Native Title Act 1993

The Native Title Act 1993 (NTA) is a law passed by the Australian Parliament, the purpose of which is "to provide a national system for the recognition and protection of native title and for its co-existence with the national land management system". The Act was passed by the Keating Government following the High Court's decision in Mabo v Queensland (No 2) (1992).[3] The Act commenced operation on 1 January 1994.

Native Title Act 1993
Parliament of Australia
Long title An Act about native title in relation to land or waters, and for related purposes.[1]
Citation	Act No. 110 of 1993[2]
Royal assent	24 December 1993[2]
Status: Amended

John Howard created a 10-point plan which watered down some of the provisions of the NTA and which were passed as major amendments to the Act in 1998.

Description

This legislation aimed to codify the Mabo decision and implemented strategies to facilitate the process of recognising native title in Australia. The Act also established the National Native Title Tribunal, to register, hear and determine native title claims.

According to the Australian Government:

The Native Title Act 1993 establishes a framework for the protection and recognition of native title. The Australian legal system recognises native title where:

• the rights and interests are possessed under traditional laws and customs that continue to be acknowledged and observed by the relevant Indigenous Australians,
• by virtue of those laws and customs, the relevant Indigenous Australians have a connection with the land or waters,
• the native title rights and interests are recognised by the common law of Australia.

The Native Title Act sets up processes to determine where native title exists, how future activity impacting upon native title may be undertaken, and to provide compensation where native title is impaired or extinguished. The Act gives Indigenous Australians who hold native title rights and interests—or who have made a native title claim—the right to be consulted and, in some cases, to participate in decisions about activities proposed to be undertaken on the land. Indigenous Australians have been able to negotiate benefits for their communities, including in relation to employment opportunities and heritage protection.

The Act also establishes a framework for the recognition and operation of representative bodies that provide services to native title claimants and native title holders. The Australian Government provides significant funding to resolve native title issues in accordance with the Act, including to native title representative bodies, the National Native Title Tribunal and the Federal Court of Australia.[4]

Challenges and amendments

The High Court in Western Australia v Commonwealth (1995) upheld the Native Title Act and struck down a conflicting Western Australia statute.[5]

Wik decision (1996)

In 1996, the High Court's decision in Wik Peoples v Queensland was handed down.[6] The case dealt with the question of whether pastoral leases granted between 1910 and 1974 in Far North Queensland had the effect of extinguishing native title. A 4:3 majority of the judges decided that the grant of a pastoral lease did not confer exclusive possession, and that native title could therefore continue to exist – this has been called "coexistence". Where an inconsistency between the native title and non-native title rights occurs, the non-native title rights prevail.

The Native Title Act had not adequately dealt with the possibilities of native title existing over pastoral leases or of native title rights co-existing with other rights. Since the NTA had come into effect, governments had been taking action on pastoral leases that did not comply with the NTA. Wik raised the possibility that those acts could be invalid and showed that the "freehold test" (the principle used to determine where proposed activities could be done without regard to native title) in relation to future acts was inappropriate. The Federal Government developed the Ten Point Plan, which became the basis for the amendments, to deal with these inadequacies of the Native Title Act.

1998 Amendments

The Native Title Amendment Act 1998 (Cth),[7] also commonly referred to as the "10-Point Plan" is an Australian native title law created by the John Howard-led Liberal Government in response to the Wik Decision by the High Court.[6] The Native Title Amendment Act 1998 placed some restrictions on native title claims. The amendments:

• included changes to the status of the National Native Title Tribunal,[8] handing some powers to the Federal Court;
• introduced the registration test for native title applications;[9]
• broadened the confirmation provisions and validation provisions;[10]
• changed provisions for primary production activities,[11] statutory access rights,[12] compulsory acquisitions and the right to negotiate provisions;[13]
• extended the agreement making abilities under the Act, replacing Section 21 Agreements with Indigenous Land Use Agreements;[14] and
• gave the States and Territories powers to validate "intermediate period acts" and authorise "previous exclusive possession acts".

The ten points in the "10-Point Plan" were:

1. The National Native Title Tribunal holds absolute authority over claims for native title.
2. State governments are empowered to extinguish Native Title over crown lands for matters of "national interest".
3. Lands providing public amenities are exempt from Native Title claims.
4. Mining and pastoral leases are allowed to co-exist with Native Title.
5. The National Native Title Tribunal can create access to traditional lands rather than granting full Native Title.
6. A registration test is imposed on all claimants.
7. The right to claim Native Title in or around urban areas is removed.
8. Government is permitted to manage land, water, and air issues in any site.
9. Very strict time limits will be placed on all claims.
10. Indigenous Land Use Agreements will be created to promote co-existence.

ANTaR (Australians for Native Title and Reconciliation) helped to coordinate a response to the amendments; native title rights became the focus of a national campaign by ANTaR in 1997–8, with a central project called the Sea of Hands.[15] In Parliament, the legislation was opposed by the Australian Labor Party and the Australian Democrats. The final legislation was amended to gain the support of Independent Senator Brian Harradine, whose vote was required for the bill to pass.[16]

21st century

In 2007 the Howard Government passed the Native Title Amendment Act 2007,[17] and the Native Title Amendment (Technical Amendments) Act 2007,[18] a package of coordinated measures and technical amendments to improve the performance of the native title system.[19][20] These are aimed at making the native title process more efficient and to speed up the determination of whether native title exists on the 580 claims that had been registered but not yet determined.

