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Native Title Amendment Bill 2012

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2010 - 2011 - 2012

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

NATIVE TITLE AMENDMENT BILL 2012

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by the authority of the Attorney-General,

the Honourable Nicola Roxon, MP)

 

 

 



NATIVE TITLE AMENDMENT BILL 2012

OUTLINE

This Bill introduces targeted amendments to the Native Title Act 1993 (the Act) which aim to improve the operation of the native title system, with a focus on improving agreement-making, encouraging flexibility in claim resolution and promoting sustainable outcomes.

 

This Bill builds on the amendments contained in the Native Title Amendment Act 2009 which resulted in a significant increase in the number of native title consent determinations.  The current reforms to the Federal Court and National Native Title Tribunal will further build on these successes to allow for the effective and efficient resolution of claims.

 

Schedule 1 will create a new section 47C of the Act to allow historical extinguishment of native title to be disregarded over areas set aside for the preservation of the natural environment where the native title party and the relevant government party agree.  These areas include national, State and Territory parks and reserves.  The schedule will also allow parties to agree to disregard the historical extinguishment over public works within areas set aside for the preservation of the natural environment.

Schedule 2 will clarify the meaning of good faith in the Act, and the conduct and effort expected of parties in seeking to reach agreement.  This schedule will create a new section 31A which will clarify the conduct expected of parties in future act negotiations.  It also extends the time before a party may seek a determination from the arbitral body from six to eightmonths.   This schedule will also amend subsection 36(2) of the Act so that where a negotiation party asserts that another negotiation party (the second negotiation party) has not satisfied the good faith negotiation requirements, it is this second party that must then establish that it has met the good faith negotiation requirements, before being able to seek a future act determination from the arbitral body. 

 

Schedule 3 will make amendments to streamline processes in relation to Indigenous Land Use Agreements (ILUAs).  This schedule will make amendments to section 24BC of the Act to broaden the scope of body corporate agreements (Subdivision B ILUAs).  This schedule will also make amendments to streamline registration and authorisation processes for ILUAs.  The schedule will create a new section 24ED to allow parties to agree to certain amendments to registered ILUAs while still preserving the binding nature of the ILUA against all native title holders. This schedule will also create a new subsection 251A(2) to clarify the identity of who must authorise an ILUA by clarifying that for the purposes of authorisation, a person or persons who may hold native title means a person or persons who can establish a prima facie case to hold native title. 

 

Schedule 4 will amend section 47 of the Act to ensure that where a body corporate holds a pastoral lease on behalf of, or for the benefit of, a native title group, the fact that the body corporate has members, rather than shareholders, does not prevent historical extinguishment of native title over the area from being disregarded under section 47.

 

Financial impact statement

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

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

The Native Title Amendment Bill 2012 contains a number of amendments to the Act which aim to improve agreement-making, encourage flexibility in claim resolution and promote sustainable outcomes.  These amendments are part of a package of reforms announced by the Australian Government to ensure a sustainable and fair native title system that creates economic and social opportunities for Indigenous Australians.  Specifically, the Bill contains amendments to:

  • clarify the meaning of good faith and make associated amendments to the right to negotiate provisions
  • enable parties to agree to disregard historical extinguishment of native title in areas set aside, or where an interest is is granted or vested for the purpose of preserving the natural environment such as parks and reserves, and,
  • streamline processes for Indigenous Land Use Agreements (ILUAs).

The amendments to the good faith provisions under the right to negotiate regime set out good faith negotiation requirements; extend the minimum timeframe for good faith negotiations from six to eight months; ensure that where an application for arbitration has been made and a party asserts that a second party did not negotiate in accordance with the good faith negotiation requirements, the second party must establish to the arbitral body that it has met the requirements; and allow the arbitral body to make orders regarding the time period before another arbitrated outcome can be sought.  These amendments encourage parties to focus on negotiated rather than arbitrated outcomes, and promote positive relationship-building through agreement-making.

 

The Bill contains amendments to enable parties to agree to disregard extinguishment of native title in areas such as parks and reserves.  These amendments include certain safeguards such as notification requirements and the preservation of other valid interests in the area.  The parties can also agree to disregard the extinguishing effect of public works within the park area.  The amendments seek to provide parties with more flexibility in reaching agreements, and may provide more opportunities for native title to be recognised and claims to be settled by negotiation. 

 

The Bill includes amendments to the Act to streamline processes for ILUAs.  In particular, it will broaden the scope of body corporate ILUAs; clarify the process for amendments to ILUAs; and amend ILUA authorisation and registration requirements, including objection and certification processes.  These amendments to the ILUA provisions streamline processes to ensure greater flexibility and also provide greater certainty for all parties.

 

The Bill also includes a minor technical amendment to section 47 of the Act, which relates to historical extinguishment over pastoral leases held by native title claimants, to clarify who may claim the benefit of the section.

 

The Attorney-General’s Department has consulted with a wide range of stakeholders on the development of the Bill, including State and Territory governments, native title representative bodies and native title service providers, the Australian Human Rights Commission, Indigenous stakeholders and industry representatives.

Human rights implications

The Bill engages the following human rights:

  • the right to enjoy and benefit from culture, and
  • the right to self-determination.

The right to enjoy and benefit from culture

The right to enjoy and benefit from culture is contained in Article 27 of the International Covenant on Civil and Political Rights (ICCPR) and Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).  Article 27 of the ICCPR protects the rights of individuals belonging to minorities within a country to enjoy their own culture.  Article 15 of the ICESCR protects the right of all persons to take part in cultural life.

