E LAW - MURDOCH UNIVERSITY ELECTRONIC JOURNAL OF LAW ISSN 1321-8247 Volume 4 Number 3 (September 1997) Copyright E Law and/or authors File: vanh43.txt ftp://www.murdoch.edu.au/pub/elaw/issues/v4n3/vanh43.txt http://www.murdoch.edu.au/elaw/issues/v4n3/vanh43.html ________________________________________________________________________ Demystifying Native Title Peter van Hattem B Juris (Hons), LL B (Hons), LL M May 1997 Introduction 1. Native title has been acknowledged as part of the common law of Australia since 1992, and has been regulated by statute since 1994. It has been the subject of numerous judicial and administrative decisions, most of which seem to have added to the general confusion and uncertainty pervading this rapidly developing area of the law. 2. This ambitiously titled paper cuts through much of the detail and complexity in an attempt to explain the key issues and their relevance to resources project development and investment in Australia. It necessarily involves broad generalisations without identifying the many nuances, exceptions and qualifications that exist. This paper should not be regarded as a substitute for legal advice. 3. The key issues addressed in this paper are: o What is native title? o Where does native title exist? o How are native title claims resolved? o How is native title protected? o How does native title affect resources projects? o Is the law relating to native title workable? o Can the law be improved? 4. The publication of this paper falls a few days short of the 5th anniversary of the High Court’s historic Mabo decision. In the last 5 years, there have been substantial developments in the law, which have occurred with almost breathtaking speed. This trend is likely to continue. Consequently, this paper can be expected to have a fairly limited shelf life. What is native title? 5. "Native title" is a widely misunderstood concept, but it need not be. It is useful to consider the more familiar concept of "contract", and then to draw a careful comparison. 6. "Contract" is a collective term for the legally enforceable rights that arise out of agreements and dealings between people. A common law framework, modified by statute, establishes the principles that govern the creation, identification, modification and enforcement of contractual rights. "Contract" encompasses an infinitely diverse set of arrangements, from getting a haircut at one extreme, to project financing and beyond at the other. Generally, with the exception of standard form agreements, no two contracts are the same: the rights they confer depend for their content on the express and implied agreement reached between the parties. They can be amended by the parties from time to time to accommodate changing circumstances. Because they are recognised by the common law, contractual rights can be enforced by actions in court, for damages, injunctions and other relief. Some contractual terms are repugnant to the common law or statute law, and are unenforceable. There are statutes that modify or augment contractual rights, and the means of their enforcement. 7. Like contract, "native title" is another collective term for a particular species of legal rights. It describes the rights held by Aboriginal people and Torres Strait Islanders, in relation to land or waters, that arise under their traditional laws and customs. As with contractual rights, there is a common law framework, modified by statute, which establishes the principles that govern the creation, identification, modification and enforcement of native title rights. "Native title" can encompass a very diverse set of rights. It includes the right to traverse land. It may include comprehensive rules relating to subsistence, ceremonial, access and control rights. Unlike contract, the courts have not yet explored in any detail the content of particular native title rights. Generally, no two sets of native title rights will be the same: the rights they confer depend for their content on the traditional laws and customs of the relevant Aboriginal group, and it would be surprising for two groups to have identical laws and customs. The native title rights can evolve with time to accommodate changing circumstances, and changes in the traditional laws and customs of the relevant Aboriginal group. Because they are recognised by the common law, native title rights can be enforced by actions in court, for damages, injunctions and other relief. Some native title rights might be repugnant to the common law or statute law, and will be unenforceable. There are statutes that modify or augment native title rights, and the means of their enforcement. 8. So it can be seen that native title, as a concept, is similar to contract as a concept. Both terms are convenient labels for particular types of legal rights, which distinguish them from other types of legal rights, such as tort, trust, property, and so on. As with all legal rights, there are legal consequences if they are infringed. 9. There are of course many differences between native title and contract, and it would be misleading and confusing to pursue the analogy too far. These are some of the more salient features of native title rights, which distinguish them from other legal rights: o Native title rights owe their existence and content to traditional Aboriginal laws and customs, which can vary from one Aboriginal group to another. o Native title rights are held communally by the members of the Aboriginal group whose traditional laws and customs gave rise to them. o Native title rights can not be assigned or transferred, although they can be surrendered to the Crown and, in certain circumstances, they can be extinguished. o Native title rights are not granted - they are inherited in accordance with the traditional laws and customs of the Aboriginal people concerned. Where does native title exist? 