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Native Title Amendment (Indigenous Land Use Agreements) Bill 2017

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2016 - 2017

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

Native title amendment (indigenous land use agreements) bill 2017

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the

Attorney-General, Senator the Honourable George Brandis QC)



 

Native title amendment (indigenous land use agreements) bill 2017

General Outline

Purpose and Objective

1.                   The Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 amends the Native Title Act 1993 (Cth) (the Act), to resolve the uncertainty created by the Full Federal Court decision in McGlade v Native Title Registrar & Ors [2017] FCAFC 10, regarding area Indigenous Land Use Agreements (area ILUAs).

2.                    The primary objectives of the Bill are to:

a.        confirm the legal status and enforceability of agreements which have been registered by the Native Title Registrar on the Register of Indigenous Land Use Agreements without the signature of all members of a registered native title claimant (RNTC)

b.       enable registration of agreements which have been made but have not yet been registered on the Register of Indigenous Land Use Agreements, and

c.        ensure that in the future, area ILUAs can be registered without requiring every member of the RNTC to be a party to the agreement.

Background - Indigenous Land Use Agreements

3.                    The Act provides a legislative process by which native title groups can negotiate with other parties to form voluntary agreements in relation to the use of land and waters, defined in the Act as Indigenous Land Use Agreements .

4.                    There are three types of ILUAs:

a.        Body corporate ILUAs are made in relation to land or waters where a registered native title body corporate exists

b.       Area ILUAs are made in relation to land or waters for which no registered native title body corporate exists, and

c.        Alternative procedure ILUAs.

5.                    ILUAs may provide for certain ‘future acts’ to be undertaken on land or waters, such as mining, or provide access to an area, in exchange for compensation to native title groups.

6.                    The Act specifies requirements which must be met in order for an agreement to be an area ILUA. One such requirement, at s 24CD, is that all persons in the ‘native title group’, as defined in the section, must be parties to an area ILUA. Under that section, the native title group consists of all “registered native title claimants” (RNTC) in relation to land or waters in the area. An RNTC is defined as “a person or persons whose name or names appear in an entry to the Register of Native Title Claims” (s 253). The RNTC - the native title group for the purposes of s24CD - is typically a subset of the larger group that may hold native title over the claim area.

Impact of the decision in McGlade v Native Title Registrar & Ors

7.                    On 2 February 2017 the Full Federal Court handed down McGlade v Native Title Registrar & Ors [2017] FCAFC 10 ( McGlade ), which overturned previous authority on the parties to area ILUAs under the Act ( QGC Pty Ltd v Bygrave (No 2) [2010] 189 FCR 412 )( Bygrave ).

8.                    The court found in McGlade that an area ILUA could not be registered unless all members of the RNTC were parties to the agreement and therefore, an area ILUA could not be registered unless it had been signed by all members of the RNTC, including in cases where a member had passed away before being able to sign.

9.                   This overturned the decision in Bygrave that an area ILUA could be registered if it had been signed by at least one member of the RNTC, on the basis that the ‘ registered native title claimant ’ was defined as a singular entity under the Act.

10.                In McGlade the Full Federal Court agreed with the finding in Bygrave that the RNTC was defined as a singular entity under the Act. However, it found that the specific drafting of s 24CD(1), containing the words ‘all persons’, as well as the reference to ‘registered native title claimants’ (plural) in s 24CD(2)(a), indicated that the required parties to an area ILUA must be every member of the RNTC individually, including persons now deceased.

11.                The McGlade decision created uncertainty in the native title sector regarding the status of areas ILUAs. It meant that:

a.        area ILUAs registered without the signatures of all RNTC members, including members who are deceased, were agreements which did not meet the requirements for ILUAs as defined under the Act, and

b.       area ILUAs lodged for registration which do not comply with McGlade could no longer be registered.

12.               The decision only affected area ILUAs (Subdivisions C and E, Division 3 of Part 2 of the Act), but not alternative procedure agreements (Subdivision D) or body corporate agreements (Subdivision B).

Outline of the Bill

13.                This Bill makes various amendments to the Act in order to:

a.        secure existing agreements which have been registered on or before 2 February 2017 but do not comply with McGlade

b.       enable registration of agreements which have been made and have been lodged for registration on or before 2 February 2017 but do not comply with McGlade , and 

c.        clarify who must be a party to an area ILUA in the future unless the claim group determines otherwise.

14.               The Bill will preserve the status quo for agreements registered under the Act or that were pending registration on or before the date of the McGlade decision . The Act specifies that ss 24EA, 24EB and 24EBA provide for the effect of the registration of agreements.

