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Native Title Legislation Amendment Bill 2019



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ISSN 1328-8091

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BILLS DIGEST NO. 21, 2020-21 6 NOVEMBER 2020

Native Title Legislation Amendment Bill 2019 Kaushik Ramesh Law and Bills Digest Section James Haughton and Matthew Keene Social Policy Section

Contents

The Bills Digest at a glance .............................................. 4

History of the Bill ............................................................ 6

Purpose of the Bill ........................................................... 6

Structure of the Bill ......................................................... 6

Commencement details................................................... 7

Background ..................................................................... 8

Native Title Act ............................................................ 8

Reviews, Cases and Bills .............................................. 9

The Native Title Amendment Bill 2012 ..................... 9

The Treasury Working Group report ....................... 10

The ALRC report ...................................................... 11

The COAG Investigation .......................................... 14

Table 1 - Native Title Act amendment proposals recommended to be implemented (excerpted proposals implemented by the Bill) ........................ 14

Table 2: Native Title Act amendment proposals for further consideration (excerpted proposals implemented by the Bill) ......................................... 15

The McGlade decision and the Native Title Amendment (Indigenous Land Use Agreements) Act 2017................................................................... 16

The CATSI Act Review .............................................. 17

Consultation process ............................................... 18

Committee consideration .............................................. 18

Senate Legal and Constitutional Affairs Legislation Committee .............................................. 18

Senate Standing Committee for the Scrutiny of Bills ............................................................................ 19

Policy position of non-government parties/independents.................................................... 20

Date introduced: 17 October 2019

House: House of Representatives

Portfolio: Attorney-General

Commencement: various dates as set out at pages 7-8 of this Digest.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at November 2020.

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Native Title Legislation Amendment Bill 2019 2

Position of major interest groups................................... 20

Financial implications .................................................... 20

Statement of Compatibility with Human Rights.............. 21

Parliamentary Joint Committee on Human Rights ... 21 Key issues ..................................................................... 23

Majority vs Minority situations ................................. 23

Key provisions ............................................................... 25

Schedule 1 ................................................................. 25

Part 1—Authorisation ............................................. 25

Gebadi issue .......................................................... 27

Part 2—Applicant decision making ......................... 28

Part 3—Replacement of applicant .......................... 29

Stakeholder comments ........................................... 30

Schedule 2—Indigenous land use agreements ......... 31 Part 1—Body corporate agreements and area agreements ............................................................. 31

Part 2—Deregistration and amendment ................ 32 Stakeholder comments ........................................... 33

Schedule 3—Historical extinguishment .................... 33 Historical extinguishment ....................................... 33

Part 1— Park areas .................................................. 34

Part 2—Pastoral leases held by native title claimants ................................................................. 36

Stakeholder comments ........................................... 36

Objections or further limitations desired .............. 36 Support .................................................................. 37

Schedule 4—Allowing a registered native title body corporate to bring a compensation application ................................................................. 37

Stakeholder Comments ........................................... 38

Schedule 5—Intervention and consent determinations .......................................................... 39

Part 1—Intervention in proceedings ....................... 39

Part 2—Consent determinations ............................ 39

Stakeholder Comments ........................................... 40

Schedule 6—Other procedural changes ................... 40 Part 1—Objections .................................................. 40

Objections to freehold acts ................................... 40

Expedited procedure ............................................. 41

Right to negotiate applications ............................. 41

Part 2—Section 31 agreements .............................. 42

Register of section 31 agreements ........................ 42

Stakeholder comments ........................................... 43

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Native Title Legislation Amendment Bill 2019 3

Schedule 7 - National Native Title Tribunal .................... 44

Stakeholder comments ........................................... 45

Schedule 8—Registered native title bodies corporate .... 45

Part 1—Requirements for constitutions ................. 45 Dispute resolution ................................................. 46

Eligibility requirements for membership .............. 46 Cancellation of membership ................................... 47

Part 2—Refusal of membership .............................. 48

Part 3—Registrar oversight ..................................... 48

Part 4—Courts ......................................................... 49

Stakeholder comments ........................................... 50

Schedule 9—Just terms compensation and validation .... 51

Stakeholder comments ........................................... 52

Other Issues .................................................................. 52

