De Soyza, Anne --- "Proposed Native Title Legislation in Western Australia" [1999] IndigLawB 3; (1999) 4(17) Indigenous Law Bulletin 9

Proposed Native Title Legislation in Western Australia

By Anne De Soyza

The WA Government proposes to enact three pieces of legislation in response to the amendments to the Commonwealth Native Title Act (the NTA). Below is a brief summary of the three Bills. Included are some comments on the proposed alternative procedures contained in the Native Title (State Provisions) Bill, which are intended to take effect under ss 43 and 43A of the Native Title Act (the NTA).

1. The Titles Validation Amendment Bill 1998

The Titles Validation Bill proposes amendment to the Titles Validation Act 1995 (WA) to:

• validate intermediate period past acts,
• adopt the schedule of extinguishing tenures relevant to WA included in the NTA as part of the recent amendments,
• confirm the extinguishment of native title to the extent of its inconsistency with past valid or validated acts.

The Titles Validation Bill is intended to validate approximately 9000 titles granted over pastoral lease prior to March 1995 by pursuant to the State’s Land (Titles and Traditional Usage) Act.[1] The Bill, if passed, will also validate 211 mining titles granted since March 1995 outside of the future act process of the NTA.

The Titles Validation Bill is currently in the State’s Upper House, the Legislative Council. The balance of power in the Upper House is held by Greens and Democrats and the ALP.[2] The minor parties and the ALP oppose the Bill in its current form, and propose to refer the Bill to a committee for further consideration. One proposal that has been considered by the minor parties is that the schedule of extinguishing tenures be omitted from the Bill.

The WA Chamber of Minerals and Energy has been engaged in a lobbying and advertising campaign aimed at pressuring the ALP to pass the Bill. In response, the ALP has taken the view that it wants the Bill passed by Christmas, while the minor parties want the committee to be able review the Bill over the Christmas break. Recently however, the ALP has indicated that it may review its position on the need to pass the Bill before the Christmas break.

On the 24 November 1998, Justice Lee in the Federal Court handed down his in relation to the native title application by the Miriuwung and Gajerrong people in the Kimberley. The Miriuwung Gajerrong application covers several different types of crown lease (including pastoral lease) and other interests, as it includes the Ord River irrigation development. Justice Lee’s decision is that native title survives the grant of some acts which the State has assumed will extinguish native title. The decision means the State can no longer claim that it is merely confirming the extinguishing effect of exclusive and non-exclusive tenures on native title. The net result of the decision may be that there is increased support for a review of the Bill. However, the State Government has indicated that it plans to appeal the decision.

2. The Native Title (State Provisions) Bill 1998

The WA State Government intends to establish a Native Title Commission which will handle the mediation and determination of claims, in addition to the future act process.

The Native Title (State Provisions) Bill seeks to:

• establish a Native Title Commission which is intended to become a “recognised body” and an “equivalent body” under ss. 207A and 207B respectively, of the NTA,
• put in place alternative procedures intended to take effect instead of the right to negotiate (RTN) provisions in the NTA,
• put in place consultative procedures in relation to acts covered by s. 24MD(6B) of the NTA involving the grant of infrastructure titles, certain lease renewals and compulsory acquisitions within towns and cities, and
• provide for the determination of compensation to native title holders for the effects of future acts on their native title rights and interests.

The Native Title (State Provisions) Bill is in the Legislative Council, along with the Acts Administration (Land Administration, Mining and Petroleum) Bill described below. The Greens, Democrats and the ALP in the Upper House propose to have this Bill referred to a committee, which will sit over the Christmas break and report to Parliament in the next session, in March 1999. The ALP is considering proposing some substantive amendments to the consultation provisions in the Bill, and to provide the possibility of Parliamentary disallowance of any ministerial determinations under the alternative provisions. The latter proposal is important as there is no administrative appeals process in Western Australia.

3. The Acts Amendment (Land Administration, Mining and Petroleum) Bill 1998

The Acts Amendment (Land Administration, Mining and Petroleum) Bill seeks to amend the Land Administration Act 1997, Mining Act 1978 and Petroleum (Submerged Lands) Act 1982 to ensure consistency with the Native Title Act and the Native Title (State Provisions) Bill.