 

The United Nations Human Rights Committee has stated that culture can manifest itself as a particular way of life associated with the use of land resources, especially in the case of Indigenous peoples, which may include such traditional activities as fishing or hunting and the right to live on lands protected by law. [1]

 

The United Nations Committee on Economic, Social and Cultural Rights has stated that Indigenous peoples’ cultural values and rights associated with their ancestral lands and their relationship with nature should be regarded with respect and protected. [2]

 

The Act as a whole promotes the rights to enjoy and benefit from culture by creating processes through which native title can be recognised, and providing protection for native title rights and interests.  The amendments in this Bill continue to promote these rights by strengthening the Act’s focus on agreement-making and expanding the areas over which native title could be determined to exist.

 

The amendments to the good faith provisions under the right to negotiate regime encourage parties to focus on negotiated, rather than arbitrated outcomes, promote relationship-building through agreement-making, and improve the balance of power between negotiating parties.  In doing so, the amendments will enhance the ability of native title holders to participate in genuine negotiations about future activity on their traditional lands.  By placing an emphasis on interests-based negotiation and agreement-making, the amendments also promote sustainable, long-term outcomes for Indigenous communities.

 

The historical extinguishment amendment seeks to provide parties with more flexibility to disregard historical extinguishment of native title in areas such as parks and reserves, and could also provide for important recognition of traditional connection to land.  This amendment will provide more opportunities for native title to be recognised and claims to be settled by negotiation and will provide incentives for parties to reach agreements, such as opportunities for joint management of parks or reserves with native title holders. 

The right to self-determination

The right to self-determination is a collective right applying to groups of ‘peoples’.  This is in contrast to the rights to culture which protect the rights of individuals within a group.  The right to self-determination, as set out in Article 1 of the ICCPR and Article 1 of the ICESCR, entails the entitlement of peoples to have control over their destiny and to be treated respectfully. This includes peoples being free to pursue their economic, social and cultural development. 

 

The principles contained in the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration) are also relevant to the amendments in this Bill.  While the Declaration is not included in the definition of ‘human rights’ under the Human Rights (Parliamentary Scrutiny) Act 2011 , it provides some useful context on how human rights standards under the international treaties apply to the particular situation of Indigenous peoples.  In particular, the following Articles are relevant to the amendments:

As mentioned above, the amendments to the good faith provisions will improve the balance of power between parties in good faith negotiations and encourage parties to engage in meaningful discussions about activities on traditional lands, and the related impacts on native title rights and interests.  The Bill also seeks to assist Indigenous Australians to access the potential social and economic benefits of their native title rights.  

 

The Australian Government believes that individuals and groups, particularly Indigenous Australians, should be consulted about decisions likely to impact on them.  To this end, the Government has consulted extensively with stakeholders on the amendments in this Bill, including native title representative bodies and service providers and the National Congress of Australia’s First Peoples.

Conclusion

The Bill is compatible with human rights because it promotes the protection of human rights, particularly the right to enjoy and benefit from culture and the right to self-determination.



NOTES ON CLAUSES

Clause 1: Short title

  1. Clause 1 provides for the Bill to be cited as the Native Title Amendment Act 2012 .

Clause 2: Commencement

  1. This Bill commences on the day it receives the Royal Assent.

Clause 3: Schedule(s)

  1. This clause provides that Schedules 1, 2, 3 and 4 to the Bill will amend the Act in accordance with the provisions set out in each Schedule.


Schedule 1 - Amendments relating to disregarding historical extinguishment of native title in areas set aside for the preservation of the natural environment

Overview

Schedule 1 contains amendments which enable parties to agree to disregard the historical extinguishment of native title over an area that has been set aside or vested to preserve the natural environment such as national, State and Territory parks and reserves. 

 

The amendment could assist to partly ameliorate the effect of the decision in Western Australia v Ward (2002) 213 CLR 1.  In that case, the High Court decided that the vesting of Crown reserves under the Land Act 1933 (WA) extinguished native title in those reserve areas.  As a result, although subsection 23B(9A) of the Act excludes the vesting of the Crown reserves from the previous exclusive possession act provisions, the Court found that they were nonetheless extinguishing acts under common law.  The result is that the vesting of national, State and Territory parks and reserves under legislation similar to the Land Act 1933 (WA) extinguished native title, despite the exclusion provision in subsection 23B(9A) of the Act.

 

The amendment in this schedule will ensure that native title can be recognised over parks and reserves where there is agreement between parties, even where the creation or vesting of the national, State or Territory park or reserve may otherwise extinguish native title. 

Part 1—Amendments to disregard historical extinguishment

Native Title Act 1993

Item 1 - At the end of subsection 13(5)

1.                   This item inserts paragraph 13(5)(c) to clarify that an agreement under section 47C is a valid ground for varying or revoking an approved determination of native title under subsection 13(5).

2.                   Subsection 13(5) of the Act sets out the grounds under which an approved determination of native title may be varied or revoked.  An application of this kind is called a ‘revised native title determination application.’

3.                   The table in section 61 of the Act provides that this type of application can only be made by the registered native title body corporate for the area, the Commonwealth Minister, the State or Territory Minister (if the area is within the jurisdictional limits of the State or Territory concerned) or the Native Title Registrar.

4.                   The reference in subparagraph 47C(1)(c)(i) to ‘any registered native title bodies corporate concerned’ ensures that a registered native title body corporate could make an application under section 61 of the Act to vary or revoke an approved determination of native title even where native title has been found to be extinguished in the park area, if the registered native title body corporate would have held native title in the agreement area had native title not been extinguished.

5.                   This provision does not allow parties to revise an approved determination of native title to include an area that was excluded from the approved determination area.  In this situation, parties can make a new application over the excluded area.

Item 2 - At the end of Division 4 of Part 2

When section applies

6.                   This item inserts section 47C to allow parties to agree to disregard historical extinguishment of native title over areas set aside for the purpose of, or purposes including, preserving the natural environment of the area, which can include areas such as parks and reserves (hereinafter referred to as ‘park areas’).