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Native Title Legislation Amendment Bill 2019 4

The Bills Digest at a glance The Native Title Legislation Amendment Bill 2019 (‘the Bill’) is a return to Parliament of the Native Title Legislation Amendment Bill 2019 presented to the previous (45th) Parliament, which lapsed when that parliament was prorogued. It is largely identical to that previous Bill except for the removal of a number of the previous Bill’s sections (in its Schedule 8), which were contingent upon passage of the previous Parliament’s Corporations (Aboriginal and Torres Strait Islander) Amendment (Strengthening Governance and Transparency) Bill 2018. That Bill also lapsed on prorogation and has not been reintroduced at this stage; instead, the Minister for Indigenous Australians has announced another inquiry into the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (the CATSI Act), including into whether it still qualifies as a Special Measure under the Racial Discrimination Act 1975.1

The Bill amends the Native Title Act 1993 (the Act) and, in Schedule 8, the CATSI Act. It contains nine schedules.

• Schedule 1 creates options for a native title applicant and group to change their internal decision making structures including allowing the group to place conditions on the applicant, allowing applicants to act by majority decision-making rather than unanimously as the default position, enabling removal of deceased or unable-to-act applicant members and creating succession planning.

• Schedule 2 enables Indigenous Land Use Agreements (ILUAs) to encompass areas where native title has been extinguished, increases flexibility of the processes to notify, register, and make minor amendments to ILUAs (including potentially more wide-ranging amendments permitted by a legislative instrument), and validates actions taken under ILUAs removed from the Register of ILUAs.

• Schedule 3 allows historical extinguishment of native title on land by national, state or territory parks, and pastoral leases owned/controlled by native title corporations to be disregarded. In the case of parks this is subject to agreement by the relevant government parties.

• Schedule 4 allows registered native title bodies corporate (RNTBCs) to be the claimant for compensation from extinguishment in most circumstances, instead of individual claimants undertaking a separate compensation process.

• Schedules 5 and 6 change the ways in which the Commonwealth Minister or government party can be a party to, or intervene in, native title proceedings. Schedule 6 also clarifies procedures to be followed if a native title holder or applicant objects to a future act, and requires the Native Title Registrar to maintain a record of section 31 agreements.

• Schedule 7 enables the National Native Title Tribunal (NNTT) to provide assistance to common law native title holders and RNTBCs to promote agreement about native title and the operation of the Act. The NNTT may charge a fee for this service. Schedule 7 also enables acting appointments to the NNTT during vacancy, absence or incapacity.

• Schedule 8 amends the CATSI Act provisions dealing with governance of RNTBCs. It includes requiring dispute resolution mechanisms, ensuring RNTBCs represent all common law native title holders, limiting the circumstances under which membership of an RNTBC can be cancelled, and enabling the Registrar to place an RNTBC under special administration if it has repeatedly or seriously failed to comply with its obligations under Native Title legislation. This Schedule creates a strict liability offence for failing to notify a former member of their membership cancellation as soon as practicable.

1. K Wyatt (Minister for Indigenous Australians), Review of the CATSI Act, media release, 11 December 2019.

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Native Title Legislation Amendment Bill 2019 5

• Schedule 9 retrospectively confirms the validity of certain Native Title Act section 31 agreements (which chiefly pertain to mining and exploration on land under, or claimed as, native title) which may be affected by the McGlade decision if they were not signed by all members of the relevant native title body. Schedule 9 also provides for ‘just terms’ compensation for any acquisition of property, as required by section 51(xxxi) of the Constitution.

The Bill implements a number of recommendations from the following inquiries:

• the Treasury’s 2013 Taxation of Native Title and Traditional Owner Benefits and Governance Working Group Report to Government (‘The Treasury Working Group report’)

• the Office of the Registrar of Indigenous Corporations (ORIC) 2017 Technical review of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (‘the CATSI Act Review’)

• the Council of Australian Governments (COAG) Investigation into Indigenous Land Administration and Use (‘the COAG Investigation’) and

• the Australian Law Reform Commission’s 2015 report Connection to Country: Review of the Native Title Act 1993 (Cth) (‘the ALRC report’).

The Bill also reintroduces some amendments first proposed in the Native Title Amendment Bill 2012, which lapsed at dissolution of the 43rd Parliament.

