The Native Title Act 1993

Mabo provoked increased debate in the Indigenous community about the status of native title and its relationship to other interests. Indigenous people urged the government to protect their rights and interests by a more appropriate and flexible system than that offered by the courts.

Sections of the mining and farming industries and conservative politicians also lobbied the government - to overturn the recognition of native title established in Mabo. Then Prime Minister Paul Keating recognised that native title required clarification through national legislation.

After a period of intense discussion and negotiation, including the longest Senate debate on record, the Federal Parliament passed the Native Title Act (NTA) in 1993. The most important discussions took place between Paul Keating and prominent Aboriginal leaders and representatives from Aboriginal organisations.

The final NTA endorsed the main principles established in Mabo and also delivered important gains to non-Indigenous Australians. Freehold title and other leases that make up the bulk of settled Australia automatically extinguished native title.

As is the case with other land titles, Parliament's move to extinguish native title in this way would have been racially discriminatory under the Racial Discrimination Act 1975 (RDA) and against international human rights treaties, which Australia has signed.

Therefore, the Keating Government negotiated a compromise. The deal validated land titles given to non-Indigenous interests after 1975 but before 1994, when the NTA became law. In return, compensation had to be paid to the Indigenous groups dispossessed in this way and Indigenous people won the right to negotiate on - but not to veto - on native title lands.

The National Native Title Tribunal

The National Native Title Tribunal (NNTT) was established as the peak body to facilitate the native title process under the NTA, through management of:

• Native title claims
• Future acts (exploration and mining)
• Land Use Agreements
• Representation of Indigenous groups
• Compensation

When a claim is lodged under the NTA, the National Native Title Tribunal or State tribunals try to mediate the claim between the Indigenous claimants and all other parties, such as farmers, recreational users, business interests and governments.

The primary role of the NNTT is to mediate, rather than make decisions, on native title claims. If the mediation is not successful, claims may proceed to the Federal Court.

The Native Title Amendment Act (1998)

The High Court’s decision in Wik was a high point in the recognition of native title at common law. Through recognising the long held common law principle of coexistence, native title was placed on an equal footing with other interests.

Like Mabo, the Wik decision presented a possible way forward for Indigenous claimants. However, the Wik decision polarised the nation and brought about a stream of criticism and concern from many non-Indigenous stakeholders and influential lobby groups.

The Howard Government's reaction was alarmist and discriminatory, predicated on winding back native title rights and creating ‘legal certainty’ for governments and non-indigenous title-holders. The Government's response was formulated in a '10-Point Plan’, which set out 10 principles for amending the Native Title Act 1993. In contrast to the 1993 act, the 10-Point Plan and the resulting Native Title Act Amendment Bill were drawn up without the consent of, or consultation with, Indigenous people.

The eventual passage of the Native Title Amendment Act 1998 (NTAA) was facilitated by a deal between the Howard Government and independent Senator Brian Harradine, also without Indigenous involvement or consent.

The NTAA resulted in the winding back of Indigenous rights and the outright extinguishment of native title in some instances. At the same time, non-indigenous land interests secured windfall gains.

The most concerning elements of the NTAA relate to:

• 'right to negotiate' provisions;
• validation provisions;
• 'confirmation' of extinguishment provisions;
• primary production upgrade provisions.

Right to negotiate provisions

One of the significant rights Indigenous people negotiated in the original NTA was the ‘right to negotiate’ as a trade-off to the validation of certain land titles. The ‘right to negotiate’ is a procedural right, which gives native titleholders the opportunity to negotiate on proposed developments ('future acts') affecting native title land.

The 'right to negotiate' ensures that Indigenous people are able to participate in decisions affecting their land; to secure economic benefits and opportunities and reduce negative social impacts caused by development. The ‘right to negotiate’ forms an integral part of Indigenous law and custom and reflects the right to control access to and activities on traditional land.

The NTAA winds back the right to negotiate in a number of respects:

s.43A state schemes

The NTAA allow State and Territory governments to wipe out the right to negotiate by setting up alternative regimes ('s.43A' schemes) with minimum standards far below those prescribed in the NTA. Such alternative schemes must be ratified by both houses of the Federal Parliament.

