Negotiating the legislation
2.55 The decision in Mabo [No 2] was followed by proposed Australian Government legislation. The High Court’s decision was seen by the government of the day as ‘a practical building block of change’ and the ‘basis of a new relationship’. A draft Commonwealth report proposed a statutory framework for native title, with a specialist statutory tribunal to adjudicate claims and the negotiation of settlements. There was a period of intense negotiations between all stakeholders and the Commonwealth government, with various compromises reached.
2.56 Australia’s federal system of government has played an important role in the evolution of the law and the institutions under the Native Title Act. The Act reflected the need to balance Aboriginal and Torres Strait Islander interests, the proposals for significant state involvement in the processes under the Act, and industry concerns for ‘certainty’—all within the overarching Commonwealth framework.
Overview of the Act
2.57 The legislation was seen as an opportunity ‘to do justice to the Mabo decision in protecting native title and to ensure workable, certain, land management’. It was, ‘enacted against the fabric of the common law’. The Native Title Act was passed in late 1993. Broadly, it did four things:
it validated past grants and legislation to give full effect to Crown grants made before 1 January 1994 or legislation passed before 1 July 1993;
it enacted a ‘future acts regime’;
it gave effect to state and territory jurisdiction; and
it vested powers to determine native title in the Federal Court and the new National Native Title Tribunal.
2.58 The Native Title Act operates within Australia’s federal system of government with divided, but at times overlapping, spheres of legislative powers and executive responsibilities between the Commonwealth and state and territory governments. The powers to grant interests of land in the tenure-based system of land law rest with state governments, as the inheritors of the colonial land law structures. In conjunction, state and territory governments have extensive land management, environmental protection, infrastructure provision, land use planning and other responsibilities that interface with native title rights and interests.
2.59 The Native Title Act is a valid exercise of the Commonwealth’s legislative power pursuant to s 51(xxvi) of the Constitution. As valid Commonwealth legislation, pursuant to s 109 of the Constitution, it is binding upon the states and territories.
2.60 In 1998 the Act was significantly amended under the ‘Wik 10 point plan’ that, among other amendments, extended the validation and confirmation regime. Amendments removed the power to make determinations of native title from the National Native Title Tribunal to the Federal Court. Minor amendments were made to the definition of native title, relating to statutory access rights. Section 225, which outlines matters that must be included in a determination of native title, was amended to require additional precision as to both the holders of the native title and the nature and extent of that native title.
Maureen Tehan, ‘A Hope Disillusioned, an Opportunity Lost? Reflections on Common Law Native Title and Ten Years of the Native Title Act’ (2003) 27 Melbourne University Law Review 523, 538.
The Hon Paul Keating, ‘Speech by the Honourable Prime Minister, PJ Keating MP, Australian Launch of the International Year of the World’s Indigenous Peoples, Redfern, 10 December 1992’ (1993) 3 Aboriginal Law Bulletin 4.
‘Mabo: The High Court Decision on Native Title’ (Commonwealth of Australia, Inter-departmental Committee, June 1993). A series of financial measures, such as a justice and economic development package were also proposed in this report.
Bauman and Glick, above n 56, chs 7–11.
For an outline of the various positions see Tehan, above n 54; Sean Brennan, ‘Native Title in the High Court of Australia a Decade after Mabo’ (2003) 14 Public Law Review 209.
Tehan, above n 54.
Commonwealth, Parliamentary Debates, House of Representatives, 16 November 1993, 2878 (Paul Keating).
Perry and Lloyd, above n 75, 3.
For an outline of the various positions see Tehan, above n 54; Brennan, above n 100.
Native Title Act 1993 (Cth) Preamble.
Richard H Bartlett, Native Title in Australia (Butterworths, 2nd ed, 2004) 88.
Walker v State of South Australia (No 2)  FCA 700 (19 July 2013) .
See, eg, Lisa Strelein, Dialogue About Land Justice: Papers from the National Native Title Conference (Aboriginal Studies Press, 2010).
The relevant power operates in respect of ‘the people of any race for whom it is deemed necessary to make special laws’ Commonwealth of Australia Constitution Act (Cth) s 51 (xxvi).
Western Australia v Commonwealth (1995) 183 CLR 373, .
Native Title Amendment Act 1998 (Cth).
See Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245.
Native Title Act 1993 (Cth) ss 223(3) and 223(3A).