The Bill also responds to the implications of the McGlade decision for section 31 agreements, which cover some aspects of mining and exploration on land where native title exists or might exist, by retrospectively validating them in a manner similar to the retrospective validation of area ILUAs by the Native Title Amendment (Indigenous Land Use Agreements) Act 2017.

The Bill was preceded by a consultation process including an options paper released in November 2017 and an exposure draft of the legislation released in October 2018. Release of an exposure draft is a positive development in the Indigenous affairs policy area, where there is often little visibility of proposed changes until they are tabled in Parliament.

However, many stakeholder submissions to the consultation process expressed disappointment that the Bill deals largely with technical, procedural and incremental changes recommended by the inquiries and does not address the ALRC report’s more substantive recommendations on establishing connection to country and the commercial use of native title rights, which might have substantially strengthened the negotiating position and economic development potential of native title claiming and owning groups.

Some stakeholders also expressed concerns about the potential cost of the proposed governance changes to RNTBCs and the NNTT, the blanket retrospective validation of actions taken under possibly invalid past agreements, and that the change to majority decision making as a default may not protect the rights of minority groups within a broader native title claim group. This may risk fragmenting or reversing the current trend towards larger area ‘head’ native title claims, such as the Single Noongar Native Title Claim which led to the South West Native Title Settlement.

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Native Title Legislation Amendment Bill 2019 6

History of the Bill The Native Title Legislation Amendment Bill 2019 (‘the Bill’) is a return to Parliament of the Native Title Legislation Amendment Bill 2019 presented to the previous (45th) Parliament, which lapsed when that parliament was prorogued. It is largely identical to the previous Bill except for the removal of a number of the previous Bill’s sections (in its Schedule 8), which were contingent upon passage of the previous Parliament’s Corporations (Aboriginal and Torres Strait Islander) Amendment (Strengthening Governance and Transparency) Bill 2018.2

Parts of the Bill replicate provisions from the Native Title Amendment Bill 2012, which was introduced during the 43rd Parliament and lapsed at dissolution in August 2013. This is explained in further detail below.

Purpose of the Bill The purposes of the Bill are to amend the Native Title Act 1993 (the Act) and the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (the CATSI Act) to make a number of technical, procedural and incremental changes with the overall aims of improving native title claims resolution, agreement-making, Indigenous corporate decision-making and dispute resolution processes, and of confirming the validity of agreements made under Part 2, Division 3, Subdivision P of the Act (section 31 agreements) following the decision in McGlade v Native Title Registrar & Ors [2017] FCAFC 10 (McGlade). These changes are laid out in nine schedules summarised below.

Structure of the Bill The Bill contains nine schedules.

• Schedule 1 creates options for a native title applicant and group to change their internal decision making structures, including allowing the group to place conditions on the applicant; allows applicants to act by majority decision-making rather than unanimously as the default position; enables the removal of deceased or unable-to-act applicant members; and enables succession planning.

• Schedule 2 enables Indigenous Land Use Agreements (ILUAs) to encompass areas where Native Title has been extinguished; increases flexibility of notification and registration of ILUAs and in making amendments to ILUAs (including amendments permitted by the Commonwealth Minister by legislative instrument); and validates actions taken under ILUAs subsequently removed from the Register of ILUAs.

• Schedule 3 allows historical extinguishment of native title on land by national, state or territory parks, and pastoral leases owned or controlled by Native Title Corporations to be disregarded. In the case of parks this is subject to agreement by the relevant government parties. This Schedule is similar to Schedules 1 and 4 of the Gillard Government’s Native Title Bill 2012.

• Schedule 4 allows registered native title bodies corporate (RNTBCs) to be the claimant for compensation from extinguishment, instead of individual claimants undertaking a separate compensation process.

• Schedules 5 and 6 change the ways in which the Commonwealth Minister or government party can be a party to, or intervene in native title proceedings. Schedule 6 also clarifies procedures

2. That Bill also lapsed on prorogation and has not been reintroduced at this stage; instead, the Minister for Indigenous Australians has announced another inquiry into the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (the CATSI Act), including into whether it still qualifies as a Special Measure under the Racial Discrimination Act 1975: Wyatt, Review of the CATSI Act, op. cit.

