Native title has been endorsed as part of the common law of Australia ever since 1992, and has been synchronized by statute since 1994.

Next there is the written law, principally the Native Title Act, but including State and Territory statutes, and also including subsidiary legislation, such as regulations and procedures made under the Native Title Act. The written law modifies or supplements the common law, and is itself the subject of interpretation by judicial and administrative decisions, including High Court and Federal Court decisions, and determinations by the National Native Title Tribunal. The principal difficulties lie with the written law, which is undoubtedly capable of improvement. This is principally in the hands of the Commonwealth Parliament, whose laws override the common law and written laws of the States and Territories. However, any attempt at law reform in this area is likely to be controversial and contentious. It will take considerable vision and skill to draft amendments which will adequately address the concerns of the resources industry, and the wider community, yet command sufficient support to be enacted into law (Van Hattem, 1997).

However, if at common law, native title rights were only suspended for the life of prevailing pastoral lease rights which are classed under the amendments as "previous non-exclusive possession acts", a statutory extinguishment of those rights will require a tribunal process and a compensation regime. Compensation will have to be paid starting with the presumption that native title akin to freehold has been extinguished and must be compensated on just terms. I would have thought it would be for the benefit of all parties (not least of all the taxpayers) to let the common law take its course, with a suppression of native title for the term of the lease rather than a permanent extinguishment (Brennan, 1997).

Furthermore, the overall outcome of the amendments will be to moderate the state of affairs where native title may tolerate through the extinguishment provisions and reduce the ability of native title holders to have a meaningful say in respect of developments on native title land which may impair or extinguish their native title rights. In addition, the Australian Commonwealth is once again changing the shape of the Native Title Act (ATSIC, 1997):

• The NTA has been constructed on a number of basic principles which are being dismantled by this Bill.
• The NTA recognizes and safeguards common law native title rights. This Bill provides widespread substantive and de facto extinguishment of native title.
• The NTA protects native title through the Right to Negotiate. This Bill rolls back the Right to Negotiate from some kinds of land tenure: native title holders in town areas, on pastoral leases and in National Parks will lose the guarantee of the RTN.
• The NTA assumes a strong role by the Commonwealth in protecting native title. This Bill provides inadequate safeguards for the administration of native title by the States and Territories.
• The NTA establishes the National Native Title Tribunal (NNTT). This Bill reduces the role of the NNTT.
• The NTA recognizes that native title is a common law right and accordingly imposes no time limits on the bringing of native title claims. This Bill introduces a sunset clause on claims under the NTA.

Constitutional Validity

The validation agreed to by indigenous representatives in 1993, is inherently unfair. It offers little to native title holders whose rights have been side-stepped and rewards those States which have ignored or defied the provisions of the Native Title Act. Moreover, there are significant inconveniences with the constitutional validity of the Native Title Amendment Bill, as some believe it contradicts with the principles of the Racial Discrimination Act. These problems are of a significant order and may result in substantial parts of the legislation becoming aware of to be invalid. The amendments are in many occasions prejudiced, disadvantageous and detrimental to indigenous interests. Native title is a property right recognized by the Australian legal system and native titleholders should be treated equally with other property holders. However, by this legislation native title rights are wound back while other property rights are left alone, or even in some situations enhanced at the expense of native titleholders (ATSIC, 1997).

The legislation appears to be discriminatory in this respect in that it purports to validate acts and to provide for extinguishment or impairment only in relation to native title and not in relation to other causes of potentially invalid title – it singles out native title as a cause of invalidity. Adding on the discriminatory issues, in some Australian states which have chosen not to use the processes, native title holders have effectively been denied the Right to Negotiate provided under the NTA. Section 51 of the Australian Constitution requires compensation to be on the basis of just terms. ‘Just terms’ means not only adequate compensation but also that the procedures for determining compensation are themselves fair and ‘just’.

