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Thursday, 16 February 2017
Page: 1224


Senator FIFIELD (VictoriaManager of Government Business in the Senate, Minister for Communications and Minister for the Arts) (15:38): I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

NATIVE TITLE AMENDMENT (INDIGENOUS LAND USE AGREEMENTS) BILL 2017

The Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 responds to the recent Full Federal Court decision in McGlade v Native Title Registrar. It provides certainty to indigenous and non-indigenous parties alike where they have voluntarily made, or are proposing to make, agreements about the use of land and waters subject to native title.

The effect of the McGlade decision was to overrule an earlier decision of a single judge of the Federal Court in 2010 in a case called Bygrave (No. 2).

Bygrave settled the law in relation to the necessary requisites for an Indigenous Land Use Agreement to be registered.

Bygrave held that it was not necessary for all members of the registered native title claimant (who are the authorised representatives of the broader native title claim group) to be a party to the ILUA.

Rather, Bygrave held that what was important was that the broader native title claim group, being those claiming to hold native title in the area, had authorised the making of the proposed agreement.

The McGlade decision has overturned this position, requiring that all members of the registered native title claimant be a party to the agreement.

This is a very significant development in relation to not only Indigenous land use agreements that have already been registered in reliance on the rule in Bygrave, but in relation to all Indigenous Land Use Agreements seeking registration.

This is because the effect of the decision in McGlade is that the will of the broader native title claim group may be frustrated because not all members of the registered native title claimant have signed the agreement.

This may happen for any number of reasons including that the member of the registered native title claimant does not agree with the decision that the broader claim group has made, or has passed away or became incapacitated before being able to sign the agreement.

These amendments seek to return to the status quo ante as established in Bygrave (No. 2) for agreements that have already been registered or were awaiting registration at the time of the McGlade decision, and which were duly authorised by the broader native title group and which followed the law as it was at the time.

These particular amendments will operate retrospectively to counter the potential impact of the McGlade decision.

The amendments will give primacy to the decision of the broader native title claim group for agreements in the future, as it is the group who claim to hold native title within the area of the agreement who should ultimately have the right to decide whether an agreement should be accepted or not. Greater reliance on collective decision-making reflects the communal nature of native title rights under the Act.

The amendments provide that the native title claim group may nominate one or more persons of the registered native title claimant to be a party to the agreement.

The group may also specify a process for determining who will be a party to the agreement. This will guard against the possibility that the person or persons they nominate become unable or unwilling to be a party to the agreement.

If the claim group does not specify a process for determining who is to the a party to the agreement it will be sufficient if a majority of the registered native title claimant are parties. This position is consistent with recommendations made by the Australian Law Reform Commission in its Connection to Country report that the registered native title claimant should be able to act by majority.

To give maximum flexibility to native title claim groups when making these key decisions, the bill also implements recommendations 10-1 and 10-2 of the ALRC report, by allowing the group to follow a traditional decision making process if one is available or to agree on another decision making method. Currently a group must use a traditional decision making process if one exists.

Taken together, the amendments in this bill will provide certainty to indigenous and non-indigenous parties who have already registered their agreements or whose registration is pending. These measures will protect the benefits and interests that have been granted on both sides, and provide certainty for parties who have commenced or are proposing negotiations for an indigenous land use agreement. The amendments return the control over the realisation of such agreements for indigenous parties to the hands of the wider group of native title holders, who can ensure that their will is carried out.

Debate adjourned.