Reconciliation and Social Justice Library

Native Title Report January - June 1994 - Chapter 1 -- The Native Title Act

The Native Title Act 1993 (Cth) (`NTA') is a complex piece of legislation. Its provisions constitute an attempt to balance many competing interests. The degree to which the balance reflected in the content of the Act and in its interpretation and application adequately protects the human rights of Indigenous peoples is a central theme of this report.

In chapter 1, I have reviewed the features of the NTA and some significant aspects of its application. In the course of this review I have noted certain areas in the operation of the Act that I believe are of concern. In particular, I have reservations as to whether the claims procedure is operating in a way that provides appropriate access to Indigenous peoples to achieve recognition of their ownership of land. Significant defects in the procedure for seeking a determination of native title include the requirements in the regulations for claimant applications and the existence of the acceptance test, which creates a serious obstacle to even beginning to prove a claim to land. Another important difficulty which has been experienced by Indigenous peoples in attempting to use the claims procedure is the inadequacy of the funding which has been provided to representative bodies.

Although some provisions of the NTA are clearly directed to the protection of native title, the Act also allows for the validation of invalid past acts. This process facilitates the extinguishment or impairment of native title. While the Act sets up a system of compensation for native title holders whose rights are affected by the validation of past acts, it is important to remember that compensation does not undo a breach of Indigenous peoples' human rights. It is necessary that the criteria for assessing entitlement to compensation for native title holders are capable of accommodating Indigenous relationships to land. If the criteria fail to recognise unique characteristics of Indigenous land ownership then compensation will be granted on a discriminatory basis.

An important and controversial aspect of the NTA is the right to negotiate. The right to negotiate is a key component of the regime for future acts affecting native title and it is an essential entitlement which allows native title holders some control over activities on their land. Notwithstanding that its application is already limited, there have been many proposals to further restrict its scope and to exclude certain categories of acts from the requirement. I have reviewed some of the proposals to amend the right to negotiate provisions and I consider that there is no justification for changing the provisions at this stage. Many of the concerns that give rise to the proposals to restrict the right to negotiate are exaggerated or misconceived. These proposals should be rejected and the concerns which give rise to them should be balanced against the rights of native title holders to participate in decision making about their land.

The Act anticipates that State and Territory legislatures will enact complementary legislation. A relevant issue in this regard is the recognition of State bodies and the conferral on these bodies of jurisdiction in relation to native title. It is critical that the

institutions that administer native title are able to understand the concerns of Indigenous people and that those institutions operate in a way that is in keeping with the national approach to the recognition and protection of native title.

An issue which I have briefly considered is the complex relationship between native title and statutory schemes for granting land to Indigenous peoples. The recognition of native title is a new and significant event that must be accommodated into these schemes.