EXECUTIVE SUMMARY

The government is committed to retaining the Native Title Act 1993 (NTA) but is determined to ensure its workability while respecting the principles of the Racial Discrimination Act 1975 (RDA). It has announced that changes to the NTA are a priority and that any amendments will be preceded by wide consultation. In undertaking that task, it is conscious of the need to balance the recognition and protection of native title with the economic development of the nation.

Pastoral leases.

When the NTA was passed, the then Government was of the view that native title could not survive the valid grant of a pastoral lease, whether or not there was a reservation for access or use by indigenous peoples. This view, which is reflected in the Preamble to the NTA, was consistently put by that Government and is also the considered view of the present Government. It is based on the High Court's reasoning in Mabo (No. 2) about the effect on native title of grants of inconsistent interest in land by the Crown, including leasehold interests. The Commonwealth has therefore argued in its submissions to the courts at every opportunity where the question has arisen that the grant of a pastoral lease with or without reservations extinguishes native title. The Commonwealth will be repeating this argument in the High Court hearing on the Wik case in June 1996.

The Government's policy prior to the election was to ensure that the NTA's workability but in so doing to respect the provisions of the RDA. The Government's advice is that legislative extinguishment of native title on pastoral leases would be inconsistent with the principles of the RDA and it would probably involve an acquisition of property interests by the Commonwealth thus requiring it to provide just terms compensation (possibly a substantial amount).

The Government is of the view that to legislate to extinguish any native title on pastoral leases, or to allow the States or Territories to do so, would be seen as inconsistent with its election commitments. Moreover, because there would be a number of legal arguments open to indigenous interests, the ensuring litigation would pre-empt, possibly for a long period, the certainty sought by the proponents of the legislative extinguishment option.

Instead, the Government proposes to improve the level of certainty by various measures including: a new registration test for claimants to have access to the right to negotiate; excluding mineral exploration from the right to negotiate; and allowing States and Territories to alter pastoralists' lease conditions (problematic under the NTA while the issue of co- existence of native title and pastoral leases remains to be resolved) thereby broadening the range of activities which can be undertaken on the land.

Right to negotiate.

As well as exploration being excluded from the right to negotiate, there will be only one right to negotiate process (at the production stage) for all acts on a mining project to which the right to negotiate would otherwise apply. No renewal of a pre-1994 mining leases (sic-R) will be subject to the right to negotiate. The Government is also considering limiting the right to negotiate to those with a determination of native title.

Threshold test.

There will be a new registration test applied by the Native Title Registrar for access to the right to negotiate to apply to claims made after the date of introduction of the amending bill. Claimants will have three months (rather than 2 at present) to a claim registered in response to notice about a proposed future act.

Ministerial intervention.

In the case of major projects, it will be possible for ministerial intervention prior to a right to negotiate determination by the National Native Title Tribunal, where it would be in the national interest to do so.

Share of profits.

In the interests of encouraging parties to reach agreements in the right to negotiate processes, the Government is considering removing the current prohibition on the arbitral body determining a payment based on a share of profits.

Native Title Amendment Bill 1995.

The Government will be pursuing the matters in the 1995 Native Title Amendment Bill which lapsed prior to the 1996 federal election.

Change in role for the National Native Title Tribunal (NNTT).

The NNTT will apply a registration test for access to the right to negotiate and will continue to arbitrate in relation to the right to negotiate and to mediate native title claims. Time frames for mediation and arbitration will be shortened. The NNTT will be given an additional role to identify areas of agreement between the parties, and hence to speed up the Federal Court's determination process.

Changes in role for native title representation bodies.

The Government recognises that the NTA scheme requires credible representative bodies with specific powers and responsibilities to bring some order to the claim process. It proposes to strengthen the accountability of the representative bodies by establishing an enhanced statutory framework and conferring mandatory functions. Commonwealth Ministerial intervention will be possible to ensure accountability. Representative bodies will be given a larger role in assisting native title claimants and in dealing with multiple claimants. Without representative body endorsement, claims will not have access to the right to negotiate. Representative bodies will, other than in exceptional cases, be the sole source of funding for claimants, with an appropriate appeal mechanism.

Agreements authorising surrender or affecting native title.

The NTA will recognise agreements between governments and native title claimants authorising acts which may affect native title, provided that the agreement has been preceded by a notification process.

Other amendments.

The paper also describes several matters which are still under consideration and seeks comment in them.

Back to Native Title Discussion Paper: Details of how to get a copy of the whole document.

Back to Want to DO something?.

Back to AAR Homepage

text marked up by Sarah Peckham 5/6/96