The Native Title Amendment Bill 1997: A different order of uncertainty?

Abstract

This paper analyses the likely contribution of the Native Title Amendment Bill 1997 to the 'certainty' of other land titles after the High Court decision in Wik Peoples v Queensland. It concludes that, while the Bill contains several 'bucketloads' of extinguishment, its main impact on native title in pastoral areas will be one of extensive and permanent suppression by expanded pastoral land uses, at significant public expense. The costs of this direct and de facto extinguishment are unknown and probably unknowable. There is a real risk that future governments will be tempted to unravel this extinguishment if the costs of compensation prove too high, with a resulting increase in uncertainty as to the location of native titles in future. The paper examines the Bill's 'validation' of mining tenements granted over coexisting native title on pastoral leasehold. This validation rewards governments which defied the 'future acts' regime of the Native Title Act 1993 (NTA), penalising the one government (Western Australia) which complied with it and miners which relied on that government for tenement grants but have not yet received them. The Bill contains many provisions unrelated to Wik. Many re-instate the pre-Racial Discrimination Act 1975 (RDA) position÷that governments, not Aborigines, control use of land and resources, particularly in remote areas, and that Crown-granted titles enjoy a position of privilege over native titles. Under the Bill, a much diminished version of the NTA 'right to negotiate' (RTN) may be available only to those people who prove their native title in the Federal Court, where their claim was made within six years of the Bill's commencement. Even for those claimants who meet the strict claims sunset clause, the RTN may be available only over land which has never been granted on another title or reserved for public use, including as a national park, and which lies outside of towns. While the Bill's reassertion of government control over 'land management', and its denial of native title holders' right to participate in that management, may appear to produce 'certainty', these factors contribute to wider political uncertainties about the future of native title law. The paper measures the Bill against the international human rights standards embodied in the RDA. It concludes that the Bill is inconsistent with these standards, and that its enactment will impliedly repeal the RDA's protection of native title, attracting negative international attention and triggering United Nations complaints. These political developments may have significant implications for Australian trade. Finally, the paper examines arguments about the Bill's unconstitutionality under the Commonwealth Parliament's 'races' power. It concludes that the High Court may require Parliament to use its 1967 referendum power to benefit Aboriginal people, not to discriminate against them. However, the definition of 'benefit' may be crucial. If 'benefit' involves only a slight improvement on the position of native title under the discriminatory common law rules of extinguishment, only some of the Bill's provisions may be unconstitutional. But if 'benefit' requires either racial non-discrimination or Indigenous consent, many other parts of the Bill will be unconstitutional. Either way, if the Bill is enacted in 1997, uncertainty over its constitutionality (and over the validity of those titles which depend on it) is unlikely to be resolved before the end of 1998