Page 1111 - Week 04 - Thursday, 21 April 1994
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It defines native title by reference to traditional laws and customs and puts beyond doubt that hunting, gathering or fishing rights are native title rights or interests. The Act goes on to allow claims that native title does or does not exist to be determined in response to a request by a person who has an interest in land or by a Commonwealth, State or Territory Minister.
The Commonwealth Native Title Act 1993 establishes the machinery for making decisions on applications that native title has survived. Included in this machinery is the Native Title Tribunal. Madam Speaker, the ACT Government has decided that it wishes to rely upon the Commonwealth tribunal for determining native title in the Territory rather than create its own potentially costly and complex machinery. Accordingly, the ACT legislation makes no provision for a tribunal or related processes. As a result, the procedures in the Commonwealth Act for applications and determinations to be made will apply in the ACT.
The Commonwealth Act validates past acts by the Commonwealth in relation to land in the Territory up to self-government day and any land management activity it has undertaken since then. The ACT Native Title Bill will similarly validate any acts of the Territory Government. It is important to note that the validation of these land management activities of the Commonwealth and ACT governments in the Territory relates only to acts that are invalid because of the existence of native title. In this context, I should add that the ACT Government is not aware that acts have occurred in the past in the Territory that are invalid because of the existence of native title. For example, extensive grants of freehold over what is now the ACT which were made during the nineteenth century are considered valid and, in accordance with the High Court's decision, would have extinguished native title.
Under the native title system being put in place by the Commonwealth and ACT laws, validation of a past act can have differing effects on native title, depending upon the nature of the interest in land that is being validated. Category A past acts have the effect of extinguishing any native title and include freehold grants, leases for commercial, agricultural, pastoral or residential purposes, and public works, which includes buildings, roads, major earthworks and other fixtures. Therefore, very nearly all leases in the ACT fall into category A and, under the legislation, will be able to be extended in the normal ways and will, on validation, extinguish any native title that might exist.
Category B past acts, when validated, extinguish native title to the extent that the interest in the land is inconsistent with the exercise of native title. In the ACT it appears that what are referred to as community leases would, if invalid, fall into category B. As these kinds of leases provide for exclusive possession, it appears that validation would also extinguish native title since it would not be capable of coexisting with the rights under the lease. The Bill also provides for other categories of interests in land, such as mining leases, licences and permits, to have different impacts upon native title on validation in a way that seeks to minimise the extent to which native title is affected.
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