Native Title Report 2000: Chapter 5: Implementing the amendments to the Native Title Act

Chapter 5: Implementing the amendments to the Native Title Act

In 1999 and 2000 the Committee on the Elimination of Racial Discrimination (the CERD Committee) and the Human Rights Committee (HRC) of the United Nations both criticised the 1998 amendments to the Native Title Act 1993 (the NTA) as limiting the rights of Indigenous people. (1) The committees found that the amendments were discriminatory and recommended that Australia either suspend implementation of the 1998 amendments (2) or amend the NTA anew. (3) No action has since been taken to lessen the discriminatory impact of the 1998 amendments and the true extent of the diminution of native title parties' rights is now becoming clear.

In this chapter I assess some of the ways in which the implementation of the 1998 amendments has borne out the findings of the CERD Committee and the Human Rights Committee decisions. In particular, I assess developments in the judicial interpretation of procedural provisions in the NTA. These provisions were originally intended to provide protection to registered native title claimants while their claim was being determined. Instead, judicial interpretations confirm the inadequacy of the amended Commonwealth future acts regime to provide protection to native title parties. I also assess the implementation (and attempted implementation) of alternative state regimes. This process has illustrated the vulnerability of Indigenous rights to incursion by state regimes which further reduce the protection available to native title parties. Finally I assess the difficulties experienced by native title representative bodies (NTRBs) in satisfying the requirements of re-recognition when already under-resourced for carrying out their specified functions.

Procedural rights

Introduction

Procedural rights protect native title, but do not freeze all future development until a final native title determination is made. The original 'future acts' regime set up under the NTA attempted to achieve this balance; it allowed for the further development of lands while at the same time protecting native title by providing for significant consultation with Aboriginal people. It ensured that Aboriginal people were able to participate in decisions regarding development so that it could occur in a manner that did the least damage to their native title.

The 1998 amendments to the NTA introduced far-reaching changes to Indigenous peoples' 'procedural rights' regarding 'future acts'. The application and development of the procedural rights regimes in the reporting period have further reduced these rights and fall far short of human rights standards that require native title to be protected to the same extent as non-Indigenous rights to land.

Particular issues that have emerged during the reporting period include:

• the content of the procedural rights granted, including:
• the extent and nature of the right granted by the 'opportunity to comment' provisions;
• access to procedural rights; the statutory right to judicial review of a refusal to register a claim;
• enforceability of procedural rights; and
• the reduction of procedural rights under 'alternative state regimes'

Significance of procedural rights to native title

Native title is a culturally distinct form of title that is nevertheless entitled to equal protection before the law. Procedural rights form part of the protection assured to native title in order that it be equally protected with all other forms of property. The procedural rights are necessary for the protection of native title because:

• native title is vulnerable to impairment or extinguishment in the time before it has been formally recognised and protected by the common law. Procedural rights' are the mechanism by which native title is protected from erosion by government or third party activities prior to a determination of the nature and extent of the native title rights.
• the unique nature of native title (based as it is, on traditional law and custom) means that it is difficult to compare with other forms of title. The nature of the Indigenous interests at stake are significantly different to common law rights or property interests. Without the protection of the procedural rights native title may be more vulnerable to impairment or extinguishment than other forms of non-Indigenous title. A decision-making authority may have limited capacity to understand the cross-cultural meanings and values at stake. A process of consultation will not adequately protect this unique interest if there is not sufficient information provided to Indigenous people to enable them, as experts on the meaning of their own cultural norms, to make an assessment of theimpact of proposed future acts on their native title interests. The operation of the procedural rights may thus affect whether or not a future act which could significantly impair native title will take place and the manner in which it may occur.

Procedural rights in a human rights framework

Under a human rights framework the protection of native title must provide for:

• equal protection of property interests before the law; as required by the International Convention against the Elimination of Racial Discrimination (ICERD), Article 5 and the Universal Declaration of Human Rights (UDHR), Article 17.
• protection of the right to maintain and enjoy a distinct culture; as required by International Convention on Civil and Political Rights (ICCPR), Article 27.
• the right of Indigenous people to effective participation in decisions affecting them, their lands and territories: as required by ICCPR, Article 1 and the International Covenant on Economic Social and Cultural Rights (ICESCR), Article 1.

