Native Title Report 2001: Chapter One: The Right to Negotiate and Human Rights

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Native Title Report 2001

Chapter One: The Right to Negotiate and Human Rights

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Introduction

The right to negotiate and human rights

The right to negotiate

The Administration of Mining Future Acts in the Reporting Period

The Expedited Procedure and the Objection Procedure - The Federal Court and the National Native Title Tribunal

The expedited procedure

Government obligations for applying the expedited procedure: Holt v Manzie

Limitations on objections to the expedited procedure:

The States and Territories

Western Australia

Northern Territory

Queensland

 

New South Wales

Victoria

International Human rights standards:

Principles for the administration of the Right to Negotiate

Recommendations

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Introduction

The 'right to negotiate' is a fundamental right assured by the Commonwealth Native Title Act (the 'NTA') and reflected in international human rights standards. Yet in practice the capacity of native title parties to exercise their 'right to negotiate' is determined by factors other than the mere existence of the right. Given the primary role of state and territory governments in land administration, their policies regarding the administration of the right to negotiate have a significant impact on native title parties' capacity to exercise their 'right to negotiate'. The ways in which the statutory exceptions to the right to negotiate are interpreted by Courts and tribunals also impact on the level at which native title is protected. In this chapter I discuss the human rights implications of the right to negotiate and its administration in the reporting period by state and territory governments and administrative tribunals.

The Right to Negotiate and Human Rights

Like all people, Indigenous peoples have internationally recognised human rights. These rights include rights to equality before the law, including the right to own property and the right to enjoy their culture and the right to self-determination.

The right to protection of property is guaranteed by Article 17 of the Universal Declaration of Human Rights (the 'UNHR') and Article 5 of the International Convention on the Elimination of all Forms of Racial Discrimination (the 'ICERD'). The meaning of this protection in relation to Indigenous peoples is further explained by the CERD Committee's [1] General Comment on Indigenous Peoples, which calls upon state parties to:

Recognise and protect the rights of Indigenous peoples to own, develop, control and use their communal land, territories and resources … [2]

The collective rights of minority groups, including Indigenous peoples, to the enjoyment of their own distinctive cultures are protected by Article 27 of the International Covenant on Civil and Political Rights (the 'ICCPR'), and Article 5(e)(vi) of the ICERD. The recognition of cultural rights is based on a principle of substantive equality. This principle recognises that the distinctiveness of minority or Indigenous cultures can only be protected to the same extent as the culture of a majority population if the law is able to protect the circumstances that make the continuance and development of the minority culture viable. This does not only mean temporary 'special assistance' for a 'disadvantaged group' until it 'catches up' with the majority population.[3] Rather, it recognises that differential treatment is sometimes required to ensure equal protection of human rights. In relation to the protection of Indigenous cultures, it is recognised that substantive equality may require the protection of rights to lands where the culture is located and which give meaning to the exercise of that culture. This interpretation is supported by the Human Rights Committee, [4] which has stated that:

One or other aspect of the rights of individuals protected under that Article - for example, to enjoy a particular culture - may consist in a way of life which is closely associated with territory and the use of resources. This may be particularly true of members of Indigenous communities constituting a minority… [5]

The right of all peoples to 'self-determination' is guaranteed at international law under Article 1 of the International Convention on Civil and Political Rights (ICCPR) and Article 1 of the International Covenant on Economic and Social Rights (ICESCR) and has been developed in the General Comments of the Human Rights Committee and the CERD Committee.[6] International human rights standards now recognise that the right to self-determination extends to Indigenous peoples and includes rights to effective participation in decisions affecting themselves and their traditional lands and territories. The CERD Committee's General Recommendation on Indigenous Peoples recommends that states:

Ensure that members of indigenous peoples have equal rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent. [7]

The Right to Negotiate

Within the Native Title Act the right to negotiate is a broad and important right.[8] The right to negotiate contemplates the giving of notice of proposed mining future acts to native title parties pursuant to section 29 NTA ('section 29 notices'), providing the opportunity to make submissions to the Government party regarding the proposed future act and negotiations in good faith between native title parties, mining parties and the Government party regarding the doing of the act or the doing of the act subject to conditions.[9] Negotiations may encompass the impact of proposed future acts on claimants' native title and on their social, cultural and economic structures, including management, use and control of native title lands and waters. [10] Where agreement is not reached within six months of notification, parties may request that the arbitral body [11] determine whether the future act may be done or done with conditions.[12] The right to negotiate process is a pre-condition to the validity of all future acts to which it applies.

The right to negotiate stems from a feature common to the laws of Australian Indigenous peoples: the right to control access to and activities on traditional lands.[13] It is this traditional law that is reflected in the right to negotiate enacted in the NTA. The right to negotiate is thus not a 'special measure' - it is not a measure temporarily adopted to enable a disadvantaged sector to 'catch-up' to the social and economic status of the rest of the community. Rather, the right to negotiate is a reflection of traditional law and as such is an inherent property and cultural right protected by the international guarantee of substantive equality. The right to negotiate established by the NTA is a diminished reflection of a cultural norm common to Australian Indigenous cultures regarding the need to look after the land. To the extent that the right to negotiate protects Indigenous cultural norms regarding access to their traditional lands, it reflects the substantive equality standard required at international law.

The right to negotiate in the NTA is also a means of ensuring that Indigenous people are able to participate in decisions regarding the development of their lands. To the extent that the right to negotiate allows this, it is also an expression of the internationally recognised human rights principle that Indigenous people have the right to effective participation in the development of their traditional lands. [14]

The right to negotiate is thus a substantial right that enjoys protection within the international framework of human rights and which should not be easily displaced.

The administration of mining future acts in the reporting period

Mining tenures are issued by state and territory governments. The right to negotiate (and other mining future act processes) are administered by state and territory governments and the National Native Title Tribunal (the 'NNTT'). A number of state and territory governments have so delayed the commencement of the right to negotiate provisions in their jurisdictions that they are now faced with substantial backlogs of mining and exploration tenure applications, all of which are required to be dealt with according to the right to negotiate process (or alternative state processes). In the reporting period backlogs grew to over 1000 mining title applications in the Northern Territory, [15] approximately 1200 mining title applications in Queensland and nearly 11,000 in Western Australia [16]. There is no reported backlog of mineral tenement applications in New South Wales or Victoria (the other two states where the right to negotiate under the NTA is utilised).

Some of these states and territories are developing procedures or are beginning to process their 'backlogs'. The manner in which state and territory governments administer their backlog may differ according to whether that government utilises any of the various exceptions and / or amendments to the right to negotiate process that are provided for in the NTA. Exceptions to the right to negotiate provided for in the NTA include:

• Displacing the right to negotiate by the inclusion of an expedited procedure statement on notification of proposed future acts, [17]
• The creation of state-based legislative alternatives to the right to negotiate, [18]
• The replacement of the right to negotiate on low-impact exploration acts with a state-based right to be notified and consulted, [19]
• Processes in place of the right to negotiate that have been agreed between all relevant parties and are contained in a registered Indigenous land use agreement ('ILUA'). [20]

Exceptions to the right to negotiate must be measured against international human rights standards, and in particular, against the extent to which they allow for native title claimants' effective participation in the management of mining and mining exploration on their traditional lands. The processes adopted by state and territory governments and other administrative authorities vary in the extent to which they realise this standard.

In all cases, the treatment of such backlogs has serious consequences for the rights of native title parties. There is a great danger that goals of expediency in reducing the backlog may override the protection of native title parties' internationally recognised rights to effective participation in the administration of mining and mining exploration on their traditional lands. In the reporting period, some of the following processes have been used in ways that undermine the principle of effective participation:

• Court decisions have restricted the scrutiny of governments' use of the expedited procedure.
• The NNTT has introduced Guidelines [21] restricting the acceptance of objections to the use of the expedited procedure.
• Governments have marginalised the right to negotiate by releasing a flood of future act notifications in such a way as to preclude native title representative bodies from being able to effectively respond. This is discussed below in relation to the Northern Territory.
• Governments have avoided the right to negotiate through the blanket application of expedited procedure statement to section 29 notices, combined with the absence of other processes allowing effective participation of native title holders in administration of mining future acts. This is discussed below in relation to Western Australia and the Northern Territory.
• Governments have failed to apply the right to negotiate for grants of mining tenures over lands where the law is undetermined with regard to whether native title is extinguished. This is discussed in relation to Western Australia.

There have also been some positive developments within the reporting period. These include:

• The new Western Australian Governments' institution of a review of mining future act processes, and
• The development of framework ILUAs by some governments.

Most of these developments are in their early stages, and the extent to which they will adequately protect the right of native title parties to effective participation is yet to be seen.

The Expedited Procedure and the Objection procedure: The Federal Court and the National Native Title Tribunal

There were several cases in the reporting period that have contested the manner in which governments and the NNTT administered native title, in particular, the expedited procedure exception to the right to negotiate.

The expedited procedure

The expedited procedure operates in the NTA as a limited exception to the right to negotiate where the Government considers that a proposed mining activity will have little impact on native title. The circumstances in which a Government may impose the 'expedited procedure' [22] are limited. A government may notify the native title parties that the proposed act attracts the 'expedited procedure' if it considers that:

a) The act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders … of native title in relation to the land or waters concerned; and

b) The act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders … of native title in relation to the land or waters concerned; and

c) The act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned. [23]

The operation of this section will vary considerably according to the traditions, community and social activities of any particular native title claim group, the nature, quantity and location of their significant sites and the nature of the mining interests proposed. There is also considerable variation in the exercise of the many kinds of mining exploration and prospecting activities that may take place on an exploration or prospecting licence or permit.

As stated above, the reporting period is notable for the state and territory governments that began to address 'backlogs' of mining and exploration tenure applications that had been accumulating since the NTA commenced. Some governments began addressing these backlogs by issuing section 29 notifications in large numbers with the expedited procedure exception applied as a matter of policy to all exploration tenures. In particular, Western Australia applied the expedited procedure to all exploration licence applications, while the Northern Territory applied the expedited procedure to all non-productive mining licences except 16 exploration licences. [24]

The blanket application of the expedited procedure exception to the right to negotiate is a significant breach of the right of Indigenous peoples to effective participation in the management of their traditional lands and is inconsistent with the NTA. These issues are discussed in detail below. The breach is more serious however in a legal context where there is no effective remedy for inappropriate applications of the expedited procedure exception and where no other protection is afforded for native title parties' right to effective participation. The following federal court case, National Native Title Tribunal ('NNTT') determination and administrative guidelines issued by the NNTT have significantly limited the extent of independent arbitration regarding the use of the expedited procedure exception.

Government obligations and the terms of section 237 NTA: Holt v Manzie

In the case of Holt v The Hon. Daryl Manzie ('Holt') [25] the Northern Land Council [26] (the 'NLC') asserted that the Northern Territory Government had failed to comply with the statutory provisions of the NTA in making the decisions:

• to issue the section 29 notices in the manner that it did, including the large number of notices issued each fortnight such that the representative bodies were unable to adequately represent native title parties; [27] and
• to apply the expedited procedure to proposed future acts without considering whether the proposed future acts in fact attracted the expedited procedure in accordance with section 237 of the NTA. [28]

The NLC sought that these decisions be declared void on administrative law grounds. [29]

In particular, the NLC argued that when making a decision that the expedited procedure applies to a proposed future act, the decision-maker is required by law to consider the matters listed in section 237 of the NTA. It was further asserted that it is an improper exercise of administrative powers to apply the expedited procedure to all the applications for exploration licences, without regard to the question of whether the particular act is an act attracting the expedited procedure. The NLC argued that the decisions were void because neither the Northern Territory Minister for Resource Development nor the Northern Territory Government had given proper, genuine and realistic consideration to the issues listed in section 237 NTA.

Justice Olney decided that neither the decision to issue the section 29 notices fortnightly, nor the decision to include an expedited procedure statement in all the early notices were decisions that were reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Commonwealth).

The result of this case is that the only remedies available to native title parties who believe that the expedited procedure has been applied inappropriately are those contained within the NTA itself. The problem with this situation is that the only remedy within the NTA, the objection procedure, has been increasingly circumscribed in the reporting period. This is demonstrated in the following discussion of the objection process in the Roy Dixon case, and the subsequent guidelines developed by the NNTT.

