De Soyza, Anne --- "The Northern Territory's Alternative Native Title Scheme and the Senate" [1999] IndigLawB 78; (1999) 4(24) Indigenous Law Bulletin 7
The Northern Territory’s Alternative Native Title Scheme and the Senate
by Anne De Soyza
Section 43A was added to the Native Title Act (NTA) in the amendments effected in July 1998 following Wik v Queensland (‘Wik’).[1] It gives state and territory governments the option of providing registered native title claimants with an opportunity to be consulted, instead of a right to negotiate, over the doing of future acts on land which is, or previously was, leased or reserved.[2] To take effect in lieu of the right to negotiate, the state or territory alternative provisions must comply with the minimum standards in s 43A(4)(6) and (7), and the Commonwealth minister must make a determination in writing to this effect under s 43(1)(b).[3] The minister’s determination is a disallowable instrument,[4] which means that either House of Parliament can veto a determination, where it considers that the standards set in its own legislation may be derogated from in the state or territory provisions.[5]
On 31 August 1999 the Northern Territory’s attempt to establish alternative provisions to the right to negotiate under s 43A was halted when the Senate passed a resolution disallowing three determinations by the minister in relation to the provisions. The determinations concerned provisions inserted by amendment to the Territory’s Petroleum Act 1996, Lands Acquisition Act 1996, Mining Act 1996 and the Lands and Mining Tribunal Act 1998. The vote was carried by Australian Labor Party, the Democrats, the Greens and the Independent Senator Harradine.[6] The reasons for disallowing the determinations will be considered below. They are noteworthy for two reasons. First, two other states – Western Australia and Queensland – are considering adopting alternative provisions under s 43A. Second, because of the number of disallowable instruments in the NTA.[7]
1. A Reduction of Native Title Holders’ Rights
Those in favour of disallowance, with the exception of Senator Harradine, saw the very existence of s 43A as a problem, because it enables the removal of the right to negotiate, thereby diminishing the rights available to native title claimants under the NTA.[8]
In the original NTA, s 43 allowed for the operation of alternative state or territory provisions which gave an equivalent right to negotiate.[9] While s 43 was retained in the amendments of 1998 in substantially the same form, s 43A was also added. Section 43A was a measure proposed in response to the 1996 High Court decision in Wik. In that case the High Court decided that pastoral leases did not necessarily extinguish native title, and that the rights of lessees and native title-holders could co-exist to the extent that they were not inconsistent; to the extent that they were inconsistent, the rights of the lessee would prevail. The High Court did not make it clear whether the native title-holders’ rights were extinguished, or merely held in abeyance, to the extent of any inconsistency with the rights of the lessee. However, s43A was promulgated on the assumption that native title rights were partially extinguished to the extent of inconsistency with the rights granted under a pastoral lease:
... the government believes that the right to negotiate should only operate where native title holders have significant interests in land, interests analogous to ownership of that land. Where native title holders do not have such a high level of rights, and in particular where they can only have co-existing rights with others, then the full right to negotiate is inappropriate.[10]
In the subsequent decision in Ward v Western Australia (‘Ward’),[11] Justice Lee rejected the view that native title is a bundle of rights capable of several – or in other words partial – extinguishment. He made a distinction between native title and parasitic or dependent rights, and observed that ‘there cannot be a determination under the Act that native title exists, but that some or all “native title rights” have been extinguished’. He observed that ‘where native title is extinguished, rights that are parasitic or dependent upon that title fall with the extinguishment’. Conversely, where native title is not extinguished the full gamut of dependent rights will continue to exist, although they may be suspended by the grant of overlying interests by the Crown to third parties.[12] The decision in Ward may pose problems for the rationale behind s 43A, especially if the Full Court of the Federal Court upholds the decision on this point.[13]
However, the fact remains that the NTA, as it stands, does provide for the replacement of the right to negotiate with a consultative process, provided certain conditions are fulfilled.
The strict issue for consideration by Parliament is whether the provisions to which the minister’s determinations relate, comply with the conditions as set out in s 43A. It should be noted, however, that the specification of threshold conditions does not circumscribe Parliament’s discretion: either House of Parliament could disallow the minister’s determinations, notwithstanding that the alternative provisions complied with the conditions set out in the s 43A.
