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

Nailing Down Native Title

by Garth Nettheim

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

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

Principal features of the myriad 1996 proposals included:

• enlarged responsibilities for Aboriginal and Torres Strait Islander Representative Bodies;
  
  
• provision for wide-ranging Indigenous Land Use Agreements;
  
  
• provision for conversion of pastoral leases from term leases to perpetual leases, and authorisation of non-pastoral activities on pastoral leases;
  
  
• a stringent--and retrospective--new registration test before native title holders may exercise their `right to negotiate' (`RTN') in respect of mining (or some compulsory acquisitions);
  
  
• substantial reduction or elimination of the `right to negotiate' through:
  • discretionary power for the Minister to exclude exploration altogether, in deference to State/ Territory regimes;
  • otherwise, provision for a once-only RTN, to cover both exploration and extraction;
  • discretionary Ministerial powers to short-cut the RTN or even to by-pass it altogether;
  • limitation of the matters to be subject to negotiation;
  • exclusion, from the existing `expedited procedure' by-pass of the RTN, of any consideration of spiritual attachment to land.

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

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

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

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

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

• The Wik decision merely held that in the case of inconsistency, the rights of the pastoralist would prevail, not that native title rights would be extinguished.
  
  
• The Wik decision did not contemplate permanent extinguishment but, indeed, have left open the possibility that full native title rights might revive if the lease came to an end.
  
  
• The Wik decision was not concerned with former pastoral leases and (as noted), held that native title rights would revive when a lease expired.

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

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

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

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

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

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

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

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

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

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

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

• The first relates to vacant Crown land outside towns and cities, and refers to the 1996 proposal for a higher registration test for access to the right to negotiate. It also refers to the 1996 proposal that the RTN be removed in relation to the acquisition of native title rights for third parties for the purpose of providing government-type infrastructure. It refers, in addition, to the power in the NTA for States and Territories to establish alternative regimes with similar characteristics to the (to be reduced) Commonwealth provisions.
  
  
• The second point relates to `other "non-exclusive" tenures such as current or former pastoral leasehold land and national parks' (the 23 May statement deletes reference to national parks). As noted in point (6), the right to negotiate in respect of compulsory acquisition of native title rights may be displaced by State or Territory regimes which merely provide the same procedural and compensation rights as apply to other parties with an interest in the land.
  
  
• Similarly, the RTN would be removed in relation to acquisition of land for third parties in towns and cities (as noted in relation to point (3)).
  
  
• 'Future actions for the management of any existing national park or forest reserve would be allowed.' This is not immediately clear but seems to suggest that any native title rights in those areas may be ignored. The 23 May statement offers the explanation that it `would encompass improvements and such activities as development of a management plan.'
  
  
• 'A regime to authorise activities such as the taking of timber or gravel on pastoral leases would be provided.' Again this is not clear beyond, apparently, displacing any rights which native title holders otherwise have. The point is restated in the 23 May statement as allowing government `to authorise non-primary production activities by third parties on non-exclusive tenures, including pastoral leases. This would encompass, for example, taking native timber or gravel from a pastoral lease or operating a sales franchise in a national park'.

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

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

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

• First, this point repeats the 1996 proposal for a higher registration test for the right to negotiate. This tough new test is, according to the 23 May statement, to apply also to native title claims generally and (as noted) to interim statutory access rights.
  
  
• It proposes amendments to speed up the handling of claims (details are not provided). The 23 May statement indicates that the Prime Minister has `agreed to consider the proposals from the Aboriginal and Torres Strait Islander Affairs Government Members Committee regarding the procedures of the National Native Title Tribunal and the Federal Court for handling native title claims'.
  
  
• It also proposes `means to encourage the States to manage claims within their own systems'. There is provision for State/Territory machinery in the NTA, but indigenous Australians so distrust State/Territory governments that the NTA allows native title claimants the choice of the Federal machinery--the National Native Title Tribunal and the Federal Court. It is not clear whether it is proposed to make the Federal processes less attractive than those of States and Territories. The handling of claims would be speeded up if State and Territory governments could be encouraged to actually negotiate agreed settlements, rather than forcing every claim to formal adjudication.
  
  
• A sunset clause is to be introduced, namely, a date by which native title claims must be lodged. No specific date is suggested. There is clearly a public interest in early identification of those parts of Australia where native title survives. But the preparation and conduct of an application is such a burdensome task that any sunset clause is likely to constitute an arbitrary deprivation of property. The 23 May statement mentions one option raised at the recent Premiers' Conference for it to expire at six years from the date of commencement of the amendments.
  
  
• The 23 May statement proposes to make legal aid more readily available for pastoralist respondents to claims, and to clarify the general rule that parties to claims will not have to bear the costs of other parties.

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

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

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

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

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

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

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