On the other hand, in the view of the Government, the High Court has regarded the power as allowing special legislation, which can be either beneficial or detrimental to people of a particular race.  The Government argues that it, therefore, has the constitutional power to pass laws detrimental to a particular race. Furthermore, the Native Title Amendment Bill, in the Government's view, whilst reducing in some cases the current rights of native title holders, overall maintains many beneficial aspects of the Native Title Act 1993, in particular that it gives more protection to native title than does the common law. Many of the provisions of the Native Title Amendment Bill can only be interpreted as providing significant detriment to the Aboriginal holders of native title. The provisions in the Native Title Amendment Bill, which extinguish or impair native title rights of Aboriginal or Torres Strait Islanders, while leaving the property rights of others intact, are clearly contrary to the principles of the Racial Discrimination Act (ATSIC, 1997).

There are significant problems with the constitutional validity of the proposed legislation. As well, the NTAB conflicts with the principles of the Racial Discrimination Act (RDA). These problems are of a significant order. At the very least they could result in considerable litigation resulting in delay, cost and uncertainty. At worst they may result in substantial parts of the legislation being found to be invalid. The amendments are in many instances discriminatory and detrimental to indigenous interests. Native title is a property right recognized by the Australian legal system and native title holders should be treated equally with other property holders.

Racial Discrimination Act to prevail (Brennan, 1997):

1. For the avoidance of doubt, it is expressly declared to be the intention of the Parliament that the terms of the Racial Discrimination Act shall prevail over this Subdivision.
2. Nothing in this Subdivision shall be taken to authorize any conduct, whether legislative, executive or judicial, that is inconsistent with the operation of the Racial Discrimination Act.

“The government will not oppose this amendment. In doing so, however, I want to note very particularly that the government does not consider that the amending Act ever was, or is, in conflict with the Racial Discrimination Act.” said Senator Grant Tambling, Parliamentary Secretary to the Minister for Social Security.

An extensive rolling back of the Racial Discrimination Act contained in the Native Title Amendment Bill cannot be seen to either reflect the agreement of indigenous representatives or be part of legislation, which on balance is beneficial to native titleholders.  A further constitutional consideration is that some provisions of the Native Title Amendment Bill appear to constitute the acquisition of property other than on just terms and may consequently be invalid.

Interestingly, in the identification of discrimination, the High Court did not consider the differential impact of the Mining Act whereby native title rights were permanently extinguished by mining while the rights of occupiers or owners were only impaired temporarily by mining. On this approach, native titleholders have suffered a detriment that is not suffered by any other titleholders; their rights are extinguished. The result of this type of discrimination is that the grant of the mining lease would be invalid as would its extinguishing effect on native title. On the Court’s limited reasoning, native title holders only have a right to compensation as a result of the operation of the RDA.

International law issues & the Bill

In a finding made by the UN committee on the Elimination of Racial Discrimination, they found that amendments made to the Native Title Act 1993 were not compatible with the Racial Discrimination Convention.  Their line of reasoning pointed out that “While the original 1993 Native Title Act was delicately balanced between the rights of indigenous and non-indigenous title holders, the amended Act appears to create legal certainty for governments and third parties at the expense of indigenous title.

The problems associated with the Bill extend to Australia’s international legal obligations. The Government claims to have taken account of Australia’s international human rights treaty obligations when drafting the Native Title Amendment Bill. However, in Aboriginal and Torres Strait Islander Commission’s view, a number of the amendments are contrary to Australia’s obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and the International Covenant on Civil and Political Rights (ICCPR), both of which have been ratified by Australia and are binding in international law.  As well as its treaty obligations, the Native Title Amendment Bill is likely to put Australia in breach of its customary international law obligations in respect of the fundamental international principle of non-discrimination, as expressed in the Universal Declaration of Human Rights and other international instruments.

Nonetheless, there is no domestic mechanism to implement the international obligation on States to achieve equality. Even if the NTA were subject to the operation of the RDA, the failure of the Commonwealth to prohibit racially discriminatory laws under the NTA would not come within its purview. As indicated, the focus of the RDA is on laws which differentiate on the basis of race in order to limit the equal enjoyment of rights. As a result there is a limited capacity within the RDA to distinguish between these types of laws and laws which differentiate on the basis of race in order to achieve the equal enjoyment of rights. The only category available under the RDA is that defined in s8 as special measures. This category does not accurately describe laws which seek to recognize and give equal protection to cultural differences within our society in accordance with our international law obligation to achieve equality.

