The effect of the 1998 Amendments on the Native Title Act 1993 by Angus Frith, Principle Legal Officer at Mirimbiak Nations Aboriginal Corporation   The Native Title Amendment Bill passed the Senate of the Australian Parliament on 8 July 1998, after 106 hours of debate in the committee stage of the Senate's deliberations. It became an Act, the Native Title Amendment Act (NTAA), when it received Royal Assent on 27 July 1998. Most of it commenced on 30 September 1998, changing the operation of the Native Title Act 1993.   The Native Title Act of 1993 Before the Mabo decision Australia was deemed to be terra nullius, according to international law at the time. Terra nullius was a legal concept, which held that before white settlement, there were no people in Australia with a system of law capable of supporting property rights.   Therefore, English law automatically applied, and the English settlers could take land without regard to any pre-existing rights of the people they found on the land.   In the Mabo decision, the Court decided that: Australia was not terra nullius at the date of European settlement (1788 for much of the country). Indigenous people were capable of having systems of law and custom that had the potential to give rise to rights of property. The Court recognised that the people of Murray Island (or Mer) in Torres Strait have rights of property that arise out of their traditional laws and customs. The Court called this property right "native title". Native title is subject to the sovereignty of the Crown, and is liable to being extinguished by valid acts of State and Federal governments. The 1993 legislation was the then government's response to the Mabo decision of the Australian High Court.   The objects of the 1993 Native Title Act include the recognition and protection of native title. The Act did this by: Providing a process by which native title can be recognised. This involved an application to the National Native Title Tribunal, which goes through stages of notification to other interested parties, mediation, and determination of native title by a court. Setting up schemes whereby native title can be protected both before and after a determination of native title. These involve requirements to give notice to people who might hold native title and the provisions of procedural rights to enable a proper interaction between these people, those who wish to use what might be native title land and the government. The most valuable of these schemes for Indigenous people was the Right to Negotiate which applied to the grant of mining and exploration interests and the compulsory acquisition of native title land for the benefit of non-government parties.   The Act also confirmed the existing position of Australian land law despite its impact on native title. Past acts, that is most acts of governments before the commencement of the Native Title Act on 1 January 1994, were validated. They were to have full force and effect. Any extinguishing effect of those acts was confirmed.   It seems that there has not been full acceptance of the concept of native title by the non-Indigenous Australian community. Terra nullius still seems to exist in the minds of some people. Therefore, there were challenges to the legislation; governments took some time to begin to give notice of acts affecting native title to people who might hold native title; applications for determination of native title were bitterly contested by governments and other land users.   Therefore, the first consent determination of native title on mainland Australia was not until 1996 and the first contested determination of native title not until November 1998, nearly five years after the Act commenced. In addition, there was a perception, largely in the mining industry, of delay caused by native title processes in the grant of mining tenements. There was considerable political uproar based on the alleged unworkability of the Native Title Act.   Amending the 1993 Act The conservative Coalition Government was elected on 3 March 1996, with an election promise to improve the "workability of the Native Title Act".   It introduced a draft Bill into the Parliament on 27 June 1996. This Bill was not passed by the Parliament.   On 23 December 1996, the High Court handed down the Wik decision, which led to a major public debate about native title, and its interaction with other forms of tenure and land use, especially pastoral leases.   Another, substantially larger Bill was introduced into the House of representatives, the lower house of the Australian Parliament in 1997, and passed by that House. The debate then moved to the other house of the Parliament, the Senate, where the Government does not have a majority.   The Senate debated the Native Title Amendment Bill in November/December 1997, March/April 1998, and July 1998, rejecting the Bill twice, and passing it, at last in July, with many amendments from the Government's original proposal. The debate in the Senate took over 100 hours, the longest debate in its history.   What the amendments say   Validation of intermediate period acts During the political debate, many State Governments and other interested groups, such as the National Farmers Federation, demanded special consideration for acts done between the commencement of the Native Title Act and the date of the Wik decision. They claimed that the States had acted without taking account of native title. Therefore, the governments and pastoralists lacked certainty about the status of those acts.   In the case of pastoral lease land, or what had once been pastoral lease land, it was done on the assumption that a pastoral lease extinguished native title. No such assumption could have been made in good faith on the basis of competent legal advice, without at least acknowledging that there was a serious risk that the assumption was wrong. In the case of other land, some governments appear to have decided to ignore the Native Title Act. The amended Act forgives governments their failure to comply with the law.   Acts of governments that took place in the period between commencement of the Act on 1 January 1994, and the Wik decision, 23 December 1996, became known as "intermediate period acts".   The amended Native Title Act validates "intermediate period acts", where, at any time before the act was done, either: a grant of a freehold estate or a lease (other than a mining lease) was made covering any of the land or waters affected by the act; or a public work was constructed or established on any of the land or waters affected by the act". The amended Act also allows the States and Territories to validate intermediate period acts attributable to them. Validation means that intermediate period acts have full force and effect, despite their impact on native title.   