10. For native title to exist in a particular area today, a number of conditions have to be satisfied: 11. When the Crown acquired sovereignty over the claimed area, which happened at different times in different parts of Australia, there had to be an identifiable group of Aboriginal people inhabiting the claimed area, with traditional laws and customs giving rise to native title rights at that time. 12. There must be an unbroken chain of inheritance or succession, in accordance with traditional Aboriginal laws and customs, from the original native titleholders to the present day claimants. 13. The Aboriginal laws and customs giving rise to the native title rights must have been observed and recognised continuously during that period. 14. There must not have been an event that had the effect of extinguishing the native title rights, such as a valid freehold grant, or valid extinguishing legislation. 15. Theoretically native title can exist in relation to land and waters, including lakes, rivers, bays and the open sea. The only judicial determination of native title in contested proceedings in Australia to date is the Mabo decision, which only concerned land. However, many native title claims have been made which include lakes, rivers and coastal seas, and there is no reason to believe that they will fail for that reason alone. The Native Title Act clearly contemplates that native title rights can exist in relation to waters. 16. If those conditions are satisfied, native title will continue to exist in the relevant area, and will be held communally by the members of the group comprising, or represented by, the claimants. Even if those conditions are not satisfied, native title can be revived or created under the Native Title Act. It can be revived in certain circumstances in relation to pastoral land, and it can be revived or created by determinations of the Federal Court, made with the consent of the parties to the claim, or where the Court is satisfied that the claim has been proved to the required standard. 17. The law relating to the extinguishment of native title and its coexistence with other rights is largely uncertain. The uncertainty results from inconsistent and obscure court decisions, ineffectual legislation, and the requirement for case-by-case judicial determinations. All that can be said with a degree of confidence is that native title has been extinguished by the grant of freehold interests before 1 January 1994, but even that principle has its difficulties. 18. The Native Title Act establishes a Native Title Register, which includes details of all Federal Court and High Court determinations of native title. The process of determining native title claims is very time consuming. In the distant future, it may be possible to ascertain whether or not native title exists in a particular area by searching the register. At present there is only one entry on the register of native title rights affecting mainland Australia. In the meantime, unless a legal opinion can be obtained to the contrary, it is prudent to regard all land and waters (unless subject to freehold interests granted before and still in effect on 1 January 1994) as potentially encumbered by native title. How are native title claims resolved? 19. The Native Title Act establishes comprehensive procedures for the making and resolution of native title claims. Those procedures involve: o Lodgement of the claim. o Registration of the claim in the Register of Native Title Claims. o Acceptance of the claim. o Notification of the claim. o Identifying the parties to the claim. o Mediation by the National Native Title Tribunal. o Determination by the Federal Court. o Registration of the determination in the Native Title Register. 20. Courts other than the Federal Court or the High Court, such as State and Territory Supreme Courts, can resolve disputes involving native title, but their decisions do not give rise to "approved determinations" that can be registered under the Native Title Act. Consequently, their decisions only bind the parties to the claim, not the public at large. The High Court can make approved determinations, but is unlikely to do so except on an appeal. A determination of native title by the Federal Court can only be made in accordance with the procedures in the Native Title Act. Those procedures are as follows. 21. The first step is lodgement. Anyone who claims to hold native title, either alone or with others, may lodge a claim with the Native Title Registrar. There is a prescribed form, and a fee that may be waived in cases of hardship. The claim must identify the claimants, the area claimed, the native title rights claimed in relation to that area and the type of evidence to be produced later to support the claim. The claim must be verified by an affidavit sworn by the claimants. 22. The Registrar must register details of all claims in the Register of Native Title Claims as soon as practicable after becoming aware of them. The Register may be inspected, for a fee, but parts of it can be kept confidential. Registration, which follows automatically after lodgement, confers negotiation rights on claimants in relation to permissible future acts that attract the right to negotiate procedures. 