Native Title Amendment Act 1998

The Native Title Amendment Act 1998 (Cth), also commonly referred to as the "10 Point Plan" is an Australian native title law created by the John Howard led Liberal Government in response to the 1996 Wik Decision by the High Court of Australia. The Native Title Amendment Act 1998 placed some restrictions on native title claims.

History

In 1996, the High Court’s decision in Wik Peoples v Queensland was handed down. The case dealt with the question of whether pastoral leases granted between 1910 and 1974 in Far North Queensland had the effect of extinguishing native title. A 4:3 majority of the judges decided that the grant of a pastoral lease did not confer exclusive possession, and that native title could therefore continue to exist – this has been called “coexistence”. Where an inconsistency between the native title and non-native title rights occurs, the non-native title rights prevail.

The NTA had not adequately dealt with the possibilities of native title existing over pastoral leases or of native title rights co-existing with other rights. Since the NTA had come into effect, governments had been taking action on pastoral leases that did not comply with the NTA. Wik raised the possibility that those acts could be invalid and showed that the ‘freehold test’ (the principle used to determine where proposed activities could be done without regard to native title) in relation to future acts was inappropriate. The Federal Government developed the Ten Point Plan, which became the basis for the amendments, to deal with these inadequacies of the NTA.

The amendments

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

The "10 Point Plan"

The ten points were as follows:

The National Native Title Tribunal holds absolute authority over claims for Native Title
State governments are empowered to extinguish Native Title over crown lands for matters of 'national interest'
Lands providing public amenities are exempt from Native Title claims
Mining and pastoral leases are allowed to co-exist with Native Title
The National Native Title Tribunal can create access to traditional lands rather than granting full Native Title
A registration test is imposed on all claimants
The right to claim Native Title in or around urban areas is removed
Government is permitted to manage land, water, and air issues in any site
Very strict time limits will be placed on all claims
Indigenous Land Use Agreements will be created to promote co-existence

The legislation was opposed by the Australian Labor Party and the Australian Democrats. The final legislation was amended to gain the support of Independent Senator Brian Harradine, whose vote was required for the bill to pass.

External links