7.                   Under this item, parties can agree that the extinguishment of native title rights and interests is to be disregarded where that extinguishment has been caused by the setting aside, granting or vesting of the park area or by the creation of any other prior interest in relation to the area. 

8.                   For the provision to operate, paragraph 47C(1)(a) will require a claimant application or a revised native title determination application to be made in relation to an area that falls within the definition of a ‘park area’ under subsection 47C(2).

9.                   A revised native title determination application can be made by the relevant registered native title body corporate under section 61 of the Act.  The reference in subparagraph 47C(1)(c)(i) to ‘any registered native title bodies corporate concerned’ ensures that a registered native title body corporate can make an application under section 61 of the Act to vary or revoke an approved determination of native title even where native title has been found to be extinguished in the park area.  This is particularly the case where the registered native title body corporate would have held native title in the agreement area had native title not been extinguished.

10.               The relevant government party entering into the agreement with the native title party can make an application under subsection 13(5) to vary or revoke a determination.  However, if the relevant area was excluded from a determination, parties must make a new application over the excluded area.

11.               Paragraph 47C(1)(b) ensures that section 47C will only apply where sections 47, 47A and 47B do not apply.

12.               Subsection 47C(1) allows the agreement to be reached over the whole park area, or part of the park area.  This provides flexibility for parties to agree which parts of the park area will be subject to an agreement to disregard extinguishment of native title. 

13.               Paragraph 47C(1)(c) requires that an agreement under paragraph 47C(1)(c) can only be made over ‘onshore’ areas that fall within the definition of park area in subsection 47C(2).  The term ‘onshore place’ is defined in section 253 of the Act.  This excludes the operation of the provision in relation to offshore areas. 

14.               Subparagraph 47C(1)(c)(i) provides that agreement must be given by the relevant registered native title body corporate or the applicant for the claim group.  If there is no registered native title body corporate (for example if there has not been an approved determination of native title over the area), then the applicant for the claim group should enter into the agreement with the relevant government party.  However, if there is no applicant for a claim group (for example if there is no current claim) then the relevant Aboriginal or Torres Strait Islander body (or bodies if the area overlaps representative body areas) could enter into the agreement with the relevant government party.  

15.               If there has been an approved determination of native title over the area, and native title is found to be extinguished, a registered native title body corporate can still enter into the agreement with the relevant government party if the registered native title body corporate would have held native title in the agreement area had native title not been extinguished.

16.               However, where there has not been an approved determination of native title over the area (for example, if the area was excluded from the determination) the agreement with the government party should be entered into by the applicant for the claim group or relevant Aboriginal or Torres Strait Islander body or bodies. 

17.               Subparagraph 47C(1)(c)(ii) provides that only the government by or under whose law the park area was set aside or vested can agree to disregard historical extinguishment over that area.  This ensures that only the government party responsible for the park area can enter into an agreement over the area. 

18.               Paragraph 47C(1)(c) provides that the native title party and relevant government need to agree in writing.  Although the agreement is not required to be in the form of an ILUA, it is envisaged that, in practice, the ILUA mechanisms may be appropriate to detail the practical operation of native title rights and interests recognised because of the effect of section 47C.  An ILUA could address a range of issues, including:

  • an agreement over extinguishment caused by public works in the area
  • any areas which are to be excluded from having extinguishment disregarded, and
  • co-management agreements.

Meaning of park area

19.               Subsection 47C(2) provides for the types of onshore areas over which parties can agree to disregard extinguishment of native title.  The area must have been set aside or vested by or under a law of the Commonwealth, State or Territory for the purpose of preserving the natural environment of the area as this defines the scope of a park area.  This could occur in a range of ways, such as through a grant or vesting resulting from a dedication, reservation, proclamation, condition, declaration, vesting in trustees, or in some other way. 

20.               Written agreements between the registered native title body corporate or the applicant, and the relevant government party, could cover a broad range of areas, provided the area falls within the definition.  Subsection 47C(2) will not apply to land which has been set aside for purposes that do not specifically include the preservation of the natural environment of the area (for example, distinct purposes such as agriculture or grazing).

Public works

21.               Subsection 47C(3) enables a government party entering into an agreement under paragraph 47C(1)(c) to disregard extinguishment over a park area, to include a statement that it agrees to disregard extinguishment of native title over public works within the agreement area, if the public works were established or constructed by or on behalf of the relevant government party.  Under this provision, the government party entering into the agreement to disregard extinguishment over an area under paragraph 47C(1)(c) must be the same government party entering into an agreement to disregard extinguishment of native title over public works within that agreement area.

22.               Subsection 47C(4) is available in circumstances where the government party that constructed or established the public works (the second government party) is a different government party to the party entering into the paragraph 47C(1)(c) agreement.  The second government party can enter into a separate agreement with the native title party to disregard the extinguishing effect of those public works.

23.               These provisions will only operate where the public works fall within an area covered by an agreement under paragraph 47C(1)(c).

24.               The agreement over the area under paragraph 47C(1)(c) must be in place before parties can enter into an agreement in relation to public works under subsection 47C(4) with a government party that is not a party to the agreement under paragraph 47C(1)(c).

Meaning of relevant public works

25.               As set out in subsection 47C(10), the term relevant public work includes any public works constructed by, or on behalf of, the Commonwealth, State or Territory.  The term public work is defined in section 253 of the Act.

26.               Under subsection 47C(1) the agreement can be reached over the whole park area, or part of the park area if preferred.  This amendment will provide flexibility for parties to agree which parts of the relevant area can be subject to an agreement to disregard extinguishment of native title, including consideration of whether public works in the agreement area should be included. 