23. Claims that comply with the formal requirements of the Native Title Act must be accepted unless they are frivolous or vexatious. For example, a claim over Parliament House or the High Court building would probably be regarded as frivolous and would not be accepted. However, apart from obvious cases, the acceptance test has a very low threshold, and the National Native Title Tribunal is restricted in the materials it can consider for this purpose. There are rights of review and appeal where the Registrar does not accept claims. 24. If a claim is not accepted, it does not progress any further, although there is no provision in the Native Title Act for removing it from the Register, so as to terminate the registered claimants’ negotiation rights. Procedures made by the President of the National Native Title Tribunal provide for the removal of claims from the Register, and other amendments to the Register, in certain circumstances. The validity of those procedures is questionable, but has not been tested in Court. 25. If a claim is accepted, the Registrar must notify the public by advertisement, as well as a range of people and organisations whose interests may be affected. Failure to notify all necessary people can invalidate subsequent proceedings, so the giving of notice is a critical step in the process. The notice must specify a 2 month period during which people who wish to become parties in relation to the claim may notify the Registrar. 26. The parties in relation to the claim are the claimants (of course) and any other person or organisation whose interests may be affected, and who gives notice to the Registrar within the 2 month period after acceptance of the claim has been notified. A notice given after the 2 month period has expired may be too late - there is no provision in the Native Title Act for time to be extended. 27. If after 2 months the only parties in relation to the claim are the claimants, the claim is unopposed. Unopposed claims (and unopposed applications by non-claimants) can be referred to the Federal Court for determination. Under the Commonwealth Constitution, the provisions of the Native Title Act which purport to empower the National Native Title Tribunal to make determinations in relation to unopposed claims are probably invalid. The Federal Court is not obliged to uphold a claim merely because it is unopposed, but is likely to do so unless it would be "inappropriate" in a particular case. 28. Opposed claims proceed to mediation in the National Native Title Tribunal, presided over by a member of the Tribunal, and under the stewardship of a Tribunal case manager. The aim of mediation is to help in resolving the claim, and the process can take many months - in fact, there is no time limit. If all parties agree to the terms of a determination, the claim can be referred to the Federal Court. As with unopposed claims, the Federal Court is not obliged to uphold or reject a claim merely because the parties have reached an agreement to that effect, but is likely to do so unless it would be "inappropriate" in a particular case. 29. Mediation will not always resolve all issues in dispute. However, if there are fewer issues and parties as a result of mediation, proceedings in the Federal Court should be simpler, faster to resolve, and less expensive for all concerned. The Tribunal might aim to bring about agreement between all the parties in relation to all matters arising out of the claim, but even the reaching of a limited agreement between some of the parties, in relation to some of the issues, would be a worthwhile achievement. Mediation of contested claims continues until the matter is referred to the Federal Court for determination, which can only be done by the Registrar, not by any of the parties. 30. If the Tribunal is satisfied that no useful purpose would be served by further mediation, the Registrar must lodge the claim with the Federal Court for determination. The Tribunal will usually seek the views of the parties before this is done. Upon being lodged with the Federal Court, the claim becomes an application in the Court, although it is subject to special procedural rules of court. Typically, there will be a number of directions hearings, conducted by a Judge of the Court, at which orders will be made for the preparation of matter for a hearing. A considerable amount of time can be expected to pass between the first directions hearing and the commencement of the hearing of evidence. 31. The Native Title Act requires the Federal Court to provide a mechanism of determination that is fair, just, economical, informal and prompt. The Court must take account of the cultural and customary concerns of the claimants. This could involve orders for confidentiality of evidence and documents, and in some cases could even mean that some evidence may not be heard by or disclosed to people of a particular sex. Evidence is likely to be heard from the claimants first, in the claim area, over a period of weeks or months. In some cases this may involve the use of interpreters. There is also likely to be evidence from a wide range of experts on matters of land usage and tenure history, as well as anthropology, genealogy, and archaeology. Respondents to the claim will be able to call evidence on any issue in dispute. This could involve contradicting evidence of the claimants, adducing evidence of extinguishment, and so forth. Before, during and after the presentation of evidence, issues will arise for legal argument. Inevitably, the determination of contested native title claims by the Federal Court will be a very time consuming and expensive exercise. 