The Native Title (State Provisions) Bill - Some Comments on the Alternative Procedures

As noted above, the Native Title (State Provisions) Bill (hereafter referred to as the Bill) contains alternative procedures intended to take effect under ss. 43 and 43A of the NTA, in lieu of the RTN provisions in the NTA.

Part 3 of the Bill sets out consultative procedures for future acts in relation to alternative provision areas, pursuant to s. 43A of the NTA. The following is a summary of some of the salient aspects of the procedures proposed by Part 3.

• The definition of alternative provision area in s. 43A(2) of the NTA is adopted, with the exception of leases granted for the use and benefit of Aboriginal people, to ensure that mining and development over Aboriginal land will be subject to negotiation.
• In order to be consulted in respect of a future act in an alternative provision area, claimants[3] must lodge an objection within 2 months of notification, on the basis that the act will affect their registered native title rights and interests.[4]
• The onus for notification and consultation with claimants will rest with the proponent in the case of all Part 3 future acts. The exception is where the proposed act is a compulsory acquisition covered by s. 26(1)(c)(iii) of the NTA. This will relieve the State government of any obligation to notify and, in particular to consult with, claimants over the impact of most Part 3 future acts.
• There is a three month consultation period, and no requirement that consultation with claimants be conducted in good faith, so it is open to the proponent/State to simply sit out the consultation period.
• If there is no agreement within the three month consultation period, the Native Title Commission may, of its own volition, commence hearing outstanding objections, and make recommendations.
• Any recommendation of the Commission can be overruled by a determination of the responsible Minister within 2 months of the recommendation being made.
• In overruling a Commission recommendation, the Minister is not required to consult with the claimants whose native title rights/interests are affected, or any representative body or bodies corporate in the area.

Proposed Right to Negotiate Procedures

Part 4 of the Bill sets out the RTN procedures under s. 43 of the NTA. Points to note about the proposed alternative RTN procedures are:

• The procedures are to apply to vacant crown land which has not previously been the subject of tenures or interests other that native title, and to Aboriginal land held under lease.
• In order to access the RTN claimants, (or representative bodies or bodies corporate on their behalf) will have to lodge an objection on the basis that the doing of the act will affect their native title rights and interests.
• The proponent is required to ensure that claimants and others are notified of the proposed act, except where the act is a compulsory acquisition under s. 26(1)(c)(iii) of the NTA.
• The Government is not a party to the negotiation in the case of acts which would create a right to mine: the negotiation parties are the objector/claimants and the proponent.
• The parties are required to negotiate in good faith. After the 4 month negotiation period has elapsed, the Commission can make a determination in relation to the doing of the act, taking into account similar list of criteria to that contained in s. 39 of the NTA.
• The responsible Minister can make a determination instead of the Commission, if the Commission is not likely to make a determination within a reasonable period, and it is in the best interests of the State to do so. The Minister is not bound by any of the considerations enumerated in s. 39 of the NTA in making her/his decision.
• Any determination made by the Commission can be overruled within 2 months by the responsible Minister where it is in the best interests of the State to do so, and the Minister is not required to consult with claimants, representative bodies or bodies corporate in the area.

In response to concerns raised by the Prime Minister’s Wik Task Force, that the alternative provisions in the WA Bill may not fit within the framework agreed to by the Senate, the State Government released amendments to the Bill on the 18 November 1998. The amendments introduce a statutory right to judicial review, and measures to ensure the independence of the Commissioner. The consultation and negotiation provisions however, remain unchanged.

Even if the WA State Parliament were to pass the Native Title (State Provisions) Bill, the alternative provisions will not become effective unless, the relevant Commonwealth Minister is satisfied that the minimum requirements for the consultation and negotiation procedures, specified in ss 43 and 43A of the NTA are in fact met, and makes a determination in writing to this effect. Thus, clearing the Upper House is only the first hurdle for the WA State Government, in seeking to control the administration of the future act process.

Anne De Soyza is a solicitor in the Aboriginal Legal Service of Western Australia (Inc)

[1] The Land (Titles and Traditional Usage) Act (WA) 1993 was struck down by the High Court in Western Australia v The Commonwealth [1995] HCA 47; (1995) 183 CLR 373, after which the WA Government commenced applying the future act provisions in the NTA.

[2] All comments on the Parliamentary progress of the Bills is current to the 30 November 1998.

[3] Any reference to claimants herein means registered native title claimants.

[4] Any reference to native title rights and interests means registered native title rights and interests unless otherwise stated.