Notice and time for comment

27.               Subsection 47C(5) requires that before entering an agreement under paragraph 47C(1)(c) or subsection 47C(4) to disregard the extinguishment of native title, the relevant government must give at least two months public notice that it is considering an agreement to disregard the extinguishment in the area and give interested persons an opportunity to comment on proposed agreements.  This ensures that the government party entering into the agreement can consider the existing interests in the area.

28.               Subsection 47C(6) requires that the agreement under paragraph 47C(1)(c) cannot be made before the end of the period for comment.  This subsection will ensure that no legally binding agreement can be entered into before interested persons have had the opportunity to advise the relevant government of their interests in the proposed agreement area.

29.               These amendments recognise that there are a number of people who may have an interest, whether legal or otherwise, in park areas and public works, and may wish to make their interests known to the relevant government party prior to parties reaching an agreement over the area.  This ensures the relevant government party entering into the paragraph 47C(1)(c) agreement or the subsection 47C(4) agreement takes these other interests into account, including management or ownership interests where applicable.

Prior extinguishment to be disregarded

30.               Subsection 47C(7) states the extinguishment of native title rights and interests must be disregarded where that extinguishment has been caused by the setting aside or vesting of the park or reserve or by the creation of any other prior interest in relation to the area.  This allows for the recognition of native title rights and interests in a park area provided the elements of the claim can be established.

31.               In this context, a prior interest refers to any interest created up until an approved determination of native title.

32.               This provision also allows prior extinguishment to be disregarded over public works where the agreement under paragraph 47C(1)(c) includes a statement as mentioned in subsection 47C(3) or where there is an agreement made under subsection 47C(4).

33.                  The claimants will still need to establish the positive elements of their claim, that is, that the land is their traditional land and they have maintained their traditional connection.

Effect of the determination

34.               Subsection 47C(8) sets out the effect of a determination pursuant to an agreement under paragraph 47C(1)(c).

35.               Paragraph 47C(8)(a) ensures that a determination that native title, including exclusive native title, exists in an area in reliance on an agreement under paragraph 47C(1)(c) does not have any effect on:

  • The validity of the setting aside or vesting of the park area (subparagraph 47C(8)(a)(i)), (so the act of establishing the park, and the interests thereby created, will remain valid)
  • The validity of the creation of any other prior interest in relation to the area, including for example interests arising under licences, leases, or easements created in the area prior to a native title determination over the area (subparagraph 47C(8)(a)(ii))
  • Any interest in public works in the area or public access to such works in the area (subparagraph 47C(8)(a)(iii)), or
  • Existing access by members of the public to the area (subparagraph 47C(8)(a)(iv)).

36.               Paragraph 47C(8)(b) provides that the non-extinguishment principle, as defined in section 238, applies to any prior interests created before a native title determination over the area, and the vesting, granting or setting aside of the park area.  Potential prior interests could include interests under licences, leases and easements issued in relation to the area. 

37.               The effect of subsection 47C(8) is that any existing interests created prior to an approved native title determination will continue to operate to their full effect, but will suppress, rather than extinguish, any native title rights to the extent of any inconsistency.   

38.               Where existing interests suppress native title rights, native title holders will not be able to exercise exclusive rights over the land.  The native title rights and interests which could be exercised over the area will depend on the extent that these interests have been suppressed by other existing interests.  If a prior interest ceases to operate then the native title rights and interests may revive to their full extent.

39.               Native title rights and interests will only apply from the date of the determination that native title exists.

40.               Any interests created after a determination that native title exists, which may include renewals, extensions or upgrades of an existing interest, may need to be negotiated through the future acts regime.  This is because from the date of a positive native title determination, these interests could be seen to affect native title rights and interests.

Exclusion of Crown ownership of natural resources

41.               Subsection 47C(9) replicates existing subsection 47A(4) to exclude Crown ownership of natural resources from the operation of the section.

42.               The creation of an interest that confers ownership of natural resources on the Crown or confirms ownership of natural resources by the Crown is not to be disregarded for the purposes of subsection 47C(9).

Item 3 and 4 - Subsection 61A(4) (heading) and paragraphs 61A(4)(a) and 61A(4)(b)

43.               Item 3 and 4 amend existing paragraphs 61A(4)(a) and (b) to include references to section 47C.  This enables section 47C to operate in relation to extinguishme nt caused by a previous exclusive possession act or previous non-exclusive possession act despite subsections 61A(2) and (3).

44.               Subsections 61A(2) and (3) of the Act prohibit claimant applications from covering previous exclusive possession act areas and certain rights and interests in previous non-exclusive possession act areas respectively. 

Item 5 - at the end of subsection 62(1) (before the note)

45.               Paragraph 62(1)(d) ensures that if a claimant application is made which includes an area subject to an agreement under paragraph 47C(1)(c), the claimant application must be accompanied by a copy of the agreement and any agreement made under subsection 47C(4). 

46.               This amendment ensures that the relevant government must enter into the agreement under paragraph 47C(1)(c) before a claimant application can be made over the park area.

Item 6 - at the end of section 62

47.               The amendment contained in subsection 62(4) ensures that where parties submit a revised determination application in relation to an area subject to an agreement under paragraph 47C(1)(c), the application must be accompanied by a copy of the agreement, and if there is a subsection 47C(4) agreement, that agreement as well.

48.               This amendment ensures that the parties must reach an agreement under paragraph 47C(1)(c) and subsections 47C(3) and (4) if necessary, prior to submitting any application over the area.

Item 7 - After paragraph 63(b)

49.               Paragraph 63(ba) ensures that if an application is filed under section 61 of the Act with the Federal Court, the Registrar of the Federal Court must provide the Native Title Registrar with a copy of the agreement entered into under paragraph 47C(1)(c).  This item ensures section 63 of the Act is consistent with the requirements in paragraph 62(1)(d) and subsection 62(4).