32. Many unresolved issues arise in relation to the proof of native title claims: What standard of proof is required? Which elements of the claim must be proved by the claimants? Are certain things presumed to be proved unless affirmatively disproved by the respondents? How much weight should be given to double, triple or multiple hearsay evidence? These and other issues are being confronted in a piecemeal way in the various claims that are presently before the Federal Court for determination. 33. After a determination has been made, the Registrar must amend the Register of Native Title Claims by including details of the determination, and make an entry in a different register, the National Native Title Register, containing details of the determination. Apart from confidential parts, the National Native Title Register is available for public inspection. As at April 1997 there were only 2 registered determinations that native title existed: the High Court decision in the Mabo case, affecting the Murray Islands in Torres Strait; and the Federal Court consent determination in relation to the Dunghutti claim, affecting 12.4 hectares of land at Crescent Head, near Kempsey, in New South Wales. How is native title protected? 34. Native title rights were not recognised in Australia when the Crown first acquired sovereignty. Consequently, they initially had no real legal protection. Frequently, things were done that were inconsistent with native title rights, and which had the effect of extinguishing or impairing them, without any legal consequences. 35. The first real protection for native title rights came in 1975, when the Racial Discrimination Act was enacted as a Commonwealth law. It prohibited racial discrimination, and conferred on members of racial groups the same rights as were enjoyed by members of the community in general. It had the effect (although this was not established until the first Mabo decision in 1988) of protecting native title rights from arbitrary extinguishment under State and Territory laws. Thereafter, although things continued to be done that were inconsistent with native title rights, they possibly no longer had the effect of extinguishing or impairing them, and there may have been other legal consequences under the Racial Discrimination Act, such as invalidity or compensation entitlements. 36. After the judicial recognition of native title in 1992, the Commonwealth enacted the Native Title Act in 1993. One of the objects of the Act was to provide for the protection of native title. Since the beginning of 1994, it has not been possible to extinguish or impair native title except in accordance with the Native Title Act. 37. Under the Native Title Act, everything that adversely affects native title after 1 January 1994 is called a "future act". Future acts can include the enactment of legislation, the use of land for public works, and the grant of titles to land, such as freeholds and leases, mining and petroleum titles, and so on. Future acts are heavily regulated by the Native Title Act. 38. Generally, future acts that can not be done in relation to existing freehold land are called "impermissible future acts". Examples include the construction of public works, the grant of Crown leases and the grant of freehold estates. Each of these diminishes or "derogates from" the freehold interest. Usually, it will be necessary for the Crown to acquire the freehold interest by agreement or compulsory acquisition before those things can be done. Impermissible future acts are invalid to the extent that they affect native title. 39. Generally, future acts that can be done in relation to existing freehold land are called "permissible future acts". Examples include compulsory acquisition, and the grant of mining and petroleum titles, although there may be differences between the various States and Territories. Some permissible future acts attract special procedures, designed to give the native titleholders the same procedural rights as they would have if they instead held a freehold interest. These acts are valid, although they may give rise to compensation issues. 40. Other permissible future acts are only valid if the "right to negotiate procedures" are satisfied. These procedures apply to Government grants and renewals of mining and petroleum titles, and to compulsory acquisitions by the Government for the benefit of non-Government parties. The procedures require: 1. a notice of intention to do the permissible future act, 2. a period for potential native title claimants to lodge claims, and either: a. an agreement between the native title claimants or holders, the Government and the grantee, under which the native title parties agree that the act may be done, or b. in exceptional cases, no objection from native title parties, or any objections being overruled, or c. a favourable determination by the National Native Title Tribunal or the Commonwealth Minister, following a period of negotiation and arbitration. 41. The whole process of notice, negotiation, arbitration and determination can take 2 years or more, and then can be further delayed by appeals to the Federal Court. A proposed grant or acquisition not resolved by agreement might not win a favourable ruling, or the ruling might be subject to conditions that are not acceptable to the Government or the grantee, so that the proposal does not proceed. Resolution by agreement (if possible) can be faster, although it can’t be done in less than 2 months after the notice has been given. How does native title affect resources projects? 