Recognition of native title   Confirmation of Extinguishment by Pre - Wik Acts The majority in the Wik decision held that if inconsistency exists between the rights and interests conferred by native title and the rights conferred under statutory grants, such as pastoral leases, the native title rights and interests must "yield", to the rights of the grantees. The Wik decision did not find that the inconsistent rights and interests of pastoralists extinguish native title. The Act goes beyond the common law in extinguishing native title.   The Act provides for "confirmation" of extinguishment of native title by "previous exclusive possession acts" that took place on or before the Wik decision. It does this, effectively by treating acts on or before the Wik decision (23.12.96) as past acts (which took place prior to 1.1.94).   The Act also defines, and, probably extends, the type and scope of acts that extinguish native title. The Act refers to a number of types of interests in land, which, the Government appears to believe, conferred exclusive possession, and therefore, extinguished native title. The list is very widely drawn and includes the valid grant before 23.12.96 of: Interests described in the Schedule to the Act, which sets out many different Acts of State and Territory Parliaments, which enabled the granting of leases, which the Act deems require a grant of exclusive possession, and therefore extinguish native title. This provision pre-empts the common law position and may have a significant impact on native title. Public works (buildings, roads, railways, stock-routes, earthworks, memorials and any necessary or incidental adjacent land). At common law, not all public works of their very nature would extinguish native title. Further, the Act extends the extinguishing effect of a public work by providing that any land or waters adjacent to the public work, necessary for or incidental to its construction are included in the definition of public work and thereby extinguish native title.   Further, the Act extends the effect of extinguishing acts by defining "extinguish" to mean permanently extinguishment of native title, with no provision for revival of native title after the act that caused the extinguishment ceases to have effect.   The Court Process Previously, in conducting proceedings, the Court was not bound by technicalities, legal forms or rules of evidence. The Act now provides that the Federal Court, in hearing native title matters, is to be bound by these rules, except to the extent it otherwise orders. The best evidence from Indigenous people is often achieved outside the rules of evidence.   Previously, the Court was required to take account of cultural and customary concerns in hearing applications. The Act now states that the Court may take account of them. There is likely to be far less protection accorded Indigenous evidence, culture, and Indigenous people themselves in their exposure to the Court process.   The Act also extends the class of people who might become parties. This may have more impact in more settled areas such as Victoria, where there are more people who might take an interest.   Mediation Consideration of the Act as a whole leads to the conclusion that mediation is being accorded less importance in the native title process. By narrowing the scope of mediation, the Commonwealth will ensure that court processes will assume a greater role in resolving native title matters. In turn, native title processes will become more legalistic, more technical, more time consuming, more expensive, and less conducive for certainty.   Protection of native title - the future act regime   Registration Test Now, in order to gain the protection of any aspect of the future act regime, a native title determination application must be on the register of native title applications. The Act raises the threshold test for registration of applications. It requires applicants to provide additional information, including: boundary details, searches in relation to non-native title interests in land, a detailed description of native title rights and interests, a general description of the factual basis of the claim.   The Act also requires the Registrar to be satisfied as to a range of conditions in relation to the merits of the claim and procedural and other matters, before accepting the application for registration for the purposes of access to the right to negotiate. The Registrar must consider that, prima facie, each of the native title rights and interests claimed in the application can be established. The Registrar must not be aware, through the application or any other document, of any "previous exclusive possession act", nor of any "previous non-exclusive possession act", if the claim is for exclusive possession. In making a decision, the Registrar must have regard to relevant information supplied by a Government party, in addition to information contained in the application. A requirement for too much detail, especially within short time frames, is likely to be oppressive and unfair.   The Act specifically limits the native title rights and interests that can be claimed. At least one member of the native title group must have or have had a traditional physical connection to the claimed area. An application cannot be made for ownership of minerals, petroleum or gas, or exclusive possession of waters in offshore places.   The higher threshold test may restrict native title applicants' access to statutory rights such as the right to negotiate. For example, the Registrar may not have time to exercise his or her complex discretion before the expiration of the four month period for registration of an application in relation to the right to negotiate. The right to negotiate will, in such circumstances, automatically be lost even if there is no failure on the part of the native title claimants.   The increased level of the registration test places a further administrative barrier in front of native title groups who wish to exercise the right to protect their native title property right.   Validity of future acts Validity other than through a formal process such as the right to negotiate The Act deems that many more future acts will be valid and therefore governments, land developers and land managers will not have to take account of native title rights and interests. Acts exempt from consideration of native title rights and interests, include: Primary Production Activities. The Act permits: Primary production activities, or associated or incidental activities, on non-exclusive agricultural and pastoral leases. Primary production is not limited to pastoral activities, but includes cultivating land, catching fish, carrying on forest operations and engaging in horticulture. Farmstay tourism on non-exclusive agricultural and pastoral leases - this could involve significant development inconsistent with native title rights and interests and considerable disturbance to indigenous culture and sites. Activities directly connected with primary production on freehold or agricultural and pastoral leases that take place off the freehold, agricultural or pastoral lease land. Taking timber, gravel, rocks, sand, soil and other resources (except those that constitute mining) on non- exclusive agricultural and pastoral leases. Native title holders have a right to comment only.   