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Wednesday, 28 November 2012
Page: 13649


Ms ROXON (GellibrandAttorney-General and Minister for Emergency Management) (09:42): I move:

That this bill be now read a second time.

Deputy Speaker Oakeshott, I am sure that it gives you some pleasure to be in the chair while this bill is being introduced.

I am pleased to introduce legislation to make the native title system fairer and more flexible. I am also pleased to be joined by my colleague the minister with responsibility for Indigenous affairs, because it is obviously a matter between our portfolios of great importance.

The Native Title Amendment Bill will make several amendments to the Native Title Act 1993. These amendments will create a native title system that achieves faster and better outcomes, with a focus on unlocking the economic potential of native title and promoting sustainable agreement making.

Twenty years after Mabo, the government continues to pursue lasting changes which will improve the way native title agreements are struck and how they are managed.

These amendments build on Labor's 2009 reforms. Since 2009, we have seen a significant increase in the number of native title consent determinations. This shows how Labor's reforms have sped up native title agreement making.

The government's current institutional reforms to the Federal Court and National Native Title Tribunal will further build on these achievements and allow for the effective and efficient resolution of claims.

The bill reforms three areas of the Native Title Act:

Firstly, it clarifies the meaning of negotiating in 'good faith' and makes associated amendments to the 'right to negotiate' provisions;

Secondly, it allows parties to agree to disregard historical extinguishment of native title in areas set aside for the preservation of the natural environment, such as parks and reserves; and

Finally, it broadens the scope and streamlines processes for voluntary Indigenous Land Use Agreements (ILUAs)

Since 2010, the government has undertaken extensive consultations with key stakeholders—including: Indigenous groups, state and territory governments, farmers, miners, local council associations and other peak bodies and organisations.

In particular, exposure draft legislation was for four weeks and extensive consultations were undertaken.

Of course, not all stakeholders agree will the bill before us, but all views have been carefully considered. The government believes a sensible balance has now been struck.

Schedule 1 of the bill contains amendments which enable governments and native title parties to agree to disregard extinguishment of native title in areas which preserve the natural environment. For example this includes national, state and territory parks and reserves.

This amendment will provide parties with greater flexibility in the claims resolution process. The government hopes the amendment will provide more opportunities for claims to be settled by negotiation and for parties to reach agreement. Furthermore, this amendment may be used in claimant applications and revised native title determination applications to ensure flexibility for parties.

However, the bill contains a number of checks and balances. Disregarding extinguishment of native title is limited to park and reserve areas. There must be agreement between the government that effected the extinguishment and the native title party. The parties may agree which area—for example, all or part of an area—is the subject of the agreement to disregard extinguishment. And the amendments do not remove the requirement to establish connection in order for native title to be recognised.

Any current interests over the land, such as rights vested in a national park authority, private leases or easements within the area, will continue to exist and, to the extent of inconsistency with native title rights, will prevail.

There is a notification requirement so that interested third parties will have at least two months to comment before an agreement to disregard historical extinguishment is finalised. The amendment also allows relevant government parties to disregard the extinguishing effects of public works in the area by agreement.

Overall, it is our intention that the amendments will provide more opportunities for more claims to be settled by negotiation rather than litigation, particularly in relation to joint management of national parks. It also facilitates recognition of traditional connection to the land.

Schedule 2 of the bill clarifies the meaning of 'good faith' under the existing native title 'right to negotiate' regime.

The right to negotiate is a key component of the native title system. It enables native title parties to participate in negotiations regarding future acts which may affect their rights and interests.

Currently, parties are required to negotiate in 'good faith' under the Native Title Act. But 'good faith' is not defined. This has caused confusion and litigation about what constitutes 'good faith' and at times, it has been difficult for parties to prove a lack of 'good faith'.

Many negotiating parties are already building strong and positive relationships with Indigenous Australians. Many are already fulfilling these 'good faith' obligations. But there are those, at the fringes, who are acting capriciously or unfairly, those who are not seriously sitting down at the table with proposals or offers, or not turning up to meetings regularly and withholding information which is not commercially sensitive and would assist in reaching an agreement. There is a minority who are just sitting through negotiations, waiting for the clock to tick and time to expire before rushing off to an arbitral body.

