The Government’s proposed changes to the Native Title Act are likely to run in to constitutional problems, presuming they pass the Senate.
According to Mr Howard, “”The Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs will be able to ensure that a project of major economic benefit to Australia can proceed if it appears that that benefit will be lost if a decision is not made urgently.””
It appears the Minister will be given power to override native title.
The Government appears to misunderstand the nature of native title. It is a creature of the common-law. As such it is property and under the Constitution it cannot be taken away by the government except on just terms.
The proposed changes say that before the Minister can give the project the go-head it has to be, in the Minister’s opinion, of significant benefit to native title-holders. (For example, the Century Zinc deal offered $60 million to native-title holders.)
Native title-holders can also make representations to the Minister for compensation.
This approach has been found invalid in the past. Legislation cannot substitute a minister’s opinion about a matter for the right for those affected to contest it in a court.
The Constitution provides can only make laws for acquisition of property “”on just terms”.
Aside from the constitutional issue, the changes reveal a mentality: “”We’ll cut through all this legal mumbo jumbo by giving the minister wide powers so the miners can get on with the job. The Minister will decide what’s good for the natives” The constitutional protection of property rights were put there precisely to stop this sort of executive abuse from being exercised.