The Native Title Act 1993 was further amended by the Rudd Government by the Native Title Amendment Act 2009.[21][22] It allows the Federal Court to determine who may mediate a claim, whether that be the court itself, the Native Title Tribunal, or otherwise.[23]

Today

The NTA continues to be reviewed and amended. A major review of the Act by the Australian Law Reform Commission in 2015 made 30 recommendations to reform it.[24] It did not suggest altering the fundamental framework and model of native title and the claims process, but recommended a "refocus on the core elements of native title law to facilitate an effective determination process".[25] As of June 2020 it has it has had six amendments since 2015.[26]

Reports

Under the Act, the Aboriginal and Torres Strait Islander Social Justice Commissioner was required to:[27]

• prepare an annual report to the Attorney-General on the operation of the NTA and its effect on the exercise and enjoyment of human rights of Aboriginal and Torres Strait Islander peoples; and
• report, when requested by the Attorney-General, on any other matter relating to the rights of Indigenous people under the NTA.

The objectives of the Commissioner were to provide and promote a human rights perspective on native title; to assist in developing more efficient native title processes; and to advocate for the co-existence between Indigenous and non-Indigenous interests in land based on compatible land use.[27] All of the reports from 1994 to 2016 have been published online; since 2013, the Native Title and Social Justice Reports have been combined and published as one report.[28]

Changes brought about by the Human Rights Legislation Amendment Act 2017 removed the statutory obligation for an annual Social Justice and Native Title Report such as those produced up to and including 2016; however, the Commissioner continues to produce reports at the culmination of key projects.[29]

See also

• Aboriginal land rights in Australia
• Native title in Australia
• Aboriginal title
• List of laws concerning Indigenous Australians
• Native Title Prescribed Body Corporate

References

1. Native Title Act 1993 - Long Title (Cth).
2. "Native Title Act 1993 - Act No. 110 of 1993". ComLaw. Retrieved 4 February 2015.
3. Mabo v Queensland (No 2) [1992] HCA 23, (1992) 175 CLR 1 (3 June 1992), High Court.
4. Department of Foreign Affairs and Trade (Australia), Indigenous land rights and native title Archived 26 January 2012 at the Wayback Machine, retrieved 30 January 2012.
5. Western Australia v Commonwealth [1995] HCA 47, (1995) 183 CLR 373, High Court.
6. Wik Peoples v Queensland [1996] HCA 40, (1996) 187 CLR 1 (23 December 1996), High Court.
7. Native Title Amendment Act 1998 (Cth).
8. Native Title Amendment Act 1998 (Cth) Schedule 2 amending sections 1961 and 86B.
9. Native Title Amendment Act 1998 (Cth) Schedule 2 adding sections 190A - 190D.
10. Native Title Amendment Act 1998 (Cth) Schedule 1 adding Divisions 2A - 2B.
11. Native Title Amendment Act 1998 (Cth) Schedule 1 adding section 24.
12. Native Title Amendment Act 1998 (Cth) Schedule 1 adding Subdivision P of Division 3 of Part 2.
13. Native Title Amendment Act 1998 (Cth) Schedule 1 adding Subdivision Q of Division 3 of Part 2.
14. Native Title Amendment Act 1998 (Cth) Schedule 1 adding Subdivisions B-E of Division 3 of Part 2.
15. Giles, Glenn (2002). "'Fair go'? Equality? The people's movement for reconciliation (ANTaR) and critical information literacy". The Australian Library Journal. Informa UK Limited. 51 (3): 203–218. doi:10.1080/00049670.2002.10755989. ISSN 0004-9670.
16. "Lateline: At Wik's End". ABC News. 2 July 1009. Archived from the original on 8 October 1999.
17. Native Title Amendment Act 2007 (Cth).
18. Native Title Amendment(Technical Amendments) Act 2007 (Cth).
19. Frith, Angus (November 2008). "The 2007 Amendments to the Native Title Act 1993 (Cth): Technical Amendments or Disturbing the Balance of Rights?" (PDF).
20. Clayton Utz – Amendments to the Native Title Act 1993 – some improvements for the energy and resources sector
21. Native Title Amendment Act 2009 (Cth).
22. "Native Title Amendment Act 2009 – Information sheet". Department of Social Security.
23. Australian Local Government Association. Native Title Amendment Act 2009 Information Sheet (PDF).
24. "Connection to Country: Review of the Native Title Act 1993 (Cth) (ALRC Report 126)". ALRC. 4 June 2015. Retrieved 31 July 2020.
25. "Summary of recommendations". ALRC. 22 May 2015. Retrieved 31 July 2020.
26. "Native Title Act 1993". Federal Register of Legislation. Australian Government. Retrieved 31 July 2020.
27. "Native Title". Australian Human Rights Commission. Retrieved 4 August 2020. Text was copied from this source, which is available under a Attribution 4.0 International (CC BY 4.0) licence. (Statement here.)
28. "Native Title Reports". Australian Human Rights Commission. Retrieved 4 August 2020.
29. "Social Justice and Native Title Reports". Australian Human Rights Commission. 1 August 2019. Retrieved 4 August 2020.

Further reading

• Gardiner-Garden, John; Parliamentary Research Service (12 October 1993). The Mabo debate: a chronology. Background Paper Number 23. Australian Government. Dept of the Parliamentary Library. ISSN 1038-0116. (PDF)
• Walker v State of South Australia (No 2) [2013] FCA 700, 215 FCR 254 (19 July 2013): an application in the Federal Court under section 61 of the Native Title Act 1993 (Cth) in which Justice Mansfield rejected an argument that the Letters Patent Proviso provides protection for the rights of Aboriginal People to the occupation or enjoyment of their lands, citing comments by Justice Kirby in Fejo v Northern Territory [1998] HCA 58, (1998) 195 CLR 96.

External links

• "Native Title Act 1993". Federal Register of Legislation. Australian Government. (Series)
• Native Title Act 1993 (Cth)