The government does not believe these practices are widespread, but this amendment will clearly set out the expectations of all parties—both Indigenous and non-Indigenous—in operating under the 'right to negotiate' regime. This bill is designed to address these types of situations.

The amendments to the 'good faith' provisions will improve negotiations in three ways:

first, by clearly specifying what is required to fulfil 'good faith" in a negotiation;

second, by extending the minimum time frame for negotiations from six to eight months; and

finally, by ensuring that if an assertion is made that a party did not negotiate in good faith, the party in question must establish to the arbitral body that they have complied with the requirements.

These amendments clearly set out what is expected of all negotiating parties—from mining companies through to Indigenous groups. They include a requirement that negotiation parties use all reasonable efforts to reach agreement.

A non-exhaustive list of factors which the arbitral body may take into account include:

whether a party has refrained from capricious or unfair conduct that undermined negotiation;

refrained from acting for an improper purpose in relation to the negotiations;

that a party made reasonable proposals and counter proposals;

that a party attended and participated in meetings at reasonable times;

that a party disclosed relevant information (but not confidential or commercial in confidence information) in a timely manner;

that a party responded to proposals in a timely manner and gave genuine consideration to the proposals; and

that a party recognised and negotiated with other negotiation parties or their representatives.

It is important to note that there is no obligation for a negotiating party to reach agreement and none of these factors are mandatory.

This non-exhaustive list of factors and the requirement that 'all reasonable efforts' have been made recognise that there is no 'one-size-fits-all' approach to native title. In considering whether a party has negotiated in good faith, the National Native Title Tribunal is able to consider these criteria 'where relevant' in the context of the particular circumstances of the case. This means that negotiations and outcomes will still have flexibility.

The amendments to the good faith negotiation requirements will apply to negotiations that are still on foot, starting from 1 January 2013.

These amendments aim to give native title parties a genuine right to participate in negotiations.

The good faith amendments will ensure there is a clear standard throughout the native title system about what constitutes good faith negotiations. The government recognises that many in the resource sector are already working to establish positive relationships with native title parties and achieve sustainable economic outcomes for Indigenous communities.

Schedule 3 contains amendments to streamline processes for Indigenous Land Use Agreements (ILUAs).

Indigenous Land Use Agreements are an important mechanism for native title groups and others to negotiate flexible, pragmatic agreements about the use and management of land and waters.

These amendments aim to ensure that Indigenous Land Use Agreements continue to provide flexibility and certainty for all parties.

The amendments will:

1.    broaden the scope of body corporate agreements—a particular type of ILUA—to ensure Indigenous Land Use Agreements are sufficiently flexible to meet negotiating parties' needs;

2.    improve the efficiency of authorisation and registration processes for Indigenous Land Use Agreements;

3.    simplify the process to make minor amendments to an ILUA by agreement—rather than going back to the National Native Title Tribunal each time.

These reforms will give parties to ILUAs more flexibility and expand the range of issues that parties can form agreements over. It will be clearer who can authorise and register an ILUA and it is envisaged that this will reduce disputes and disagreements.

The changes to this schedule will also focus parties on delivering agreed outcomes, rather than wasting time and money returning to the tribunal for amendments such as minor name changes, where property is assigned to another party in accordance with the original agreement and changes of registered addresses. The bill will now allow the registrar simply to update the relevant descriptions in the ILUA, with agreement of the parties.

In conclusion, this Native Title Amendment Bill will make Australia's native title system fairer and more flexible. It will assist in unlocking the economic potential of native title. It will encourage claims resolution—rather than litigation. Labor's institutional reforms are producing real, tangible results. It is our intention that these reforms—announced on the 20th anniversary of Mabo—will increase the number of native title settlements via negotiation rather than litigation, wherever possible. I commend the bill to the House.

Debate adjourned.