Skip to main content

NNTT revised Guidelines on Acceptance of Expedited Procedure Objection Applications (2001)

The Hon. Mr Christopher Sumner
Presidential Member
National Native Title Tribunal
P.O. Box 9973
Adelaide SA 5001

5 November 2001

Dear Mr Sumner.

Re: NNTT revised Guidelines
on Acceptance of Expedited Procedure Objection Applications - issued 16
October 2001

I wish to raise some
concerns I have in relation to the NNTT's newly revised Guidelines on
Acceptance of Expedited Procedure Objection Applications.

As you may be aware,
as Aboriginal and Torres Strait Islander Social Justice Commissioner,
I hold statutory functions under the Human Rights and Equal Opportunity
Commission Act
(HREOCA) and the Native Title Act (the Act or
NTA) that include to:

(1) Report on the
operation of the NTA and its effect on the exercise and enjoyment of
rights by Aboriginal peoples and Torres Strait Islanders [s 209 the
Act] ;

(2) Report on the
enjoyment and exercise of human rights by Aboriginal peoples and Torres
Strait Islanders, and recommend where necessary on the action that should
be taken to ensure these rights are observed [s 46C(a) HREOCA];

(3) Examine and
report on enactments and proposed enactments to ascertain whether or
not they recognise and protect the human rights of Aboriginal peoples
and Torres Strait Islanders[s 46C(d) HREOCA].

It is in relation
to these functions that I wish to comment on the effect of the revised
Guidelines on the human rights of Aboriginal peoples and Torres Strait
Islanders.

My concern with the
revised Guidelines is that they attach greater significance to the objection
application than to the more central issue of whether a proposed development
attracts the expedited procedure in any particular case. The Tribunal's
view is that it does not have jurisdiction to determine an objection to
the expedited procedure if the objection application does not conform
to sections 76 and 77 of the Act and Form 4 of the Regulations (as interpreted
by the Guidelines). This is despite the context of the expedited procedure
within the right to negotiate process and the Act as a whole, which can
be read as providing greater protection to for native title. The effect
of the Tribunal's position is that the concerns of Indigenous people about
the impact of developments on their land may be overlooked in favour of
the proposed development proceeding. Consequently the risk that valuable
native title rights may be extinguished as a result of the development
activity is increased. In my view such a discriminatory procedure, which
favours the interests of non-Indigenous over Indigenous interests, should
not be adopted unless it is unambiguously required by the Act.

The Expedited Procedure and
the Native Title Act

The expedited procedure
is a limited exception to the right to negotiate. The right to negotiate
is a substantial right within the scheme of the NTA (North Gaanalanja
Aboriginal Corporation v Queensland
(1996) 185 CLR 595 at 235-236).
It provides for notification of and negotiation with native title parties
for most mining future acts and is the pre-condition to the validity of
all future acts to which it applies. The Act allows a Government party
to remove the right to negotiate where s237 of the Act applies. The only
mechanism in the NTA to ensure that the removal of the right to negotiate
permitted by the expedited procedure occurs in accordance with the requirements
of s237 is the objection procedure.

The importance of
this check becomes obvious where state or territory governments apply
the expedited procedure in a blanket fashion to large numbers of proposed
mining exploration licences without considering or gathering information
about the impact of any of these licences on the native title concerned.
The check is all the more important following the Federal Court decision
in Holt v Manzie [1], in which Olney J held that
the Administrative Decisions (Judicial Review) Act does not apply
to expedited procedure decisions. Consequently, the objection procedure
may be the only safeguard that the expedited procedure power is exercised
according to statute.

The Tribunal's role,
defined in s32(4), is to determine 'whether the act is an act attracting
the expedited procedure'. Thus the central issue before the Tribunal is
the impact of the proposed development on Indigenous community activities,
sites of significance or land. To hold that the failure of the objection
application to comply with a regulatory form deprives the Tribunal of
jurisdiction to determine whether the expedited procedure applies to remove
the right to negotiate does not reflect the purpose of the Act nor is
it an express requirement of the Act.

In fact, in relation
to jurisdiction, the Guidelines appear to be shaped by only two of the
three applicable statutory principles contained in section 109 of the
Act (those that promote the speedy or efficient resolution of the Tribunal's
statutory functions), without paying equal regard to the third principle,
that the Tribunal is not to be bound by technicalities, legal forms or
rules of evidence.