In its most recent country report on Australia, the Human Rights Committee stated its concern that the 1998 amendments to the NTA had limited the rights of indigenous persons and communities '. in the field of effective participation in all matters affecting land ownership and use' (4) and had failed to take sufficient action to ensure that indigenous peoples exercised 'meaningful control over their affairs'. (5) The HRC stated that 'The State party should take the necessary steps in order to secure for the indigenous inhabitants a stronger role in decision-making over their traditional lands and natural resources (Article1, paragraph 2)'. (6)

These criticisms reflect the stated principles of the HRC's General Comment on Article 27 of the ICCPR. In the General Comment the HRC discussed the importance of political participation in the context of the need to protect the particular cultural relationship of minority groups to the use of land resources, particularly in the case of Indigenous peoples. The HRC stated that the enjoyment of culture may require "measures to ensure the effective participation of members of minority communities in decisions which affect them". (7)

These principles reflect those enunciated also by the CERD Committee in its General Comment on Indigenous peoples when it called on States parties to:

ensure that members of Indigenous peoples have equal rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent. (8)

The extent and nature of the right granted by the 'opportunity to comment' provisions

The amended NTA provides for registered native title claimants and certain specified bodies to be given notice of specified future acts, in order that they have an opportunity to comment on the proposed future acts. The specified future acts entitling notice for this reason include:

• post-1996 grants of pastoral or agricultural leases in fulfilment of pre-Wik undertakings [per ss 23F & 23HA],
• certain primary production upgrades [per s 24GB],
• off-farm activities connected to primary production [per s 24GD],
• gravel and timber etc rights over pastoral/agricultural leases [per s 24GE],
• leases, licences etc over waters or airspace [per s 24HA],
• extinguishing grant of freehold or exclusive possession based on pre-Wik right or undertaking [per s 24ID],
• construction of a public work pursuant to a pre-Wik reservation or lease to a statutory authority [per s 24JB],
• creation of a national park plan of management pursuant to a pre-Wik reservation or lease to a statutory authority [per s 24JB].

The manner of notifying eligible native title parties where notice is required for the purpose of giving an opportunity to comment is prescribed by section 8 of the Native Title (Notices) Determination 1998. (9) Section 8(3) states that:

(3) A notice . must include:

(a) a clear description of the area that may be affected by the act or class of acts; and (b) a description of the general nature of the act or class of acts; and (c) a statement that the person to be notified must be given an opportunity to comment on the act or class of acts within a period specified in the notice; and (d) the name and postal address of the person to whom comment must be given.

The requirements of notification imposed by the NTA and the content of the right recognised by the 'opportunity to comment' were discussed in Harris v Great Barrier Reef Marine Park Authority. (10) The full Federal Court decision restricted the information required to be notified for the 'opportunity to comment' in three important ways:

• There was no requirement to notify the native title parties regarding each specific permit proposed to be granted; (11) it would be sufficient to notify the registered native title claimants that the Authority ".proposes to grant an unspecified number of permits of a particular class for access to the area defined". (12)

• There was no requirement to notify the native title parties regarding the activities to be carried out pursuant to the permits; only general information was required. (13)

• The notice need not identify 'lands and waters affected by the act' in relation to the lands and waters the subject of a native title claim, but need only identify the 'area the subject of the proposed permit or authority'. (14)

The court held that the content of the notice was so limited because the content of the right conferred by the 'opportunity to comment' was itself limited in the following ways:

• The right is merely ". an opportunity to proffer to the decision-maker argument and information known to them about their native title interests"(15) and to "explain why, in their opinion, the act should not be done at all or only on conditions."(16)

• The opportunity to comment 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". (17)

Consequently, the 'opportunity to comment' provisions place very few obligations on the future act-granting authority:

• The Authority is not required in any way to take account of the comments provided.

• The decision-maker need only ".make such use of [the information proffered by native title parties] as it considers appropriate". (18)

• No obligation is placed on the decision maker to ". make any particular use of the information provided by way of comment or to act in a way that will ensure that no harm is done to native title interests or that such harm is minimised."(19)

• The Authority need not even give the notice before it has determined to grant the permit requested, but need only give notice before the permit is actually granted. (20)

In fact the 'opportunity to comment' process places effectively no restrictions at all upon the manner or outcome of the decision-making process.

This interpretation of the right conferred by the 'opportunity to comment' breaches international human rights standards for the following reasons:

• Registration is substantial proof of a significant interest in land (albeit not a final determination of common law recognition of native title) that is required to be protected because of the right to equal protection of property rights

• Native title claimants have a right to participate in decisions affecting their claimed lands and waters. Indigenous peoples participation rights cannot be displaced merely because the future acts which give rise to the opportunity to comment are not acts which extinguish native title, but rather may give rise to a compensable 'impairment' of native title. (21)

• The fact that so little information must be provided regarding the nature of the proposed future acts, means that native title parties may not be sufficiently aware of what is proposed even to make a meaningful assessment of how it will affect their native title. This further prevents native title parties from effective participation in decisions affecting their lands and waters.