15.               The Bill also overturns the position in McGlade that every person who comprises the RNTC must to be a party to an ILUA in relation to agreements made on or after the commencement of the Act as amended .

16.               The position in McGlade means that if a single member of the RNTC withholds their consent to be a party to the ILUA, the agreement cannot be registered despite authorisation of the agreement under s 251A involving all persons who hold or may hold native title within the area of the area ILUA. This is an unnecessary barrier. It means that the only alternative available to a native title claim group is to re-authorise a new applicant and make an application under s 66B of the Act removing the member or members of the RNTC who refuses to sign.

17.               N ative title stakeholders have indicated that this process can impose high costs on claim groups, which often have limited resources, and that it can cause delays for claim groups and third parties.

18.                The amendments to ILUA requirements support the integrity of authorisation processes, by ensuring that native title claim groups can nominate who will carry out the will of the claim group and execute the agreement. The amendments also give primacy to the role of authorisation, reflecting the view that authorisation, along with other check and balances established under the Act, provides sufficient protection for the claim group.

Retrospective provisions

19.                These amendments provide for retrospective application of certain provisions, in order to address specific issues arising from the decision made in McGlade

20.               These amendments preserve the status quo for agreements registered on or before the date of the McGlade decision, providing certainty about interests granted and benefit paid in reliance on the agreement.  It will also allow for consideration of agreements which had been lodged for registration on or before McGlade and ensure that the will of the native title claim group in authorising the agreement is not frustrated only because of the effect of the McGlade decision.  

Compensation for acquisition of property otherwise than on just terms

21.               It is not thought likely that the Bill involves the acquisition of property otherwise than on just terms.

22.               The Bill does however provide for compensation to persons for acquisition of property otherwise than on just terms should this be determined to have happened as a result of the operation of the amendments.

23.               These provisions provide that, in the event that it is determined that a person’s proprietary rights have been affected without compensation as a result of the Act, the Commonwealth will be liable to pay a reasonable amount of compensation to that person.

Consultation

24.               The McGlade decision raised considerable uncertainty for all parties doing business on native title land. Urgent amendments are imperative to preserve the operation of currently registered ILUAs and provide the sector with a prospective process for registering ILUAs which minimises the risks presented by the McGlade decision.

25.               Given the limited timeframe, the Attorney-General’s Department consulted with stakeholders in relation to the legal implications of the McGlade decision to the greatest extent possible, including State and Territory governments, the National Native Title Tribunal, and the National Native Title Council.

26.               Further, as many of the amendments are aimed at preserving the status quo for registered ILUAs, the Bill will not significantly alter the way in which the law operated up to the McGlade decision.

FINANCIAL IMPACT

27.                This Bill will have a nil or insignificant financial impact on Commonwealth Government departments and agencies.

 

 

 



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

Native Title Amendment (Indigenous Land Use Agreements) Bill 2017

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

Overview of the Bill

2.                    The Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 (the Bill) makes a number of amendments to the Native Title Act 1993 (Cth) (the Act).

3.                    The Bill addresses uncertainty created in the native title sector regarding the status of area Indigenous Land Use Agreements (area ILUAs), as a result of the decision of the Full Federal Court in McGlade v Native Title Registrar & Ors [2017] FCAFC 10 ( McGlade ).

4.                    These amendments clarify requirements for area ILUAs, provide certainty to parties regarding the status of existing area ILUAs, and strengthen the integrity of ILUA processes.

5.                    Specifically, the Bill contains amendments to:

·          secure existing agreements which have been registered on or before 2 February 2017 but do not comply with McGlade

·          enable registration of agreements which have been made and have been lodged for registration on or before 2 February 2017 but do not comply with McGlade , and 

·          clarify who must be a party to an area ILUA in the future unless the claim group determines otherwise.

6.                    Part 1 provides amendments to improve the flexibility and efficiency of area ILUA processes, by providing native title holders with to the ability to determine who will be party to an agreement (ss 24CD, 251A, and 253).

7.                    Part 2 makes amendments to provide certainty to parties to area agreements affected by the McGlade decision. These amendments will ensure that any area agreement which was authorised and registered prior to McGlade , without the signatures of all members of the RNTC, is taken to be, and always to have been, a valid ILUA. These amendments will also enable the registration of area agreements which were authorised and lodged for registration prior to McGlade , without the signatures of all members of the RNTC.

 

Human rights implications

8.                    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

9.                    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.