2. Compliance with the Minimum Standards of the Native Title Act
Some Senators felt that the consent of the land councils to the alternative provisions should be a necessary precondition to allowing the determinations. Eight points of contention between the Northern and the Central Land Councils and the Territory Government over the content of the provisions were cited in the Senate debates as being, “major shortfalls in the legislation, the addressing of which is fundamental to the protection of native title”.[14] The land councils in fact have 13 points of difference with the Territory Government over the provisions, and these are summarised below. This first eight points are those raised in the Senate debates:[15]
i. The Requirement to Object.
The Territory provisions require registered native title claimants to lodge a written objection with the Lands and Mining Tribunal; the objection must particularise the effect the doing of the act is likely to have on registered rights and interests; and the Lands and Mining Tribunal may dismiss an objection if, in its opinion, there are no grounds for the objection. The land councils’ contention is that the requirement of a written objection is unnecessarily onerous; the only requirement for registered claimants to secure the right to be consulted should be the registration of their application under the NTA.
ii. Lodgement of Objections and Registration Timeframes.
In order to object to the doing of an act, claimants must first lodge an application with the National Native Title Tribunal, within three months of the date specified in the public notice of intention to do the act. Their application must be registered within a further one month from the notification date.[16] It is possible that claimants may lose the opportunity to object simply because their application is awaiting assessment and registration by the National Native Title Tribunal. The land councils argue that the provisions should provide the Territory minister with discretion to extend the time period for registration of an application in such circumstances.
iii. Agreements and Good Faith Negotiations.
The provisions do not specify any criteria for consulting with registered claimants, other than stating that consultation must be about “impact minimisation”. There is no requirement that consultation be directed to reaching agreement, nor is there an obligation to consult in good faith with the registered claimants.
iv. Effect of Conditions
The provisions do not expressly give the Lands and Mining Tribunal the power to require that any conditions imposed on the grant of a mining tenement are endorsed on the instrument of grant. Where conditions are not endorsed on the instrument of grant registered claimants will have to resort to the expense of contractual remedies if the conditions are breached, instead of being able to rely on statutory penalties.
v. Complaints Procedure
The alternative provisions give registered claimants a right to complain to the minister where an activity is being conducted in a manner that adversely affects their registered rights and interests. The land councils believe that such a procedure should be administered by an independent body – such as the Lands and Mining Tribunal – invested with the power to make interim injunctions, and orders concerning the terms of the grant, as necessary. The procedure should also enable registered claimants to lodge complaints about the effect of activities other that those authorised by the terms of the grant (ie the effect on registered rights and interests of unauthorised activities on, for instance, mining tenements).
vi. Limitation Period on Claims.
The Northern Territory scheme imposes a three year time limit on claims for compensation where the Native Title Act 1993 does not have such a limitation.
vii. Lands and Mining Tribunal and Non-Disclosure of cultural information
The Lands and Mining Tribunal Act 1998 does not protect confidential, cultural evidence heard or subpoenaed in proceedings of the Tribunal from disclosure in other proceedings.
viii. Compensation
The scheme is based on the principle that compensation is to be determined and paid only after a determination of native title has been obtained. However, achieving a determination of native title is a lengthy and expensive process. The land councils would like the scheme to enable the settling of compensation claims, especially where the compensation amount will be small, in advance of a determination of native title. A procedure for the determination and payment of small compensation claims prior to a determination is provided in the NTA.
ix. Fossicking.
The provisions do not take account of the effect of fossicking activities on native title except where there has been a determination of native title.
x. The Negotiation Period.
The consultation period for acts involving exploration, and the compulsory acquisition of less than five hectares of land, is substantially shorter than the negotiation period under the right to negotiate provisions of the NTA.
xi. Constitution of the Lands and Mining Tribunal – Special Knowledge of Aboriginal Societies.
The provisions do not promote the appointment of members to the Lands and Mining Tribunal with special knowledge of Aboriginal societies, land management, dispute resolution or any other relevant experience. In contrast, s 110 of the NTA requires that members appointed to the National Native Title Tribunal have experience relevant to their duties.
xii. Judicial Review.