42. The law relating to native title can significantly affect resources projects. Typically, if not invariably, resources projects involve significant land use in largely undeveloped areas, where there is a real prospect that native title could exist. The existence of native title is a risk factor. It can result in invalidity of titles, cost and delay, which can go to the viability and value of a project. 43. Examples of resources projects in Australia which have been affected by native title issues include: o mineral and petroleum exploration; o mine construction and development; o mine infrastructure, including roads, railways, tailings and waste areas, stockpiles, water bores and pipelines, construction camps and accommodation areas, plant sites and so on; o natural gas pipelines; o mineral and petroleum downstream processing facilities; and o electricity generation and transmission facilities. 44. Native title is a risk factor, to be taken into account and assessed in conjunction with other risk factors such as labour relations, environmental controls, exchange rate and commodity price fluctuations, political risk, etc. 45. The risk issues presented by native title include: o validity of titles, permits and approvals; o consequences of invalidity; o ability to obtain further titles, and renewals of existing titles o ability to exercise rights conferred by titles, permits and approvals; and o liability to pay compensation. 46. These are considered in more detail below. Validity of titles, permits and approvals 47. Titles, permits and approvals granted before 1 January 1994 can be regarded as valid despite the actual or possible existence of native title. Either they were always valid, or they were invalid due to the existence of native title and have been validated by Commonwealth, State or Territory validation legislation. Grants, which were invalid independently of native title (for example, for failure to observe some mandatory requirement in the grant process), are not validated by native title validation legislation. 48. The validity of titles, permits and approvals granted on or after 1 January 1994 is more problematical. If the grant did not affect native title, it was not regulated by the Native Title Act, and therefore was not invalidated by it. This is problematical because in most cases it is impossible to be sure that a grant does not affect native title before an approved determination has been made by the Federal Court. 49. If the grant was preceded by a compulsory acquisition of native title rights, the validity of the grant will depend on the validity of the acquisition. This is problematical because the validity of the acquisition will depend on compliance with the right to negotiate procedures. Compliance should not be assumed, and can not always be readily or objectively ascertained. 50. If the grant did affect native title (which should be assumed in most cases, other than grants over valid freehold titles) its validity will firstly depend on its classification under the Native Title Act as either a permissible future act or an impermissible future act. There are several classification tests but, generally, if the grant could occur in relation to freehold land, it will be a permissible future act. 51. The grant of a mining or petroleum title is likely to be a permissible future act, but this is a matter to be resolved having regard to the provisions of the Commonwealth, State or Territory law authorising the grant. The grant of an ancillary or infrastructure title (such as a lease for an accommodation area or a railway) is more likely to be an impermissible future act. There is considerable uncertainty about the classification of particular acts as permissible or impermissible future acts. 52. An impermissible future act is invalid to the extent that it affects native title. A grant that would otherwise be impermissible will be valid if it is preceded by a valid compulsory acquisition of the native title rights. 53. Permissible future acts are generally valid, although native titleholders have the same procedural rights as the holders of freehold titles. An important exception to the general rule is that some permissible future acts are only valid if the right to negotiate procedures are satisfied. The right to negotiate procedures are explained above. The permissible future acts that attract the right to negotiate procedures are (subject to certain exceptions): o grants, renewals and extensions of mining rights (minerals and petroleum, including prospecting and exploration rights), and o compulsory acquisitions of native title rights for the purpose of conferring rights on people or entities other than government authorities. *As with the classification of permissible future acts and impermissible future acts, there are uncertainties about whether particular grants (such as miscellaneous licences and general purpose leases under the Mining Act [WA]) attract the right to negotiate procedures. *In simple terms, the existence of native title does not invalidate titles granted before 1 January 1994. Titles granted after that date are at risk. Consequences of invalidity *If a mining title is invalid, then it has been invalid from the date of its purported grant. Although titles are generally