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Native Title Amendment Bill (No. 2) 2009

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2008-2009

 

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

NATIVE TITLE AMENDMENT BILL (No. 2) 2009

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Robert McClelland MP)

 

 



 

 

 

 

 

 

 

 

 

 

 

 



Abbreviations used in the Explanatory Memorandum

 

 

Action body                                        the Crown, a local government body or other statutory authority of the Crown, in any of its capacities

 

Bill                                                      Native Title Amendment Bill (No.2) 2009

 

ILUA                                                  Indigenous Land Use Agreement

 

Native Title Act                                  Native Title Act 1993

 

 

 

 



Native Title Amendment Bill (No. 2) 2009

 

Outline

The Bill establishes a new subdivision within the future acts regime of the Native Title Act.

The new subdivision in Schedule 1 provides a process to assist the timely construction of public housing and a limited class of public facilities by or on behalf of the Crown, a local government body or other statutory authority of the Crown in any of its capacities, for Aboriginal people and Torres Strait Islanders in communities on Indigenous held land.

The new process ensures that the representative Aboriginal or Torres Strait Islander body and any registered native title claimants and registered native title bodies corporate in relation to the area of land or waters are notified and afforded an opportunity to comment on acts which could affect native title (‘future acts’).  In addition, a registered native title claimant or registered native title body corporate may request to be consulted regarding the doing of the proposed future act so far as it affects their registered native title rights and interests.

Where a future act is covered by the new subdivision and certain procedural requirements are met the future act will validly affect native title.  The non-extinguishment principle applies to acts covered by the new process, ensuring native title can revive if the act ceases to have effect.  The subdivision also provides for compensation for any impact on native title rights and interests.

The new subdivision would operate for 10 years, following which action bodies would need to utilise other subdivisions in the future acts regime.  This 10 year period is designed to match the 10 year funding period under current National Partnership Agreements between the Commonwealth and the States and Territories on remote Indigenous housing and remote service delivery.

 

 

Financial impact statement

There is no direct financial impact on Government revenue from this Bill.

Regulation impact statement

 

The regulatory impact of the amendment is low.

 

NOTES ON CLAUSES

 

Clause 1: Short title

           

Clause 1 provides for the Act to be cited as the Native Title Amendment Act (No. 2) 2009 .

 

Clause 2: Commencement

 

Clause 2 provides that this Act commences on the day after it receives the Royal Assent .

 

Clause 3: Schedule(s)

 

This clause provides that Schedule 1 to the Bill will amend the Native Title Act in accordance with the provisions set out in Schedule 1.

 

Schedule 1 - Amendments

 

Overview

Schedule 1 of the Bill inserts new Subdivision JA into the ‘future acts regime’ in Division 3, Part 2 of the Act.  The future acts regime sets out how acts that will affect native title (called ‘future acts’) can be undertaken.  If an act will not affect native title, it is not subject to the Native Title Act and the future act regime.  If an act will affect native title, it will be valid to the extent of any effect on native title only where it is covered by one of the Subdivisions of the future act regime. 

The main features of Schedule 1 are as follows:

·          Items 1 and 2 define how subdivision JA interacts with the existing subdivisions of the future acts regime.  This is needed because a single future act may be potentially covered by more than one subdivision.  The procedural rights for native title parties and the consequences of an act on native title differ as between subdivisions, so it is important to know which one prevails in cases of overlap.

·           Item 3, subsection 24JAA(1) - (3), define the future acts which are covered by the new subdivision.  In short, it covers future acts for the construction of public housing and specified types of public infrastructure on Indigenous held land for Indigenous communities.

·          Item 3, subsection 24JAA (10) - (18), set out the procedural rights of native title parties in relation to future acts covered by the new subdivision, and subsections 24JAA(4) - (6) address the effect on validity of a failure to comply with the procedural requirements.

·          Item 3, subsections 24JAA(4) - (9), set out other consequences of a future act covered by the new subdivision.

Native Title Act 1993

Item 1 - After paragraph 24AA(4)(f)

1.1               Item 1 inserts paragraph 24AA(4)(fa) in the list of paragraphs 24AA(4)(a) to (k) of the Native Title Act.  This includes the new process among the list of future act processes which can validate a future act.

Item 2 - At the end of section 24AB

1.2                Item 2 adds a new subsection 24AB(3) in section 24AB of the Native Title Act to deal with the situation where a future act potentially falls within the coverage of both Subdivision JA and Subdivision K.  It provides coverage by Subdivision JA where the act is notified under that subdivision and covered by Subdivision KA when it is not. It gives flexibility for certain future acts to be dealt with in a single process under Subdivision JA instead of Subdivision K.  For example, this allows a single consultation process under Subdivision JA to deal with both a housing development covered by Subdivision JA, and the necessary supporting facilities such as streets and power, water and sewage facilities which might otherwise be covered by Subdivision K.