Water management and airspace - The Act validates any future act regarding the management or regulation of surface and subterranean water, living aquatic resources, or airspace. This includes the grant of any lease, licence, permit or authority under legislation regarding the management or regulation of water, living aquatic resources, or airspace. This enables effective extinguishment of native title in onshore waters, the living aquatic resources in them, and airspace, by ensuring that the grant of future commercial and other interests regarding their use always takes precedence.   Reservations - Where land was subject to a reservation for a particular purpose prior to 23.12.96, and the reservation was valid, a later act done in accordance with the reservation is validated by the Act. The reservation could however involve a wide variety of purposes, not necessarily involving government activities, for example: the creation of National Park management plans where the land was reserved for the establishment of the Park before 23.12.96; and the grant of forestry licences under a forestry reservation made before 23.12.96. A licence over a large area of land could, thus, be granted to a private logging company without taking account of native title.   Facilities for Services to the Public - The Act validates public and private infrastructure facilities (such as wharfs, pipelines, irrigation facilities), so long as they are "operated for the general public".   Low Impact Future Acts, which are acts exempt from the consideration of native title rights and interests, now include exceptions for public health and safety, tree lopping, clearing exotic species, foreshore reclamation and environmental protection.   Offshore Places - All future acts, which apply to offshore places, will be valid, including those requiring the acquisition of native title rights. An "off-shore place" is any place beyond the limits of the State. The limits of the State extend 3 nautical miles from the low tide mark. Thus, grants of interests, such as mining and petroleum licences and permits, to submerged lands located offshore are to be validated.   The Right to Negotiate The Act reduces the scope of the Right to Negotiate, which previously gave native title parties a right to negotiate in relation to certain mining and compulsory acquisition acts. The right to negotiate recognises of the special significance of land to Aboriginal and Torres Strait Islander peoples and is a mechanism to preserve the status quo pending determination of a native title application.   Exclusions from the right to negotiate include: All the future acts explicitly validated by the Act. Other categories of acts, including approved gold and tin mining acts; opal and gem mining in an approved opal or gem mining area; acts in towns, cities and the inter-tidal zone; and construction of infrastructure facilities. Exclusions where the State and Territory governments have set up substituted schemes for "approved exploration acts", and acts on land that has been subject to a pastoral lease, or reserved for a public purpose. Where two or more acts are identified as a "project" they may be so identified in the same notice, and will be treated in the negotiation as if they were a single act. The Act fails to require negotiation on all matters which could properly be the basis of a native title determination, limits the obligation to negotiate in good faith and provides for ministerial intervention during the negotiation as well as at the end of the process. This significantly limits the effectiveness of the negotiation process from the point of view of native title holders.   Further, the Act provides that States and Territories may make their own legislation that modifies or excludes the right to negotiate. While the Act provides requirements that need to be complied with in making State or Territory legislation in relation to the right to negotiate, these requirements cover only some of the elements of the right to negotiate in the Bill.   Statutory Access Rights The Act also provides statutory access rights for traditional activities for the native title claim group over non-exclusive agricultural and pastoral leases. The statutory access rights are limited in content and the claim group must show regular physical access to the area as at 23.12.96. This provision limits the common law rights of native title holders that may co-exist with non-exclusive agricultural and pastoral leases on Wik principles. Further, those common law rights are suspended until a determination.   Compensation The Act provides that the total compensation payable for an act that extinguishes all native title must not exceed the amount that would be payable if the act were instead a compulsory acquisition of a freehold estate in the land or waters. This equation fails to take into account the special significance of native title to Aboriginal and Islander peoples under their law and custom. It may therefore fail to be compensation on "just terms" as required by paragraph 51(xxxi) of the Commonwealth Constitution. In this case the provision will have no effect.   In any case, the Act itself provides that the limit on compensation is subject to the requirement that compensation be on just terms in accordance with paragraph 51(xxxi) of the Commonwealth Constitution.   Conclusion Although the "non-extinguishment principle" applies to the Native Title Act, in practice, the amended Native Title Act will effectively extinguish native title because native title holders will be unable to exercise, enjoy or protect their native title rights.   The amended Act, as a whole will enable the States and Territories to effectively extinguish native title over vast areas of the Australian continent through: validating intermediate period acts attributable to them, meaning that intermediate period acts have full force and effect, despite their impact on native title; confirming the extinguishing effect of a wide variety of tenures dating back to 1862; almost automatic validation for many categories of future acts, including upgrading pastoral leases; the increased administrative burden of the registration test; and inadequate consultation (not negotiation) procedures under State and Territory regimes. The right to negotiate provisions, which protect native title, may eventually apply only to vacant Crown land, which has never been subject to a previous grant. Less than 5% of the continent falls into this category.   All these additional barriers will make it harder for Aboriginal peoples and Torres Strait Islanders to protect their native title property rights, and have them recognised in the Australian property system. They will become more vulnerable to acts of State and Territory Governments, and the process of extinguishment of native title will most likely continue.   Angus Frith 12 December 1998   Back to Papers