Item 8 and 9 - Subsection 64(2)(heading) and after subsection 64(2)

50.               The amendment to the heading of subsection 64(2) and inclusion of subsection 64(2A)provides that the Registrar must accept an amended claimant application where the application is amended to include any area of land or waters that was not covered by the original application pursuant to an agreement under paragraph 47C(1)(c).  This provision operates as an exception to subsection 64(1) which prevents the inclusion of any area of land or waters that was not covered by the original application.

Item 10 and 11- At the end of section 66A(1) and subsection 66A(1B)

51.               This provision inserts paragraph 66A(1)(f) to ensure that where an amended application includes an area that was not covered by the original application, the Native Title Registrar must provide notice to those parties to whom the Native Title Registrar would normally provide notice to under subsections 66(3) and (5).  However, the Native Title Registrar is not required to give notice to anyone who has already been provided notice of the amended application under paragraphs 66A(1)(d) or (e).

52.               These amendments enusre that subsection 66A(1C) will apply to both notices, requiring that a person who wants to be a party in relation to the amended application must notify the Federal Court, in writing, within three months from the notification day.

Item 12 - At the end of paragraph 190A(6A)(d)

53.               Subparagraph 190A(6A)(d)(vi) provides that where a claim is made under subsection 64(2A) and parties wish to amend that claim to include an area subject to an agreement under paragraph 47C(1)(c), the Registrar must accept the claim.

Item 13 - Paragraph 190B(9)(c)

54.               This item amends paragraph 190B(9)(c) to clarify that the limitations on registering applications where native title rights have otherwise been extinguished do not apply in relation to claims where extinguishment is to be disregarded in accordance with subsection 47C(7).

Item 14 - Application

55.               This item provides that where a current claimant application or revised native title determination application has not been determined before this Act commences, the application may be amended so that section 47C applies to the application. 

Item 15 - Entitlement to ‘just terms’ compensation

Compensation for acquisition of property

56.               This item will only apply to the Native Title Amendment Act 2012.  This item provides that to the extent the Bill, once enacted, may result in an acquisition of property for the purposes of subsection 51(xxxi) of the Constitution, ‘just terms’ compensation is payable.

57.               This amendment also makes clear the entitlement operates for all relevant future acts, not just Commonwealth future acts. If the future act is attributable to a State or Territory, the State or Territory must pay the required compensation.



Schedule 2 - Amendments clarifying good faith requirements in the right to negotiate provisions

Overview

Schedule 2 contains amendments to clarify the meaning of good faith under the right to negotiate regime, and the conduct and effort required of parties in seeking to reach agreement.  Under the right to negotiate regime, the government party proposing to do the act, the grantee party, and any registered native title claimants or holders must negotiate in good faith about whether the act should be done and, if so, whether any conditions should be attached.  The term grantee party is defined in paragraph 29(2)(c) of the Act.

Schedule 2 inserts section 31A which creates the good faith criteria that establishes the conduct expected of negotiating parties.  It also extends the time before a party may seek a future act determination from the arbitral body from six to eight months.  The schedule also specifies that where a negotiation party asserts that another negotiation party (the second negotiation party) has not satisfied the good faith negotiation requirements, the onus is on the second negotiation party to establish that it has met the good faith negotiation requirements.

The Government recognises that many in the resource sector are already working to establish positive relationships with native title parties and achieve sustainable outcomes for Indigenous communities through negotiated agreements.  These amendments will encourage parties across the whole sector to focus on negotiated, rather than arbitrated, outcomes and will promote positive relationship-building through agreement-making.  The requirements apply to all negotiating parties.    

Part 1— Amendments to clarify good faith requirements

Native Title Act 1993

Item 1 - Subsection 24MD(2)(Note 1)

58.               This item provides that where the right to negotiate applies in respect of acquisitions, all parties must adhere to the good faith negotiation requirements established by section 31A.

Item 2 - Paragraph 31(1)(b)

59.               This item replaces the term ‘good faith’, with the term, ‘accordance with the good faith negotiation requirements’.  This clarifies that the new good faith requirements apply and enable the amending provisions to define and clarify the nature of good faith in the context of the right to negotiate.

Item 3 - At the end of subsection 31(1)

60.               Paragraph 31(1)(c) provides that the scope of the negotiations must include consideration of the effect of what is proposed by the doing of the future act, on the registered rights and interests of the native title party or parties.   This additional requirement addresses one of the outcomes of the decision of the full Federal Court in FMG Pilbara Pty Ltd v Cox [2009] FCAFC 49 (FMG v Cox), where a party could be found to have negotiated in good faith even where there may have been no substantial negotiations about the doing of the actual act in question.  This amendment will ensure parties negotiate in a productive manner and discuss the substantive matters at issue.

Item 4 - Subsection 31(2)

61.               This item replaces the term ‘good faith’ with the term ‘good faith negotiation requirements’.  Subsection 31(2) clarifies that a party can still be found to have negotiated in accordance with the good faith negotiation requirements in circumstances where that party refused or failed to negotiate about matters unrelated to the effect of the future act on the rights and interests of the native title parties.

Item 5 - Paragraph 31(4)(b)

62.               This consequential amendment replaces the term ‘good faith’, with the term, ‘accordance with the good faith negotiation requirements’.  This clarifies that the new good faith requirements apply, and enable the amending provisions to define and clarify the nature of good faith in the context of the right to negotiate.  

Item 6 - After section 31

63.               Section 31A creates the good faith criteria that establishes the conduct expected of negotiating parties.  Section 31A ensures that all parties act in an appropriate and productive manner when working towards an agreement.  The requirements also facilitate improved communication between parties, which is expected to reduce the likelihood of parties seeking future act determinations. 