Item 3 - After Subdivision I of Division 3 of Part 2

1.3               Item 3 inserts a new Subdivision JA into Division 3, Part 2 of the Native Title Act and sets out when a future act will be covered by it (subsections 24JAA(1) - (3)), then sets out the consequences of coverage (subsections 24JAA(4) - (18)). 

1.4               A future act is covered by Subdivision JA if all of the following requirements are met:

·          The future act relates, to any extent, to an onshore place (paragraph 24JAA(1)(a)).  This means an act can be covered if it relates to both an onshore place and an offshore place.  Acts relating solely to offshore places are covered by Subdivision N.

·          The future act must relate to an area of Aboriginal or Torres Strait Islander held land (subparagraph 24JAA(1)(b)(i)) or land held for the benefit of Aboriginal or Torres Strait Islander people (subparagraph 24JAA(1)(b)(ii)).  This is because the discrete Indigenous communities intended to benefit from facilities provided under the new process are situated on such lands.

·          The future act must be done (in the case of a legal act such as the grant of leases, subleases, licences, permits, authorities or approvals outlined in paragraph 24JAA(1)(c)(i)) or commenced (in the case of an activity such as construction outlined in 24JAA(1)(c)(ii)) within 10 years of the commencement of Subdivision JA (paragraph 24JAA(1)(d)). 

·          The future act must facilitate or consist of the establishment of specific types of facilities (set out in subsection 24JAA(3)) by or on behalf of the Crown or a local government body or other statutory authority of the Crown in any of its capacities.  Essentially, this is intended to cover the public provision of those types of facilities.  The provision of funding to a person by an action body will not of itself mean that the person will be acting ‘on behalf of' the Crown.

·          There must be a Commonwealth, State or Territory law that makes provision for the preservation or protection of areas or sites in the area where the act is done that may be of particular significance to Aboriginal people and Torres Strait Islanders in accordance with their traditions (paragraph 24JAA(1)(e)). This would include state heritage legislation.

1.5               Subsection 24JAA(2) would make it clear that Subdivision JA does not apply to a future act that is the compulsory acquisition of the whole or part of any native title rights and interest.

1.6               The types of facilities that may be provided under Subdivision JA are:

·          Public housing for Aboriginal people and Torres Strait Islanders living in, or in the vicinity of, the area.  This is intended not to cover housing for community service staff or for private ownership (paragraph 24JAA(3)(a)).

·          Public education and health facilities, and police and emergency facilities that principally or primarily benefit Aboriginal people and Torres Strait Islanders living in the area (paragraph 24JAA(3)(b)).  It is intended that a facility could be covered by Subdivision JA even if it provides some incidental benefit to other persons.  For example, a public health clinic established primarily for the local Indigenous community but which also provided services to non-Indigenous community staff would be covered by Subdivision JA. A further example is the establishment of a fire department which may service the surrounding region as well. However, it is not intended that Subdivision JA be used to establish facilities intended primarily to service, say, a nearby mainstream community.

·          Certain facilities provided in connection with housing or other facilities covered by paragraphs 24AA(3)(a) and (b) (paragraph 24JAA(3)(c)).  These include the facilities covered by Subdivision K, sewage treatment facilities, and things prescribed by regulation, if any. 

1.7               The remaining paragraphs set out the consequences of a future act being covered by Subdivision JA. 

1.8               Subsections 24JAA(4)-(6) provide that the validity of a future act to which Subdivision JA applies is dependent on the action body giving notice of the act and an opportunity to comment; the action body providing a consultation report to the Commonwealth Minister; and the act not being done (in the case of a legal act such as the grant of leases, subleases, licences, permits, authorities or approvals outlined in paragraph 24JAA(1)(c)(i)) or commenced (in the case of an activity such as construction outlined in 24JAA(1)(c)(ii)) before the end of the consultation period.

1.9               Subsection 24JAA(7) provides that the non-extinguishment principle applies to an act, which is validly done under Subdivision JA.

1.10           Subsection 24JAA(8) provides for compensation in accordance with Division 5 where native title holders would be entitled to compensation under subsection 17(2) if the act were assumed to be a past act referred to in that section.

1.11           Subsection 24JAA(9) deals with who pays compensation in relation to future acts done under Subdivision JA.  Essentially, liability for compensation rests with the government responsible for the future act unless legislation provides otherwise.

