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Beckett, Simeon --- "But Wait... There's More! Federal Government Releases more Amendments to the Native Title Act" [1996] AboriginalLawB 90; (1996) 3(87) Aboriginal Law Bulletin 8

But Wait...There's More! Federal Government Releases More Ammendments to the Native Title Act

By Simeon Beckett

A free set of steak knives with your native title amendments? Not exactly, but matching the Government's rhetoric with the real effect of its amendments--at least for Indigenous peoples--means that you are never really sure what you actually do have.

On 8 October 1996, the Federal Government released an `exposure draft' of additional amendments to the Native Title Act 1993 (Cth) (`the NTA'). The October amendments contain a major contraction of the right to negotiate and new provisions affecting representative bodies. A new procedure dubbed `Indigenous land use agreements' has been added, and the registration test is further toughened.

The Government's intention is to move the changes as amendments to the Native Title Amendment Bill 1996 (`the Bill') when it reaches the Senate. This short article looks at the October amendments and explores how they diminish the rights of native title holders. It complements a similar article on the Bill published in the September Aboriginal Law Bulletin (see Simeon Beckett, `Workability in Whose Interest? the Native Title Amendment Bill 1996').

Combined with the Bill, the October amendments constitute a fundamental diminution of native title holders' rights. So far-reaching are the changes that the amendment package has the potential to undermine the national agreement between Indigenous and non-Indigenous peoples embodied in the Native Title Act. As Noel Pearson has said:

`Make no mistake, if the amendments as proposed by the Howard Government succeed, Mabo will be no more ... The spirit of compromise and moral reckoning that Mabo represents will be lost to us and to future generations' (see `Open Our Hearts, and Minds' by Noel Pearson, The Australian, 22 November 1996, p 15).

The October amendments represent a fundamental shift in native title procedures away from the Commonwealth towards the States and Territories. They provide States wanting to expedite mining on native title land with clear incentives to set up their own procedures. States will be able to have exploration activities completely excluded from the right to negotiate, and the State Minister will be able to intervene in mining lease applications to avoid the right to negotiate. Not surprisingly, the Western Australian Premier, Richard Court, has enthusiastically welcomed the proposed changes, and announced the establishment of new native title procedures in WA should the changes be passed.

The October amendments also increase concerns as to whether the principles of the Racial Discrimination Act 1975 (Cth) will be honoured, as promised during the election campaign in early 1996, by the Federal Government.

The negotiations earlier this year between Indigenous representatives and industry groups sponsored by the Council for Aboriginal Reconciliation eventually broke down. The major focus of those discussions--a model for Indigenous land use agreements--has been adopted by the Government in a materially modified form, and incorporated into the October amendments.

Claims that the proposed amendments will increase workability remain hollow. The amendments are over 160 pages in length--longer than the NTA itself--and add complexity to the Act's operation. Co-ordination between new State procedures and the National Native Title Tribunal (`the NNTT') are likely to be difficult, and will take time to sort out. The new legislative requirements for native title representative bodies are both overly-stringent and bureaucratic, and Ministerial interventions under the proposed provisions will almost invite review under the Administrative Decisions (Judicial Review) Act 1976 (Cth).

Right to negotiate

The most far-reaching of the changes in the October amendments are those affecting the right to negotiate. The NTA currently provides that applicants for exploration licences and mining leases must go through a process of negotiation with the native title holders. If, despite negotiation, the parties fail to reach agreement, the NNTT can arbitrate and, ultimately, the Minister may determine the matter. This is called the `right to negotiate'.

Under the October amendments, the Federal Minister will be able to remove exploration, prospecting, fossicking and quarrying from the right to negotiate, subject to certain conditions. If a miner applies for a mining lease then not just the Federal Minister but also a State/Territory Minister may be able to intervene to allow the mining lease to go ahead without going through the right to negotiate procedure. The relevant Minister will also be able to intervene during arbitration.

The conditions upon which the Federal Minister can exclude exploration and similar activities from the right to negotiate will be no comfort to native title holders. Key conditions include the requirement that there be procedures for native title holders to be notified of each act, provision of an opportunity for them to be heard by an independent person (probably a mining warden), and `consultation' procedures about the protection of sacred sites, access, and the impact on native title of the mining act. In effect, negotiation and arbitration is replaced with a bare right of consultation.

A useful comparison can be made between the proposed rights of native title holders under the October amendments and the Mining Act 1978 (WA). Whereas native title holders will only be consulted about exploration on their native title land, private land owners maintain a veto over exploration on their land if it is a stockyard, orchard, vineyard, is under cultivation or is a burial ground (s29). Is this really in accordance with the principles of the Racial Discrimination Act?

For mining projects that reach the mining lease stage, new provisions will allow the relevant Minister to intervene before negotiations with native title holders can begin. To do so the act must, in the opinion of the Minister:

If a State or Territory's procedures have been recognised by the Federal Minister, then the intervening Minister may be from that State or Territory.

It is important to note that the conditions attached to intervention are subjective--dependent upon the opinion of the Minister. Such a power in the hands of a Minister of an avowedly pro-development State or Territory Government could be devastating to native title interests. The reciprocal power provided to a Minister to prevent mining gives the legislation an appearance of balance unlikely to be reflected in the use of its provisions.

A number of other amendments further reduce the operation of the right to negotiate: mining leases will be able to be renewed, extended or re-granted without going through the right to negotiate again; the content of good faith negotiations will be restricted; public infrastructure constructed by private companies for profit will be excluded from the right to negotiate; and mining projects will only have to pass through the right to negotiate once instead of twice. (The NTA recognises the fundamental difference between the exploration stage and the production stage of mining, and provides for the right to negotiate to occur at both.)