The Territory provisions make common law judicial review available but not judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Commonwealth). This will have significant consequences for registered claimants seeking a review of any ministerial decisions under the Territory scheme, and may even prevent registered claimants from being able to seek a review altogether.
xiii. The Intertidal Zone.
The exclusion of the intertidal zone from the Territory’s consultative scheme is of concern to the land councils. The land councils also note that the intertidal zone is also excluded from the operation of the right to negotiate provisions in the NTA.
3. The Possibility of Subsequent Amendment of the Alternative Provisions by the State and Territories
The concern of all Senators in favour of disallowance was that if the Senate were to allow the minister’s determinations, the Territory Parliament could subsequently amend the provisions to reduce further the rights of native title claimants, free from any further scrutiny by the Senate.[17] Reliance was placed on an opinion by the Clerk of the Senate, that the Commonwealth Parliament would have no role in reviewing any amendments to the provisions once they have commenced operating as alternative provisions. [18]
Section 43A(9) provides that, where alternative provisions are amended so as not to comply with s 43A, the Commonwealth minister must advise the state or territory government of the fact and, after giving the government time to rectify the situation, revoke the determination given under s 43A(1)(b). It would appear that, in order to fulfil his/her duty, the minister would need to review every amendment to the alternative provisions, and form an opinion as to whether the amended provisions still comply with the requirements of the NTA.
The Senators wanted parliamentary scrutiny of any amendments to the Territory provisions should they become operative. A review by the minister - the incumbent of an executive office -of such amendments, was not seen as an adequate safeguard to ensure that minimum standards were met. The Senators’ concerns were underscored by an issue raised in the debates about the fact that, on 18 February 1999, the minister had given preliminary advice to the Territory Government that the provisions complied with the requirements of s 43A; subsequently, the Territory Government substantially amended the provisions to address some of the concerns raised by the land councils, following a period of negotiation with them. On 27 April 1999 the minister issued three determinations to the effect that the amended provisions complied with the requirements of s 43A.[19] Thus, in the minister’s opinion, the provisions as they were in February 1999 would have satisfied the requirements of s 43A, although they were subsequently upgraded by the Territory Government to address indigenous concerns.
The only recourse the Senate would have is to the courts to compel the minister to revoke the determination.[20] Any court action may be fraught with difficulty: the Clerk of the Senate opined that, apart from the question of standing to bring the action, given the reference in s 43(4), (6) and (7) to the minister’s opinion in determining compliance with threshold conditions, ‘such an action in the courts would therefore need to overturn not only a decision by the minister not to revoke a determination but also the formation of the minister’s opinion as to the compliance of the alternative provisions with the threshold conditions.’[21]
In the absence of operative alternative provisions under s 43A the right to negotiate provisions of the NTA apply. Alternatively, states and territories may opt to seek approval for a s 43 scheme giving registered native title claimants an equivalent right to negotiate. Still another choice available to state and territory governments is to negotiate an indigenous land use agreement with the land councils.[22] Because of these other options, which require negotiation rather than consultation with indigenous parties in relation to future acts, a problem for states and territories seeking to implement alternative provisions under s 43A is ‘lack of trust or fear of bad intentions’.[23] The case of the South Australian alternative provisions is illustrative of this point: the issue about possible subsequent amendment of alternative provisions also arises in the case of a s 43 scheme; South Australia – the only state to implement an alternative scheme to date – had alternative provisions under s 43 approved in the same process of ministerial determination and parliamentary scrutiny, without any concern being raised about the possible subsequent amendment of the scheme by the South Australian Government to reduce the rights available to indigenous peoples.
Options for Resolution
Three options to address concern over the possibility of subsequent amendment of any state or territory alternative provisions were canvassed by Senator Woodley:[24]
i. amendment to the NTA to make provision for ongoing Senate scrutiny of any future state or territory amendments to s 43A alternative provisions;[25]
ii. an indigenous land use agreement between the government of each state and territory and the relevant indigenous representative bodies;[26]
iii. disallowance of ministerial determinations made in relation to all state and territory alternative provisions, so that the right to negotiate provisions of the NTA would continue to apply.
