Native Title Amendment Act 1998 (Cth)

The Native Title Amendment Act 1998 (Cth) (the Amendment Act) made extensive amendments to the Native Title Act 1993 (Cth). The amendments were made in response to the High Court's decision in the Wik case, which confirmed that native title rights and interests may exist over land which is or has been subject to a pastoral lease, and possibly also over some other forms of leasehold tenure.

In 1996, the High Court's decision in Wik Peoples v Queensland was handed down. 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 continue to exist. The Majority held that native title may co-exist with the rights of some pastoral leases - this has been called 'coexistence'. Further, where inconsistency between the native title and non-native title rights occurs, the non-native title rights prevail.

Prior to the amendments, the Native Title Act 1993 (Cth) (the NTA) did not contemplate the possibility of native title existing over pastoral leases or of native title rights co-existing with other rights. After the NTA came into effect, state governments continued to allow actions on pastoral leases that did not comply with the NTA. Wik raised the possibility that those acts could be invalid.

The Federal Government developed the Ten Point Plan, which became the basis for the amendments, to deal with the uncertainty created by Wik for governments and those with interests in land. The amendments included:

• changes to the status of the National Native Title Tribunal (ss 61, 86B);
• handing some powers to the Federal Court;
• introducing the registration test for native title applications (ss 1190A-190D);
• broadened the confirmation provisions (div 2B) and validation provisions (div 2A, div 2AA);
• changed provisions for primary production activities (s 24), statutory access rights (div 3Q), compulsory acquisitions and the right to negotiate provisions (div 3 sub-div P);
• extended the agreement making abilities under the Act, replacing Section 21 Agreements with Indigenous Land Use Agreements (ILUAs) (div 3 sub-divs B-E);
• gave the States and Territories powers to validate 'intermediate period acts' and authorise 'previous exclusive possession acts';
• expanded the definition of extinguishment; and
• limited the operation of the Racial Discrimination Act 1975 (Cth) with respect to native title.

These amendments were extremely controversial. Michael Dodson, then Aboriginal and Torres Strait Islander Social Justice Commissioner, stated: 'certainty for governments and tenure-holders is code for removing native title' (Dodson, 1997). Indigenous groups and organizations raised concerns about the consultation process undertaken for the Amendment Act because upon releasing the draft bill, the Commonwealth had signalled that it would only consider making minor amendments (Clarke, 1997). Clarke suggests that this approach by the Commonwealth undermined Indigenous consent to the amendments (Clarke, 1997). At international law, human rights treaties and declarations have confirmed that governments are bound to ensure they undertake 'full and bona fide consultation' with indigenous peoples when legislating regarding land rights (Triggs, 394).

On 18 March 1999, the UN Committee on the Elimination of Racial Discrimination (CERD) raised concerns that the Amendment Act was incompatible with Australia's international obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD, 1999). CERD held that the Amendment Act discriminated against Indigenous native title holders by 'validating past acts, extinguishing native title, upgrading primary production and restricting the right to negotiate' (Triggs, 1999). CERD called on Australia to suspend the implementation of the amendments until discussions with Aboriginal and Torres Strait Islander peoples could take place to ensure their active participation in accordance with Australia's obligations under articles 1(4) and 2(2) of the Convention (CERD, 1999; Triggs, 1999).

CERD stated:

The Committee recognised that within the broad range of discriminatory practices that had long been directed against Australia's Aboriginal and Torres Strait Islander peoples, the effects of Australia's racially discriminatory land practices had endured as an acute impairment of the rights of Australia's Indigenous communities.

The Howard Government rejected CERD's decision, claiming there was no breach of the Convention (Triggs, 1999). The Senate referred CERD's concerns to a Parliamentary Joint Committee who held that the Amendment Act was 'consistent with Australia's obligations' (Commonwealth of Australia, 2000). In 2005, CERD again expressed concerns about the Amendment Act stating:

The Committee notes with concern the persistence of diverging perceptions between governmental authorities and indigenous peoples and others on the compatibility of the 1998 amendments to the Native Title Act with the Convention... the 1998 amendments wind back some of the protections previously offered to indigenous peoples, and provide legal certainty for government and third parties at the expense of Indigenous title. (CERD, 2005)

Ultimately, the Amendment Act remained on foot. The legislation was reviewed in 2015 by the Australian Law Reform Commission. The report, Connection to Country: Review of the Native Title Act 1993 (Cth), was released in April 2015.

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