In the section entitled
'General Principles' the Guidelines specifically point out subsections
(1) and (2) of section 109 ("Tribunal's way of operating"),
but omit the equally pertinent (and equally binding) subsection 109(3).
The subsections state:

Subsection 109(1):

The Tribunal
must pursue the objective of carrying out its functions in a fair,
just, economical, informal and prompt way.

Subsection 109(2):

The Tribunal,
in carrying out its functions, may take account of the cultural and
customary concerns of Aboriginal peoples and Torres Strait Islanders,
but not so as to prejudice unduly any party to any proceedings that
may be involved.

Subsection 109(3):

The Tribunal,
in carrying out its functions, is not bound by technicalities,
legal forms or rules of evidence.

All three subsections
should direct the way in which the NNTT operates. Yet no reference is
made to nor weight apparently attached to section 109(3) in devising the
revised Guidelines.

This over-emphasis
on promptness at the expense of other considerations also appears in the
Tribunal's Explanation of Guidelines on Acceptance of Expedited Procedure
Objection Applications
(the 'Explanation'). Paragraph 6 of the Explanation
states that:

It is also relevant
that the Federal Court accepts that an expedited procedure determination
is to be made as speedily as possible. [2]

In my view, the relevance
of the fact that 'the Federal Court accepts that an expedited procedure
determination is to be made as speedily as possible' is its application
to the NNTT's function of hearing and determining an expedited procedure
objection. Refusing to consider an expedited procedure objection at
all
is not a 'speedy' way to determine an objection. It is simply
not determining the objection.

The principle of
promptness should not operate at the expense of native title parties'
right to have their objection to the application of the expedited procedure
heard, especially where such a procedure removes a substantial right.
Nor is this emphasis on promptness reflected in the NTA when read as a
whole.

The 'Objects' section
of the NTA, Section 3(a), states as its first object that the Act is 'to
provide for the recognition and protection of native title'. [3]
Section 4 of the Act further provides that:

Recognition
and protection of native title

(1) This Act
recognises and protects native title. It provides that native title
cannot be extinguished contrary to the Act

Justice Kirby in
the recent Croker Island decision [4] suggests that the
denial of traditional law can only occur where there is 'very good legal
reasons, given the denial necessarily involves discrimination against
vulnerable persons defined in terms of their race.' [5]

The majority decision
of the High Court in Croker Island emphasised the protective character
of the Act with regard to native title.

"It must next
be noted that the objects of the Act include providing for "the
recognition and protection of native title" [6].
In so far as the Act provides for protection of native title it can
be seen as supplementing the rights and interests of native title holders
under the common law of Australia and thus, in this way at least, giving
effect to one of the purposes of the Act recorded in its preamble. Section
11(1) of the Act and its provision that native title is not able to
be extinguished contrary to the Act is, perhaps, the most important
of the Act's protection provisions . [7] [8]

In fact, the Preamble
to the Act expressly states in relation to future acts that:

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
the native title holders through a special right to negotiate.
(emphasis
added)

The right to negotiate
enjoys protection within the international framework of human rights,
including the instruments recognised in the Preamble to the Native Title
Act. In particular, the internationally recognised principle that members
of minority and indigenous cultures have the right to maintain, enjoy
and develop their cultures [9] protects the right of
Indigenous peoples to effective participation in decisions regarding their
lands and territories. [10] The 'right to negotiate'
reflects this internationally recognised human rights principle.

These principles
cannot be realised if the right to negotiate can be displaced by a process
in which the non-compliance with legal forms is a threshold issue.

In addition, section
7(2)(a) of the Act requires that 'the provisions of the Racial Discrimination
Act 1975 apply to the performance of functions and the exercise of powers
conferred by or authorised by this Act'. Given the discriminatory effect
(referred to above) of failing to hear the concerns of Indigenous people
about the impact of developments on their land in favour of the proposed
development proceeding and the consequent risk that valuable native title
rights may be extinguished or impaired, s7(2)(a) applies to ensure that
the Tribunal exercises its powers to hear any objections to the expedited
procedure.

The degree of particularity
required by the Guidelines.