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Native Title Legislation Amendment Bill 2019 7

to be followed if a native title holder or applicant objects to a future act, and requires the Native Title Registrar to maintain a record of Section 31 agreements.

• Schedule 7 enables the National Native Title Tribunal (NNTT) to provide assistance to common law title holders and RNTBCs to promote agreement about native title and the operation of the Act. The NNTT may charge a fee for this service. Schedule 7 also enables acting appointments to the NNTT during vacancy, absence or incapacity.

• Schedule 8 amends the CATSI Act provisions dealing with governance of RNTBCs. It includes requiring dispute resolution mechanisms, ensuring RNTBCs represent all common law native title holders, limiting the circumstances under which membership of an RNTBC can be cancelled, and enabling the Registrar to place an RNTBC under special administration if it has repeatedly or seriously failed to comply with its obligations under Native Title legislation. This Schedule creates a strict liability offence for failing to notify a former member of their membership cancellation as soon as practicable.

• Schedule 9 retrospectively confirms the validity of certain Section 31 agreements (which chiefly pertain to mining and exploration on land under native title) which may be affected by the McGlade decision if they were not signed by all members of the relevant native title body.3 Schedule 9 also provides for ‘just terms’ compensation for any acquisition of property, as required by section 51(xxxi) of the Constitution.

Commencement details The commencement details for the proposed amendments, at clause 2 of the Bill, can be summarised as follows:

• clauses 1-3 of the Bill, which are technical non-amending provisions, commence on the day the Bill receives Royal Assent

• Part 1 of Schedule 1 (authorisation of applicant provisions) commences six months after Royal Assent, or earlier by Proclamation.

• Parts 2 and 3 of Schedule 1 (applicant decision making and replacement of applicant provisions) commence six months after Part 1 of Schedule 1 of the Bill commences.

• Schedule 2 (Indigenous land use agreements amendments) commences at the same time as the amendments in Part 1 of Schedule 1.

• Division 1, Part 1 of Schedule 3 (historical extinguishment in park areas amendments) commences at the same time as the amendments in Part 1 of Schedule 1.

• Division 2, Part 1 of Schedule 3 (amendment for revised native title determination applications) commences immediately after the commencement of the amendments in Part 2 of Schedule 4.

• Part 2 of Schedule 3 (historical extinguishment in pastoral leases held by native title claimants amendments) commences at the same time as the amendments in Part 1 of Schedule 1.

• Part 1 of Schedule 4 (amendments in relation to registered native title body corporate bringing a compensation application) commences at the same time as the amendments in Part 1 of Schedule 1.

• Part 2 of Schedule 4 (changes to compensation application requirements for registered native title body corporates) commences immediately after the commencement of the amendments in Part 1 of Schedule 1.

• Schedule 5 (intervention and consent determination amendments) commences at the same time as the amendments in Part 1 of Schedule 1.

3. Schedule 6 requires the Native Title Registrar to create and maintain a public record of the existence and some details of Section 31 agreements, which were not previously publicly available.

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Native Title Legislation Amendment Bill 2019 8

• Schedule 6 (amendments in relation to procedural changes) commences at the same time as the amendments in Part 1 of Schedule 1.

• Schedule 7 (amendments in relation to the National Native Title Tribunal) commences at the same time as the amendments in Part 1 of Schedule 1.

• Schedule 8 (amendments to the CATSI Act) commences at the same time as the amendments in Part 1 of Schedule 1.

• Schedule 9 (just terms compensation and validation provisions) commences the day after the Bill receives Royal Assent.

As noted by the Explanatory Memorandum to the Bill, ‘this alignment [of commencement dates] means that the majority of the measures in the Bill commence together’.4 As per the above list, it is intended that much of the Bill will commence on Proclamation or six months after Royal Assent (whichever is earlier), or immediately after. Exceptions are Parts 2 and 3 of Schedule 1, which commence six months after commencement of these other provisions, and Schedule 9, which commences on the day after Royal Assent. The Government provides the following justification for the staggered commencement of the amendments in the Bill:

First, the Bill makes a number of changes to the court and tribunal procedures for native title proceedings and agreement-making. After these changes are made to the Native Title Act, additional changes must be made to subordinate legislation under the Native Title Act which set out the forms to be used in native title proceedings (for example, to update the forms for native title applicants in the Native Title (Federal Court) Regulations 1998).