Limitations on objections to the expedited procedure:

Objections to the expedited procedure

Under the NTA, if a government party notifies a native title party that it intends to apply the expedited procedure to a future act that would otherwise attract the right to negotiate, the native title party may lodge an objection within four months of the notification day with the NNTT. [30] If a native title party lodges an objection the NNTT must conduct an inquiry and make a determination as to whether the act should attract the expedited procedure. If the NNTT finds that the expedited procedure should not apply, the 'right to negotiate' process is reinstated. Acceptance of an objection does not automatically reinstate the right to negotiate process. It merely allows the native title parties the opportunity to argue before an independent arbitrator that their rights to negotiate regarding the development on their lands may have been removed contrary to the requirements of the NTA.

Within the scheme of the NTA, the objection procedure acts as a check on Government parties that apply the expedited procedure inappropriately. While the expedited procedure is an exception to the right to negotiate, it is relatively easy to trigger. A government party merely has to insert a statement in the section 29 notice of proposed future acts that it 'considers that the proposed future act is not likely to interfere directly' with the matters listed in section 237 NTA. [31] The objection provisions ensure that this process remains open to some scrutiny.

The objection procedure is an important safeguard as it is the only mechanism in the NTA that ensures that the removal of the right to negotiate (through the expedited procedure) occurs in accordance with the requirements of the NTA. In fact, since the decision in Holt v Manzie it may be the only check on the expedited procedure power.

The Roy Dixon case [32]

In the NNTT determination in the Roy Dixon case Franklin QC commented on the NNTT's exercise of its powers and functions when a native title party lodges an objection to a government party's application of the expedited procedure exception to the right to negotiate.

The case dealt with a claim by the Northern Territory Government that the objections lodged by the native title party were invalid for not complying with the requirements of section 76 NTA and Form 4 Schedule 1 of the Native Title (Tribunal) Regulations 1993 (the 'Regulations'). The relevant sections of the NTA and Regulations are set out below:

Section 76

Material and fees to accompany applications

An application must

(a) be in the prescribed form; and

(b) be given to the Registrar; and

(c) contain such information in relation to the matters sought to be determined as is prescribed; and

(d) be accompanied by any prescribed documents and any prescribed fee

Form 4 - Native Title (Tribunal) Regulations 1993

The following information and the documents referred to in the application are provided for the purposes of the objection:

(7) a statement why the objector believes that the proposed act is not an act attracting the expedited procedure that includes a statement of the likely impact of the act on community or social activities of the native title holders, areas or sites of particular significance and any land or waters concerned.

(8) an outline of the type of evidence that the objector will produce to the National Native Title Tribunal.

Franklin QC held that for a native title party's objection to comply with the NTA and Regulations, more was required than merely 'reciting' the provisions of section 237 NTA (which defines the future acts that attract the expedited procedure). Rather, compliance requires an indication of the impact of the proposed act on the community or social activities of the native title holders or areas or sites of particular significance or any land or waters concerned (section 237(a) NTA) and so requires a statement of the community or social activities that are likely to be interfered with and the likely impact on them of the future act. Further, the areas or sites of particular significance (section 237(b) NTA) and the impact of the future act upon them must also be identified in some way.

As discussed above, the objection procedure creates a check within the NTA as to whether the expedited procedure has been legitimately applied. However, the Roy Dixon determination means that native title parties have to prepare considerable extra material in order to have an administrative decision to remove their right to negotiate independently assessed. This interpretation of the requirements to object to the expedited procedure shifts the focus of the consideration away from whether an expedited procedure exception legitimately applies. Rather than the government party that applied the expedited procedure exception being called upon to establish that the proposed future act was sufficiently low impact to fit within the criteria set out in section 237 NTA, instead any independent consideration of this issue is dependent upon the native title parties' first providing evidence that it does not. The result is that it is left open to governments to use the expedited procedure process, not as an exception to the right to negotiate, but as an alternative procedure in itself. Such an interpretation shifts the balance in the NTA and fails to adequately protect Indigenous peoples' rights to effective participation in the management of their lands.

The implication of this determination is that the NNTT does not consider objections if the objection does not strictly comply with the requirements set out above. However, Franklin QC left open the question of the NNTT's jurisdiction to hear an objection application where the native title party did not fully satisfy these requirements. He held that the NNTT is compelled to accept an objection to the expedited procedure if the conditions set out in sections 76 and 77 are fully complied with, and that the NNTT can accept or reject an application which does not fully comply. Nevertheless, the NNTT's '… discretion [to accept a non-complying objection application] should only be exercised if there is shown to be a good reason for non-compliance with the requirements of Form 4'.[33] Significantly, Franklin QC also held that if

the Form 4 is deficient but is accepted as a matter of discretion, and the evidence produced at the inquiry is such as to lead to the conclusion that the act does not meet each of the criteria of s 237(a), (b) and (c), then the Tribunal must find, as a matter of law, that the act is not one attracting the expedited procedure regardless of any relevant omission by the objectors of information required by the Form 4. [34]

Franklin QC's determination in Roy Dixon became the basis of Guidelines issued by the NNTT regarding its acceptance or not of objections to the expedited procedure lodged by native title parties (discussed below). As the determination is not a Court decision, its interpretation of the NTA is not binding on subsequent decisions. Nevertheless, in light of the position subsequently taken by the NNTT in it's Guidelines, it is interesting to note that Franklin QC accepts that even if the form of an objection is inadequate, this does not preclude its acceptance by the NNTT and does not preclude the NNTT from concluding that the expedited procedure exception has been inappropriately applied, thus reinstating the right to negotiate process.

Guidelines on accepting objections to the expedited procedure

The NNTT issued 'Guidelines on Acceptance of Expedited Procedure Applications' (the 'Guidelines') on 8 May 2001. The Guidelines were controversial among native title parties because they went beyond the terms of the NTA and Regulations and included detailed information about what the NNTT would require before it would accept 'objection applications'. [35] These requirements meant that native title parties would have to prepare considerable extra material in order to have an administrative decision to remove their right to negotiate independently assessed. The Western Australian Aboriginal Native Title Working Group (WAANTWG) [36] believed that the requirements for objection applications to meet the criteria specified by the Guidelines were such that fieldwork involving professional staff and Indigenous informants would be required. [37]

As a consequence of the concerns raised, the NNTT agreed to accept written submissions regarding the Guidelines. Submissions were made by various bodies and governments [38] and on 16 October 2001 the NNTT subsequently issued revised Guidelines and an accompanying 'Explanation'. [39]

The revised Guidelines substantially reduced the detail required by the original Guidelines for acceptance by the NNTT of an 'objection application'. However, the revised Guidelines also stated that the NNTT had no discretion to accept objection applications that did not strictly comply with the NTA and Regulations. The revised Guidelines assume that the NNTT does not have jurisdiction to determine an expedited procedure application where the objection does not conform to Form 4 of the Regulations.

The position adopted in the NNTT's revised Guidelines unnecessarily restricts the circumstances in which the NNTT can independently review whether governments have appropriately applied the expedited procedure exception to the right to negotiate. The adoption of this position means that some native title parties may lose their right to negotiate even when it would otherwise be required under the NTA. Such an eventuality is a breach of the international 'effective participation' principle; a breach which, while permissible under the NTA, is not required by the NTA. The loss of the NNTT's supervision of government use of the expedited procedure is worse because the Federal Court will not review government use of expedited procedure. [40] The revised Guidelines are thus inconsistent with international human rights norms that protect Indigenous peoples' rights to effective participation in the development of their lands.

The NNTT's approach is not required by, and arguably is contrary to, the terms of the NTA. The Tribunal's role, set out in section 32(4) NTA, is to determine 'whether the act is an act attracting the expedited procedure'. Thus the central issue before the Tribunal is the impact of the proposed development on Indigenous community activities, sites of significance or land. To hold that the failure of the objection application to comply with a regulatory form deprives the Tribunal of jurisdiction to determine whether the expedited procedure applies to remove the right to negotiate does not reflect the purpose of the Act.

In fact, in relation to jurisdiction, the Guidelines appear to be shaped by only two of the three applicable statutory principles contained in section 109 of the Act (those that promote the speedy or efficient resolution of the Tribunal's statutory functions), without paying equal regard to the third principle, that the Tribunal is not to be bound by technicalities, legal forms or rules of evidence. In the section entitled 'General Principles' the Guidelines specifically point out subsections (1) and (2) of section 109, but omit the equally pertinent (and equally binding) subsection 109(3). The subsections state:

109 Tribunal's way of operating

Objectives

(1) The Tribunal must pursue the objective of carrying out its functions in a fair, just, economical, informal and prompt way.

Concerns of Aboriginal peoples and Torres Strait Islanders

2) The Tribunal, in carrying out its functions, may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any party to any proceedings that may be involved.

Tribunal not bound by technicalities etc.

(3) The Tribunal, in carrying out its functions, is not bound by technicalities, legal forms or rules of evidence. [emphasis added]

All three subsections should direct the way in which the NNTT operates. Yet no reference is made, nor weight apparently attached, to section 109(3) in devising the revised Guidelines.

This over-emphasis on promptness at the expense of other considerations also appears in the Tribunal's Explanation of Guidelines on Acceptance of Expedited Procedure Objection Applications (the 'Explanation'), paragraph 6 of which states that:

It is also relevant that the Federal Court accepts that an expedited procedure determination is to be made as speedily as possible. (Western Australia v Ward (Lee J), 1996 70 FCR 265 at 278: 148 ALR 753 at 766).

The relevance of the fact that 'the Federal Court accepts that an expedited procedure determination is to be made as speedily as possible' is its application to the NNTT's function of hearing and determining an expedited procedure objection. Refusing to consider an expedited procedure objection at all is not a 'speedy' way to determine an objection. It is simply not determining the objection.

The principle of promptness should not operate at the expense of native title parties' right to have their objection heard, especially where such a procedure removes a substantial right. Nor is this emphasis on promptness at the expense of rights reflected in the NTA when read as a whole.

The right to negotiate also enjoys protection within the international framework of human rights, including the instruments recognised in the Preamble to the Native Title Act. These principles cannot be realised if the right to negotiate can be displaced by a process in which the non-compliance with legal forms is a threshold issue.

In addition, the performance of functions and the exercise of powers conferred by or authorised by the NTA must be in conformity with the Racial Discrimination Act (the 'RDA').[41] Given the discriminatory effect of failing to protect Indigenous peoples' right to effective participation regarding developments on their land and the consequent risk that valuable native title rights may be extinguished or impaired, s7(2)(a) applies to ensure that the Tribunal exercises its powers to hear any objections to the expedited procedure.

The degree of particularity required by the Guidelines

In addition to the limitations on jurisdiction that the revised Guidelines convey, concerns remain about the degree of particularity required by the Guidelines.

The original Guidelines provided detailed information about what the Tribunal considered was required to comply with the relevant sections of the Act and Regulations. These requirements went well beyond what was specified in the Regulations or Form 4. The revised Guidelines have rightly decreased the matters required by the original Guidelines. However, the revised Guidelines continue to require that matters be canvassed that are not required by the Act or Regulations. The revised Guidelines state that:

… Compliance with paragraph 7 requires a statement why the applicant has the belief of likely interference or disturbance and so must contain identification of the relevant activity or activities, site or sites, area or areas and land or waters the subject of such belief. Such identification is also necessary for a statement of believed likely impact of the act on any such activity, site, areas, land and/or waters claimed in the objection. [Emphasis added]

This statement goes beyond what is stated in the Act and Regulations. If the Tribunal requires such information before it will consider whether the expedited procedure has been appropriately applied this will prejudice the rights of native title parties.

Conclusion

The right to negotiate is a significant right. It is an expression of the internationally recognised human rights principle that Indigenous people have the right to effective participation in the development of their traditional lands. Within the NTA it is a broad and important right that gives rise to negotiation rights regarding the impact of proposed future acts on claimants' native title, on their social, cultural and economic structures, including management, use and control of native title lands and waters. [42]

As the context of the NTA makes clear, the right to negotiate is a general provision applying to a class of activities. The expedited procedure is a limited exception to this general provision. The right to object to the expedited procedure is an important check that ensures that the expedited procedure is not applied contrary to the intention of the Act.

Of the objections lodged between May 2001 and November 2001, except those withdrawn without any agreement, 34% were not accepted by the NNTT. [43] In the context that the objection procedure may be the only check on the inappropriate use of the expedited procedure exception, it is not acceptable that this number of objection applications is not accepted by the NNTT. In the same period, of the 79 objections that were determined [44] by the Tribunal, the NNTT held that the expedited procedure applied in only 13 cases. This shows that in a significant number of cases when the NNTT considers objections applications, the expedited procedure is shown to have been applied contrary to the NTA.