The time limits governing the right to negotiate

In the reporting period the case of Coppin v State of Western Australia (22) (Coppin) made findings regarding the time limitations governing the right to negotiate under the NTA.

The Coppin case expanded upon the decision Walley v Western Australia (23) (Walley) which determined that until the Government party had negotiated in good faith, the National Native Title Tribunal (NNTT) did not have jurisdiction to hear the government party's application for determination regarding future acts. The Walley case did not make any findings regarding the time period within which the government was required to perform its obligation to negotiate. In Coppin the court held that:

• the government's obligation to negotiate in good faith had a commencement date that 'probably' arose '.at the latest, at the expiration of the period of two months from the giving of the notice under s 29'; (24)

• even though the government had failed to perform its obligation to negotiate within a reasonable time-frame, and even though it was the native title parties who made the application, the NNTT did not have jurisdiction to make the determination until the government had negotiated in good faith.

Failure by government parties to negotiate in good faith within a reasonable time frame breaches the right of Indigenous people to participate in decisions that affect them. Native title claimants should not be forced to wait upon the inaction of the government party.

If a timeframe for completion of important consultation processes, such as that stated in Coppin, is to have any meaning, there must be options available to enforce government compliance where they do not adhere to it voluntarily. This may mean that where the government does not comply, native title parties should be able to apply to the arbitration body to enforce government compliance and, if the government still fails to comply, to obtain a determination regarding the proposed future acts. That in the Coppin case the NNTT had no jurisdiction to hear an application for determination of native title before the government complied with its obligation to negotiate in good faith, undermined any protection that the provisions were originally intended to apply. (25) However, were the time limitation stated by Carr J. in Coppin treated as binding it could become an important safeguard of the protections afforded to native title by the right to negotiate.

Access to procedural rights and the statutory right to judicial review of a refusal to register a claim

Registration of a native title claim is the threshold requirement for access to the procedural rights under the NTA (including right to negotiate, right to be notified and right to object and be consulted). The increased requirements of the registration test have proven a significant restriction on access to the procedural rights.

Consequently, the right of review of decisions not to register native title claims is an important safeguard of native title claimants' access to procedural rights. Section 190D(2) of the NTA gives native title applicants who fail the registration test (26) the right to apply to the Federal Court for judicial review of the Native Title registrar's decision not to register their application on the National Native Title Register. (27) In the reporting period, the extent to which the Native Title registrar's registration decisions are reviewable has been tested in several cases.

In Powder v Native Title Registrar , (28) the court decided that the application of the registration test is an administrative rather than a judicial function. For this reason, the review process available under s 190D(4) is not an appeal but a process of review of an administrative decision by the court. (29) Consequently, the review function allowed by section 190D is equivalent to review under the Administrative Decisions Judicial Review Act (the ADJR Act).

In contrast to this, the full Federal Court in Strickland (30) (2000) decided that the 'nature and extent' of the court's review power under s 190D(2) is 'conferred in the broadest of terms' and is not restricted to, nor need be analogous to, the grounds for review in the AAT Act and the ADJR Act. Rather, as section 190D does not specify the nature or extent of the review or impose any limitation upon the material that may be taken into account', (31) the court may consider issues of law and fact. If a ground of review is established, the court must make appropriate orders to do justice between the parties. (32) Further, if a review is raised on factual grounds, the reviewing court may consider evidence not available to the registrar, (33) and must consider relevant events that occur subsequent to the decision under review. (34)

Consequently, the broad nature of the review of registration test decisions under the NTA may in some cases enable the registration of claims that would not have been registrable by the primary decision-maker. Given the devastating effect on native title claimants' rights to participate in decisions regarding 'future acts' if they are unable to have their claim registered, it is appropriate that the review of registration decisions be comprehensive.

Enforceability of procedural rights

The right to have the native title claim protected pending a determination is rendered meaningless if that right is unenforceable. That is the consequence of Justice Cooper's decision in the Lardil case, (35) which held that:

• an act is only a 'future act' if it 'affects' native title;

• before there is a final determination as to the existence of native title, and regardless of whether or not a native title claim is registered, it cannot be known whether there is any native title to be 'affected', and consequently, it cannot be known whether a proposed act is a 'future act' or not; (36)

• as a result, native title claimants do not have a right to have the prescribed procedural steps taken; (37)

• because registered native title claimants have no right to the prescribed 'procedural rights', acts later discovered to be 'future acts' (in a subsequent native title determination), but which were authorised without according the registered native title claimants their procedural rights, will nevertheless be valid; (38) and that

• the court did not have jurisdiction to hear the application for enforcement of procedural rights because the NTA does not deal with the enforcement of native title rights by curial process.