The measures in the Bill which relate to court and tribunal procedures commence at a date to be fixed by Proclamation in order to coordinate the commencement of the updated regulations with the commencement of those measures in the Native Title Act.

Second, the Bill makes substantial changes to the way Indigenous decision-making can operate under the Native Title Act, and to the relationship between the native title claim group and their authorised representatives (most commonly referred to as the ‘applicant’). These changes affect how an applicant carries out its duties under the Native Title Act.

Because of the significance of these changes, the commencement of these measures will be delayed for six months after Proclamation. This ensures that native title claim groups have time to consider the effect of the changes on how their claim will be managed, and to change their internal processes if necessary.

5

Background

Native Title Act The Native Title Act 1993 (the Act) was passed by the Keating Government as the first part of an intended three-part response to the High Court's decision in Mabo v Queensland [No. 2] (Mabo).6 The second part was the creation of the National Aboriginal and Torres Strait Islander Land Fund,7 now the Aboriginal and Torres Strait Islander Land and Sea Future Fund, to enable Aboriginal and Torres Strait Islander people who were unlikely to gain native title rights due to historical

4. Explanatory Memorandum, Native Title Legislation Amendment Bill 2019, p. 26. 5. Ibid., p. 25.

6. Mabo v Queensland [No. 2] (Mabo) (1992) 175 CLR 1, [1992] HCA 23. 7. P Keating, ‘Second reading speech: Native Title Bill 1993’, House of Representatives, Debates, 16 November 1993, p. 2877.

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Native Title Legislation Amendment Bill 2019 9

dispossession to obtain land, and the third part was a social justice package, which was not fully implemented before the Keating Government lost office.8

Since its enactment the Act has been amended a number of times, particularly in response to significant court decisions (such as Wik Peoples v Queensland, or most recently McGlade v Native Title Registrar & Ors), which changed previous assumptions about the nature, extent or operation of native title and native title legislation.9 An overview of key court decisions can be found in the short publication 25 years of native title recognition by the National Native Title Tribunal.10 The current Bill contains amendments further responding to the McGlade decision, and also responds to issues raised by other cases including the Gebadi and Yaegl People #2 v Attorney-General of New South Wales cases.11 In addition, the amendments made by Schedule 3 to disregard historical extinguishment can be seen as a legislative response to the Western Australia v Ward decision, as they have the effect of partially reverting the condition of native title in national parks and reserves to the situation that existed prior to that decision.12 This purpose was made explicit in the lapsed Native Title Amendment Bill 2012, which Schedule 3 of the current Bill largely duplicates.13

As well as these court cases and subsequent amendments, a number of reviews of the Act and related Aboriginal and Torres Strait Islander land and corporate law have taken place in the last decade, in response to both concerns about the efficient and effective operation of the Act and the native title system, and more fundamental concerns about the native title system’s basis and outcomes. In particular, Indigenous stakeholders have frequently expressed concerns that the native title system in the wake of the Yorta Yorta decision14 imposes an unfair negotiating position and burden of proof upon native title applicants, and that native title has not effectively generated economic gains for Aboriginal and Torres Strait Islander people, leaving them ‘land rich but dirt poor’.15

Reviews, Cases and Bills

The Native Title Amendment Bill 2012 The Native Title Amendment Bill 2012 was introduced in the House of Representatives of the 43rd Parliament on 28 November 2012. According to the Second Reading speech by then

8. Australian Government, Social justice statement 1994-95: budget related paper no. 1, pp. 13-15. 9. Wik Peoples v Queensland (1996) 187 CLR 1, [1996] HCA 40; McGlade v Native Title Registrar & Others (McGlade) (2017) 251 FCR 172, [2017] FCAFC 10. 10. National Native Title Tribunal (NNTT), 25 Years of Native Title recognition, NNTT, [Brisbane], 2017. 11. Gebadi v Woosup (No 2) (2017) 253 FCR 310, [2017] FCA 1467; Yaegl People #2 v Attorney-General of New South Wales