The NNTT should not adopt an interpretation of its powers under the act that is inconsistent with human rights standards, where it is not expressly required by the NTA. As the failure to hear and determine objections to the expedited procedure discriminates against native title claimants in favour of non-Indigenous interests, and is not expressly required by the Act, such a result should not be adopted.

Furthermore, under section 109(3) of the Act the Tribunal is not bound by 'technicalities, legal forms or rules of evidence'. Compliance or non-compliance with a legal form, in my view, should not be determinative of the Tribunal's jurisdiction.

The States and Territories

As stated above, the reporting period is notable in that state and territory governments began to address 'backlogs' of mining and mining exploration tenure applications that had been accumulating since the NTA commenced. Between June 2000 and 16 November 2001 a total of 3054 section 29 notices were received by the National Native Title Tribunal (the 'NNTT'). [45] These notices were issued in Western Australia, Northern Territory, New South Wales, Queensland, and Victoria. Of the section 29 notices received, 2994, or 98%, were applications for mining tenements (including exploration / prospecting licences and productive mining leases). The remaining 60, or 2%, were for proposals for compulsory acquisition of native title interests in land. [46] The vast majority of the section 29 notices issued were in Western Australia (2141 notices), and to a lesser extent in the Northern Territory (515 notices). The significant breaches of human rights standards in the manner and rate of issuing these notices are discussed below.

Western Australia

This section discusses the policy and practice of Western Australian governments from June 2000 to November 2001. It includes consideration of government practice under the Liberal Government, and following the change in government in February 2001, evaluates the emerging policy approach being formulated under the current administration.

Background

In Western Australia, the right to negotiate potentially applies to the 93% of the State's land that is Crown land (including Crown land subject to pastoral leases). [47] Thirty-eight per cent of the State's land mass is under pastoral leases. Almost 90% of Crown land is under native title claim. [48] The extent to which native title survives over pastoral leases (and consequently, the extent of the application of the right to negotiate) is still unclear, pending determination of the questions raised in the Ward case [49] , heard by the High Court in March 2001. Nevertheless, the right to negotiate potentially covers the vast majority of the State.

The previous government

The Western Australian state election in February 2001 resulted in a change of government. Prior to this, the previous state government in Western Australia had institutionalised a two-pronged policy approach to future acts:

• Non-compliance with right to negotiate processes in certain cases where native title may have continued to exist, and
• The blanket application of the expedited procedure for all exploration and prospecting grants

Non-compliance with the right to negotiate: the Ward Policy

In July 2000 the then Coalition Government in Western Australia released policy guidelines [50] indicating that it would not notify native title claimants of the proposed grant of mining tenements over lands subject to (or previously subject to) Western Australian pastoral leases or those parts of pastoral leases that had been:

• Enclosed and improved if the lease was granted prior to 1933; and
• Enclosed or improved if the lease was granted after 1934. [51]

It is difficult to know the extent of the lands and mining interests affected by this policy, as native title representative bodies ('NTRBs') were not notified of the grant of such tenements. However, anecdotal evidence suggests that a large number of tenements may have been granted subject to this policy. The Goldfields Land Council noted a large drop in the number of future act notices after March 2000. [52]

The Government exempted the grant of these mining tenements on the basis that the Full Federal Court decision in Western Australia v Ward [53] ('Ward') established that native title had been extinguished on such lands. The policy has since been referred to as the 'Ward Policy'. Given that the decision in Ward had already been appealed to the High Court, the legal status of native title over such lands was (and is at the time of writing) still an open question. The decision of the state government to pursue such a policy thus created the possibility that grants of mineral tenements under the Ward Policy without regard to the future act provisions may prove to be invalid if the High Court overrules the Full Federal Court. [54]

The Ward Policy breached human rights standards in relation to equality before the law, specifically the right to own property and the right of Indigenous peoples to effective participation in decisions affecting their traditional lands. The principle of equality requires that Indigenous rights in land be protected to the same extent as non-Indigenous rights. This means that non-Indigenous interests in land should not be privileged over Indigenous rights. The failure to accord the right to negotiate to lands where native title is claimed and may continue to exist in order to facilitate the grant of mining exploration rights clearly favours the non-Indigenous parties. Human rights principles require that where the legal question of prior extinguishment is uncertain, but native title parties maintain a relationship with the land based on traditional law and custom (evidenced, for example, by registration of the native title claim), management and development of those lands should respect the Indigenous parties' rights to those lands, regardless of whether native title legally continues to exist. In such situations, governments should exercise their powers so as to preserve native title parties' right to negotiate.

As well as breaching human rights standards, it is unlikely that the Ward Policy advantaged anyone. Native title parties were denied their legal rights to notification and negotiation regarding mining future acts. The mining industry was denied the opportunity to establish stable and equitable relationships with native title claimants for the areas in which they operate and the opportunity to ensure the legal validity of their mining tenements. Furthermore, any impairment of native title due to the failure to comply with the requirements of the NTA will give rise to possible future claims for compensation.

The blanket application of the expedited procedure for all exploration and prospecting grants

The second tier of the previous Western Australian Government's policy was the blanket application of the expedited procedure provisions to all exploration licence applications. This prevents native title parties from accessing their right to negotiate and so is inconsistent with the NTA and a breach of human rights standards. As described above, the circumstances in which a Government may impose the 'expedited procedure' are limited by section 29(7) NTA and the matters that must be considered pursuant to section 237 NTA. The kind of consideration implied by section 237 requires a case-by-case analysis of the impact of proposed future acts on a particular claimant group and claim area. In Dann-v-Western Australia [55] the full Federal Court explained that the question of whether a tenement properly falls within the expedited procedure focuses on the full range of rights permitted under the tenement (not just what the applicant proposes to do). The Court noted that:

It must consider the matter of degree [of disturbance] from the viewpoint of the community generally. However, as the disturbance is necessarily a local phenomenon, its effect on local people is particularly important. The disturbance may have such consequences for people in the local area as to be properly called a major disturbance notwithstanding that it is of no consequence to people who live far away. And, of course, in evaluating the disturbance, the Tribunal must be aware of cultural differences. If the disturbance will have a significant impact on Aboriginals who live in or use the affected area, that might be sufficient to warrant a finding that it will constitute a "major disturbance" even if it would be unimportant to non-Aboriginals. [56]

This indicates the difficulty, if not impossibility of making an assessment of the general effect of a particular tenement type on Indigenous people throughout the State. It is thus inconsistent with the case-by-case analysis implied by section 237 that a government should apply the expedited procedure as a matter of policy to all mining exploration future acts.



The blanket application of the expedited procedure is based on an un-sound distinction between the impact on native title of exploration or prospecting licenses and mining leases. In fact, exploration and prospecting activities may create significant interference with the cultural life of the community and may cause significant harm to native title property rights. Exploration licenses can permit extensive activity, including drilling, the large-scale removal of soil, road grading and tree removal.

Applying the expedited procedure to all exploration and prospecting tenures also potentially breaches the human rights principle that Indigenous people should have effective participation in decisions regarding their lands and territories. [57] The principle of effective participation requires that Indigenous people give their informed consent to development that occurs on their land. The expedited procedure is the removal of this internationally recognised right. It is inconsistent with human rights principles that the right to negotiate be removed by the blanket application of a formula that pre-empts a proper consideration of the effect of an exploration or prospecting licence on native title.

A change of direction?

The incoming Labor Government, elected in February 2001, initiated a number of inquiries to formulate its policy for the administration of native title in the state and to manage the backlog of mining lease applications it inherited.

The Technical Taskforce on Mineral Tenements and Land Title Applications released a Discussion Paper (the 'Taskforce Paper') on 1 August 2001. The Taskforce Paper aimed to develop 'an overarching strategy on mineral tenement and land title applications' .[58] A major impetus for the policy review was the backlog of mining title applications. The Taskforce Paper noted that between 1994 and 30 June 2001 the pre-NTA 'working backlog' of approximately 3000 mining title applications had increased to nearly 11000 applications, despite a reduction in the number of mining title applications being made. The major reason attributed for the backlog of mining title applications was "… delays arising from the interface of legislative requirements under the NTA and the Mining Act 1978" [59] , and in particular, the requirement that exploration and prospecting licences be progressively surrendered within short time-frames (four to five years), usually before exploration activities are completed.

The Taskforce Paper made a number of recommendations regarding policy and legislative changes to facilitate the reduction of the backlog within the constraints of the NTA future acts obligations. The Taskforce invited comment on the recommendations made in the Taskforce Paper. A revised Report has now been submitted to the Western Australian Cabinet. The Report had not been released for public comment at the time of writing.

 

The Taskforce Paper Recommendations

The Taskforce Paper recommended that mining lease applications should be subject to the full right to negotiate processes under the NTA, but that the expedited procedure should be applied to all applications for exploration and prospecting licences. The Taskforce Paper further recommended the enactment of a statutory requirement that exploration and prospecting licence applicants enter into a heritage survey agreement with native title claimants as a pre-condition to the grant of the licence. It was envisaged that a heritage protocol between native title-holders and industry would be developed to support the legislative changes.

There are a number of concerns with the recommendations presented in the Taskforce Paper.

The blanket application of the expedited procedure and the right to object

As discussed above, the blanket application of the expedited procedure to all exploration tenures is prima facie inconsistent with the NTA and breaches human rights standards. Nevertheless, the Taskforce Paper recommendations require further scrutiny as they purport to replace the right to negotiate with another form of consultation with native title parties.

While the Taskforce Paper was not specific, it appears that the recommendations envisaged that, in return for the enactment of a heritage survey agreement requirement, native title parties may be required to give up their statutory right to object when and if the expedited procedure is applied to exploration and prospecting licence applications.

The objection procedure operates within the scheme of the NTA as a check on Government parties that apply the expedited procedure inappropriately. It ensures that if the expedited procedure is applied inappropriately, native title parties retain some capacity to enforce their rights to effective participation in decisions affecting their native title. Like the right to negotiate, the right to object to the imposition of the expedited procedure is a significant right that should not be easily displaced. The objection procedure is an important safeguard as it is the only mechanism in the NTA that ensures that the removal of the right to negotiate (through the expedited procedure) occurs in accordance with the requirements of section 237 of the NTA. Since the decision in Holt v Manzie, it may be the only check on the expedited procedure power.

Regardless of what other arrangements are put in place, native title claimants should not be required to give up their right to have an objection to the application of the expedited procedure heard. The Taskforce recommendation that native title claimants give up their right to object to the imposition of the expedited procedure in exchange for a statutory requirement for heritage survey agreements potentially breaches international human rights standards.

Heritage Survey Agreements

The Taskforce Paper recommendation relies upon the conclusion of regional heritage protocols between native title parties, the state and industry. The development of heritage survey agreements as recommended by the Taskforce could be instrumental in a process for assessing whether the expedited procedure is applicable. The recommendation is commendable in so far as it formally introduces a requirement to assess the specific situation of the native title claim area as an aspect of the process of assessing future act applications. However, as it currently stands, the heritage survey requirement only occurs at a point after the native title parties have had to waive their right to object to the application of the expedited procedure. Furthermore, the Taskforce Paper gives no clear indication of what such a heritage survey would entail. While the heritage survey could be a useful indicator of the impact of proposed future acts on native title according to sub-section 237(1)(b) ('whether the act is likely to interfere with areas or sites of particular significance'), it is not clear that it would be sufficient to determine the impact of the proposed future act on the other matters set out in section 237 and on native title generally.

While in themselves the conclusion of heritage protocols is a positive step, concerns remain about the reduction of native title to the status of a heritage issue. Native title is not merely a right to have heritage concerns taken into account in the development of native title lands. Rather, native title is a substantial interest in land that gives rise to internationally recognised rights to effective participation in the management of that land and should not be easily displaced.

In relation to protecting Indigenous heritage, which itself is an internationally protected right, I have serious concerns about the Report's recommendations. Of particular concern is Recommendation 7.2 on page 55 of the Report, which limits heritage agreements to the protection offered by the Western Australian Aboriginal Heritage Act 1972 (the AHA). The AHA is based on a very limited conception of heritage and provides only extremely weak enforcement of heritage protection.