This decision deprives native title claimants of all protection. By holding that an act can only attract the 'future act' processes if it occurs over lands or waters where a determination of native title has already been made, this decision ensures that the future acts regime would never operate in regard to registered native title claimants. Furthermore, the distinction between the existence of a right to have future act processes followed and the right to enforcement of that right, renders the right meaningless.

This decision in Lardil is not supported in other cases:

• In Bullen, (39) French J. held that the application of the 'right to negotiate' provisions are a "condition of the validity of the future acts to which it applies".

• The decisions in Walley (40) and Coppin (41) that, in regard to the 'right to negotiate', the NNTT does not even have jurisdiction to hear an application for determination of native title until the government has complied with its statutory duty to negotiate in good faith, clearly suggest that the procedures under the 'procedural rights' provisions are obligatory and that no valid legal consequence can flow until they are complied with.

The restriction on the enforceability of procedural rights in the Lardil case is unacceptable for two reasons:

• The registration test, especially in its new more demanding form, proves the existence of a connection to the land which should be sufficient to give rise to a right to participate in decisions regarding that land, regardless of whether the claim has been finally determined or not.
• The purpose of the procedural rights is to prevent derogation from existing native title rights before the extent of the right has been determined. To give rights and then not enforce them is the equivalent to no rights at all.

Procedural rights under the alternative state regimes

Under the original NTA the 'right to negotiate' (the RTN) was recognised as a way of ameliorating the effects of 'future acts' on existing, but as yet unrecognised native title interests. Nevertheless, in relation to those lands to which the RTN still applies, the amended NTA now authorises the States and Territories to introduce less demanding procedural rights under 'alternative state regimes'. In implementing such regimes, States and Territories are able to grant different procedural rights on the basis of what non-Indigenous tenures exist or previously existed over the claimed lands.

The approach of providing for differing procedural rights according to what non-Indigenous tenures exist(ed) over claimed lands appears to be based on the assumption that a past grant had a particular effect of extinguishing native title. However, it is as yet undecided by the High Court whether the creation of non-Indigenous interests over native title lands is capable of 'suspending', rather than 'extinguishing' native title interests. (42) If the 'suspension' argument is accepted, then many more lands may continue to be held as native title, even where the capacity of native titleholders to exercise all forms of their native title may be restricted. In such cases, Indigenous owners of land should still be entitled to full participation rights in matters of concern to their lands, regardless of what non-Indigenous titles co-exist or have previously co-existed over their lands.

Alternative s 43A schemes

Section 43A of the NTA enables States and Territories to replace the RTN over 'alternative provision areas' with regimes that provide lesser procedural rights. 'Alternative provision areas' are areas that are or have been covered by freehold or pastoral or agricultural leases, or was reserved land or land within a town or city and over which native title is not extinguished. (43) In the reporting period three governments (44) requested determinations for approval of proposed 'alternative state regimes' (45) that replaced the RTN regime under the NTA (Cth) with reduced procedural rights. Most of these schemes would further diminish the human rights of Indigenous Australians by attempting to reduce protection of native title and reduce the capacity for Indigenous people to have 'meaningful participation' in decisions over their lands.

In Western Australia 'alternative provision areas' account for approximately 57% of the State. (46) The state of Western Australia attempted to introduce its section 43A provisions within a comprehensive State based future act regime under a State Native Title Commission. The scheme, introduced under the Native Title (State Provisions) Act 1999 ('NTSPA'), the Native Title (State Provisions) Regulations 2000 ('NTSPR') and amendments to the Land Administration Act 1997 ('LAA'), would have reduced the procedural rights available to native title claimants over significant areas of land to a right to be notified, rights to make an objection and the right to consultations in good faith following an objection. (47)

The major parts of the WA regime required a determination under the NTA by the Attorney General. (48) The Commonwealth Attorney General made a determination in response to the WA Premier's request under s 43A of the NTA on 27 October 2000 but the determination was disallowed in the Senate on 9 November 2000. Consequently, the provisions have not come into effect.