[2017] FCA 993. 12. Western Australia v Ward (2002) 213 CLR 1, [2002] HCA 28; discussion: R Webb, ‘Nature reserves, national parks and native title after Ward’, Australian Mining and Petroleum Law Journal, 21(3), 2002, pp. 282-293; Mabo v Queensland [No 2]

[1992] HCA 23 had previously stated (Brennan J, paragraph 83): ‘Native title continues where the waste lands of the Crown have not been so appropriated or used or where the appropriation and use is consistent with the continuing concurrent enjoyment of native title over the land (e.g., land set aside as a national park).’ [emphasis added]. For a broader discussion of the impact of the Ward decision, see: A Reilly, ‘From a jurisprudence of regret to a regrettable jurisprudence: shaping native title from Mabo to Ward’, Murdoch University Electronic Journal of Law, 9(4), 2002. 13. Explanatory Memorandum, Native Title Amendment Bill 2012, p. 8; House of Representatives Standing Committee on

Aboriginal and Torres Strait Islander Affairs, Advisory report: Native Title Amendment Bill 2012, House of Representatives, Canberra, March 2013, pp. 7-8. 14. Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [2002] HCA 58. 15. M Langton and L Palmer ‘Modern agreement making and Indigenous people in Australia: issues and trends’, Australian Indigenous Law Reporter, 8(1), 2003, pp. 1-31; M Allbrook and M Jebb, ‘Implementation and resourcing of native title and related agreements’, National Native Title Tribunal, May 2004; C O'Faircheallaigh, ‘Native title and mining negotiations: a seat at the table, but no guarantee of success’, Indigenous Law Bulletin, 6(26), 2007; D Howard-Wagner, ‘Scrutinising ILUAs in the context of agreement making as a panacea for poverty and welfare dependency in Indigenous communities’, Australian Indigenous Law Review, 14(2), 2010, pp. 100-114.

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Native Title Legislation Amendment Bill 2019 10

Attorney-General Nicola Roxon, the Bill was intended to ‘make the native title system fairer and more flexible’ and marked the 20th anniversary of the Mabo decision.16 The Bill was considered by two Committee inquiries (one in each House of Parliament) but was not debated prior to lapsing at the dissolution of that Parliament in August 2013.17

It contained four Schedules:18

Schedule 1 enabled native title claimants to disregard, by agreement with the relevant government, extinguishment of native title over national parks and other conservation areas. This Schedule is largely duplicated by Schedule 3, Part 1 of the current Bill.

Schedule 2 defined the meaning of negotiating in ‘good faith’ under the Act, and the conduct and effort expected of parties in seeking to reach a negotiated agreement. It proposed to extend negotiating time from six to eight months before a party could seek arbitration, and to require a party to establish that they had acted in good faith where it had been alleged that they had not. This Schedule has not been incorporated into the current Bill.

Schedule 3 dealt with registration and authorisation processes in relation to ILUAs including agreements over areas containing portions where native title has been extinguished, and simplifying the process to make minor amendments without having to go back to the National Native Title Tribunal. Parts of this Schedule are largely duplicated by Schedule 2 of the current Bill.

Schedule 4 enabled a body corporate consisting of members rather than shareholders which held a pastoral lease to make a native title claim over that lease, and is duplicated by Schedule 3, Part 2 of the current Bill.

Two Parliamentary inquiries were conducted into the Bill, by the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs and the Senate Legal and Constitutional Affairs Committee.19 At the time, some state governments, the Coalition and interests such as the Minerals Council and the National Farmers’ Federation did not support the 2012 Bill, but the majority of native title representative bodies did, as well as a number of interested non-government organisations.20

The Treasury Working Group report The Treasury’s 2013 Taxation of Native Title and Traditional Owner Benefits and Governance Working Group Report to Government (‘The Treasury Working Group report’) was commissioned by the Gillard Government in order to examine options for native title and traditional owner groups to strengthen governance and promote sustainability of land-related payments and other benefits. It particularly responded to a joint proposal by the National Native Title Council and the Minerals Council of Australia to establish a new form of tax-exempt corporation or trust, the Indigenous Community Development Corporation (ICDC), which could hold and effectively invest