In addition to the
limitations on jurisdiction that the revised Guidelines convey, I remain
concerned about the degree of particularity required by the Guidelines.

The original Guidelines
provided detailed information about what the Tribunal considered was required
to comply with the relevant sections of the Act and Regulations. These
requirements went well beyond what was specified in the Regulations or
Form 4. The revised Guidelines have rightly decreased the matters required
by the original Guidelines. However, the revised Guidelines continue to
require that matters be canvassed that are not required by the Act or
Regulations. The revised Guidelines state that:

… Compliance
with paragraph 7 requires a statement why the applicant has the belief
of likely interference or disturbance and so must contain identification
of the relevant activity or activities, site or sites, area or areas
and land or waters
the subject of such belief. Such identification
is also necessary for a statement of believed likely impact of the act
on any such activity, site, areas, land and/or waters claimed
in the objection. [Emphasis added]

This statement goes
beyond what is stated in the Act and Regulations. If the Tribunal requires
such information before it will consider whether the expedited procedure
has been appropriately applied this will prejudice the rights of native
title parties.

Conclusion

The Right to Negotiate
is a significant right. It is an expression of the internationally recognised
human rights principle that Indigenous people have the right to effective
participation in the development of their traditional lands. Within the
Act it is a broad and important right that gives rise to negotiation rights
regarding the impact of proposed future acts on claimants' native title,
on their social, cultural and economic structures, including management,
use and control of native title lands and waters. [11]

As the context of
the Act makes clear, the right to negotiate is a general provision applying
to a class of activities. The expedited procedure is a limited exception
to this general provision. The right to object to the expedited procedure
is an important check that ensures that the expedited procedure is not
applied contrary to the intention of the Act.

Furthermore, under
section 109(3) of the Act the Tribunal is not bound by 'technicalities,
legal forms or rules of evidence'. Compliance or non-compliance with a
legal form, in my view, should not be determinative of the Tribunal's
jurisdiction.

As the failure to
hear and determine objections to the expedited procedure discriminates
against native title claimants in favour of non-Indigenous interests,
such a result should not be adopted, as it is not expressly required by
the Act.

If you have any questions
regarding this letter, please do not hesitate to contact me.

Yours faithfully

Dr. William Jonas
AM
Aboriginal and Torres Strait Islander Social Justice Commissioner


1.
Holt v The Hon. Daryl Manzie [2001] FCA 627 (5 June 2001)

2.
Western Australia v Ward
(Lee J), 1996 70 FCR 265 at 278: 148 ALR
753 at 766

3.
Section 3(a)

4.
The Commonwealth v Yarmirr; Yarmirr v Northern Territory
[2001] HCA
56 (11 October 2001)

5.
ibid
, para 296

6.
Section 3(a)

7.
Western Australia v The Commonwealth (Native Title Act Case)
(1995)
183 CLR 373 at 453, 468 per Mason CJ, Brennan, Deane, Toohey, Gaudron
and Mc Hugh JJ

8.
ibid
, per Gleeson CJ, Gaudron, Gummow and Hayne JJ at paragraph 7

9.
Recognised in the International Convention on the Elimination of All Forms
of Racial Discrimination and the International Covenant on Economic, Social
and Cultural Rights

10.
This right has been emphasised in the last two decisions on Australia
by the United Nations Committee for the Elimination of Racial Discrimination
(the CERD Committee). The CERD Committee found that the 1998 amendments
to the Native Title Act (including the restrictions on the right to negotiate)
breached the International Convention for the Elimination of all forms
of Racial Discrimination in that they failed to ensure the 'effective
participation' of Indigenous people [Committee on the Elimination of Racial
Discrimination, Decision (2)54 on Australia - Concluding observations/
comments
, 18 March 1999. UN Doc CERD/C/54/Misc.40/Rev.2.] The Human
Rights Committee (the United Nations committee monitoring the International
Covenant on Civil and Political Rights) also criticised the NTA for limiting
the effective participation of Indigenous people "…in all matters
affecting land ownership and use, and affect[ing] their interests in native
title lands, particularly pastoral lands."

11.
Section 39 NTA sets out a broad range of minimum criteria that are to
be taken into account by arbitral bodies when deciding on right to negotiate
matters that have failed to be settled by negotiation.

 

Last updated 13 June 2002.