Northern Territory

The Northern Territory's alternative regime was also rejected by the Senate; on 31 August 1999. The Northern Territory has since asked the Commonwealth Attorney General to reconsider its alternative native title regimes (relating to petroleum, mining and land acquisition) for a determination. (49)

Queensland also attempted to introduce a comprehensive alternative state regime that would substantially curtail the capacity of registered native title claimants to participate in decisions affecting their claimed lands. In alternative provision areas, which in Queensland cover about 54% of the state, (50) the RTN would have been replaced with a right to consult. However, the legislation was strongly opposed in the Senate and large parts of the original Queensland scheme passed by the state government, including the parts under section 43A NTA, were disallowed.

Under the compromise reached in the Senate disallowance debate, the reduced right to negotiate introduced in relation to the creation or variation of high impact exploration permits, high impact mineral development licences, mining claims and mining leases over unallocated state land (under s 43 NTA), was also introduced in relation to the alternative provision areas. The reduced right to negotiate encompasses notification of native title parties, a right to object, and to consultation and negotiation before the grant of the tenement. Where no agreement is negotiated the matter is heard by the Land and Resources Tribunal. The Minister may overrule the Tribunal in some circumstances.

The Queensland government enacted the Native Title Resolution Act 2000 (Qld) on 8 September 2000 to amend the original scheme.

The Queensland scheme also included the creation of the Land and Resources Tribunal (51) (the Tribunal) which integrates native title future act processes, including hearing all future act determinations, resolving disputes regarding future acts, with other processes under the Mineral Resources Act and with assuming responsibility for cultural heritage matters in Queensland.

The Queensland regime also requires that where there is a recognised native title claim, compensation must be settled before the grant of a mining lease or mining claim. Compensation is to be settled with claimants, and if agreement is not possible, the Tribunal must determine the amount of compensation payable on the date on which the Tribunal determines whether to grant the mining claim or mining lease and the money is paid into trust. For prospecting permits, exploration permits and mineral development licences compensation need not be settled before the grant is made.

The new scheme commenced on 18 th September 2000. (52)

Section 26A, 26B and 26C schemes

Section 26A enables the Commonwealth Minister to determine that any 'acts' or 'class of acts' that create or vary a right to 'low-impact' mining exploration, prospecting or fossicking is exempt from the right to negotiate. Where the relevant State or Territory Minister requests it, section 26B enables the Commonwealth Minister to determine that certain 'acts' or 'classes of acts' done by a State or Territory that create or vary a right to mine gold or tin in surface alluvium is exempt from the right to negotiate. Sections 26A and 26B are disallowable instruments and so must receive also the approval of the federal Parliament.

Section 26C enables the Commonwealth Minister to determine that certain 'acts' that create or vary a right to explore or prospect within a approved opal or gem mining area is exempt from the right to negotiate. Section 26C determinations do not require the approval of the federal Parliament. In the reporting period the Queensland government requested determinations under sections 26A and 26B of the NTA and the New South Wales government requested determinations regarding future acts procedures for 'low impact' mining exploration under sections 26A, and 26C of the NTA.

In New South Wales two determinations (53) were made in the reporting period declaring that land and waters known as Areas 1 and 2 in the Lightning Ridge region were 'approved opal or gem mining areas' for the purpose of section 26C NTA. The right to negotiate provisions now no longer apply to grants of opal mining titles in these areas.

In addition, the NSW government requested the Attorney-General make two determinations in relation to approved 'low-impact' exploration grants under section 26A of the NTA. These were the subject of a determination by the Commonwealth Attorney-General and passed the scrutiny of the federal Parliament on 12 December 2000 when the time to lodge a disallowance motion expired.

Currently, these provisions allow for consultation with native title parties on the protection of native title rights and interests and the signing of an access agreement with registered native title parties before entry onto the land can occur. Where an access agreement is not finalised within two months, the Mining Registrar may mediate the matter. If no agreement is reached through mediation within one month the Land and Resources Tribunal may make a determination.

Subsection 32C(1) of the Mining Act allows the NSW Minister to publish the types of prospecting operations that may be authorised under a low impact exploration licence. On the 15 October 1999, the NSW Minister for Mineral Resources published an order listing the prospecting operations in the NSW Gazette. (54) The prospecting operations are explained in New South Wales:

Compliance with the provisions of s.26A Low Impact Exploration Licences (Minerals) New South Wales: Compliance with the Provisions of s.26A Low Impact Prospecting Titles (Petroleum). (55) For example, 'drilling and activities associated with drilling are allowed (paragraph (e)) but only where they do not involve clearing .or site excavation.' Clearing and site excavation is, however allowed where there is the minimum necessary to establish a drill site". (56) The NTRB negotiated with the NSW government to modify provisions relating to notice (57) and security of the legislation.