Registration test

There has been widespread concern from Indigenous and other groups that the proposed registration test is overly stringent, especially given the tight time frames in which native title holders must lodge claims in response to a s29 mining notice. Despite this criticism, the October amendments actually toughen the requirements. A fifth, a sixth and a seventh condition have been added.

The fifth condition requires that members of a group of native title claimants that has already had a claim registered cannot make an additional claim. The sixth condition is that it must appear from the application that the claim is made on behalf of all the native title holders of the native title claimed. And seventh, the native title representative body or the claimants must certify that the person making the claim has the `authority' to do so on behalf of the other claimants, and all efforts have been made to identify all the native title holders.

The new conditions reflect the Government's attempt to meet the Aboriginal and Torres Strait Islander Social Justice Commissioner's criticism that there is no requirement in the NTA for representative bodies to identify, consult and obtain the consent of native title holders before taking action on their behalf (see the Aboriginal and Torres Strait Islander Social Justice Commissioner's Native Title Report July 1995-June 1996, AGPS, Canberra, p49). The new conditions are also aimed squarely at preventing multiple claims.

The new conditions will mean that representative bodies will have to play a larger role in mediating disagreements between claimants. This is advantageous for the processing of claims once they are lodged, but it will take longer to lodge the claims in the first place. By includeing these requirements in the regstration test, the Government proposes to make it more difficult for Native Tiitle holders to lodge claims in reply to s29 mining notices within 3 months will mean denial of the right to negotiate.

The registration test will apply not just to those claims lodged since 27 June 1996 but, under the October amendments, will also retrospectively in certain cases. If a s29 notice is issued over claimed land, then the new registration test will be applied to that claim. All claims lodged since January 1994 (and yet to be determined) are potentially subject to the new registration test. This is contrary to quarantees by the Government in May that the new test would be applied only after the 'Introduction of the amending bill' (on 27 June 1996. See Towards a More Workable Native Title Act: An Outline of Proposed Ammendments, Commonwealth of Australia, May 1996,p2.)

Indigenous Land Use Agreements

The October amendments propose that a new Indigenous Land Use Agreement ('ILUA') mechanism replace the 'claim based' agreement process included in the Bill, and known as ss24A and 24B. Agreement under s24A involved native title holders coming forward to participate in negotiations In response to a notice from the Government of its intention to do an act. Future acts covered by the agreement acheived validity by virtue of s24A(1), but acts attracting the right to negotiate were not covered.

The ILUA process is fundamentally different. It involves essentially a free process of negotiation between generally the government, the grantee party (for example a miner), the native title holders, and the native title representative body. There is no formal process of notification of the acts concerned and no restriction on the time for negotiations. The October amendments pprovide for a system of registration of ILUAs with the NNTT and ppprovide validity to acts covered by such agreements. Acts attracting the right to negotiate may be included in ILUAs.

The ILUA pprocess allows for negotiating parties to conduct their negotiations and acheive validity for future acts without going through constrained procedures under the NTA such as the right to negotiate. If, for some reason, the negotiations break down, the right to negotiate procedures proovide an alternative way to achieve validity.

The registration of ILUAs with the NNTT has some important safeguards. Similar to the certification process under the registration test, either the representative body or a party to the agreement must certify that all efforts have been made to identify all the native title holders of the area covered by the agreement, and the agreement is made with their authority. Herein lies a danger. Most Land Councils are aware of instances where unscrupulous developrs have persuaded native title holders to enter into agreements against their interests. It is possible under the October amendments, that those persons could provide the certification. Should a representive body or a group of native title claimants wish to challenge the registration of an agreement, they have 3 months in which to expand valuable resources doing so.

Representative bodies

The October amendments include a new regime for native title representative bodies. Although not unlike the old regime, there are some important differences such as the changes in functions and obligations, and onerous accountability requirements. The institution of a new regime allows the Federal Government to review the representative body status of all those Indigenous organisations granted that status by the last Government. The new regime begins 12 months after the commencement of the amendments.

Under the October amendments, the functions and obligations of representative bodies will be focussed around the `facilitation and assistance' of native title holders. This falls short of requests from many representative bodies that they be given a more protective role and be allowed to become `one-stop shops' for developers. While representative bodies will have specific certification functions and obligations for claims and ILUAs (as detailed above), native title holders will be able to lodge claims and enter ILUAs without the expertise and assistance of representative bodies.

The new accountability and disciplinary measures are exceptionally onerous. In addition to current accountability measures, it is proposed that the Minister directly approve representative body budgets, and that annual reports be provided to the Minister for tabling in Parliament. The Minister will also have powers to appoint an auditor or an administrator to a representative body to investigate its financial affairs or if, in the Minister's opinion, the representative body has `failed to comply with its obligations'.

Representative bodies are already accountable for their grants through procedures under the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth). They must satisfy ATSIC grant procedures, and are subject to review by the independent Office of Evaluation and Audit. Some are also subject to review by the Australian National Audit Office. In addition, each organisation must also comply with the regulatory regimes under the Corporations Law or the Aboriginal Councils and Associations Act 1976 (Cth).

Conclusion

It is now clear what the effect will be of the Government's proposed amendments to the NTA. The opportunity of native title holders to affect mining and other development on their land will be drastically reduced through the following measures:

The few measures that improve workability have been completely overshadowed by increased complexity of the amendments and the opportunities for judicial review.

ATSIC has recently released a concise analysis of the Bill and the October amendments entitled Proposed Amendments to the Native Title Act 1993: Issues for Indigenous peoples.


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