So far alternative regimes have been drawn up or are in the process of being drawn up for the Northern Territory, Western Australia, South Australia and Queensland. The Northern Territory legislation is the only one to have gone before the Federal Parliament for ratification, but was rejected by the Senate on the combined vote of the Labor Party and the Democrats.

One of the reasons given for its rejection was the lack of any review by the Federal Parliament of subsequent amendments to an alternative scheme. Under the amended NTA, a hostile State or Territory Government could with impunity amend their own scheme to the detriment of Indigenous rights. To date all s.43A schemes have been opposed by Indigenous representative bodies in the respective states and territories.

The NTAA also removes the right to negotiate where land is acquired: within town boundaries; for all infrastructure and utilities; and for the purpose of converting leases to perpetual leases.

A further way in which the NTAA restricts the right to negotiate is in relation to the registration test (pdf 414k) for native title claimants. The NTAA introduced onerous and unreasonable conditions on the registration test, which effectively mean that many native title claimants are denied registration and are thus unable to access the right to negotiate and various other provisions of the NTA.

Validation provisions

The NTAA also provided for the validation of potentially invalid 'intermediate period acts' done by the Commonwealth, State and Territory Governments by way of granting interests in land on which there may have been native title interests. 'Intermediate' here refers to the period between the commencement of the original NTA (1 July 1994) and the date of the Wik decision (23 September 1996).

Such acts should have been subject to the 'future act' provisions of the original NTA, including the right to negotiate, but many Commonwealth, State and Territory Government grants of land interests, particularly on leasehold lands, deliberately ignored the rights of native title holders under the NTA. Such behaviour of Governments resulted in the illegal and discriminatory impairment or extinguishment of native title rights without Indigenous negotiation or consent. The validation of such acts under the NTAA, similarly without Indigenous negotiation or consent, endorses and reproduces deliberately discriminatory treatment of Indigenous rights

'Confirmation of extinguishment' provisions

A further discriminatory aspect of the NTAA is the 'confirmation of extinguishment' provisions which provide that a previous Commonwealth grant deemed to confer 'exclusive possession', will extinguish native title permanently. The amendments introduced a 'Schedule of extinguishing leases' into the NTA. The NTAA also empowered the States and Territories to similarly legislate with respect to grants made by them. Most States and Territories have now done so.

However, in doing so, the Commonwealth, State and Territory Governments have pre-empted determination of the issue of extinguishment on such tenures by the courts and have simply imposed blanket statutory extinguishment.

The Government admits that the confirmation of extinguishment provisions apply to approximately 21% of Australia, 7.7% of which are scheduled interests. In other words, native title holders of this land have had their native title rights extinguished without consent and without the opportunity to have such rights confirmed by the court.

Primary production upgrade provisions

Biggest winners from the NTAA were pastoralists and farmers, whose leases benefited from a windfall 'upgrading' for all kinds of new intensive agricultural, horticultural and even farm-stay tourism uses that are included under the Tax Act definition of 'primary production'. These new activities may impair or suppress native title rights, but Indigenous people will have no right to negotiate to protect their interests.

Discrimination and the International Community

The 1998 amendments have resulted in the further, unjustified extinguishment of native title and the winding back of significant Indigenous rights established through the negotiations over the original Native Title Act.

The overall effect of the amendments has been to discriminate against Indigenous native titleholders in favour of non-indigenous landowners. In each instance, the protection and enhancement of non-Indigenous interests has occurred at the expense of Indigenous interests.

The discriminatory nature of the NTAA has attracted widespread local and international criticism. The United Nations Committee for the Elimination of Racial Discrimination (CERD) found the amendments to be in breach of Australia’s treaty obligations. The Committee advised the Australian Government to immediately suspend the amendments and to enter into negotiations with Indigenous people to find a solution that was acceptable to both parties. The Australian Government rejected the findings outright.

Further information

ANTaR's submission to the CERD Committee, March 1999.