64.               The Act does not contain a definition of good faith.  Despite numerous decisions of courts and the National Native Title Tribunal, there remains a lack of clarity about what constitutes good faith negotiations.  This lack of clarity means it is difficult for Indigenous parties in particular to prove a lack of good faith.  This was illustrated in FMG v Cox where the court held that parties could satisfy the good faith requirements, notwithstanding that the parties did not substantially discuss the actual doing of the future act in question.  

65.               Subsection 31A(1) provides that parties must use all reasonable efforts to reach agreement about the doing of the act

66.               This item does not identify what may, or may not, comprise ‘all reasonable efforts’.  Rather, this is to be assessed in the circumstances of the negotiation in question.  Reasonableness may depend, for example, on the size of the project, the amount of land involved, the extent and nature of the native title rights and interests and the length of time that the tenement is sought for.  This provision supports the Government’s aspiration that native title negotiating parties will establish productive, responsive and communicative relationships.

67.               Subsection 31A(2) specifies the criteria that the arbitral body will have regard to in considering whether a party has satisfied the good faith negotiation requirements. Under the new provisions, the emphasis is on interest based negotiation rather than positional or adversarial bargaining.

68.               Subsection 31A(2) provides that the criteria are to be considered ‘where relevant’.  This clarifies that the arbitral body should consider the criteria in the context of the particular circumstances of the negotiation in question and avoid a ‘one size fits all’ approach to the criteria in conjunction with paragraph 31A(2)(b).  The criteria is not an exhaustive list.

69.               Paragraph 31A(2)(b) contains similar provisions to those in the Fair Work Act 2009 (Cth), and they are also broadly consistent with what are known as the Njamal Indicia (set out in Western Australia v Taylor (1996) 134 FLR 211).  The Njamal Indicia are currently used as a guide to consider the conduct of parties in the right to negotiate.  

70.               For example, subparagraph 31A(2)(a)(i) is similar to the seventh Njamal Indicia in respect of taking reasonable steps to facilitate and engage in discussion with the parties. The same applies to subparagraphs 31A(2)(a)(ii) and (iii).  Disclosure of relevant information and the making of reasonable proposals and counter proposals go directly towards establishing a functional and interests based negotiation platform.  It follows then that these proposals are made in a timely manner, and this is provided for by subparagraph 31A(2)(a)(iv). 

71.               The requirement to give genuine consideration to proposals in subparagraph 31A(2)(a)(v) is again analogous to the fourteenth Njamal Indicia.  Subparagraphs 31A(2)(a)(vi) and (vii) in respect of capricious or unfair conduct, and the recognition of negotiation parties and their representatives incorporate Njamal Indicia concepts such as shifting position when agreement is in sight or unilateral conduct that will harm the process.  However, the provisions will also cover situations to discourage parties from dealing with individuals within groups or refusing to deal with their appointed representative.

72.               Subparagraph 31A(2)(a)(viii) in respect of refraining from acting for an improper purpose covers the rare but possible scenarios where parties resort to threats or intimidation to and/or of people, negotiating parties or their representatives or otherwise act illegally. Paragraph 31A(2)(b) gives the arbitral body an additional capacity to consider matters that may be relevant to the consideration of the conduct of the parties during negotiation. This will include an examination of the conduct of parties, beyond the minimum eight month negotiation period.    

73.               The provisions do not preclude a native title party seeking a future act determination that an act cannot be done or can only be done with conditions (such as was the case in Western Desert Lands Aboriginal Corporation (Jamukurnu - Yapalikunu)/Western Australia/Holocene Pty Ltd [2009] NNTTA 49 (27 May 2009) ).

Item 7- Paragraph 35(1)(a)

74.               This amendment increases the minimum time period for which a negotiation party can seek a determination from the arbitral body from six to eight months.  This amendment will encourage parties to engage in meaningful discussion about future acts under the right to negotiate provisions. 

Item 8- Subsection 36(2)

75.               This item replaces existing subsection 36(2) and provides that where a negotiation party asserts that another negotiation party, the second negotiation party, has not satisfied the good faith negotiation requirements, it is this second negotiation party that must then establish that it has met the good faith negotiation requirements, before being able to seek a determination from the arbitral body. 

76.               This item replaces the previous provision in respect of establishing the jurisdiction of the arbitral body on the basis that the arbitral body is satisfied that the obligation of parties to negotiate in good faith has been satisfied.  The amendments clarify that a party against whom the complaint is made must rebut it.  The amendments requires a party to positively show good faith will improve the quality of offers made by negotiating parties, discourage opportunistic conduct and encourage agreement-making.

77.               An example of how this operates is when a section 29 notice is issued in respect of the grant of a particular mining lease.  However, during the eight month minimum negotiation period, the grantee party seeks to broaden the scope of negotiations to cover a wider area, and does not conduct substantive negotiations about the grant of the specific mining lease the subject of the notice.  After the eight month minimum negotiation period is over, the grantee party makes an application to the arbitral body for a future act determination to be made.  Under this provision, the native title party may assert that the grantee party did not comply with the good faith negotiation requirements as they did not use all reasonable efforts to reach agreement about doing of the act (which in this example is the grant of the mining lease) and the grantee party will be required to show that it has complied with the good faith negotiation requirements. 

78.               In situations where parties have reached agreement on the doing of the future act and have made an application to obtain a future act determination by consent, pursuant to section 35 of the Act, the parties will not need to satisfy the arbitral body that the good faith requirements are met.  In these circumstances, where the parties have reached consent on the conditions that will apply to the future act, it is assumed that negotiations proceeded in accordance with the good faith negotiation requirements.