Consequently, NSW now has its own native title scheme in relation to low impact exploration for minerals and petroleum, (58) which replaces the right to negotiate with a requirement that miners reach access arrangements with all land holders (including registered native title claimants and holders) about the way in which exploration will proceed.

Queensland

Parts of the comprehensive Queensland alternative state regime that were rejected by the Commonwealth Senate were the provisions in relation to the creation or variation of alluvial gold and tin mining claims and leases. (59) These sections were held to be worse than the other sections under the proposed alternative Queensland regime because the alluvial gold and tin mining provisions applied not just to the creation of mineral exploration rights but also extraction permits. Nevertheless, the section 26A determination survived the Senate disallowance debate. As a consequence, where the creation or variation of specified 'low-impact' prospecting permits, 'low-impact' mineral development licences and 'low-impact' exploration permits is contemplated, the Queensland regime replaces the Commonwealth RTN with a 'right to consult'.

While they survived the Senate disallowance motion, these provisions were the subject of intense criticism during the Senate debate. In particular, the definition of the term 'low-impact' mining activities was criticized on the basis that it hid the fact that it would 'apply to nearly all mineral exploration in Queensland, apart from the dozing of grid lines and bulk sampling' (60) These provisions were finally allowed by the Senate with the proviso that the definitions applying to the 'low-impact' schemes under s 26A were to be 'no less favourable to indigenous interests' than those under the New South Wales s 26 scheme.

The Queensland Indigenous Working Group (61) (QIWG) states that the definition of 'low-impact' continues to fall below the standard of that in the NSW legislation. The definition became a major sticking point in negotiations between the QIWG, Queensland Native Title Representative Bodies and the Queensland government over the creation of a framework agreement for the processing of the backlog of exploration permits and mining development licenses. (62) The Premier, the Hon. Peter Beattie MP, had previously stated that no exploration permits of the type covered by s 26A would be issued prior to establishment of a satisfactory regime, based on the NSW definition of low impact exploration.

The re-recognition of native title representative bodies

The 1998 amendments to the Native Title Act (the NTA) subject Native Title Representative Bodies (NTRBs) to a process of re-recognition. In informal consultations NTRBs have generally confirmed that the re-recognition process has been onerous, time consuming and debilitating.

The re-recognition process initially required the Minister to make decisions about the boundaries of areas in which invitations would be issued to NTRBs. Invitations were issued in May 1999. (63) After consultations with ATSIC, Cape York Land Council and North Queensland Land Council, the Minister has since created a further invitation area in Queensland by dividing the Far North Queensland invitation area into two invitation areas. This restores the boundaries that existed prior to the amendments to the NTA.

At the time of writing the minister has made decisions recognising NTRBs for the following invitation areas:

Torres Strait (1 invitation area)

• Torres Strait Regional Authority recognised for Torres Strait

Queensland (6 invitation areas)

• Central Queensland Land Council recognised for Queensland North
• Carpentaria Land Council recognised for Queensland West
• Queensland South Native Title Representative Body Aboriginal Corporation (formerly Goolburry Land Council) for Queensland South
• Cape York Land Council for ATSIC Cooktown Regional Council area (previously part of Queensland Far North invitation area)
• Gurang Land Council for Queensland Central

Western Australia (6 invitation areas)

• Kimberley land Council recognised for Kimberley
• Ngaanyatjarra Land Council recognised for Central Desert
• Yamatji Land and Sea Council recognised for Pilbara and Geraldton
• Goldfields
• Land Council recognised for Goldfields

Northern Territory (2 invitation areas)

• Northern Land Council recognised for northern Northern Territory
• Central Land Council recognised for the southern Northern Territory

South Australia (1 invitation area)

• Aboriginal Legal Rights Movement recognised for all South Australia

New South Wales (1 invitation area)

• NSW Land Council recognised for New South Wales

Victoria (1 invitation area)

• Mirimbiak Nations Aboriginal Corporation for Victoria

Through this process some existing NTRBs have been re-recognised and some have not. At the time of writing no representative body has been recognised for South West Western Australia (64) or ATSIC Cairns Regional Council Area (previously part of Queensland Far North invitation area). However, North Queensland Land Council's application for recognition is still under consideration and a determination is expected by May 2001. No applications have been received in response to the invitation areas of Tasmania, ACT, Jervis Bay or the external territories such as Christmas Island and Norfolk Island.

