The Native Title Debate: Background and Current Issues
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Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Briefing Paper No. 15/1998 by Gareth Griffith
This paper presents an account of the main developments in the native title debate in Australia since the 1992 Mabo decision. There the High Court held that the common law of Australia recognises a form of native title which reflects the entitlement of the indigenous inhabitants, in accordance with their laws and customs, to their traditional lands. A particular feature of the paper is that it presents an overview of the Commonwealth Native Title Act as amended in 1998. The paper's main findings are as follows:
- under the common law, extinguishment of native title may occur in some cases: (a) by an act of the Crown or legislature; (b) by loss of connection with the land; or (c) by voluntary surrender to the Crown;
- under the Commonwealth Native Title Act 1993(NTA), as first enacted, native title can only be extinguished or impaired in one of three ways: (a) by the occurrence of a past act that has been validated; (b) by an agreement on the part of the native title holders; or (c) the doing of a permissible future act;
- all the Australian jurisdictions have passed legislation in some form or other relating to native title. Western Australia eventually adopted a minimalist approach, legislating only to validate pre-1994 titles. A similar approach was adopted in Tasmania, Victoria, the ACT and the Northern Territory. South Australia, on the other hand, adopted a more comprehensive native title regime, as envisaged in the Commonwealth NTA. Queensland and NSW have also adopted a comprehensive model, although in NSW at least only selective parts of the legislation have been proclaimed to commence. In effect, the Parts of the NSW Act that are commenced deal mainly with validation of past acts attributable to the State and the effects of validation;
- the immediate background to the 1996 Wik case was the uncertainty, following both the Mabo decision and enactment of the Commonwealth NTA in 1994, over the relationship between pastoral leases and native title;
- it was decided in Wik that: the pastoral leases under consideration in the case did not confer exclusive possession on the pastoralist; that the leases therefore did not necessarily extinguish all native title rights and interests; whether there was any extinguishment or impairment of native title can only be determined by considering the nature of the native title rights and interests which the indigenous people can establish in relation to the land; where native title rights and interests can coexist with the statutory rights of the pastoralist then they survive, but, to the extent of any inconsistency the rights of the pastoralist prevail;
- the reactions of the main stakeholders in the native title debate to Wik were very different. In particular, a different slant was placed on the question of the uncertainty' arising from it. The Federal Government's legislative response was based on its Ten Point Plan, first released on 1 May 1997, then released in a revised version on 8 May 1997;
- these proposals proved to be very controversial and only a last minute compromise reached between the Federal Government and Senator Harradine allowed the Native Title Bill to pass through the Senate on 8 July 1998. The commencement date for the amended Native Title Act is 30 September 1998; and
- particular features of the amended NTA are: a new emphasis on resolving native title issues by agreement, for which purpose it includes detailed provisions on the making of what are called Indigenous Land Use Agreements; the validation of intermediate period acts which occurred between 1 January and 23 December 1996 (the date of the Wik decision); the confirmation that certain previous exclusive possession acts have extinguished native title; the exclusion of certain activities from the right to negotiate; and the introduction of a stricter registration test which, among other things, operates as a gateway to the right to negotiate. The amended Act also redefines the roles of the Federal Court and the National Native Title Tribunal in a way that is consistent with the High Court's decision in the Brandy case (1995) 183 CLR 245.