In contrast to the model of Indigenous heritage enacted in the AHA, the United Nations Sub-Commission on the Rights of Indigenous people has elaborated human rights-based principles and guidelines for the protection of the heritage of indigenous people. [60] These include:

• The effective protection of the heritage of the indigenous people of the world benefits all humanity. Its diversity is essential to the adaptability, sustainability and creativity of the human species as a whole. [61]
• The discovery, use and teaching of indigenous peoples' heritage are inextricably connected with the traditional lands and territories of each people. Control over traditional territories and resources is essential to the continued transmission of indigenous peoples' heritage to future generations, and its full protection. [62]
• To be effective, the protection of indigenous peoples' heritage should be based broadly on the principle of self-determination, which includes the right of indigenous peoples to maintain and develop their own cultures and knowledge systems, and forms of social organisation.[63]
• Indigenous peoples should be the source, the guardians and the interpreters of their heritage, whether created in the past, or developed by them in the future. [64]
• Indigenous peoples' ownership and custody of their heritage should be collective, permanent and inalienable, or as prescribed by the customs, rules and practices of each people. [65]

Underlying these five principles in relation to Indigenous heritage are the human rights of self-determination under article 1 of ICCPR and ICESCR and the protection of minority cultures under article 27 of ICESCR. The principles are inextricably connected with the rights to maintain and develop Indigenous cultures and the rights of Indigenous peoples to effective participation in the management of their lands and territories. Protection of Indigenous heritage thus requires much more than the protection of 'sacred sites' in isolation from the culture that gives them meaning. Heritage protection is not about protecting the relics of a culture frozen at some point in time when the culture was supposedly 'pure' or 'traditional', but about fostering that living heritage through the continuing development of Indigenous culture. Accordingly, given the deficiencies in the AHA process, the blanket removal of the right to negotiate for the grant of exploration and prospecting licences, conditional only upon a right to have heritage concerns taken into account, may fail to take account of the nature of the native title interest that must be protected.

Summary of prospecting / exploration recommendations

The introduction of a process requiring mining parties to conduct a heritage survey as a pre-requisite to grants of exploration or prospecting leases is a welcome formalization of an aspect of the NTA future acts regime. This may in some circumstances be sufficient to meet the concerns of the native title parties and may alleviate the current 'backlog' of mining tenement applications. However, no matter how useful and expedient the adoption of such a process may be to Government or the mining industry, it must not be used to reduce the existing rights of native title parties to their lands, both under current law and according to international human rights standards.

It is imperative that native title parties retain their right to object to the adoption of the expedited procedure. It is not acceptable for native title parties to be required to give up legal rights to object to the expedited procedure in exchange for a lesser, if more expedient, right to have their heritage concerns taken into account in the conduct of exploration and prospecting activities.

Furthermore, any processes that displace the right to negotiate through the application of the expedited procedure must be based on a consideration of the impact of the proposed future act on the actual native title and must be based on the informed consent of native title holders.

Conclusion

At the time of writing the WA Government had not yet released its response to the Taskforce Paper and Recommendations. From a human rights perspective there are serious issues in the Taskforce Paper that still need to be addressed. The Government's policy response for the administration of mining future acts must encompass the following:

• Developing better procedures for assessing whether the expedited procedure may apply to any particular tenement application or native title claim area; and
• Such procedures must be based on the informed consent of native title parties.

The legitimacy of any measures to replace the right to negotiate with heritage survey agreements will necessarily rely on the informed consent of native title claimants.

Northern Territory [66]

There are three types of land or waters in the Territory with different interactions between native title rights and interests and future acts:

• On Aboriginal land, either Aboriginal freehold under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) or Territory freehold held by Aboriginal interests, the grant of a mining tenement is not a future act. [67] On such lands and waters the NTA does not regulate the grant of mining tenements and the right to negotiate does not apply.
• On freehold that is not Aboriginal land, native title has been extinguished and the right to negotiate does not apply.
• On land where there is an interest with which native title might co-exist, including pastoral leases or national parks, or on land where there is no other interest, the future act regime under the NTA governs the manner in which mining tenements are to be granted.

In the Northern Territory the land or waters to which the right to negotiate potentially applies is largely that subject to pastoral leases or national parks. Pastoral leases cover around 46% of the area of the Territory. [68]

This section discusses the Northern Territory Government's actions regarding the right to negotiate over mining tenures on pastoral leases in the Territory for the 12 months preceding 18 August 2001 when a new government was elected.

Background

From 1 January 1994 until the Wik decision [69] on 23 December 1996 the right to negotiate was not extended to any potential native title parties in the Northern Territory. [70] As the Wik decision made clear, it is likely that any mining tenements granted over pastoral leases during this period were invalid to the extent that they affected native title. Nevertheless, these 'intermediate acts' have since been 'validated' by the amendments to the NTA in 1998. [71] The validation of intermediate acts has been strongly criticised as breaching human rights by United Nations human rights treaty bodies. [72]

From 23 December 1996 to 5 September 2000 no section 29 notices were issued in the Northern Territory. It is understood that during this time few or no exploration or prospecting titles were granted in the Northern Territory. At 21 March 2000 there existed a backlog of over 1000 mining title applications and 12 petroleum permit applications. During this period, there was considerable agitation by mining interests and various State and Territory governments for amendments to the NTA to achieve 'certainty' over native title issues.

The 1998 amendments to the NTA allowed for state and territory governments to enact their own future acts regimes with substantially lesser protections for native title rights and interests. [73] The Northern Territory Government consequently amended its Mining Act and Petroleum Act to provide for a state-based alternative to the NTA right to negotiate. However this was rejected by the Commonwealth Senate on 31 August 1999. Accordingly, at the commencement of the reporting period the future act regime under the NTA continued to apply in the Northern Territory and a significant backlog of mining title applications existed.

Administrative practice in the reporting period

Between 6 September 2000 and 8 August 2001 (except 27 December 2000) the Northern Territory Government issued a series of fortnightly advertisements, each purporting to be a notice under section 29 of the NTA, and each identifying several tenements it proposed to grant. [74] A total of 347 proposals to grant exploration licences were notified over a period of 11 months, or 24 fortnights. Of these, all but fifteen had an expedited procedure statement attached. The remaining 332 (including 65 that were later withdrawn) had the expedited procedure attached and had to have some action taken by the prospective native title parties (see below). In addition, 23 mineral claims and 11 extractive mineral leases were notified [75] . None of these had the expedited procedure statement attached. No notice was given to the representative bodies of the Northern Territory Government's intention to apply the future act regime in this manner, nor were they given an opportunity to make submissions regarding the matter. There are serious human rights concerns with the issue of section 29 notices in this manner, including;

• The practice of issuing notices dealing with up to 24 exploration licences fortnightly places a severe burden on the capacity of the native title parties and the representative bodies to respond in the manner envisaged in the NTA. The sheer volume, combined with the limited resources available to the representative bodies, means that the mining tenements are likely to be granted without the native title parties being able to exercise their right to negotiate.

• On any one notification date the areas of land or water subject to notification have been scattered across the Territory. For example, one notice [76] refers to 20 proposed exploration licences, with no more than two identified as being in any one locality: Three of these are near the Western Australian border, well apart, one adjoins the Queensland border, six are in the vicinity of Pine Creek, four are in the general area of Borroloola and two are near Tennant Creek. The scatter of proposed exploration licences in this notice is reflected in every notice. This scatter has made the processing of the section 29 notices much more resource-intensive for the representative bodies.

• The timing of some of the notices has resulted in native title parties being required to comply with statutory deadlines in the seasonally difficult periods of January to March. At these times it is not always possible for the representative bodies to locate people or obtain instructions, both because of the ceremonial responsibilities that are commonly undertaken at that time of year, and in the Top End the wet season.

• Any one proposed mining tenement area may cover an area in respect of which more than one native title claim group exists. Different groups of Aboriginal people might assert different native title rights and interests in respect of each, or even parts of each, exploration licence area. If so, the representative body has to obtain instructions from more than one group, and potentially, initiate more than one process in responding to the future act notice. This has made the processing of the section 29 notices much more resource-intensive for the representative bodies. Nevertheless, it does not appear that any attempt has been made to limit the notification of tenements to those falling within any one native title claim group's country.

• There was no consultation by the Northern Territory Government with native title parties or representative bodies about the order in which the backlog is to be processed. The Northern Territory Government appears to have made no attempt to limit the potential expenditure of the representative bodies by limiting the number of native title claim groups they must notify and seek instructions from in respect of any particular batch of proposed future acts.

• The Northern Territory Government has included a statement that the expedited procedure applies in respect of almost all proposals to grant mineral exploration licences.[77] As discussed above, the blanket inclusion of the expedited procedure statement in all exploration title applications, effectively removing the right to negotiate, is inconsistent with both the terms of section 237 NTA and the international human rights standards.

• In addition, each inclusion of an expedited procedure statement creates further potential procedures in the NNTT and more statutory duties for the relevant representative body. [79] Where a section 29 notice includes a statement that the expedited procedure applies, native title parties may object to the inclusion of the expedited procedure within four months of the notification day. Lodging an objection to the application of the expedited procedure now requires significant material in support of the application to be prepared. [80] Where the traditional owners have not already lodged an application for a determination of native title, they must first have their native title claim registered before they can lodge an objection. Alternatively, they may attempt to negotiate with the applicant for the exploration licence without the benefit of the right to negotiate or an objection to the expedited procedure. All of these alternatives have been undertaken by native title parties in the Northern Territory. Thus, the inclusion of the expedited procedure statement further stretches the resources of the representative bodies. [81]

• Originally the notices themselves did not enable identification of the actual boundaries and area that would be affected by the proposed mining future acts. The content of these notices was challenged in the NNTT in the Roy Dixon case. [82] The NNTT found that the notices were not adequate to fulfil the requirements of sections 29 and 252 of the NTA and the Native Title (Notices) Determination 1998 [83] and that section 29 notices 'must contain a clear description of the land that will be affected'. [84] It was not sufficient to provide contact details for further inquiries and provide only a technical description that is not understandable by the general public.[85] As a result of this case, the Northern Territory Government changed the form of the notices issued under section 29 NTA, to include a rough locality map that enables better identification of the location of the proposed tenements. Ultimately, in October 2001, the Northern Territory Government withdrew all the notices issued before 13 December 2000. While the determination in this case will aid the representative bodies in carrying out their functions, the costs of mounting the action added considerably to the already large demands on the resources of the representative bodies. In addition, these proposed mining future acts will be required to be re-notified.

The combined practices of the Northern Territory Government in regard to the right to negotiate appear to result from a policy decision by the Northern Territory Government to process the mining tenement backlog is dealt with as swiftly as possible by forcing as many tenement applications through the NTA future act processes as is possible in a short period of time. The result of these practices is to benefit grantee parties at the expense of native title parties' rights. While the Northern Territory Government's actions may not be explicitly directed at nullifying the rights of native title holders, the effect of the practices is to substantially reduce the level of assistance that can be provided by the representative bodies to native title claim groups. This means that there is less likely to be adequate protection of native title rights and interests at a practical level. In practice, this lower level of protection means that the rights of native title holders under the NTA may be nullified.

Each of the following Northern Territory Government practices reduce native title parties' capacity to protect their rights and so potentially breach international human rights standards:

• issuing mining tenements so as to avoid the enlivening of the right to negotiate;
• notifying, under section 29, its proposed grants of mining tenements every fortnight, without regard for seasonal problems in obtaining instructions and complying with statutory deadlines;
• creating a large number of right to negotiate processes, and expedited procedure objection processes, by issuing notices in such volume. (Each notification may lead to two proceedings in the NNTT - an expedited procedure application and a future act determination application)
• including in the vast bulk of the notifications, a statement that in its opinion the expedited procedure applies;
• not consulting with the representative bodies about the order in which proposed tenements are to be notified;
• not consulting with the representative bodies about the location of proposed mining tenements to be notified at any one time, in order to reduce the multiplication of different groups from whom they must take instructions.

In preferencing non-Indigenous interests at the expense of Indigenous peoples' property interests, these practices breach native title parties' rights to effective participation in their traditional lands and their rights to equal protection of their property rights.

After the election the new Northern Territory Government has so far continued to issue section 29 notices in the same fashion (except for 5 September 2001), although in slightly reduced numbers.

Queensland [86]

This section discusses the Queensland Government's current administration of mining future acts (to October 2001) in the context of legislative and policy developments since 1997.

Backlog of Mining and Exploration Tenement Applications

Since at least 1997 it has been the policy of the Queensland Government not to grant mining or exploration rights over land where native title may exist. Consequently, there is a backlog of applications for approximately 1200 mining and mineral exploration tenements. [87] Approximately 800 of the backlog applications are for exploration permits.