79.               Subsection 36(2A) allows the arbitral body to make orders in respect of a time period within which a negotiation party, who has been found not to have satisfied the good faith negotiation requirements is prohibited from seeking a future act determination pursuant to section 35 of the Act.

Item 9 - Subsection 190B(6) (note)

80.               This item replaces the term ‘good faith’ with the term ‘accordance with the good faith negotiation requirements’ in subsection 190B(6) of the Act.  This clarifies that the new good faith requirements apply, and enable the amending provisions to define and clarify the nature of good faith in the context of the right to negotiate.

Item 10 - Paragraph 213A(3)(a)

81.               This item replaces the term ‘good faith’ with the term ‘accordance with the good faith negotiation requirements’ in paragraph 213A(3)(a) of the Act.  This clarifies that the new good faith requirements apply, and enable the amending provisions to define and clarify the nature of good faith in the context of the right to negotiate.

Item 11 - Application

82.               This item provides that the good faith negotiation requirements will apply upon commencement of the amendment to negotiations that commence on or after 1 January 2013 and are still on foot on the day the Act receives the Royal Assent.

Schedule 3 - Amendments to Indigenous Land Use Agreement processes

Overview

Schedule 3 contains amendments to streamline processes for ILUAs, which are agreements between a native title group and others about the use and management of land and waters.  In particular, the amendments broaden the scope of body corporate agreements (Subdivision B ILUAs), improve authorisation and registration processes for ILUAs and simplify the process for amendments to ILUAs.  These amendments will ensure parties are able to negotiate flexible, pragmatic agreements to suit their particular circumstances.

Part 1—Amendments to Indigenous Land Use Agreement processes

Native Title Act 1993

Item 1 - Section 24BC

83.               This item provides for the insertion of item 3 by causing existing section 24BC to become section 24BC(1). 

Item 2 - At the end of section 24BC

84.               This item inserts subsection 24BC(2) to broadens the scope of body corporate agreements (Subdivision B ILUAs).  It makes an amendment to section 24BC to ensure that Subdivision B ILUAs can be made over areas which are wholly determined, but include areas where native title has been extinguished.  It also provides that Subdivision B ILUAs can be made in the situation where an area has been excluded from a determination, and native title would have been held by the relevant native title group had native title not been extinguished over that particular area.

85.               This item addresses limitations in the scope of the existing section 24BC, which provides that a Subdivision B ILUA can only be made where there are registered native title bodies corporate for all of the agreement area.  This means that:

  • if the agreement area is entirely covered by a determination of native title (for which there is a registered native title body corporate) that includes both areas where native title has been found to exist and areas where native title has been found to be extinguished, and
  • the parties want the agreement to meet the requirements for a Subdivision B ILUA

then the description of the agreement area needs to specifically exclude those areas where native title has been found to be extinguished, even though those areas are within the outer boundary of the agreement area.

86.               In these circumstances, parties are in practice more likely to negotiate a Subdivision C ILUA, the registration of which currently involves a three month notice period.  This item ensures that Subdivision B ILUAs can be made in these situations.  This ensures greater flexibility and simplifies the registration process for Subdivision B ILUAs.

Item 3 - After subsection 24CD(4)

87.               This item provides that a native title representative body has to agree if it is to be party to an ILUA, and links to the agreement making function of representative bodies in section 203BH.

Item 4 - Subsection 24CH(1)

88.               This item provides that only where the Registrar is satisfied that an agreement meets the requirements of sections 24CB to 24CE the Registrar must proceed to give notice of the agreement.  This item resolves the contrasting decisions of QGC Pty Ltd v Bygrave (No 2) (2010) 189 FCR 412 and Fesl v Delegate of Native Title Registrar [2008] FCA 939, about giving notice of area agreements, and the subsequent uncertainty that has existed in respect of notification.  It makes clear that there is no need to give notice of an ILUA unless the mandatory requirements are satisfied. 

Item 5 - Paragraph 24CH(2)(d)

89.               This item repeals paragraph 24CH(2)(d), which set out the statements that a notice made by the Registrar must include, and replaces it with a requirement that the notice include a statement of the kind set out in subsection 24CH(5).  The item provides for the insertion of the amended notice requirements at subsection 24CH(5) as created by item 6.

Item 6 - At the end of section 24CH

90.               This item creates an amended process for the registration of ILUAs to replace the previously enacted paragraph 24CH(2)(d). 

91.               It specifies the statements that the Registrar must include when giving notice of an area agreement.  In particular, the notice must include a statement about the one month notice period, during which a person may object against registration of the agreement.

Item 7 - After subsection 24CI(1)

92.               This item enables an objection to be made to the Registrar against registration of an uncertified application to register an area agreement, as opposed to the requirement to lodge and have registered a new claim.

93.               Subsection 24CI(1A) provides that an objection may be made to the Registrar on the grounds that the requirements of subparagraphs 24CG(3)(b)(i) and (ii).  Subparagraphs 24CG(3)(b)(i) and (ii) require that an application for registration of area agreements must include a statement to the effect that all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified and have authorised the making of the agreement. 

94.               Additionally, subsection 24CI(1B) provides a power for the Minister to set out, by legislative instrument, requirements for an objection.

95.               The provision of an objection process for opposing registration of Subdivision C ILUAs complements amendments directed at streamlining the registration of Subdivision C ILUAs. 

Item 8 - Section 24CJ

96.               This item makes a consequential amendment, removing the prohibition on the Registrar deciding to register an ILUA before all native title determinations lodged in the notification period have undergone the registration test.  This is no longer necessary because of the process introduced in items 6 and 7.