presumed to be valid until declared otherwise by a Court, once declared invalid a title is treated as having always been invalid. A declaration is an equitable remedy, and a Court in its discretion can decline to make a declaration of invalidity, particularly if there has been unreasonable delay in commencing proceedings. However, if a declaration of invalidity is made, it will be as if the lease had never been granted, with the following consequences: * There is a risk that the relevant land is not the subject of a current mining title, and can be marked out and applied for as a mining title, at any time, by any person. There is therefore a risk that the ground could be lost. * Any mining operations conducted on the land under the authority of the lease will be (or have been) unlawful, which may give rise to an offence resulting in fines and rehabilitation orders * Agreements with contractors and others, requiring the undertaking of unlawful mining operations, might be unenforceable. There may also be consequences in relation to the enforcement of ancillary contracts, such as contracts of insurance. * All minerals recovered from the land under the authority of the lease will remain the property of the Crown. Sales to third parties may be affected. * The value attributed to the lease in the books of the holder will o account any delay on the part of the applicant, the consequences for third parties and other discretionary considerations. Ability to obtain further titles, and renewals of existing titles *The above observations concerning the validity of existing titles generally apply to the renewal of existing titles, and grant of further titles. Although there are exceptions and exemptions, in most cases it would be prudent to ensure that the right to negotiate procedures are complied with. *Compliance with the right to negotiate procedures can not practically be achieved in less than 3 months, and there is really no outer time limit if appeals to the Federal Court are taken into account. Much of the process is out of the hands of the grantee, and depends on adequate resourcing of the granting Government (for issuing notices, negotiating in good faith and participating in Tribunal inquiries), the National Native Title Tribunal (for conducting mediations and inquiries, and preparing determinations) and the native title parties (for all aspects of the procedures). *The right to negotiate procedures contemplate that, ultimately, a proposed grant or renewal might not be possible. If a proposed grant or renewal affecting native title is not agreed to by the registered native titleholders or claimants, it can only validly occur if the National Native Title Tribunal so determines, or the Minister overrules an adverse determination. It should not be assumed that in every case, or even in most cases, the completion of the procedures will inevitably result in a determination permitting a grant or renewal. *Even where a favourable determination is made, it can be made subject to conditions, to be complied with by the Government, the grantee or the native title parties. There is presently uncertainty as to the full scope of the conditions that can be imposed, but there is little doubt that operational and compensation conditions can be imposed. The performance of those conditions could go to the feasibility of a project, resulting in the withdrawal of the original application by the grantee. Some conditions could be contrary to the policy of the Government, with the result that the Government decides not to proceed with the grant or renewal. *For all these reasons, it can be seen that the existence of native title can have a significant impact on the ability of resources companies to obtain further titles, and renewals of existing titles. Ability to exercise rights conferred by titles, permits and approvals *Where native title has been wholly extinguished, the rights conferred by statutory grants can be exercised according to their terms, without regard to the possible coexistence of native title. The difficulty is that it is usually not possible to identify land, other than freehold land, where native title has been wholly extinguished. If a native title claim is lodged, the Federal Court can grant injunctions to prevent activities that could impair the native title rights, until the final determination of the claim. *Where native title has not been wholly extinguished, the rights conferred by valid statutory grants can probably be exercised according to their terms, but the rights of native titleholders must also be taken into account. Apart from the question of compensation (see below), there may be operational restrictions on the exercise of rights. For example, if an installation or earthworks could be sited in one of two or more locations, there might be an obligation to site it where it has least impact on native titleholders. *The interrelationship between native title rights and coexistent statutory rights is largely unexplored and undeveloped. Liability to pay compensation *A paper with the aim of demystifying the law relating to native title should steer clear of the compensation issue. It requires a close analysis of the Native Title Act and the Racial Discrimination Act, State and Territory laws, and a number of judicial decisions and National Native Title Tribunal determinations, all of which appear to have the single purpose of mystifying the law. Compensation is a sleeping giant, which has received little attention to date from the courts. *Ignoring