On the other hand, the international law obligation to achieve equality can be applied to both the recognition and extinguishment of native title. The first step in the recognition of Indigenous rights to land in Australian law was taken by the High Court in the Mabo (No 2) decision in 1992 (HREOC, 2002). The High Court commented that the discriminatory doctrine of terra nullius was contrary to international standards, the fundamental values of the common law, and the contemporary values of the Australian people. Subsequently the NTA has failed to nullify, in accordance with Article 2 of ICERD, the operation of State and Territory laws that have a discriminatory operation in the way in which they extinguish native title. In applying the domestic and international standard of equality, it is clear that both the statutory framework for native title and the common law operate in a discriminatory manner.

Conclusion

In general, the Government’s proposed amendments to the Native Title Act, as set out in the Native Title Amendment Bill, provide significant detriment to indigenous interests. The ILUA provisions in the Native Title Act create an opportunity for native title holders and others to resolve a range of issues – particularly issues related to the use and management of land where native title exists, or is claimed to exist – through voluntary, binding agreements.

There are, however, many challenges associated with the successful negotiation, registration and implementation of an ILUA. Indigenous peoples reject the emphasis on compensation in the Bill. They desire that native title rights be recognized and protected for present and future generations to enjoy. The amendment proposals as they stand are likely to face constitutional invalidity and conflict with the Racial Discrimination Act. They place Australia at risk of further social division and of international penalties as can be seen by reactions of committees such as CERD.  Such consequences are quite unnecessary, and a constructive resolution of native title matters can be achieved through negotiation and a reconsidering some of the amendments made to the Native Title Act 1993.

Finally from the aspects of the native title law, indigenous people get recognition of a bundle of rights and interests that is extinguished completely or partially whenever their enjoyment is inconsistent with non-indigenous people’s enjoyment of their rights and interests. This is why the natives don’t get recognition of the laws and customs that generate rights and interests. They don’t get recognition of the systems that keep their culture vital and developing. They don’t get recognition of their spiritual connection with the land or their governance structures.

These are the rights that, at international law, Australia has agreed to protect and maintain. Yet these are not the rights that are recognized by native title law. There can be shared management and shared responsibility for the land and resources of Australia.

REFERENCE LIST:

Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2000, Human Rights and Equal Opportunity Commission, Sydney 2002.

ATSIC (1997). Proposed Amendments to the Native Title Act 1993. Issues for indigenous peoples.

ATSIC (1997). A Plain English Guide to the Wik Case. 

Brennan, F. (1997). A critique of the native title amendment bill 1997. Reconciliation & social justice library. Council for Aboriginal Recognition.

Coalition Policy Policies for a Coalition Government. Aboriginal and Torres Strait Islander Affairs Policy (1996).

Department of the Premier and Cabinet (2002). Guidelines for the Provision of Evidentiary Material In Support of Applications for a Determination of Native Title, Government of Western Australia.

G. Triggs & W. McKean (1970). The Meaning of Discrimination in International and Municipal Law. British Yearbook of International Law.

House of Representatives: Commonwealth of Australia. Native Title Amendment Bill 1996, A Bill for an Act to amend the Native Title Act 1993, and for related purposes.

House of Representatives. Native Title Amendment Bill 1997, Explanatory Memorandum.

Human Rights and Equal Opportunity Commission. Native Title Report 2002, Sydney.

Minchin, Senator N. (1997). Federal Government's Response to the Wik Decision. The Ten Point Plan.

Neate, G. (2001). Indigenous Land Use Agreements: Some legal issues. Native Title Forum: Brisbane.

Nation Native Title Tribunal (2002). Commonwealth of Australia.

Outline Towards a More Workable Native Title Act: An Outline of Proposed Amendments (1996). Published by the Commonwealth.

Van Hattem, P. (1997). Demystifying Native Title. Journal of Law: Murdoch University.

Working Draft, Native Title Amendment Bill 1997 (NTAB) Wik Task Force, Department of Prime Minister and Cabinet, 1997.