1.12           Subsections 24JAA(10) to 24JAA(18) detail the procedural rights of native title parties under Subdivision JA.  The main elements are as follows:

·          Action bodies are required to notify any registered native title claimant, any registered native title body corporate and any representative Aboriginal or Torres Strait Islander body in relation to the relevant area of land or waters (paragraph 24JAA(10)(a)).  The Commonwealth Minister will determine, by legislative instrument, what information must be included in the notice.  It may, for example, include information about the nature of the act and the areas that may be affected.

·          All notified parties are afforded a two month opportunity to comment on the act (paragraphs 24JAA(10)(b) and (11)(b)(i)). The two month period begins on the date specified (the notification date) by the action body in the notification (subsection 24JAA(11)). The notification day must be set on a day by which it is reasonable to assume that all notices will have been received by, or will otherwise have come to the attention of, the relevant native title parties (subsection 24JAA(12)). This gives native title parties the option to provide feedback to the action body about a proposal while allowing it to proceed quickly should they consider further consultation is unnecessary.

·          Any registered native title claimant or body corporate may, within two months of notification, request to be consulted.  If they do, the action body must consult about ways of minimising the impact of the act on native title and, if relevant, any access to the land or waters or the way in which anything authorised by the act may be done (subsections 24JAA(13) and (14)).

1.13           Subsection 24JAA(18) provides that notification under subsection 24JAA(10) of two or more acts to which Subdivision JA applies can be given in the same notice. This allows action bodies to deal with a range of future acts relating to a project in a single process and minimises the burden on native title parties by reducing the number of notices they receive about related acts and allowing related acts to be considered together.

1.14           Subsection 24JAA(15) provides that in consulting with a native title claimant or registered native title body corporate, the action body must comply with any requirements determined by the Commonwealth Minister by legislative instrument.  The legislative instrument may specify requirements as to the manner of consultation and matters to be dealt with through consultation.  It may, for example, require the action body to hold one or more face-to-face meeting with native title claimants or body corporate who have requested consultation, provide translators during consultation, or address issues of the design, location and nature of the proposed act. The Commonwealth Minister will be able to refine these requirements in light of the experiences of action bodies and native title parties over time and having regard to differing projects and community circumstances.

1.15           The procedural rights of native title parties are reinforced by subsection 24JAA(16), which requires an action body to report to the Commonwealth Minister on the operation of the notice, opportunity to comment, and consultation requirements in each case.  The report must be in writing and comply with specific requirements which may be determined by the Commonwealth Minister by legislative instrument.  The instrument may, for example, require the report to cover information as to whether or not a claimant or body corporate requested to be consulted, and whether or not comments were received by the action body in relation to the act.  It may also outline the steps taken by the action body to consult with native title parties about the proposed act, for example whether a meeting was held with claimants and bodies corporate. To promote transparency, the report may be published by the Commonwealth Minister.

1.16           There may be circumstances where there is more than one action body for a future act covered by Subdivision JA.  This may arise where a number of Crown bodies are jointly responsible for a particular project.  In these instances subsection 24JAA(17) provides that if one action body for a future act meets a requirement of subsections 24JAA(10), (11), (12), (14), (15) and (16) in relation to an act, then any other action body in relation to the act is taken also to have met that requirement.  The intention is to avoid duplication of those requirements in subsections 24JAA(10), (11), (12), (14), (15) and (16).

1.17           Subsection 24JAA(19) would insert the definition of consultation period , and registered native title rights and interests as it applies to proposed section 24JAA.

Item 4 - Section 222 (after table item dealing with Registrar)

1.18           This item would insert public education facilities , public health facilities and public housing in the list of definitions in section 222 of the Native Title Act.

Item 5 - Section 253

1.19           This item would insert the definition of public education facilities in section 253 of the Native Title Act.

Item 6 - Section 253

1.20           This item would insert the definition of public health facilities in section 253 of the Native Title Act.

Item 7 - Section 253

This item would insert the definition of public housing in section 253 of the Native Title Act.

Item 8 - Compensation for acquisition of property

1.7               This item would provide for just terms compensation for any acquisition of property that may result under these amendments.  Subitem (1) provides if the operation of the Act would result in an acquisition of property from a person within the meaning of section 51(xxxi) of the Constitution, otherwise than on just terms, the Commonwealth is liable to pay reasonable compensation to the person.  Subitem (2) provides that if the amount of compensation cannot be agreed between the Commonwealth and the person, the person may take proceedings in a court of competent jurisdiction for a determination of reasonable compensation.

1.8               Subitem (3) defines acquisition of property and just terms for the purposes.  These terms are defined as having the same meanings as in section 51(xxxi) of the Constitution.