The Queensland Government indicated in September 2000 [88] that it intended to process the whole of the backlog of exploration permit applications within twelve months. The Queensland Government again indicated on 1 October 2001 that it intended to process the backlog within 12 months. [89] If the Government gives effect to this intention most of the native title representative bodies of Queensland will be required to deal with between 130 and 200 exploration permit applications each within this timeframe. Carpentaria Land Council will be required to deal with over 370. [90] The sheer number of exploration permit applications in the backlog (let alone mining lease applications) raises the real prospect that regardless of their procedural rights at law, native title holders and claimants may be denied the practical opportunity to exercise those rights if the backlog is processed within this timeframe.

The Government is currently processing the backlog through the following measures:

• a policy of making 'partial grants' that exclude areas where native title exists;
• utilising the Queensland alternative provisions enacted in 1998 and allowed by the Commonwealth in 2000 pursuant to sections 26A and 43 NTA; and
• the negotiation of ILUAs to provide for Indigenous consent to the grant of mineral exploration rights.

The Queensland Government has not adopted the expedited procedure exception to the right to negotiate.

Partial grants

Since 1998 a significant number of mining and mineral exploration tenements have been granted in Queensland under the 'partial grants' policy, whereby land where native title may exist is excluded from the grant. For example, during 1999-2000 the Government granted 534 mineral prospecting and exploration interests, 6 mineral development licenses and 156 mining and petroleum leases pursuant to this policy. [91]

Queensland Alternative Provisions

During 1998 and 1999 the Government amended the Mineral Resources Act 1989 (Qld) and enacted the Land and Resources Tribunal Act 1999 (Qld) for the purpose of establishing alternative provisions [92] to the right to negotiate under the NTA (the 'alternative provisions').

Significant opposition was voiced to the alternative provisions, including by the Queensland Indigenous Working Group ('QIWG').[93] QIWG argued that the alternative provisions were discriminatory and should not be allowed. In particular QIWG objected to the alternative provisions because: [94]

• they relied mainly upon the 1998 amendments to the NTA and so constituted a repudiation of the compact between Indigenous and non-Indigenous Australians made in 1993 and embodied in the NTA;
• the effect of the alternative provisions would be to remove or reduce native title holders' procedural rights in circumstances where opportunities for agreements had not been fully explored; and
• the 1998 amendments to the NTA, upon which the alternative provisions relied, had been criticised by the United Nations CERD Committee [95] as being inconsistent with Australia's international treaty undertakings.

In their original form [96] the alternative provisions would have removed native title holders' right to negotiate from all mineral exploration including high impact exploration, even though this can cause widespread and permanent damage to country and to Indigenous peoples' cultural heritage. [97]

While the Commonwealth Attorney-General made 13 determinations on 31 May 2000 allowing all of the Queensland alternative provisions, only some of these were allowed by the Senate. [98] In the course of the Senate debate Senator John Faulkner tabled a letter [99] from Premier Peter Beattie to Opposition Leader Kim Beazley that contained the terms of a compromise reached between the Queensland Government and the federal Labor Party which informed the Opposition's vote in the Senate.

The letter contained the following passages.

In the interests of an acceptable outcome of the Senate today, I wish to make the following unconditional undertakings. In the event of the Queensland Low Impact Exploration Scheme being approved in the Senate, the Queensland Government will, before the end of this year, amend that scheme to provide substantive and procedural rights and acceptable definitions of the nature of low impact exploration that are no less favourable to Indigenous interests than those in the New South Wales Scheme recently endorsed by the Federal Attorney-General. I further undertake that a Beattie Labor Government will never derogate from those improved statutory provisions.

Thirdly, I intend to pursue the negotiation and implementation of ILUA's to deal with both the backlog of applications and future applications for exploration permits in Queensland and my Government will meet the necessary resourcing implications of achieving that outcome.

In order to make good the compromise accepted by the Commonwealth Senate Premier Beattie tabled the Native Title Resolution Bill 2000 in the Queensland Parliament six days later, on 5 September 2000. In the course of debate of the Native Title Resolution Bill Premier Beattie made the following comment about the outcome of the Senate process:

Neither the mining industry nor the Indigenous representatives got what they wanted. I was pleased to note this morning, however, that both Terry O'Shane and Michael Pinnock have indicated that their respective organisations - QIWG and the Mining Council - are prepared to accept the final outcome if it is fully implemented. [100]

The Queensland alternative provisions, in their modified form, commenced operation on 18 September 2000. Whilst some differences remain between the New South Wales and Queensland schemes in relation to the 'low-impact' exploration processes, Premier Beattie substantially complied with his undertaking to amend the Queensland alternative provisions upon the enactment of the Native Title Resolution Act 2000 (Qld).

The final results of the legislative changes are:

• the right to negotiate for 'low-impact' mineral exploration is replaced with a 'low impact' mineral exploration scheme under which explorers must negotiate an access agreement with native title holders and registered claimants before entering an exploration permit area to carry out exploration activities. If agreement cannot be reached, the parties may refer the matter to the Queensland Land and Resources Tribunal for determination.
• For all other mining future acts to which the right to negotiate process under the NTA would otherwise apply ('high impact' mineral exploration and mining), an alternative state-based regime to the right to negotiate applies. The state-based process applies in the whole of Queensland and is administered by the newly-constituted Queensland Land and Resources Tribunal. The state-based regime is on similar terms to the regime under the NTA.

There appears to be reluctance on the part of miners and explorers to use the procedures of the Queensland alternative provisions. Most of the native title representative bodies of Queensland have received between twenty and thirty 'low impact' exploration permit notices under the Queensland alternative provisions since September 2000.[101] It is understood that Carpentaria Land Council may have received a significantly larger number. Although the Queensland Land and Resources Tribunal has the responsibility for mediation and arbitration relating to mining and exploration notices, the Queensland Registry of the National Native Title Tribunal has recorded a significant number of notices issued under the Queensland alternative provisions since the commencement of those provisions on 18 September 2000. [102]

Nevertheless, the Premier's undertakings remain uncompleted. The issue of 'security' of the Queensland alternative provisions has not been resolved. Communications have passed between the office of the Commonwealth Attorney-General and the Queensland Government concerning the steps which would need to be taken by the Government to obtain from the Attorney-General new determinations conditional upon maintenance of native title parties' current procedural rights. However, it is understood that the Queensland Government has not yet made a formal request to the Attorney-General for new, conditional determinations. QIWG has expressed concern that in the absence of new determinations from the Attorney-General, the Queensland alternative provisions are susceptible to amendments removing or reducing native title parties' procedural rights. QIWG is continuing to press the Queensland Government to obtain new determinations from the Attorney-General.

In the meantime, on 6 February 2001 Central Queensland Land Council sought judicial review in the Federal Court of the Commonwealth Attorney-General's determinations allowed by the Senate. Those proceedings were set down for hearing in October 2001. No decision had been handed down at the time of writing.

Indigenous Land Use Agreements

Premier Beattie's third commitment to the Commonwealth Senate was to resource the negotiation and implementation of ILUAs to deal with 'both the backlog of applications and future applications for exploration permits in Queensland'. A template Indigenous land use agreement (the 'template ILUA') for the grant of the backlogged mining exploration permits has been under negotiation between the QIWG and the Queensland Government since March 2000. The template ILUA was finalised in July 2001 and by November had been formally endorsed by the Queensland Government, QIWG and four native title representative bodies. [103]

The template ILUA 'provides a framework in which individual ILUAs can be reached between the State and particular native title groups for backlog exploration permits in their area'. [104] The template ILUA incorporates the non-extinguishment principle and provides for:

• notice to native title parties of proposed exploration activities,
• inspection of areas by native title parties funded by exploration parties,
• negotiation about areas to be excluded from ground disturbing activities and resolution of disputes,
• protection of cultural heritage,
• access for native title parties, and
• assignment of obligations under the ILUA if licences are assigned.

The template ILUA will not come into force in any particular native title claim area unless authorised by the registered native title holders and claimants for that claim area. Where an ILUA is authorised and in force, explorers may 'elect to opt into the relevant agreement as an alternative to proceeding under the alternative provisions or individually negotiating an alternative ILUA'. [105]

The negotiation of a template ILUA is an important step forward. It encourages the adoption of at least the minimum standard set out in the framework ILUA and sets up a framework for mining exploration that is based on the consent of the native title claimants and holders. Given that the native title representative bodies do not have enough time, money or people available to ensure that native title holders and claimants in their area are able to exercise their procedural rights in hundreds of separate negotiations with mining companies and the State, a formalised 'opt in' process negotiated by Indigenous peak bodies may prove to be a means to ensure that native title parties have some meaningful participation in decisions regarding mining exploration over their land. This kind of process also offers some relief to small miners who have limited capacity to engage in protracted negotiations regarding mining tenements. The ILUA is not yet in force in relation to any native title claim.

The ILUA is significant because it implements the international human rights principle that Indigenous peoples are entitled to effective participation in decisions affecting their lands and territories. This principle is implemented at the policy level by creating an agreement that can be adopted by any native title claim group that consents to the application of the terms of the ILUA over its native title claim area.

Indigenous Cultural Heritage Protection

The native title conditions in the template ILUA to some extent rely upon existing cultural heritage legislation.[106] However, the existing cultural heritage protection legislation in Queensland is inadequate. Successive Queensland governments have acknowledged the shortcomings of the existing state legislation. [107] In 1990 the Queensland Government published a paper which stated that the current legislation "has proved ineffective in practice and does not offer the necessary incentives and forms of protection which are required to successfully protect Queensland's important cultural heritage". [108] In its 1999 review of the same legislation, the Queensland Government commented:

The Queensland Government recognises that current Queensland legislation does not provide effectively for the appropriate protection of Indigenous cultural heritage, and does not provide a workable process for the consideration and management of areas, places and items of cultural heritage value in the context of land use. [109]

In 2000 Indigenous people rejected the Queensland Government's proposed Indigenous cultural heritage protection legislation.[110] It is understood that the Government has proposed a further review of Queensland's cultural heritage protection legislation.

Conclusion

Over the next twelve months the Queensland Government will attempt to process most of the backlog of exploration permit applications. Even with endorsement by four representative bodies of the template ILUA, the possibility of these applications being processed in bulk remains a significant threat to native title holders and claimants. It is imperative that the goal of efficient removal of the backlog does not come at the expense of native title parties internationally recognised rights to effectively participate in the development of their lands.

New South Wales

The NSW Department of Mineral Resources (the 'Department') is responsible for issuing and renewing all applications to explore for and mine the coal, mineral and petroleum resources of New South Wales.[111] In the period June 2000 to November 2001 the Department granted 220 mining tenures, of which 173 were exploration tenures. [112]

The procedures applicable to future acts in NSW vary due to the following NSW legislative exceptions to the right to negotiate:

• The Commonwealth Minister's determinations in November 1996 under section 26(3) of the NTA (prior to its amendment) replacing the right to negotiate in some circumstances with the grant and renewal of exploration licences and special prospecting authorities subject to the 'Minister's consent condition'. [113]

• The Commonwealth Minister's determinations in February 2000 under section 26A NTA replacing the right to negotiate for 'low-impact' exploration acts; [114]

• The Commonwealth Minister's determinations in February 2000 under section 26C NTA that certain land and waters in the Lightning Ridge and White Cliffs regions were 'approved opal or gem mining areas'. [115]

The result of this scheme is that the right to negotiate does not automatically apply to the grant or renewal of any mineral or petroleum exploration licence or prospecting permit in NSW.

The following procedures are now applied to the grant and renewal of proposed onshore exploration and mining titles that affect potential native title land in NSW:

Grant or Renewal of Exploration Titles (other than Low-Impact Exploration Licences)

Applications for grant or renewal of non-low-impact exploration titles in NSW are dealt with in one of two ways: subject to the 'Minister's consent condition' (and without the 'right to negotiate' process first having been pursued) or after the 'right to negotiate' process has been pursued. [116]

Where exploration or prospecting mining tenures are granted or renewed subject to the 'Minister's consent condition', the right to negotiate is postponed from the date of grant (or renewal) of title until the time the miner actually wants to explore an area that may be subject to native title. At this time the miner must seek the Minister's consent. The Minister then initiates the right to negotiate process for that area. Tenures conferred in this way are referred to as 'exclusion condition' title.

An issue with this scheme is that if the land on which the 'exclusion-condition' title-holder wishes to explore is native title land, the responsibility to seek the Minister's consent to conduct such exploration is left entirely to the explorer. [117] Once granted, there does not appear to be any scrutiny of whether holders comply with the conditions of the exploration or prospecting tenures issued in this way.

Exploration tenures are granted in this way in the majority of cases. Of the 173 exploration tenures granted between June 2000 and November 2001, 142 were granted with the Minister's consent condition attached. [118] All 11 petroleum exploration licences were granted with the Minister's consent condition attached. In the same period the Minister gave his consent for exploration on 19 exploration licences issued subject to the consent condition.