The re-recognition process has placed enormous strain on NTRBs. They are critically under-resourced for carrying out even their general statutory functions and meeting the requirements of application for re-recognition has further drained scarce resources and placed increased stress on the organisations. The competition between representative bodies for recognition has created unnecessary rivalry, which in turn has made it difficult for organisations to remain focused on their main objective of providing effective participation for Indigenous people in issues relating to land. Further, the uncertainty created by having to operate under transitional provisions has impacted on staffing and service provision, (65) making it more difficult to meet the requirements for re-recognition.

NTRBs are the key to ensuring that Indigenous people are given effective participation in decision-making over traditional lands and natural resources. In 1999 the Committee on the Elimination of Racial Discrimination encouraged Australia to provide effective participation for Indigenous people in matters affecting them. (66) In July 2000 the Human Rights Committee called on Australia to ".take the necessary steps in order to secure for the indigenous inhabitants a stronger role in decision-making over their traditional lands and natural resources". (67) Re-recognition has been an ongoing issue for NTRBs since the 1998 NTA amendments were enacted and the process has not yet been finalised. There is a need for closure in relation to this issue so that resources can be put where they are urgently needed, that is, in giving Indigenous people effective representation in furthering their native title claim and effective participation in the decision-making processes that affect their land.

The amendments to the NTA have been in operation for over two years. In relation to the provision of procedural rights the courts have confirmed the failure of the Act to provide appropriate protection to native title. Governmental control over native title continues to devolve to state governments who are authorised under the amendments to implement regimes which provide less protection than that provided under the Commonwealth Act. Several UN treaty committees have found these amendments to be discriminatory and in breach of Australia's treaty obligations. Unless the discriminatory provisions of the NTA are repealed Australia will continue to be condemned by human rights treaty bodies in respect of its treatment of Indigenous people.

Footnotes

1. Committee on the Elimination of Racial Discrimination. Decision (2)54 on Australia, 18 March 1999, UN Doc CERD/C/54/Misc.40/Rev.2 (CERD Decision (2)5a); Committee on the Elimination of Racial discrimination, Concluding Observations by the Committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/C/304/Add.101, 19/04/2000 (CERD Concluding Observations); Human Rights Committee, Concluding Observations of the Human Rights Committee: Australia. 28/07/2000. CCPR/CO/69/AUS. (HRC Concluding Observations).

2. ibid, CERD Decision (2)54, para 11.

3. HRC Concluding Observations, op cit, para 10.

4. ibid, para 10 (emphasis added).

5. ibid, para 9 (emphasis added).

6. ibid.

7. The Rights of Minorities (Article 27): 08/04/94. CCPR General Comment 23 (para 7) in Compilation of General Comments and General Recommendations adopted by the Human Rights Treaty Bodies UN Doc HRI/GEN/1/Rev 1 (1994) at 40.

8. General Recommendation XXIII (51) concerning Indigenous Peoples (para.4) adopted on 18 August 1997, CERD/C/51/Misc.13/Rev.4.

9. Commonwealth of Australia Gazette, No. S 440, 2 September 1998.

10. [1999] Federal Court of Australia (5 August 1999); per Kiefel J.; [2000] FCA 603 (11May 2000), per Heerey, Drummond and Emmet J.J. (Harris).

11. ibid, para 44.

12. ibid, para 45.

13. ibid, para 49.

14. ibid, para 56. This is in contrast to the judgment at first instance, in which Kiefel J. held that the notice must contain a specific description of the area that would be subject to the proposed future acts. Kiefel J. did hold however that only very limited information was required regarding the proposed activities to be carried out pursuant to those licences.

15. ibid, para 42. This conclusion was drawn in part from the determination that the existence of the different procedural rights conferred by the different sub-divisions of Division 3 indicated a legislative intention that the procedural rights created under the amended NTA are 'carefully graded' with regard to the required degree of 'attention' to be given to the views of native title parties about the doing of an act (para 27).

16. ibid, para 38.

17. ibid.

18. ibid.

19. ibid, para 51.

20. ibid, para 50.

21. ibid, para 42. Note that the 'opportunity to comment' is applicable to future acts which do not cause extinguishment, but which may impair native title.