that warning, the following are some general statements of principle that might survive the next round of judicial pronouncements. *In general, native titleholders would appear to be entitled to compensation for: * The total or partial extinguishment of native title through the validation, by statute, of invalid past (ie, pre 1994) grants. Compensation is payable by the relevant government. * The total or partial extinguishment of native title, or any other effect on native title, through the compulsory acquisition of native title rights. Compensation is primarily payable by the relevant government, for example, when land is taken for public works such as roads or dams. Liability can be shifted to the grantee of an interest in the acquired land, for example, when land is taken for the purpose of granting an infrastructure lease, a pipeline easement, and so forth. * The effect on native title of the grant, renewal or variation of mining and petroleum rights. Compensation is primarily payable by the relevant government, but can be shifted to the grantee of the rights. *In addition, native titleholders may be entitled to further compensation for the effect on native title of the exercise of rights held concurrently in relation to the same land. Certain statutory rights, such as pastoral leases, mining and petroleum rights, forestry rights, fishing rights, and so on, can coexist with native title rights. The holder of those rights could be liable to pay compensation for the effect on native titleholders of exercising those rights from time to time. *The entitlement to compensation is an entitlement on just terms, to compensate the native titleholders for any loss, diminution, impairment or other effect of the act on their native title rights and interests. The entitlement to receive, liability to pay, and amount of compensation can be determined by agreement between the parties, or by the Federal Court. In some cases, State or Territory courts and tribunals may also have jurisdiction. *For the resources industry, the most immediate challenge is the negotiation of land use agreements, to secure the grant of titles and permits without the need for arbitration in the National Native Title Tribunal. These agreements frequently address a wide range of issues, including compensation issues. Is the law relating to native title workable? *Is it workable? Possibly, with a lot of goodwill from all concerned. Is it efficient? No. Without descending to details, some of the difficulties are as follows: * Complexity - the provisions of Native Title Act are particularly complex and, in some respects, obscure. Complexity is illustrated by the large number of definitions and their interrelationship with one another, and with the substantive provisions of the Act; by the dual appeal processes following a right to negotiate determination; and by the National Native Title Tribunal’s interpretation of the compensation provisions. The consequence of an act being "invalid to the extent that it affects native title" is obscure. * Constitutional problems - these primarily concern the ability of the National Native Title Tribunal to make determinations of native title and compensation. The power to make determinations of whether particular proposals attract the "expedited procedure" is also questionable. * Inconsistency between law and practice - for example, some procedures relating to amendments to the Register of Native Title Claims might be inconsistent with the Native Title Act. The Registrar’s practice in relation to the notification of acceptance of native title claims has been held to be invalid. * Delay inherent in procedures - delays arise particularly in relation to the determination of claims, and under the right to negotiate procedures. These delays are compounded by the lodgement of conflicting native title claims over the same area. * Unforeseen or unintended consequences - the requirement to register unaccepted claims is an example. More examples have emerged in light of the Wik decision, which (among other things) requires the right to negotiate procedures to be followed in relation to acts on pastoral land, and potentially invalidates mining and other titles granted over pastoral land since 1994. Can the law be improved? Sources of native title law *The answer to this question involves a recognition that the law relating to native title is contained in a number of sources. *First there is the common law, as explained from time to time by courts, particularly the High Court and the Federal Court. This embodies the principles governing all aspects of native title, except to the extent that they are modified by legislation. The common law usually changes and evolves incrementally over time, but sometimes the changes are substantial and abrupt, as in the Mabo decision. *Then there is traditional Aboriginal law and custom or, more accurately, the laws and customs of each aboriginal group holding native title. Although these are not strictly laws in the sense of rules to be applied by courts, they are recognised by the common law to the extent that they are the source of native title, and define its content and ownership. *Next there is the written law, principally the Native Title Act, but including State and Territory statutes, and also including subsidiary legislation, such as regulations and procedures made under the Native Title Act. The written law modifies or supplements the common law, and is itself the subject of interpretation by judicial and