section does not by itself confer any right to eject or remove any Aboriginal persons who may reside on or who exercise access over land or waters covered by a pastoral lease the grant, re-grant or extension of which is validated by s14.
A series of amendments serves to exempt from validation, extinguishment, etc., any 'past act' which is "a grant over land or waters that on 1 January 1994, are Aboriginal/Tones Strait Islander land or waters". The latter phrase is defined in s253 to mean land or waters held by or for the benefit of Aboriginal peoples or Torres Strait Islanders under specified land rights Acts and any other law prescribed for the purpose.
Onshore Waters.
Several Provisions in the Bill had referred to 'the land adjoining both sides of, or surrounding, any waters concerned.' The words 'both sides of' have been deleted, and the effect, generally, is to enlarge Aboriginal entitlements to compensation and procedural rights.
Entitlement to compensation is also enlarged by a series of amendments relating to 'offshore waters'. In particular, the new provisions recognise that offshore native title has no parallel in the Anglo-Australian property law system.
Several amendments relate to the right to negotiate in respect of 'permissible future acts'. A new s33 clarifies that negotiations may include conditions under which native title parties may be entitled to payments by reference to profits, etc., deriving from a project. Time limits applying to negotiation and arbitration must be mirrored in State legislation authorised by the Commonwealth Act.
The Bill required that native title, when determined to exist, would have to be held by a 'prescribed body corporate' - either one nominated by representatives of those entitled to native title, or one determined by the National Native Title Tribunal or the Federal Court. This has been relaxed so that, if no prescribed body corporate is nominated, the NNTT or Federal Court must determine that the rights and interests are to be held by the 'common law holders' (s56). In this case the prescribed body acts as agent for the native title holders.
Applications to determine native title and compensation are relaxed and claimants no longer have to have conducted comprehensive searches of registers (s62). The powers of the Registrar under s63 to reject an application are tightened so as to operate only where formal requirements under s62 are not complied with, or where the Registrar is of the opinion that the application is frivolous or vexatious or that prima facie the claim cannot be made out. In any such case, the Registrar must refer the application to a presidential member of the NNTT; even if the latter is of the same opinion as the Registrar, the claimant must be given notice and a chance to persuade the presidential member to the contrary.
Section 203 is amended by providing for applications to be made to ATSIC as well as to the Commonwealth Minister.
An important new s211 relates to hunting, fishing, gathering, cultural or spiritual activity or any other kind of activity prescribed for the purpose by regulation. The section operates if:
(a) the exercise or enjoyment of native title rights and interests in relation to land or waters consists of or includes carrying on such activity; and
(b) a law prohibits or restricts persons from carrying on such activity other than in accordance with a licence, permit, etc.; and
(c) the law is not one that confers rights or interests only on, or for, the benefit of Aboriginal people or Torres Strait Islanders.
In such a situation, such a law does not prohibit or restrict the native title holders from carrying on the class of activity or from giving access to the land or waters for the purpose of doing so, where they do so (a) for the purpose of satisfying their personal, domestic or non-commercial communal needs and (b) in exercise or enjoyment of their native title rights and interests.
The special issue of the Gazette (No. 5402, 30 December 1993) which proclaimed the commencement of the bulk of the Act as of 1 January 1994, also included the first Ministerial determinations provided for in the Act. One determination specifies means of notifying 'permissible future acts'.
The other determination provides an initial list of 'representative Aboriginal/Torres Strait Islander bodies' for the purposes of s202(1); i.e., to assist claimants for native title or compensation. They are:
New South Wales
New South Wales Aboriginal Land Council;
Victoria
Victorian Aboriginal Legal Service Co-operative Ltd;
Queensland
Cape York Land Council (Cape York area only)
South Australia
Anangu Pitjantjatjara Maralinga Tjarutja
Aboriginal Legal Rights Movement Inc.
Western Australia
Kimberley Land Council Ngaanyatjarra Land Council Aboriginal Legal Service of Western Australia Inc.
Northern Territory
Northern Land Council Central Land Council Tiwi Land Council.
Further bodies will need to be 'recognised' in Queensland., Tasmania, and, possibly, elsewhere.
Also on 24 December the National Native Title Tribunal Regulations were made (SR 1993, No. 380). These deal with the lodgement of applications and set out the forms in Schedule 1.
Justice Dierdre O'Connor, President of the Administrative Appeals Tribunal, has been appointed head of the National Native Title Tribunal until specific appointments_ are made to the NNTT. The AATs Registrar, David Schulz, is to serve as Registrar of the NNTT on a similar basis. Offices opened for business on 4 January. The NNTT can be contacted by writing to GPO Box 9955 in each capital city and by telephone to 008 64 0501.
The Native. Title Act contemplates action by States and Territories to validate 'pastt acts' attributable to them; to designate existing bodies or to establish new bodies to deal with determinations of native title and compensation; and to provide for 'permissible future acts' in accordance with the Native Title Act.
Victoria legislated during 1993 to validate 'past acts'. WA did likewise in December but other aspects of its legislation are clearly inconsistent with the Native Title Act and the Racial Discrimination Act 1975, and the Kimberley Land Council has challenged its validity. Queensland enacted a bill to mesh with the Commonwealth Bill but may need to amend it in light of amendments to the Commonwealth Act. The Premier is also awaiting assurances of financial assistance. NSW published draft legislation during 1993 which will need to be redesigned.
In the meantime, the Native Title Act 1993 is in operation and the National Native Title Tribunal is open for business.
ATSIC has, in the past, published information about the Mabo decision itself. It is now publishing an information kit about the Native Title Act including:
The Mabo Judgement;
The Native Title Act 1993 - A Plain English Introduction;
A Guide to the National Native Title Tribunal and the Federal Court Process Regarding Native Title;
Plain English Guide to Researching Native Title; and
A Guide to Using the National Native Title Tribunal and the Federal Court for Native Title and Compensation Claims and 'Right to Negotiate' Applications.
ATSIC has Native Title Act information lines which can be called toll free on:
008 818490 and 008 819726.
The Aboriginal Law Centre has prepared a brief guide called The Commonwealth's Native Title Act which integrates Garth Nettheim's guide called "The Commonwealth's Native Title Bill" (AboriginalLB 65/4) with the above article, "Native Title Act Commences Operation".
[1] For previous AboriginalLB reports on government responses to the decision of the High Court of Australia in Mabo v Queensland (No. 2) (1992)175 CLR 1, see 61/4, 6,18; 62/2,4, 8,9,11,13,14,16,17,21;63/2,4,7,10,13;64/18,19-21,2224, and 24-26; and 65/4-5, and 7-9.
[2] Nason David, "The Next Battle", The Weekend Australian, 15-16 January 1994, p28.
[3] Nettheim, Garth, "The Commonwealth's Native Title Bill", AboriginalLB 65/4.
[4] Native Title Bill 1993, Report by the Senate Standing Committee on Legal and Constitutional Affairs, December 1993. Members of the Committee divided along party lines.
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