The 'consent condition' exception to the right to negotiate for non-low impact mining future acts for the most part defers, rather than disregards, the right to negotiate process. Nevertheless, the practice of dividing mining tenure areas into areas that are potentially subject to native title claims and those that are not, and only negotiating about the former, creates the possibility of breaching human rights norms. The reasons why native title may have ceased to exist in part of an exploration area vary. They may include factors that are unrelated to the strength of 'connection' to land (eg. historical tenures that legally extinguish native title) and may not reflect any contemporary impediment to Indigenous participation in land management (eg. historical tenures that extinguished native title that have since ceased). In such circumstances, the fact of probable legal extinguishment of native title in only a part of a tenement area should not preclude Indigenous people from effective participation in management of their traditional lands.

Where an applicant requests that the exploration title be issued free of the 'Minister's consent condition' and there is found to be native title claims over the proposed title area the right to negotiate applies. The right to negotiate is administered in one of two ways. Either:

• The area of the native title claims is excluded from the exploration title (so avoiding the necessity to negotiate with the native title parties); or
• Agreements are negotiated with the native title parties and the Government to allow the inclusion of the claimed areas in the title. [119]

In the period the Department has granted 8 exploration licences by going through the right to negotiate process. [120] The Department does not include the expedited procedure statement for exploration licences that are granted by going through the right to negotiate process.

Because it removes any requirement to negotiate with Indigenous traditional land-owners, the expedited procedure is likely to breach the international human rights principle that Indigenous peoples are entitled to effective participation in the management of their lands. While the right to negotiate is only used in a minority of cases, it is encouraging to see that the NSW Government does not utilise the expedited procedure exception.

Grant or Renewal of Low-Impact Exploration Licences

In NSW the right to negotiate over the grant or renewal of 'low-impact' exploration licences has been replaced with a right to be notified, consultation regarding the protection of native title rights and interests and the signing of an access agreement. [121]

The right to be consulted regarding the protection of native title rights and interests is limited to 'minimising the impact of the grant of the licence on the exercise of native title rights and in particular about the protection and avoidance of sites of particular significance, access to the land and other effects on native title'. [122] The content of the access agreements that miners must sign before entering onto native title land is not prescribed by the Mining Act 1992 (NSW).[123] Section 263 of the Mining Act 1992 further provides that 'on the granting of an exploration licence… a landholder … becomes entitled to compensation for any compensable loss suffered or likely to be suffered by the landholder as a result of the exercise of the rights conferred by the licence or by an access arrangement in respect of the licence'. However, compensation is limited to determined native title holders, and does not apply to registered native title claimants.

Between June 2000 and November 2001 the Department granted 8 low impact exploration licences.

There are some concerns about this scheme. While the scheme is supposed to apply only to low-impact exploration, the definition of 'low impact' in the NSW legislation allows some activities (in some circumstances including drilling) that may not have only low impact on native title rights and interests.[124] I am concerned that the NSW low impact exploration scheme reduces the right to negotiate process to access agreements and sacred site protection. Traditionally Aboriginal and Torres Strait Islander people used their land as a resource for the sustenance and well being of their community. In modern times this should translate into a right to participate in the modern management of their land. The international human rights principle of effective equality requires that future act processes allow native title parties a role in the development of Aboriginal communities beyond permitting the practice of traditions and customs as they were practised by the predecessors of the native title parties before colonisation. Future act processes should not be merely a consultation on ways of minimising the impact of mining on registered native title rights or on protecting sacred sites. Future act processes should reflect an entitlement to effective participation in the management of the land.

 

Grant or Renewal of Mining Titles

The right to negotiate applies to the grant or renewal of non-exploration mining titles where granted over land where native title may exist. Of the 32 mining leases and 15 mineral claims granted in the period, 2 mining leases and 6 mineral claims went through the right to negotiate process.[125] The expedited procedure is not attached to mining tenures that are granted subject to the right to negotiate. [126] While it is encouraging that the NSW Government is applying the full right to negotiate process without exceptions to the issue of productive mining tenures, concerns remain about the impact on native title parties procedural rights of the Government's use of non-claimant applications.

Non-Claimant applications and their effect on the procedural rights of native title parties

There are serious concerns that the Government's lodging of non-claimant applications are impacting on native title parties' procedural rights and causing extinguishment little by little in New South Wales.

Section 24FA of the NTA provides that future acts are valid and may extinguish native title (subject to compensation) where there is no relevant native title claim [127] over an area that is subject to a non-claimant application. This includes where the non-claimant application is an application for an approved determination of native title by or on behalf of a Minister, the Crown in any capacity or a statutory authority. [128] Section 24A acts as a quarantine on native title parties' procedural rights. It means that for areas over which a Government lodges a non-claimant native title application, if no native title claim is registered in time, future acts may proceed without having to comply with the procedural rights set out in the NTA and state legislation.

In the period between July 2000 and November 2001 seven non-claimant applications were lodged by the NSW Government.[129] Combined with the resourcing restrictions on the representative body,[130] this practice has the effect of circumventing native title parties' procedural rights and results in extinguishment by attrition. By lodging an application for an approved determination of native title, the NSW Government forces the representative body to react to the priorities of the Government in order to avoid the loss of Aboriginal peoples' procedural rights and extinguishment of native title through the operation of section 24FA. This practice interferes with the capacity of the representative body to prioritise its own workload according to the interests of native title parties. Where the level of funding provided to the representative body is insufficient to meet the demands of registering claims over areas subject to non-claimant native title applications as well as meeting all its other functions, this results in the loss of procedural rights and extinguishment of native title.

It is inappropriate for the NSW Government to force native title parties into the native title claims process in the context of inadequate funding to the native title representative body to enable it to properly progress those claims. Where those practices result in the loss of rights, particularly the extinguishment of property rights or the loss of capacity to effectively participate in decisions regarding traditional lands, such practices breach human rights standards. Ongoing extinguishment is not an acceptable solution to land management. Human rights principles require that land management be based on recognition and protection of Indigenous peoples rights to their traditional lands. Even where practices that lead to extinguishment or non-recognition of rights to participation in land management are legally available, governments must strive to ensure that the land management processes they adopt respect Indigenous peoples' rights.

Protocol for the Negotiation of Agreements for Exploration and Mining for New South Wales

On 26 June 2001 the NSWALC and the NSW Minerals Council ('NSWMC') signed a 'Protocol for the Negotiation of Agreements for Exploration and Mining for New South Wales' (the 'Protocol'). The Protocol, which was not binding, envisaged the development of:

• standardized access agreements relating to exploration under section 26A NTA,
• standardized negotiation protocols for exploration or mining projects after Section 29 NTA notices have been issued,
• Agreement processes regarding exploration and mining in NSW which may result in Indigenous Land Use Agreements (alternative procedure agreements) which should include a simplified future act regime including an agreed notification process. [131]

The Protocol was developed with the input of a Working Group established between NSWALC and NSWMC.

The Working Group has since been developing a standardized access agreement relating to low-impact exploration. Once agreed and endorsed by NSW representative body and NSWMC, it will be open to native title parties and miners to adopt the model agreement for any proposed grant of a low-impact exploration license. Given the standardized nature of most low-impact exploration a model agreement such as this is an appropriate way to manage their issue, especially given the resource constraints experienced by the representative body. [132]

Victoria

Approximately 31.7% of Victoria is Crown land. [133] The remaining 68.3% of Victorian land (including farming lands) is largely held as freehold, and is not claimable under native title. Consequently, approximately one third of Victoria is potentially subject to native title and the right to negotiate.

Victoria requires all mining and exploration licence applications to meet the requirements of the Native Title Act where they cover areas that contain Crown land potentially subject to native title.[134] Between June 2000 and November 2001 the Victorian Government issued 73 section 29 notifications of proposed future acts. None of these included a statement that the expedited procedure applied.[135] It is encouraging to see that the Victorian Government is not avoiding the right to negotiate process for mining licence applications on Crown lands that may be subject to native tile.

Nevertheless, where a mining licence application covers an area, part of which is claimable and part of which is not claimable as native title, licence applicants are permitted to excise from the licence Crown land that may be subject to native title. In such cases, licences are issued without extending the right to negotiate to native title parties. Excising lands potentially subject to native title from mining licences in this way may enable more efficient processing of licence applications. However, where that land is part of a greater area to which native title claimants maintain a connection and part of which is claimable as native title, the human rights principle that Indigenous peoples have rights to 'effective participation' in the management of their traditional lands means that governments should strive to implement administrative processes that enable rather than preclude native title claimants' participation in the management of such lands.

The Victorian Government has also stated that its preferred approach to native title is to seek negotiated outcomes [136] and that it supports the negotiation of ILUAs for future acts.[137] At July 2001 no ILUAs had been negotiated for mining or exploration licences, although some licence applicants had indicated that they would pursue ILUAs rather than the right to negotiate. ILUAs had been negotiated for petroleum and pipeline projects. [138]

The Victorian Government plans to facilitate ILUAs based on native title claim areas for the small mining sector (mining licences less than 5 hectares). The aim of this strategy is to produce a pro-forma agreement through negotiation between the Government, the mining industry peak body (the Prospectors and Miners Association of Victoria) and the Victorian native title representative body (Mirimbiak Nations Aboriginal Corporation). The pro-forma agreement would then be available to native title claimants if they chose to use it. If adopted for a native title claim, the pro-forma agreement would allow small miners to sign on to the ILUA in order to have their licences validly granted without having to negotiate individual agreements. Little progress has so far been made in negotiating the pro-forma ILUA. [139]

The Obligations of States and Territories and other Instruments of State

Discriminatory framework of the NTA

In my previous reports I have criticised the Commonwealth Government's adoption in 1998 of amendments to the NTA that introduced restrictions and exceptions to the right to negotiate. [140] In so far as they reduce the protection afforded to Indigenous peoples' property and cultural rights in comparison to the rights of non-Indigenous people, these amendments are racially discriminatory. The amendments have been strenuously criticised in the international forum for their breaches of human rights treaties and conventions to which Australia is a party. [141]

The amended NTA now sets the framework within which states and territories administer native title within their borders. States and Territories are bound by the NTA even though parts of the NTA breach the international human rights norms. However, while the framework set up by the NTA is discriminatory, state and territory governments retain considerable power (within the constraints of the NTA) to effect native title outcomes in ways that either reduce or entrench this discrimination. As a matter of law, as well as principle, States and Territories should exercise their powers under the NTA, where possible, consistently with relevant international human rights norms.

Obligations under International Law

The Universal Declaration of Human Rights (the 'UDHR') requires that 'every individual and every organ of society' should strive to secure the 'universal and effective recognition and observance' of human rights, including non-discrimination and equality before the law and the right to own property. [142] The UDHR is now considered part of jus cogens, the customary international law from which no derogation is permitted. State and territory governments should strive to exercise their powers under the NTA in ways that are consistent with the prohibition on racial discrimination contained within the UDHR.

State and territory governments and other government institutions should also exercise their powers under the NTA in ways that are consistent with the international human rights instruments to which Australia is a party, including the International Convention on the Elimination of All Forms of Discrimination (the 'ICERD'). The ICERD makes clear that the obligations of nation-states that are parties to the ICERD to prevent racial discrimination extend to all organs of government within the state. The ICERD states that the State Party:

Undertakes to engage in no act or practice of racial discrimination and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation. [143]

Shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination [144]

The supervising committee for the ICERD, the Committee on the Elimination of Racial Discrimination (the 'CERD Committee') further stated in 1994:

Although the Commonwealth government is responsible for ratifying international human rights instruments, the implementation of their provisions requires the active participation of the states and territories… [145]

The Vienna Convention on the Law of Treaties, to which Australia is also a signatory, further provides that:

A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty [146]

These provisions and commentaries make clear that Australia's human rights treaty obligations can be breached by the actions of state and territory governments and other government institutions.

Australian domestic law supports the proposition that states and territories should exercise the powers granted to them under Commonwealth statutes consistently with the international human rights treaties. There is a long-established legal presumption that a statute should be interpreted and applied, as far as its language admits, so that it is not inconsistent with the comity of nations and established rules of international law.[147] If the Commonwealth legislature intends to effect inconsistency 'it must express its intention with irresistible clearness'. [148] More recently, the High Court has held that a common sense approach suggests that Parliament intended to legislate in accordance with its international obligations. [149] Consequently, where there is ambiguity [150] courts should interpret statutes in ways that accord with the obligations of Australia under an international treaty. [151] Thus when the language of a statute (such as the NTA) permits a construction of the statute that is consistent with international human rights law state and territory governments should act in accordance with Australia's human rights treaty obligations by adopting that construction.