administrative decisions, including High Court and Federal Court decisions, and determinations by the National Native Title Tribunal. *The principal difficulties lie with the written law, which is undoubtedly capable of improvement. This is principally in the hands of the Commonwealth Parliament, whose laws override the common law and written laws of the States and Territories. However, any attempt at law reform in this area is likely to be controversial and contentious. It will take considerable vision and skill to draft amendments which will adequately address the concerns of the resources industry, and the wider community, yet command sufficient support to be enacted into law. The reform agenda *Reform has been on the agenda for some time. On 27 June 1996 the Howard Government introduced the Native Title Amendment Bill 1996. An earlier Bill to amend the Native Title Act, introduced by the Keating Government, had lapsed. Both Bills were primarily directed at overcoming the High Court’s Brandy decision, which was understood to substantially limit the role to be performed by the National Native Title Tribunal in the process of determining native title and compensation claims. On 8 October 1996 the Howard Government released further amendments. *The proposed amendments attempt to address some of the problems that have emerged since the commencement of the Native Title Act on 1 January 1994: * the constitutional limitations on the National Native Title Tribunal in the claims and compensation procedures; * the fact that native title claims can be registered in circumstances where they have little or no prospect of success; * the uncertainty, delay and expense associated with the "right to negotiate" process; * the difficulty dealing with conflicting native title s and the application of a modified negotiation regime (except where the pastoralist has an existing right to upgrade). 5. Statutory access rights Where registered claimants can demonstrate that they currently have physical access to pastoral lease land, their continued access will be legislatively confirmed until the native title claim is determined. This will not affect existing access rights established by state or territory legislation. 6. Future mining activity For mining on vacant Crown land there will be: * a higher registration test for claimants seeking the right to negotiate, * no negotiations on exploration, and * only one right to negotiate per project. As currently provided in the NTA, states and territories will be able to put in place alternate regimes with similar right to negotiate provisions. For mining on other "non-exclusive" tenures, such as current or former pastoral land and national parks, the right to negotiate will continue to apply until the relevant State or Territory provides a statutory regime acceptable to the Commonwealth, including procedural rights at least equivalent to other parties with an interest in the land and compensation which can take account of the nature of coexisting native title rights. 7. Future government and commercial development On vacant Crown land outside towns and cities there will be a higher registration test to access the right to negotiate. The right to negotiate will be removed in relation to the acquisition of native title rights for third parties for the purpose of government-type infrastructure. As currently provided in the Native Title Act, States and Territories will be able to put in place alternate regimes with similar right to negotiate provisions. For compulsory acquisition of native title rights on other "non-exclusive" tenures, such as current or former pastoral leasehold land and national parks, the right to negotiate will continue to apply until the relevant State or Territory provides a statutory regime acceptable to the Commonwealth, including procedural rights at least equivalent to other parties with an interest in the land and compensation which can take account of the nature of coexisting native title rights. The right to negotiate will be removed in relation to the acquisition of land for third parties in towns and cities, although native titleholders will gain the same procedural and compensation rights as other landholders. Future actions for the management of existing national parks and forest reserves will be allowed. A regime to authorise activities such as the taking of timber or gravel on pastoral leases will be provided. 8. Management of water resources and airspace The ability of governments to regulate and manage surface and subsurface water, offshore resources and airspace, and the rights to those with interests under any such regulatory or management regime will be put beyond doubt. 9. Management of claims In relation to new and existing native title claims, there will be: * a higher registration test to access the right to negotiate, * amendments to speed up handling of claims, and * measures to encourage the States to manage claims within their own systems. A sunset clause within which new claims would have to be made would be introduced. 10. Agreements Measures would be introduced to facilitate the negotiation of voluntary but binding agreements as an alternative to more formal native title machinery. *That summary encapsulates the intentions of the 10-point plan. At the time this paper was prepared, the details of the plan and draft legislation were not available. Whether the detailed amendments fully implement those intentions, and pass through both houses of Parliament intact, remains to be seen.