Immediately following the Senate’s vote, discussions commenced between the Commonwealth Government and the Australian Democrats, aimed at exploring the possibility of amending the NTA to implement the first of these options. In addition, as far as the Territory scheme is concerned, discussions between the land councils and the Northern Territory Government remain on foot. However, as yet there has been no resolution.
Anne De Soyza is Principal Researcher for the Secretariat of the Parliamentary Joint Committee on Native Title and the Land Fund. The views expressed in this article are entirely her own.
[1] (1996) 187 CLR 1. Section 43A implemented points 6 and 7 of the Government’s Ten Point Plan proposed in response to the Wik decision: The Explanatory Memorandum to the Native Title Amendment Bill 1997, 199.
[2] NTA s 43A(2) defines an “alternative provision area”. Cf the Explanatory Memorandum to the Native Title Amendment Bill 1997, 199 – 200. The lease must be (or have been) a non-exclusive lease.
[3] The relevant Commonwealth minister in this case is the Attorney General: NTA s 253 and s 19 Acts Interpretation Act 1901.
[4] NTA s.214. See also s 46A and 48 Acts Interpretation Act 1901.
[5] In this case no Notice of Motion to disallow the determinations was made in the House of Representatives. A Notice of Motion was made in the Senate on the 23 June 1999; and debated on the 31 August 1999.
[6] Who, along with Senator Colston, voted with the Government members in the Senate to pass the 1998 amendments.
[7] There are 35 disallowable instruments in the NTA.
[8] See Commonwealth, Parliamentary Debates, Senate, 31 August 1999, 7717 – 7720 (Senator Bolkus), 7726 – 7730 (Senator Woodley), 7737 - 7738 (Senator Brown).
[9] The Explanatory Memorandum (Part A) to the Native Title Bill 1993, 6.
[10] Commonwealth, Parliamentary Debates, House of Representatives, 9 March 1998, 781 (Darryl Williams, Attorney General); second reading speech on the Native Title Amendment Bill 1997. Cf Commonwealth, above n 8, 7723 (Senator Hill speaking against disallowance).
[11] [1998] FCA 1478; (1998) 159 ALR 483.
[12] Ibid.
[13] The State of Western Australia has appealed the decision in the Full Court of the Federal Court.
[14] Commonwealth, above n 8, 7719 – 7720 (Senator Bolkus), 7725 and 7729 (Senator Woodley).
[15] This summary was prepared from an extract of a brief prepared by the Central and Northern Land Councils.
[16] That is the application must have satisfied the registration test provisions in s190A – C and been placed on the Register of Native Title Claims.
[17] See above n 5. Cf Commonwealth, above n 8, 7735 – 7736 (Senator Harradine).
[18] Advice received from the Clerk of the Senate and Clerk Assistant (Procedure), reproduced in Commonwealth, above n 8, 7720 – 7722.
[19] Ibid, 7718 (Senator Nick Bolkus)
[20] Above n 18.
[21] ibid.
[22] Above n ee Note 27.
[23] Commonwealth, above n 8, 7719 (Senator Bolkus) and 7730 (Senator Woodley): “The South Australian government intends to continue with its own legislation establishing a section 43 scheme – not a section 43A scheme. New South Wales, Victoria and Tasmania appear content to retain the Commonwealth right to negotiate. It is clear that the Northern Territory government, in developing this scheme, is interested – it should be truthful about this – only in taking away the existing rights of native title holders”.
[24] Ibid 7726 (Senator Woodley).
[25] This would need to involve making provision for ministerial determination in relation to every amendment of the alternative provisions, with the determination being a disallowable instrument. It could not involve making the state or territory provisions themselves disallowable as this would interfere with the sovereignty of state and territory parliaments in relation to their own legislation.
[26] An ILUA may exclude the operation of the right to negotiate provisions: NTA (NTA s 24EB and 26(2)(a)). Thus, for state and territory governments, an ILUA can operate in lieu of any alternative scheme under either s 43A or s 43. Cf 4(21) Indigenous Law Bulletin (Indigenous Land Use Agreements) 1999.