22. Coppin v State of Western Australia [1999] 67 FCR 931 (8 July 1999).

23. Walley v Western Australia (1996) 137 ALR 561.

24. Coppin, op cit.

25. It seems that the requirement that the government and grantee parties negotiate in good faith was intended for the protection of native title parties. This view is supported by the decision in Walley, where the prohibition on the NNTT from determining a government application before it had negotiated in good faith protected the native title parties rights to negotiate over the proposed future acts. Further, the 1998 amendments to the NTA maintain a requirement that the government negotiate in good faith with native title parties and miners in those remaining circumstances where the right to negotiate continues to operate. In relation to the jurisdiction of arbitral bodies to hear applications for determinations regarding proposed future acts, the amended act specifically states that an arbitral body must not make a determination regarding future acts if any negotiation party, except a native title party, has failed to negotiate in good faith prior to the application for the determination.

26. NTA Part 7 sections 190A-C. See: Aboriginal & Torres Strait Islander Social Justice Commissioner, op cit, Chapter 4: The Registration Test, p69.

27. Non-claimant parties can object to registration under the ADJR Act: Western Australia v Native Title Registrar (1999) 95 FCR ] 57 ALD 307. (Carr J., 16 November 1999). They also have a right to be heard in relation to any matters with may affect their interests: NTA s190D(5).

28. Powder Family on Behalf of the Jetimarala People v Registrar, National Native Title Tribunal (Powder) (1999) FCA 913 (Unreported, Kiefel J., 5 July 1999).

29. ibid, paras 26-29, 34.

30. State of Western Australia v Strickland [2000] FCA 652 (18 May 2000).

31. ibid, para 64.

32. ibid, para 66.

33. ibid, paras 67, 62-68.

34. ibid, para 62.

35. Lardil, Kaiadilt, Yangkaal & Gangalidda Peoples v State of Queensland [1999] FCA 1633 (24 November 1999).

36. ibid, para 27.

37. ibid.

38. As the question of validity was not immediately before the court, this aspect of the judgment is not binding.

39. Bullen (Nyungar people) v Western Australia [1999] FCA 1490 (28 October 1999).

40. Walley, op cit.

41. Coppin, op cit.

42. See Western Australia and Ors v Ward and Ors (2000) 170 ALR 159 (the Miriuwung Gagerrong case).

43. NTA, s 43A(2).

44. Western Australia, Queensland and the Northern Territory.

45. NTA ss 43 and /or 43A.

46. John Clarke, "Western Australian native Title (State Provisions) Act 1999" in Native Title News Vol 4 No 7 2000, Butterworths p2.

47. These are the procedural rights provided in the place of the right to negotiate pursuant to s 43A of the NTA.

48. Excluding NTSPA Part 4 (future acts over lands to which which s 24 MD(6B) of the NTA would otherwise apply).

49. August 2000.

50. McKenna, M., 'Native Title Deal Support', Courier Mail, Tuesday 5 September 2000.

51. Land and Resources Tribunal Act 1999 (LTRA).

52. Attorney-General's Department "Queensland Alternative Native Title Regime". https://www.nntt.gov.au/Pages/Home-Page.aspx nttf/queensland.html pp1-2.

53. 17 February 2000. The determinations were gazetted on 18 February 2000: Attorney-General, the Hon Daryl Williams, Gazette Special No S77, 18 February 2000.

54. NSW Government Gazette No 120 of 15 October 1999.

55. http:www/nttf.gov.au/nttf/nsw.html Attorney-General of New South Wales.

56. ibid, p6.

57. Mining (General) Regulation 1997, s11A states that 4 months notice must be given to native title parties before the grant of the licence. This is the equivalent of the notice provisions in the amended NTA.

58. including: o grant of an exploration licence (under the Mining Act, s 22) that is a low impact exploration licence under and in accordance with Division 5 of Part 3 of the Act. o the renewal under s 114 of the Mining Act. o the conversion by amendment of an exploration licence to a low impact exploration licence.

59. covered by NTA, s 26B.

60. Senator Woodley (Democrats) - Senate Hansard Wednesday 30 August 2000 p15601.

61. The details of QWIG's dealings with the Queensland government are from a conversation with Tony Juhnson, Acting Manager of the Native Title Branch, Foundation for Islander Research Action (FAIRA), 30 November 2000.

62. Conversation with Trevor Robinson, Co-ordinator, Queensland Indigenous Working Group, 10 October 2000.

63. See Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 1999, Chapter Five, Native Title Representative Bodies.

64. The Aboriginal Legal Service of WA and Noongar Land Council's applications for recognition were rejected.

65. NTRBs cited the difficulty of attracting and keeping well-qualified staff, when funding was only issued in the short term and no guarantee of security could be offered to employees.

66. CERD Committee Decision (2)54, op cit.

67. HRC Concluding Observations, op cit, para 9.