A Brief Criticism Of The Native Title Act (1993)
From Part 2 of 'The High Court In Mabo ' by Dr M Cooray (1995)

The Native Title Act 1993 (henceforth referred to as the Act) is a complex and detailed piece of legislation. It contains 238 clauses and can be more easily understood in conjunction with the two accompanying Explanatory Memoranda (henceforth referred to as Memorandum A and Memorandum B).

The following is an outline of the main features of the Act only, and is not intended to be exhaustive.

Principal Provisions
The Act has two principal effects:

(a) It purports to set out the extent to which acts of sovereign authority extinguish or diminish native title; and

(b) It lays down a system of compensation for loss of rights by virtue of acts of sovereign authority.

Preamble
The Act contains a lengthy Preamble which purports to summarise the background to the substantive sections. The Preamble argues that the Aboriginal and Torres Strait Islander people were inhabitants of Australia at the time of European settlement; that they were dispossessed of their lands largely without compensation; that as a consequence they are the most disadvantaged group in society.

It states that the Commonwealth has acted to ensure recognition of international human rights standards by its ratification of international human rights instruments such as:

• The International Convention on the Elimination of all forms of Racial Discrimination;
• The International Covenant on Civil and Political Rights;
• The International Covenant on Economic, Social and Cultural Rights;
• and its enactment of domestic legislation such as:
  • The Racial Discrimination Act 1975;
  • The Human Rights and Equal Opportunity Commission Act 1986.

The Preamble also refers to the High Court's decision in the Mabo Case, stating the Court overruled the doctrine of terra nullius and held that the common law recognises native title.

Recognition of Native Title
The Act purports to recognize native title (s 10) and defines native title as (s 223):

Memorandum (A) states that the Act has adopted the common law definition of native title, which is a curious statement given that native title does not exist at common law. The Bill itself also expressly states (s 12):

...the common law of Australia in respect of native title has, after 30 June 1993, the force of a law of the Commonwealth.

Determination of Native Title
The Act establishes a National Native Title Tribunal (NNTT), and provides for the Federal Court to have jurisdiction in such matters where a dispute cannot be resolved by the NNTT. The legal regime for the determination of native title has the following key constituents:

1. The NNTT will only hear uncontested claims to native title or uncontested claims to compensation;
2. The NNTT must be composed of a President (who must be a Judge of the Federal Court or a former judge); any number of Deputy Presidents who must have the same qualifications as the President); and any number of Other Members (who must not be a Judge or former judge, and must, in summary, have special knowledge which in the opinion of the Governor General befits them for membership of the Tribunal);
3. The Federal Court will hear contested claims to native title and contested claims to compensation;
4. The Court will be assisted by assessors who may take evidence or hold conferences;
5. States and Territories may establish their own bodies for the determination of native title matters, but those bodies must comply with extensive requirements (s 251) including that the State or Territory consult with the Commonwealth with respect to proposed non-judicial appointments to the body. Where such a State or Territory body is recognized by the Commonwealth, native title claims may be initiated there.

Validation of Past Acts
The Act is predicated on the basis that past grants of land or other acts which alienated land may have been invalid if the land was subject to native title. It therefore makes provision for such acts to be validated on certain conditions:

In all cases, compensation on just terms must be provided by the relevant government.

Native Title can be held by body corporate

The Act provides that native title rights are generally group rights and therefore that native title rights will be held by bodies corporate, the membership of which will change from time to time.

The Future Regime
The Act provides for future activity with respect to native title land, and allows for this to occur where such acts are "Impermissible future acts ", which are defined as (s 235):

1. The making, amendment or repeal of legislation and
   1. it affects native title holders as if they were ordinary title holders, and
   2. it does not place native title holders in a more disadvantageous position at law than if they were ordinary title holders;
2. An act which is not the making, amendment or repeal of legislation, so long as it could be done on the land concerned if the native title holders held ordinary title;
3. An act in relation to an offshore place, of low impact, or in relation to land the native title to which has been surrendered.

The Bill expressly provides that mining on native title land is a permissible future act providing that it is done on the same terms as on ordinary title land (s 235(2),(3),(4)).

The Bill also provides that native title holders will have a right to negotiate with respect to certain proposed future acts, including the extension of mining right, or the compulsory acquisition of native title rights (s 26).

The right of negotiation will not apply if there are no registered native title holders or claimants within 2 months of notification of the proposed act. Moreover, certain acts can be excluded from the right to negotiate, and the right is not a veto. If agreement cannot be reached, application can be made to a recognized tribunal for arbitration.