Obligations under the Racial Discrimination Act and section 7 Native Title Act

The obligatory nature of international human right instruments with regard to the administration of native title under the NTA is further strengthened by the inclusion of section 7(2) in the NTA. Section 7(2)(b) provides that any ambiguous terms in the NTA should be construed consistently with the Racial Discrimination Act 1975 if that construction would remove the ambiguity. Section 9(1) of the RDA provides that:

It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race … which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

Furthermore, the RDA makes provision for giving effect to the ICERD, which is set out in its entirety in the Schedule of the RDA. The strong presumption that arises is that the NTA should be construed in conformity with the provisions of the ICERD and its interpretation by the CERD Committee. Unless explicitly stated to the contrary, Parliament should be presumed to desire Australia to act in conformity with international law.

Section 7(2)(a) of the NTA further provides that:

the provisions of the Racial Discrimination Act 1975 apply to the performance of functions and the exercise of powers conferred by or authorised by this Act.

This clearly applies to the powers granted under the NTA to state and territory governments and administrative tribunals' to administer the right to negotiate processes. The manner in which governments issue section 29 notices is consequently governed by the provisions of the Racial Discrimination Act 1975, including decisions regarding whether to exercise or permit any of the exceptions to the right to negotiate allowable under the NTA.

Any act which has the purpose or effect of impairing the rights of native title holders is an act based on race. [152] Government practices that have the effect of nullifying procedural rights granted under the NTA discriminate against native title holders and native title holders alone. They may therefore amount to discrimination in contravention of subsection 9(1) of the RDA.

Conclusion

State and territory governments and administrative tribunals are bound by the NTA. Nevertheless, they have considerable discretion regarding the manner in which they exercise their powers. Where this is the case they should, as a matter of law as well as principle, exercise their powers under the NTA consistently with relevant international human rights instruments, and in particular the prohibition on racial discrimination found in the ICERD and Australia's Racial Discrimination Act.

The failure to provide native title parties with the opportunity to negotiate about the development of their native title lands favours the property rights of kinds held by non-Indigenous people over those held by Indigenous people. This is prima facie inconsistent with Australia's obligations in relation to equality and the rights of Indigenous minorities. Where they have a choice, state and territory governments and administrative tribunals must administer the right to negotiate in ways that preserve the equal protection of Indigenous property rights and preserve Indigenous peoples' rights to effective participation in decisions affecting their traditional lands.

The following section outlines human rights benchmarks against which governments should measure their administration of the right to negotiate and their mining future acts processes and policies.

International Human rights standards:

Principles for the administration of the Right to Negotiate

The principle of equality requires that Indigenous interests in land be protected equally to non-Indigenous interests:

• · Future act processes must accommodate Indigenous as well as non-Indigenous rights and interests in land.

• · Non-Indigenous interests should not be privileged over Indigenous rights and interests.
  
   
• Future act processes that respect the equality of Indigenous peoples' property rights with other property rights will not seek further extinguishment of native title. The principle of non-extinguishment should apply to all future act processes affecting native title.
  
   
• Where the legal question of prior extinguishment is uncertain (such as on enclosed and / or improved pastoral lands as discussed in the Ward case), but native title parties maintain a relationship with the land based on traditional law and custom, future act processes should proceed as if native title continues to exist.
  
   
• Where native title claimants maintain a connection with land based on the observance of traditional law and custom (even if native title has been extinguished in a part of the claim area) legal extinguishment should not preclude negotiations regarding the whole claim if the interest that extinguished the native title has ceased (and the land has reverted to Crown title).
  
   

Future act processes should recognise and respect Indigenous peoples' rights to effective participation in decisions affecting their traditional lands:

• Indigenous people have a right to effective participation in decisions affecting their traditional lands. Where governments have a legal discretion whether or not to require negotiation over non-Indigenous land use of native title lands, the discretion should be exercised so as to allow native title parties to negotiate about the use of their lands.
  
   
• The fact that traditionally Aboriginal and Torres Strait Islander people used their land as a resource for the sustenance and well being of their community should translate in modern times into a right to participate in the modern management of their land. Native title must be given a role in the development of Aboriginal communities beyond permitting the practice of traditions and customs as they were practised by the predecessors of the native title parties before colonisation. Thus the right to negotiate is not merely a consultation on ways of minimising the impact of mining on registered native title rights or on protecting sacred sites. The right to negotiate should reflect an entitlement to manage the land or obtain a benefit from the resources that exist on the land.

The unique nature of native title means that equal protection of native title interests will sometimes require native title to be treated differently to non-Indigenous interests:

• Native title has cultural, religious, social and economic significance. Future acts processes under the NTA are for the protection of the unique nature of the native title rights. Future acts processes should not reduce the protections available to native title rights.
  
  
  
  Future act processes should encourage and allow continued enjoyment of Indigenous culture and laws:
  
   
• Future act processes should encourage the economic, social and cultural development of Indigenous people.

• It must be recognised that, just as non-Indigenous Australian culture has changed since the British acquisition of sovereignty, so have Indigenous cultures. Native title includes contemporary cultural beliefs and economic practices forming distinct indigenous cultures that have developed from earlier traditional cultures as they existed at the time of the acquisition British sovereignty.

Future act processes should respect the communal nature of native title rights and should protect the inter-generational aspect of the rights.

Recommendations

1. That state and territory government departments administering the issue of future act notifications develop strategic plans, in consultation with NTRBs, with the aim of improving the efficiency of their administrative practices.

2. The manner and rate of administering future acts should be determined with the informed consent of NTRBs.

---

1. The Committee on the Elimination of Racial Discrimination is the United Nations committee monitoring the ICERD.

2. Committee on the Elimination of Racial Discrimination, General Recommendation XXIII (51) concerning Indigenous peoples, CERD/C/51/Misc.13/Rev.4 (1997), para 5. [Herein 'CERD General Recommendation 23'].

3. Sarah Prichard, "Special Measures", in Race Discrimination Commissioner, Racial Discrimination Act 1975: A Review, 1995, p.199.

4. The Human Rights Committee is the United Nations committee monitoring the International Covenant on Civil and Political Rights (the 'ICCPR').

5. Human Rights Committee, General Comment 23, Article 27 (1994) para 3.2, in Compilation of General Comments and General Recommendations adopted by the Human Rights Treaty Bodies UN Doc HR/GEN/1/Rev.1, p.147. [Herein 'HRC General Recommendation 23'].

6. See ibid.; CERD General Recommendation 23; see also The Human Rights Committee, Concluding Observations of the Human Rights Committee: Australia. 28/07/2000. CCPR/CO/69/AUS, para 9. [Herein HRC Concluding Observations]

7. CERD General Comment 23, para 4(d).

8. North Gaanalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 235-236; see also Mitakoodi / Juhnjlar People v State of Queensland [2000] FCA, at [9].

9. Section 31(1) NTA.

10. These are specified in Section 39 NTA, which sets out a broad range of minimum criteria that are to be taken into account by arbitral bodies when deciding on right to negotiate matters that have failed to be settled by negotiation. Negotiations may also include matters contained in section 33 NTA, including payments to native title parties.

11. Usually the National Native Title Tribunal.

12. Sections 35, 38 NTA.

13. See Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report; July 1995 - June 1996, pp.18-20; Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 1998, pp.100-102.

14. This right has been emphasised in the last two decisions on Australia by the CERD Committee, which found that the 1998 amendments to the Native Title Act (including the restrictions on the right to negotiate) breached the ICERD in that they failed to ensure the 'effective participation' of Indigenous people [Committee on the Elimination of Racial Discrimination, Decision (2)54 on Australia - Concluding observations/ comments, 18 March 1999. UN Doc CERD/C/54/Misc.40/Rev.2; Concluding Observations by the Committee on the Elimination of Racial Discrimination: Australia, 19 April 2000, UN Doc CERD/C/304/Add.101]; The Human Rights Committee also criticised the NTA for limiting the effective participation of Indigenous people "…in all matters affecting land ownership and use, and affect[ing] their interests in native title lands, particularly pastoral lands." [HRC Concluding Observations]

15. Department of Minerals and Energy, Community Services Branch, Native title and the Grant of Mining & Petroleum Tenure, at: http://www.dme.nt.gov.au/dmemain/land_access/Native%20title%20Process.htm

(accessed 26 November 2001).

16. Technical Taskforce on Mineral Tenements and Land Title Applications, Discussion Paper, August 2001, p.8. Figure take at 30 June 2001.

17. Section 32 NTA.

18. Pursuant to section 43A NTA.

19. Pursuant to section 26A NTA.

20. Part 2, Division 3, Subdivisions B, C, D and E, NTA

21. Guidelines on Acceptance of Expedited Procedure Objection Applications.

22. See sections 29(7) and 237 NTA.

23. Section 237 NTA

24. Statistics provided by the Future Acts Unit of the National Native Title Tribunal on 20 November 2001.

25. Holt v The Hon. Daryl Manzie [2001] FCA 627 (5 June 2001).

26. A native title representative body.

27. This is discussed in detail at p.XX below.

28. These actions are discussed further below at p.XXX.

29. Under the Administrative Decisions (Judicial Review) Act 1977 and section 39B of the Judiciary Act 1903 and the associated and accrued jurisdictions.

30. Section 32 NTA.

31. That is, the 'carrying on of the community or social activities' of the particular native title-holders, or with 'areas or sites of particular significance' according to the traditions of the particular native title holders and is not itself likely to or create rights whose exercise is likely to 'involve major disturbance to any land or waters concerned'.

32. Roy Dixon on behalf of the Garawa and Gurdanji Peoples/Ashton Mining Ltd/Northern Territory NNTT DO 01/1-7 (23/4/01) Deputy President Franklyn, Perth, 23 April 2001.

33. Ibid. at para.18.

34.Ibid.

35. Objections to the application of the expedited procedure in notification of future acts otherwise subject to the right to negotiate.

36. WAANTWG is an native title advocacy body made up of native title representative bodies and other organisations and consists of the Goldfields Land Council, Kimberley Land Council, Ngaanyatjarra Land Council, Noongar Land Council, Yamatji Land and Sea Council and ATSIC WA State Council.

37. Yamatji Land and Sea Council, on behalf of Western Australian Aboriginal Native Title Working Group, Submission in Relation to Guidelines on Acceptance of Expedited Procedure Objection Applications, addressed to the National Native Title Tribunal, Principal Registry, Western Australia, dated 25 July 2001.

38. Submissions were received from the Office of the Ministry of the Premier and Cabinet of Western Australia, the Solicitor for the Northern Territory, the Ngaanyatjarra Council, the Northern Land Council and Yamatji Land on Sea Council on behalf of itself, and the Goldfields Land Council, the Kimberly Land Council, the Noongar Land Council and the ATSIC (WA) State Council.

39. National Native Title Tribunal, Explanation of Guidelines on Acceptance of Expedited Procedure Objection Applications, issued 16 October 2001.

40. Holt v Manzie, discussed above at p.XXX.

41. Section 7(2)(a) NTA.

42. Section 39 NTA sets out a broad range of minimum criteria that are to be taken into account by arbitral bodies when deciding on right to negotiate matters that have failed to be settled by negotiation.

43. These statistics were calculated from information about 'Future Act Objection Outcomes' provided by the NNTT to HREOC on 12 December 2001.

44. Of a total of 381 objections lodged.

45. Statistics provided by the Future Acts Unit of the National Native Title Tribunal on 20 November 2001. Figures are approximate only.

46. Ibid.

47. Department of Land Administration website: http://www.dola.wa.gov.au/home - information downloaded 20 November 2001.

48. Information provided by the Land Administration Services of the Department of Land Administration, Western Australia on 20 November 2001.

49. Western Australia v Ward and Ors, Full Federal Court decision, 170 ALR 159. [herein Ward]

50. Through the Western Australian Department of Minerals and Energy (DME).

51. 'Enclosed' and 'improved' were terms used in pastoral leases leases. The legal meaning of these terms are disputed in the Ward case, but may refer to matters such as fencing etc.

52. In their affidavit in support of application for leave to intervene lodged in the High Court proceedings for Ward v Western Australia, the Goldfields Land Council quoted statistics showing that between June 1999 and March 2000 the GLC Future Act Unit received a total of 351 future act notices with respect to the proposed grant of mining leases, but between April and July 2000 a total of 5 such notices were received.

