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):

223.(1) The expression "native title" or "native title rights and interests" means the communal, group or individual rights or interests of Aboriginal people or Torres Strait Islanders in relation to land or waters, where:

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:

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:

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):

a	The making, amendment or repeal of legislation and i. it affects native title holders as if they were ordinary title holders, and ii. it does not place native title holders in a more disadvantageous position at law than if they were ordinary title holders;
b.	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;
c.	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.

The Manner Of Enactment Of The Native Title Act 1993

Indecent Haste
Complexity
Uncertainty
Ambiguity
Consequences

« The Act »

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« Part II—Mabo Edict »

« Part I—Perspectives »

« Mabo Decision »

Indecent Haste
The Act is potentially one of the most profound, even revolutionary, pieces of legislation ever passed in the Australian Parliament. Indeed, it is hardly possible to exaggerate the implications of the Bill for Australia's future. Therefore, there is no possible realistic justification for the absurd haste with which the legislation was drafted and with which the Government demanded that it be considered by the Parliament.

Complexity
It bears eloquent testimony to the complexity of the Act that the government was compelled to issue Explanatory Memoranda of greater length than the Act itself! It is axiomatic that a Act which seeks to introduce such extensive change should be as clear and precise as possible.

Uncertainty
Perhaps one of the greatest criticisms of the Act is the extreme uncertainty which it creates. For example, it is not clear:

i.	What types of land might be subject to a native title claim?
ii.	What sort of evidence will be required to establish a native title claim?
iii.	How strict or otherwise will the Native Title Tribunals be in considering evidence of native title?
iv.	on what indicia will the tribunals decide on the issue of compensation, particularly quantum?
v.	What assurance is there that the future development of Australia's agricultural and mineral wealth will not be severely disrupted?

The Chief Executives of sixteen of Australia's largest mining companies were so concerned about these and other issues that they placed a full page advertisement in national newspapers:

The Commonwealth's Native Title Bill will make land management very difficult and leave open many questions which will require resort to the courts. This will lead to considerable delay, expense and uncertainty. The continuing uncertainty will jeopardise development, diminish and delay investment, and reduce economic growth and employment opportunities. It will cause investment to be diverted away from Australia. All Australians, including Aboriginal Australians, will bear the ultimate cost." (Sydney Morning Herald, 11-12-93, p.16) Native Title and the Common Law

The Act purports to adopt the common law definition of native title. It is difficult to understand how such a definition was reached as the concept of native title is quite unknown to the common law. It is a concept which has no meaning in the Australian legal system.

In the absence of any precedent whatsoever about the meaning of native title, one is left to wonder how the Native Title Tribunals will grapple with the concept.

Ambiguity
A cursory reading of the Act reveals that it was drafted in extreme haste. This has resulted in some sections being very unclear and susceptible to a variety of interpretations For example, section 225 purports to define the meaning of the term "determination of native title". This section is crucial to the operation of the entire Bill:

A determination of native titles is a determination of the following:

The lack of clarity and the extent of the ambiguity implicit in section 225 is staggering:

1.	Is native title proved by: a. possession; b. occupation; c. use; d. enjoyment; e. all of the above?
2.	What is the difference between possession, occupation, use and enjoyment and how are these terms defined?
3.	What other possible native title right or interest could there be other than possession, occupation, use or enjoyment?

The Bill does not define "native title".

This sort of ambiguity is exacerbated by the failure of the Act to provide guidance on so many issues - a responsibility which it flagrantly abrogates to the courts and tribunals.

Consequences
There can be no doubt that the passage of the Bill has been adverse for the future of Australia. The ownership of thousands of square kilometres of Australia will depend upon drawn out and utterly uncertain legal process. People who have owned land for generations - and invested everything to improve it —will be dispossessed by other people because of the colour of their skin.

The Act effectively replicates some of worst aspects of Apartheid. It says all Australians will have the same system of land ownership — unless they call themselves Aboriginal, in which case they can have the benefit of a separate system of land ownership. This virtually guarantees the separate development of Aboriginal Australians and everyone else. Does Mr. Keating really want Apartheid in Australia?

How any MP could have voted in favour of this Bill is beyond my comprehension.

A letter was circulated by the Secretary of the Senate Standing Committee on Legal and Constitutional Affairs, Parliament House asking for views on the provisions of the Native Title Bill 1993.

The letter said "the Committee is interested to obtain views on the various legal and constitutional issues, the impact of the legislation upon the aboriginal and highlander community, or its effect upon primary and secondary industry. Any other issues which you feel should be considered may also be addressed in your submission".

The letter was dated 26 November 1993 and it reached me on 30 November 1993. This means there is barely a week within which to write a submission. Given the wide ranging nature of the issues on which submission may be presented and the importance of the subject, the time provided for submissions is woefully inadequate (to put it mildly). Choosing my words carefully as a lawyer, I venture to say that it is ridiculous to request submissions within this time frame.

It is significant that the Committee is to report to Senate by 9 December 1993. Submissions may be forwarded up to 6 December 1993. The Committee has to prepare its report and submit it by 9 December 1993. It appears obvious that the Committee will not have time to peruse most of the submissions within the time frame. It is therefore an insult to the people to request submissions most of which in all eventuality will not be read.

The Native Title Bill has enormous implications for the future of Australia. If our politicians have a commitment to democratic processes and traditions a minimum period of six months was required for public debate, submissions on the Bill and examination of such submissions.

Time for debate was not provided by Parliament. The Bill was rushed through. This is one more indication that Australia is on the road to totalitarianism and serfdom.

Electors generally have short memories. But by the time of the next election the people will see the havoc which will be caused by the implementation of the Native Title Bill, in the context of the Mabo decision. Mabo is in my opinion the worst decision in the history of the jurisprudence of the High Court.

The people of Australia at the next federal election have an opportunity to pass judgment on those who voted for the Native Title Bill and on the Coalition for its weak and token opposition. Their problem is that they wish a plague on the ALP, the Coalition, the Australian Democrats and the Greens but where is the alternative?