The 'Ten Point Plan' and the 1998 Native Title Act Amendments
The Howard Government's response to the 1996 High Court Wik judgment was alarmist and discriminatory, predicated on winding back native title rights previously recognised by this judgment. The Government's response was formulated in Howard's '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 for Indigenous people negotiated as part of the original Native Title Act 1993 was the 'right to negotiate'; a procedural right which gives native title holders the opportunity to negotiate on proposed developments ('future acts') affecting native title 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 January 1994) and the date of the Wik decision (23 December 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 and interests.
'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.
In summary, the NTAA effect the discriminatory treatment of Indigenous rights and interests in land while those of non-indigenous title holders have been comprehensively protected and even enhanced. 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 have attracted widespread criticism, not least from the United Nations CERD Committee, which has found that the amended NTA breaches Australia's international human rights obligations.
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