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Thursday, 16 February 2017
Page: 1298


Mr LEESER (Berowra) (11:15): I rise to speak on the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017.

Native title has been a revolution in Australian law. I remember the Mabo decision of 25 years ago and the way in which that changed the way we viewed land law and the way in which there was effectively a new type of land law in native title that had been created by the High Court.

I remember a number of the debates around the Native Title Act, introduced by the Keating government, and then the surprise that greeted Australians with the Wik decision of the High Court—and perhaps one of the most lengthy and divisive debates ever witnessed in this parliament, being the debate around the Wik legislation at the time.

I had the privilege of working for my predecessor as member for Berowra when he was Attorney-General. One of the responsibilities for which I had the privilege of assisting him with was native title. In a conclusion to the issue of the Wik case, shortly after the 2004 election we travelled to Aurukun and were present for the final determination of that Wik case. It was a really extraordinary occasion to be there at Aurukun with a couple of the original claimants who had brought the original High Court case there some half a decade earlier, and to see the resolution of those matters.

One of the key things that came out of the Native Title Act, and one of the important things in native title, has been the way in which agreements have been made around the claims. Indigenous Land Use Agreements have been a very important part of agreement making in the native title space, and an important part of ensuring that there is some development, progress and prosperity given to successful Indigenous communities that have made a claim and been registered.

In relation to this bill, everyone is in agreement that urgent amendments are needed to remedy the implications of the recent Federal Court decision. These changes will ensure certainty in agreement making and enable native title holders to continue to use native title in beneficial ways. The government has moved quickly to introduce amendments that will restore the status quo in this space, and we ask the Labor Party to stand beside us to consult on these amendments and help the government move forward.

The government intends to move this bill through the House and then spend the next four weeks consulting before it gets considered by the Senate. States, territories and Indigenous stakeholders, and other affected parties, are calling for these amendments. The Queensland Labor Premier in particular is urgently seeking a resolution.

The government remains committed to the Indigenous Land Use Agreement system. As I said, it has been a very important system in delivering outcomes for Indigenous people and Indigenous communities. It is the best way of facilitating agreements between native title holders and parties who wish to do business on native title land. That includes many of the pastoralists, miners, tourism operators and so on who operate on native title land. These amendments simply restore the status which prevailed before the decision in McGlade.

The bill is a response to the decision of the full Federal Court in the McGlade case. It will remove the requirement that was stated in that decision for all registered native title claimants to sign an Indigenous Land Use Agreement. More particularly, for ILUAs, or Indigenous Land Use Agreements, concluded after the coming into force of the bill, the bill will provide that not all registered native title claimants are required to sign the ILUA. That was one of the subjects in that McGlade case.

For agreements lodged with the National Native Title Tribunal, but not registered by the Native Title Registrar, it will provide that those agreements are not taken to be invalid, merely on the ground that not all registered native title claimants have signed the agreement. Similarly, it will provide for agreements that have been registered but were not signed by all registered native title claimants.

The Native Title Act 1993 provides that any act done after 1 January 1994 is invalid to the extent that it affects native title—defined as a `future act' in the Native Title Act—unless the Native Title Act otherwise provides.

One means of validating future acts provided for by the Native Title Act is an Indigenous Land Use Agreement. Parties to an Indigenous Land Use Agreement may agree that an act which would otherwise have been invalid can proceed, in exchange for which the non-Indigenous party or parties will pay compensation or agree to do some other act benefiting the native title holders. By way of example, mining and pastoral projects will often require an Indigenous Land Use Agreement so as to avoid affecting native title rights and interests.

The Native Title Act sets out a range of provisions as to who must be parties to an Indigenous Land Use Agreement and how it is to be authorised by the claim group, negotiated and lodged with the National Native Title Tribunal. Crucially, in order to validate any future acts, the Indigenous Land Use Agreement must also be registered by the National Native Title Tribunal.

In 2010, the Federal Court decided that in order to be a valid Indigenous Land Use Agreement, at least one member of the registered native title claimant for an area had to sign the agreement. That was the orthodox position in precedent under the QGC case in Bygrave and others. That stood as the accepted interpretation of the Native Title Act until 2 February this year, when the McGlade decision was published.

McGlade overruled Bygrave, holding that the correct interpretation of the relevant provisions of the Native Title Act required all registered native title claimants to sign an Indigenous Land Use Agreement in order for it to be capable of registration. Going forward, the decision may make it more difficult for native title respondents, including government, pastoralists and mining companies, to negotiate an Indigenous Land Use Agreement with local native title holders.

The decision affects two groups of Indigenous Land Use Agreements that have already been signed: those which have been lodged with the tribunal, but not registered, and those which were registered in reliance on the decision in Bygrave. There are 123 Indigenous Land Use Agreements in the latter category, of which 109 are in Queensland. And you can understand, with that large number in Queensland, why the Queensland Labor Premier is particularly concerned to seek an early resolution to this matter.

Those on the government side would ask those opposite to actually stand behind us and help us consult on the amendments moving forward. The government wants to move this bill through the House and then spend some time doing the consultations over the next four weeks before it is considered by the Senate. Everyone is in agreement that the urgent amendments are needed to remedy the implications of that Federal Court decision in McGlade, and I think that these changes will ensure certainty in agreement-making and enable native title holders to continue to use native title in those many beneficial ways in which they have, in the various native title claimant groups right across our country. I commend this bill to the House.