16. N Roxon (Attorney-General), ‘Second reading speech: Native Title Amendment Bill 2012’, House of Representatives, Debates, 28 November 2012, p. 13649. 17. Parliament of Australia, ‘Native Title Amendment Bill 2012 homepage’, Australian Parliament website. 18. See: D Spooner, K Magarey and T Fox, Native Title Amendment Bill 2012, Bills Digest, 135, 2012-13, Parliamentary Library,

Canberra, 2013 for full summary and analysis of this Bill. 19. House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, Inquiry into the Native Title Amendment Bill 2012, Inquiry homepage; Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the

Native Title Amendment Bill 2012, Inquiry homepage. 20. Spooner, Magarey and Fox, Native Title Amendment Bill 2012, op. cit. p. 6.

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Native Title Legislation Amendment Bill 2019 11

land-related payments to promote economic development in Indigenous communities.21 The report recommended:

• Recommendation 1: The Government introduce legislation to make an ICDC-like entity available to Indigenous communities

• Recommendation 2: The Government urgently regulate private entities involved in negotiating native title future act agreements22

• Recommendation 3a: The Government consider establishing a trust which would hold native title agreement funds in cases where there was no appropriate entity to receive them

• Recommendation 3b: The Government consider registering section 31 native title future act agreements

• Recommendation 4: The Government urgently amend the Act or Regulations to make clear that the native title holding community or group is the beneficial owner of funds generated by native title agreements, and that the native title applicant(s) have a fiduciary relationship to their native title holding group.23

The Gillard Government responded to the Treasury Working Group report in 2013 and accepted all recommendations in principle, but did not take legislative action before losing office.24 Recommendation 10-9 of the ALRC Report (discussed below) subsequently repeated the suggestion to establish the fiduciary relationship between the native title applicant and their broader group. Subsequently, in 2017 the Federal Court’s Gebadi decision (discussed in more detail below) established that the applicant did indeed have a fiduciary duty to the native title holding group.25 The Bill responds to these recommendations and the Gebadi decision by inserting proposed section 62B which confirms the Act does not affect any other duties to the group the applicant may owe under common law or equity.26 The Bill also responds to recommendation 3b by establishing a register of section 31 agreements (Schedule 6, Part 2).

The ALRC report Also in 2013, then Attorney-General Mark Dreyfus asked the Australian Law Reform Commission (ALRC) to review the Act. The review was to have regard to developments in case law, the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP),27 delays in the resolution of claims, stakeholder concerns, and make particular reference to:

• the legal requirements for establishing connection to country including:

- whether there should be a presumption of continuity of connection, including that recent and continuous occupation and use is not required - the definition of ‘traditional’ and how this could allow for evolution and adaptation - whether there should be clarification that native title rights and interests can be of a

commercial nature

21. Taxation of Native Title and Traditional Owner Benefits and Governance Working Group, Report to Government, The Treasury, [Canberra], 1 July 2013, p. 5. 22. These are also known as Section 31 agreements, after the relevant section of the Native Title Act 1993. 23. Taxation of Native Title and Traditional Owner Benefits and Governance Working Group, Report to Government, op. cit.,

p. 6.

24. Australian Government, Recommendations of the Working Group on Taxation of Native Title and Traditional Owner Benefits and Governance [and] government response, Australian Government, [Canberra], 5 August 2013. 25. Gebadi v Woosup (No 2), op. cit. 26. Item 12 of Schedule 1 to the Bill. 27. United Nations Declaration on the Rights of Indigenous Peoples, A/RES/61/295, Annex, United Nations, New York,

13 September 2007.

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Native Title Legislation Amendment Bill 2019 12

- whether courts should be empowered to disregard substantial interruption or change in connection where it is in the interests of justice • any barriers imposed by the Act’s authorisation and joinder provisions to access to justice for claimants, potential claimants and respondents.28

In response, the Australian Law Reform Commission’s report Connection to Country: Review of the Native Title Act 1993 (Cth) (‘the ALRC report’) was issued in 2015.29 It contained 30 recommendations:

• Recommendations 1-5 (Chapter 5, Traditional Law and Customs) recommend broadening the definition of native title to allow for native title to persist through change, adaptation and a level of disruption and non-continuity since sovereignty.