10.                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]

11.                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]

12.                The Act as a whole promotes the right to enjoy and benefit from culture, by establishing 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 providing certainty to native title claimants and holders, and third parties on the use of native title land and waters through voluntary agreements.

13.                Specifically, the amendments aim to protect rights and interests of native title holders which already exist under agreements that have been registered or have applied for registration but have not been signed by all RNTC members.

14.                The amendments will also assist area ILUAs to be made more efficiently in cases where an agreement has been validly authorised by a group which holds or may hold native title, but one or more members of the RNTC are unable or unwilling to sign the area ILUA. This may be for a variety of reasons- an elderly member may have passed away before being able to sign, or a member may not wish to sign the agreement for personal reasons or the ILUA does not affect their country.

15.                These amendments also aim to address concerns that agreements which have been validly authorised by the broader native title group can be frustrated in circumstances when RNTC members disagree and refuse to sign. Disputes between RNTC members and the broader claim group can lead to delays and burdensome costs. In addition, these amendments seek to provide native title groups with greater flexibility in relation to authorisation processes for area ILUAs.  By providing native title groups with greater discretion to determine how decisions will be made (using traditional decision-making processes or other agreed process) and who will be a party to the area ILUA, these amendments aim to promote efficient resolution of area ILUAs, and thereby assist Indigenous Australians to enjoy the cultural values and rights associated with their traditional lands.

The right to self-determination

16.                The right to self-determination is a collective right, in that it pertains to groups of people, as opposed to 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. 

17.                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 as to how human rights standards under international law apply to the particular situation of Indigenous peoples. 

18.                These amendments promote these rights by supporting the integrity of ILUA processes, to enable Indigenous Australians to participate in and determine processes which affect their rights and interests.

19.                By providing native title holders with greater discretion to determine who can be party to an agreement, these amendments emphasise the fundamental importance of authorisation to the integrity of the native title system. Authorisation processes recognise the communal character of Indigenous traditional law and custom, and ensure that decisions regarding the rights and interest of Indigenous Australians are made with traditional owners.

20.                As outlined above, these amendments also aim to promote efficient negotiation and settlement of area ILUAs, to continue to assist Indigenous Australians to access the potential social and economic benefits of native title.  

 

Conclusion

21.                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

Preliminary

Clause 1 - Short title

1.                   This clause provides for the short title of the Act to be the Native Title Amendment (Indigenous Land Use Agreements) Act 2017 .

Clause 2 - Commencement

2.                    This clause provides for the commencement of each provision in the Bill, as set out in the table.  Item 1 in the table provides that the whole of the Bill will commence on the day which the Bill receives Royal Assent. 

Clause 3 - Schedules

Part 1 - Amendments

Native Title Act 1993

Item 1             Paragraph 24CD(2)(a)

3.                    This item repeals paragraph 24CD(2)(a) of the Act, which requires all persons who comprise the RNTC for land or waters within the area of the proposed area ILUA to be parties to the area ILUA. The Bill substitutes a new paragraph to enable the native title claim group to nominate  which members of the RNTC are required parties to the area ILUA are or, where no person or persons are so nominated, provides that a majority of the members of the RNTC must be parties to the area ILUA.

4.                    This will provide native title claim groups with greater discretion to decide who comprises the ‘native title group’, which is the group which must be party to the area ILUA for it to be registered (in accordance with s24CD and subsection 251A(2)) [s 5 below]. The Bill also provides that if the native title claim group does not choose to make a decision about the native title group, the default position will be that the area ILUA can be registered if a majority of the members of the claim group are parties to the agreement.

5.                    These amendments apply to an area ILUA made on or after commencement of the Act as amended.

Item 2             Subparagraph 24CG(3)(b)(ii) (note)

6.                   This item replaces “s 251A” with “s251A(1)” in the note.

7.                   The effect of the substitution is to ensure that the note refers to the correct subsection of s 251A.

Item 3             Section 251A

8.                   This item inserts a subsection number before the start of the current paragraph. This is because s 5 inserts a second subsection into the section.

Item 4             Paragraph 251A(b)

9.                    This item removes the phrase “where there is no such process” and substitutes the phrase “in any case”.

10.                This amendment gives effect to Recommendation 10-2 of the Australian Law Reform Commission’s Connection to Country: Review of the Native Title Act 1993 (Cth) report (tabled 4 June 2015), which was endorsed by the Investigation into Indigenous Land Administration and Use report to the Council of Australian Governments (December 2015). That recommendation stated that the current provision, which requires a traditional decision-making process to be used to authorise ILUAs unless such a process does not exist, should be amended to ensure that claim groups can choose whether to use a traditional decision-making process or an agreed-upon decision-making process.