Item 9 - Section 24CK

97.               This item repeals the existing section 24CK and replaces it with a provision that removes the objection process for ILUAs certified by a native title representative body.  This further streamlines the authorisation and registration process.  A person wishing to make an objection against an ILUA certified by a native title representative body will have recourse to judicial review.

Item 10 - Subsection 24CL(2)

98.               This item makes a consequential amendment to repeal existing subsection 24CL(2) as required by items 6 and 7, and replaces it with a condition that any person who is a registered native title claimant or registered native title body corporate in relation to the areas covered by the agreement must be a party to the agreement.

Item 11 - After paragraph 24CL(4)(b)

99.                This item provides that, in addition to the matters already listed in paragraph 24CL(4),  the Registrar must take into account any objections made in relation to the application under section 24CI in deciding whether the requirements for registration of an uncertified agreement have been met.

Item 12 - At the end of Subdivision E of Division 3 of Part 2

100.           This item inserts section 24ED which makes provision that certain amendments can be made to an ILUA (whether body corporate, area agreement or alternative procedure) and the binding nature of the ILUA against all native holders will be preserved.  The amendments establish a threshold which will determine whether or not a new registration process is required.

101.           The Act currently makes no provision for amendments to ILUAs, nor does the Act provide any guidance on the circumstances in which parties to an ILUA may need to go back to the Registrar for any amendments to the ILUA to have effect pursuant to section 24EA.  Consequently, parties wishing to make certain amendments to an ILUA, while preserving its binding effect on native title holders who are not parties to the ILUA, may need to make a new application for registration of the amended ILUA.

102.           Requiring a new registration process in these circumstances might be considered unnecessary and a poor use of time and resources. These reforms will enable parties to operate with a degree of flexibility in terms of amending ILUAs without requiring a new process.

103.           This item provides that amendments to an ILUA can only be made where certain conditions are met:

  • the parties to the agreement have agreed to the amendment, and
  • the amendments have been  notified to the Registrar in writing.

104.           A list of amendments that can be made to an ILUA is specified in the new subsection 24ED(1).  In particular, amendments can be made to an ILUA that:

  • update property descriptions, but not so as to result in the inclusion of any area of land or waters not previously covered by the agreement,
  • update a description identifying a party to the agreement, including where a party has assigned or otherwise transferred rights and liabilities under the agreement,
  • update administrative processes relating to the agreement, or
  • do a thing specified by the Minister by legislative instrument.

105.           Subsection 24ED(2) will enable parties to amend ILUAs without requiring re-registration in appropriate circumstances as necessary to meet changing circumstances.  This will include situations where properties or tenements are assigned, or entities change names and addresses. The provisions allow for the Minister to make further determinations, by legislative instrument, on amendments to ILUAs that will not require re-registration.

Item 13 - Section 251A

106.           This item makes an amendment to change existing section 251A to provide for the insertion of item 15.

Item 14 - Section 251A

107.           This item makes an amendment to existing section 251A to clarify that the provision also applies to persons who may hold native title.

Item 15- Paragraphs 251A(a) and (b)

108.           This item removes the reference to ‘the common or group rights comprising’ the native title.

Item 16 - At the end of section 251A

109.           This item clarifies who may authorise the making of an ILUA. 

110.           This item inserts subsections 251A(2) and (3) to clarify that a reference to persons who may hold native title is a reference to persons who can establish a prima facie case that they may hold native title. 

111.           The amendments address current uncertainty in the law about who may authorise an ILUA.  In QGC v Bygrave [2011] FCA 1457, Reeves J found that if there is more than one native title group for an ILUA area, where the ILUA area overlaps the area of a registered native title claim, the only people who are entitled to authorise the ILUA are the native title claim group for the registered claim.  In Kemp v Native Title Registrar [2006] FCA 939, Branson J held that where the native title parties comprised more than one distinct group, all persons would have to authorise the ILUA, and would have to do so separately, provided their assertion of native title was more than ‘merely colourable’.

Item 17- Application

112.           This item provides that the amendment made by item 11 of Schedule 3 (in summary, providing for amendments to ILUAs) applies to agreements on the Register of Indigenous Land Use Agreements on or after the day of the Royal Assent. 

113.           Additionally, the amendments made by items 12 to 15 of Schedule 2 (in summary, relating to authorisation of ILUAs) apply to the authorisation of agreements on or after the day of the Royal Assent. 

114.           The amendments made by the remaining items apply to ILUAs where an application for registration on the Register of Indigenous Land Use Agreements is made on or after the day of the Royal Assent.



Schedule 4 - Minor technical amendment

Overview

Schedule 4 contains an amendment to clarify who may claim the benefit of section 47 of the Act , which relates to historical extinguishment over pastoral leases held by native title claimants. 

The current paragraph 47(1)(b) allows a native title claim over pastoral leases, notwithstanding past extinguishment, where the pastoral lease is held by any of the persons who made the application (subparagraph 47(1)(a)(i)), a trustee, on trust for any of the persons who made the application (subparagraph 47(1)(a)(ii)), or a company whose only shareholders are any of the persons who made the application (subparagraph 47(1)(a)(iii)).

However, subparagraph 47(1)(b)(iii) may prevent bodies corporate, set up under the  Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) with members rather than shareholders from making a native title claim over pastoral leases under section 47.

The amendment will clarify that section 47 can also apply to pastoral leases held by bodies corporate, with members rather than shareholders.

Item 1 - Subparagraph 47(1)(b)(iii)

115.           This item amends subparagraph 47(1)(b)(iii) to provide that the section will apply to a body corporate that has members rather than shareholders, and holds a pastoral lease over an area subject to an application under section 61.

 

 




[1] United Nations Human Rights Committee, General Comment No. 23 (1994).

[2] The Committee on Economic, Social and Cultural Rights, General Comment No. 21 (2009).