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;
  • the time
    limits governing the right to negotiate;
• 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.

 

Western Australia

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

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.

New South Wales

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 93; 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".
http://nttf.gov.au/ 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.