11.                This amendment empowers persons who are required to make a decision to authorise an area ILUA under s 251A to determine what decision-making process should be used to authorise that ILUA.

Item 5             Section 251A

12.                This item inserts a new subsection, 251A(2), to enable a claim group to authorise a person or group of persons, who are also members of the RNTC, to be a party to an area ILUA under s24CD. The section also allows the claim group to authorise a process for determining which members of the RNTC will be party to the agreement.

13.                Subparagraph 251A(2)(a) allows a native title claim group to nominate which members of its RNTC will be party to the ILUA under s 24CD. The claim group can elect a single member of the RNTC, or it can elect more than one. This ensures that the claim group can nominate members of the RNTC who the group is confident will carry out the will of the group and execute the agreement as a party to the agreement.

14.                Subparagraph 251A(2) (b) allows for a claim group to settle a process which will determine who will be parties to the ILUA, rather than determining a specific person or people. For example, the claim group may wish to authorise a process where the most senior member of the RNTC must be party to the ILUA. This ensures that the claim group retains control over who must be a party to the agreement for it to be an ILUA.

Item 6             Paragraph 251B(b)

15.                The item replaces the phrase “where there is no such process” with “in any case”.

16.                This amendment implements Recommendation 10-1 of the Australian Law Reform Commission’s Connection to Country: Review of the Native Title Act 1993 (Cth) report (tabled 4 June 2015), which was endorsed by the Investigation into Indigenous Land Administration and Use report to the Council of Australian Governments (December 2015). That recommendation stated that the current provision, which requires a traditional decision-making process to be used to authorise an applicant unless such a process does not exist, should be amended to ensure that claim groups can choose whether to use a traditional decision-making process or an agreed-upon decision-making process.

17.                This amendment empowers the native title claim group to determine what type of decision-making process should be used to authorise the applicant.

Item 7             Section 253 (paragraph (a) of the definition of authorise )

18.                This item makes a minor amendment, to ensure that the definition of ‘authorise’ under s 253 of the Act refers to subsection 251A(1), which will contain the process for authorising an ILUA, and not subsection 251A(2), which will allow the claim group to nominate a person or persons to be a party to the agreement and specify a process for determining which members of the RNTC will be party to the agreement.

Part 2 - Application, transitional and saving provisions

Item 8             Application of amendments

19.                This item ensures that amendments in Part 1 of the Bill apply to agreements which have not been made as at the date of the Act. An agreement is ‘made’ once it has been validly authorised and the relevant parties have entered into the agreement.

20.                ILUAs which were authorised or registered before the McGlade decision are subject to the saving provisions outlined in items 9 to 13, recognising in part, that many area ILUAs were made in reliance on the judicial authority set by the decision in Bygrave in 2010.

Item 9             Validating agreements and registration on or before 2 February 2017

21.                This item states that where an agreement purporting to be an ILUA was made and registered on or before 2 February 2017, but was not signed by every member of the relevant RNTC, that the agreement is taken to have been an ILUA for the purposes of the Act and its registration is taken to have been valid.

22.                This item also notes that sections 24EA, 24EB and 24EBA of the Act provide for the effect of the registration of agreements.

23.                The item also specifies that these retrospective provisions will not apply to agreements considered in the McGlade decision.

Item 10           Validating applications for registration made on or before 2 February 2017—agreements

24.                This item ensures that applications made to register agreements which, but for s 9, were not area ILUAs at the time the registration application was made, the application is taken to have been valid and effective .

Item 11           Validating applications for registration made on or before 2 February 2017—other cases

25.                This item ensures that applications made to register agreements to which s 9 applies are valid, where the application otherwise would have been invalid because of a reason prescribed by the rules.

 

Item 12           Validating particular agreements

26.                This item deems the agreements which are excluded from the operation of s 9 due to  s 9(4) to be ILUAs from the commencement of this Act.

Item 13           Compensation

27.                This item ensures that, if the operation of any of the provisions of the Bill would result in the acquisition of property from a person, that person is entitled to claim reasonable compensation from the Commonwealth in respect of that acquisition.

28.                For example, if it is found that in a particular case the provisions retrospectively deeming agreements to be ILUAs within the meaning of the Act has resulted in the Commonwealth acquiring a right to make an application for review of the decision to register that agreement, the person from whom that right is acquired is entitled to compensation for the acquisition of the right.

Item 14           Rules

29.                This item gives the Minister the power to make legislative instruments to address transitional issues which relate to the implementation of any of the other items in this Bill.

 

 




[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).