53. Op.cit.

54. This situation is not dissimilar to the actions of some state and territory governments before the Wik decision in 1996. Prior to the Wik decision governments carried out future acts on pastoral leases, ostensibly on the assumption that native title would be extinguished by pastoral leases. When the Wik decision established that they did not, it was clear that the future acts were invalid. The subsequent validation of such future acts by the 1998 amendments to the NTA have been criticised in the international forum for breaching human rights standards. See note 14 above.

55. (1997) 74 FCR 391.

56. Per Wilcox J at 395.

57. This right has been emphasised in the last two decisions on Australia by the CERD Committee and the decision of the Human Rights Committee. See note XX above.

58. Technical Taskforce on Mineral Tenements and Land Title Applications, Discussion Paper, August 2001, [Herein 'Taskforce Paper'], p.5 -- the Discussion Paper is available on the Deputy Premier, the Hon. Eric Ripper MLA's website at: http://www.ministers.wa.gov.au/ripper/Native_Title.htm

59. Ibid. p8.

60. Report of the seminar on the draft principles and guidelines for the protection of the heritage of indigenous people by Chairperson-Rapporteur Erica-Irene Daes, Geneva, 28 February - 1 March 2000, E/CN.4/Sub.2/2000/26. These principles are annexed to the study Protection of the Heritage of Indigenous People produced in conformity with Sub-Commission resolution 1993/44 and decision 1994/105 of the Commission on Human Rights UN Doc E/CN.4/Sub.2/1995/26.

61. Ibid, para 1.

62. Ibid, para 5.

63.Ibid, para 2.

64. Ibid, para 3.

65. Ibid, para 4.

66. I wish to express my appreciation to Angus Frith who provided information for this section of the report.

67. Subsection 233(1) NTA: any act affecting Aboriginal land is not a future act.

68. There are 217 pastoral leases, covering 621 757 km2 out of the Territory's total area of 1 346 200 km2 (Northern Territory Pastoral Map, Lands Planning & Environment, Northern Territory of Australia, April 2001).

69. Wik v Queensland (1996) 187 CLR 1 ('Wik').

70. No notifications of proposed future acts were issued under section 29 NTA in respect of land or waters in the pastoral estate.

71. Section 22F NTA empowers the state and territory governments to validate such so-called 'intermediate period acts'. See also Native Title Report 1999, pp.49-55.

72. CERD Decision (2)54, para 7

73. Section 43A NTA. See also Chapter 3,'States regimes', in Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 1999, p49-67.

74. This analysis was carried using the notices themselves, which were all published on the notification day in the Northern Territory News and the Koori Mail. In addition, on or before that day, copies were posted to each of the representative bodies and to any registered native title claimants.

75. Some notifications were withdrawn and the proposal to grant the tenements re-notified.

76. Dated 13 December 2000.

77. It has included such a statement in all notices but those of 4 April 2001.

78. At p.XX.

79. The representative body is under a statutory duty to notify the relevant native title party of the proposed future act (Section 203BG NTA), take instructions, and potentially to facilitate and assist the lodging of an objection to the inclusion of the statement. In the latter case, material in support of the application has to be prepared.

80. See above at p.XX.

81. Further issues regarding objections to the expedited procedure are discussed above at p.XX.

82. Roy Dixon on behalf of the Garawa and Gurdanji Peoples/Ashton Mining Ltd/Northern Territory NNTT DO 01/1-7 (23/4/01). These issues were also raised in Holt v Manzie, but were not decided by Olney J as the case was dismissed on other grounds. The Roy Dixon case has further repercussions for the administration of the exceptions to the right to negotiate (in particular, objections to the expedited procedure), as discussed above.

83. Commonwealth Gazette No. s 440, 2 September 1998.

84. Roy Dixon, op.cit. at para 11.

85. Ibid. at paras12-13.

86. I wish to express my appreciation to James Fitzgerald, solicitor, of Chalk & Fitzgerald, Lawyers, Sydney, who provided information for this section of the Report.

87. As at June 2001 the backlog consisted of applications for approximately 900 Mineral exploration permits, 40 Coal exploration permits, 70 Mineral development licenses, 291 Mining leases and 199 Mining claims.

88. At the time of the commencement of the Queensland alternative provisions.

89. Ministerial Statement, Statewide Model ILUA for Backlog Exploration Permits - Land Councils agree to consult communities on exploration agreement - downloaded from the website of the Queensland Department of Premier and Cabinet, Native Title Services: http://www.premiers.qld.gov.au/about/nativetitle/newweb/pages/statewide_ilua.htm

90. Queensland Department of Mines and Energy estimates, July 2001.

91. Queensland Department of Mines and Energy Annual Report, 1999-2000, p44.

92. Sections 26A, 26B, 26C and 43A NTA allow for state governments to introduce legislation that diminishes or removes the operation of the right to negotiate. These provisions and the various State and Territory Governments attempts to introduce such legislation are discussed in Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 1999, pp.61-67, and Native Title Report 2000, pp.157-164.

93. QIWG is an unincorporated association of Queensland native title representative bodies.

94. Various QIWG position papers and correspondence 1998-2000.

95. CERD decision (2) 54 on Australia, op.cit.

96. Which included provisions relating to "high impact" exploration permits, mining claims and mining leases on 'alternative provision areas'; and "high impact" exploration permits, "high impact" mineral development licenses, mining claims and mining leases not on "alternative provision areas" under subsection 43(1) NTA. 'Alternative provision areas', defined at subsection 43A(2) NTA, include areas that are or were in the past covered by non-exclusive agricultural or pastoral leases, national parks, reserves etc. In Queensland, the vast majority of land where native title may exist is covered by the "alternative provision area" definition.

97. Queensland Indigenous Working Group Chair, Terry O'Shane, in Hansard, Senate, Wednesday 30 August 2000 page 16974.

98. Pursuant to section 214 NTA the Attorney-General's determinations are disallowable instruments, meaning that the determinations are reviewable by the Senate. See Native Title Report 2000, p159.

99. Hansard, Senate debate, Senator Faulkner, Wednesday 30 August 2000 p16970.

100. Hansard, Queensland Parliament, 5 September 2000 page 2895.

101. According to the Queensland Indigenous Working Group.

102. 127 'low impact' exploration notices, 12 'high impact' exploration permit notices, 3 mining claim notices and 26 mining lease notices.

103. Queensland South Representative Body Aboriginal Corporation, the Gurang Land Council, the Central Queensland Land Council and the North Queensland Land Council.

104. Queensland Government, Department of Natural Resources and Mines, Statewide Indigenous Land Use Agreement, http://www.dme.qld.gov.au/resdev/native/ilua.htm, downloaded 30 November 2001.

105. Ibid.

106. Ibid. Clause 10, Schedule 2.

107. Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987 (Qld).

108. Queensland Department of Environment and Heritage, Green Paper Proposals for a Heritage Act for Queensland: a Discussion Paper, Brisbane, October 1990, p5.

109. Department of Premier and Cabinet, Review of Queensland's Indigenous Cultural Heritage Legislation, 16 September 1999, p1.

110. Department of Premier and Cabinet, Draft model for new legislation, December 1999.

111. The Titles Branch of the Resource Planning and Development Division is primarily responsible.

112. These included the 2 assessment leases, 160 exploration licences and 11 petroleum exploration licences. This information was provided to HREOC by the NSW department of Mineral Resources on 20 November 2001.

113. Native Title (Right to Negotiate (Exclusion) - NSW Land) Determination No 1 of 1996 and Native Title (Right to Negotiate (Inclusion) - NSW Land) Determination No 1 of 1996.

114. Ibid.

115. See Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2000, pp160-161.

116. NSW Department of Mineral Resources, Administration of Mining Legislation in NSW in the Light of the Commonwealth's Native Title Act, http://www.minerals.nsw.gov.au/titles/index.htm, downloaded 7 November 2001, p2.

117. Ibid. p4.

118. The two assessment leases granted did not affect native title land.

119. NSW Department of Mineral Resources, Administration of Mining Legislation in NSW in the Light of the Commonwealth's Native Title Act, http://www.minerals.nsw.gov.au/titles/index.htm (downloaded 7 November 2001), p2.

120. Information provided to HREOC by the NSW department of Mineral Resources on 20 November 2001.

121. See Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2000, p.160-161.

122. Wassaf, T J, "Recent Developments - New South Wales -The Low impact Exploration Licence Regime", in 2001, Australian Mining and Petroleum Law Journal 20(1), p 7 - see Native Title Act, sections 26A and 32F(2).

123. Section 141 sets out some of the matters that may be addressed and includes, amongst others, information about the time, areas of land and kinds of prospecting activities to be carried out, conditions, compensations and manner of resolving disputes and varying the access arrangements.

124. See Native Title Report 2000, op.cit. pp160-161.

125. Information was provided to HREOC by the NSW department of Mineral Resources on 20 November 2001.

126. Ibid.

127. Per section 24FE - includes a registered native title claim; or a native title claim that was lodged for registration prior to the conclusion of the period specified in section 66, and is subsequently registered.

128. Section 24FB.

129. In the same period seventeen non-claimant applications were lodged in NSW. Eight of these were lodged by local councils, and the remaining two were lodged by mining companies.

130. Resourcing restrictions on the native title representative bodies are discussed in Chapter Two of this report.

131. Protocol for the Negotiation of Agreements for Exploration and Mining for New South Wales, Part B, "Matters for Which the Protocol May Provide".

132. See Chapter 2 for further discussion of the resource constraints on native title representative bodies.

133. Figures are 1996 figures supplied by the Department of Natural Resources and Environment, Mining and Mineral Exploration Section, on 22 November 2001 - 13% is 'exempted Crown land', including national parks etc. where no mining or exploration (except potentially for petroleum) is permitted; 3.3% is 'restricted Crown land', which includes areas of high conservation value and for which the consent of the Conservation Minister is required to explore or mine; and 15.4% is 'unrestricted Crown land'.

134. Private land, roads and road reserves are treated as not subject to native title claims.

135. Figures provided by the NNTT to HREOC on 20 November 2001. Figures are approximate.

136. Department of Justice, Victorian Government, Victorian Government Policy on Native Title, released October 2000, p1.

137. Ibid. p8.

138. Information provided to HREOC by the Department of Natural Resources and Environment, Mining and Mineral Exploration Section, on 27 November 2001.

139. Information provided to HREOC by the Department of Justice, on 18 December 2001

140. See Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 1999, chapters 2 and 3, and Native Title Report 1998, chapter 3.

141. Observations criticising the 1998 Act amendments have been made by three treaty bodies: CERD [op.cit.], the Human Rights Committee [op.cit.] and the Committee on Economic, Social and Cultural Rights (1 September 2000, UN document E/C.12/1/Add.50). See also International Review of Indigenous issues in 2000 on Human Rights & Equal Opportunity Commission web-site https://humanrights.gov.au/our-work/aboriginal-and-torres-strait-islander-social-justice/projects/native-title

142. Preamble to the Universal Declaration of Human Rights, which was passed, by consensus, by the United Nations General Assembly in 1948.

143. Article 2.1(a).

144. Article 6.

145. CERD Concluding Observations on Australia, UN Doc: A/49/18, para 542.

146. UN Doc A/Conf 39/28, UKTS 58 (1980), 8 ILM 679. Article 27.

147. Leroux v Brown (1852) 12 C.B. 801; The Zollverein (1856) Swab. 96; The Annapolis (1861) Lush. 295; Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309; Zachariassen v Commonwealth (1917) 24 CLR 166. See also Maxwell on the Interpretation of Statutes 7th Ed, 1929, at 127.

148. Murray v Charming Betsy (1804) 2 Cranch 64, 118; also United States v Fisher (1805) 2 Cranch 390.

149. Dietrich v The Queen (1992) 177 CLR 292 at 306-07 per Mason CJ and McHugh J; also Minister for Foreign Affairs and Trade v Magno (1992) 112 ALR 529 at 534 per Gummow J.

150. Note that in recent cases the High Court has indicated that a narrow conception of ambiguity is to be rejected: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 per Mason CJ and Deane J; also Kartinyeri v Commonwealth (1998) 195 CLR 337 at 384 per Gummow and Hayne JJ. Generally A Simpson and G Williams, "International Law and Constitutional Interpretation" (2000) 11 Public Law Review 205 at 208; J Spigelman, "Access to Justice and Human Rights Treaties" (2000) 22 Sydney Law Review 141 at 149.

151. Chu Kheng Lim v Minster for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 38 per Brennan, Deane and Dawson JJ.

152. See Gerhardy v Brown (1987) 159 CLR 118.