• Recommendations 6-7 (Chapter 6, Connection with Land or Waters) recommend repealing requirements that applicants demonstrate a physical connection to the land or waters.

• Recommendation 8 (Chapter 7, Proof and Evidence) recommends broadening the court’s ability to draw inferences from contemporary evidence about the existence, nature and content of native title rights and evidence.

• Recommendations 9-10 (Chapter 8, Nature and Content of Native Title) recommend that the fact that native title rights can be commercial in nature be recognised in the Act.

• Recommendations 11-19 (Chapter 10, Authorisation) concern the processes used by Native Title claim groups and applicants to make decisions. They recommend altering the Act to give groups greater choice in whether to use traditional decision-making processes, that groups should decide by majority as the default mechanism, and clarify the authority, responsibilities, and procedures for appointing or replacing the applicant(s).

• Recommendations 20-25 (Chapter 11, Joinder) concern reforming and clarifying who, and under what circumstances, may be notified, become a party to or be dismissed as a party from a native title claim. They include a recommendation (11-6) that the Commonwealth should develop principles to govern when/whether it becomes a party or intervener.

• Recommendations 26-30 (Chapter 12, Promoting Claims Resolution) concern implementation of the other recommendations and other reforms to improve court processes.30

The Government did not issue a formal response to the ALRC report. Subsequently, the McGlade decision made the issue of how native title claim groups appoint and manage applicants, and how applicants make decisions, an urgent public issue.31 A number of the ALRC report’s recommendations and the Government’s position on them were subsequently discussed in a 2017 article by then Attorney-General George Brandis in a special issue of the James Cook University Law Review commemorating the 25th anniversary of the Mabo No. 2 decision.32

Attorney-General Brandis’s article essentially rejected recommendations 1 through 8, which collectively would have lowered the high burden of proof on native title claimants set by the Yorta Yorta case. This rejection was based upon the uncertainty about future claims that this might create, and on the grounds that reducing the burden of proof required for a Native title claim would be unfair to Native Title claimants whose claims had already been lodged or settled (often

28. Australian Law Reform Commission (ALRC), Connection to country: review of the Native Title Act 1993 (Cth), ALRC, report, 126, April 2015, pp. 5-6. 29. Ibid.

30. ALRC, Connection to country: review of the Native Title Act 1993 (Cth), op. cit., pp. 29-33. 31. McGlade, op. cit. 32. G Brandis, ‘Honouring Mabo’s legacy: the next phase of native title reform’, James Cook University Law Review, 23, 2017, pp. 47-51.

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Native Title Legislation Amendment Bill 2019 13

adversely).33 In contrast, Attorney-General Brandis generally approved of the ALRC’s proposed changes to authorisation and decision-making, which he saw as a way to overcome the problems stemming from the McGlade decision in that a ‘recalcitrant’ (or an incapacitated or deceased) member of the applicant group would no longer be able to frustrate a majority decision.34 The other recommendations were not discussed in the article. However, Attorney-General Brandis concluded that:

Passage of the Native Title Act was a watershed moment in the relationship between first Australians and the rest of the Australian community. But we must frankly acknowledge that in some respects it has not lived up to the promise of providing opportunities for Indigenous people. The result of this consultation process [the options paper preceding the current Bill, discussed below] will not remedy all of these failures. But it will be a step in the right direction.

35

Some of the ALRC’s recommendations, chiefly those from Chapters 10-12 concerned with authorisation, joinder/intervention, and procedural changes promoting claims resolution, are reflected in the current Bill. The Government has not made any substantive response to the more substantial reforms to native title proposed in Chapters 5-8 of the report, which would have significantly strengthened the legal and economic positions of native title applicants and holders. Indigenous stakeholders have expressed disappointment that the Government has so far failed to act on the ALRC’s other recommendations regarding burden of proof requirements, the power imbalances between Indigenous and other negotiating parties, or recognising the existence of commercial native title rights in law.36 The Government’s position, reflected in Attorney-General Christian Porter’s second reading speech of the Bill, appears to be that the native title system has entered ‘a period of maturity’. The Attorney-General noted that while the system is ‘broadly operating well, there are a number of challenges that this bill seeks to address’. To this end, the intention of the Bill is to ‘implement practical and pragmatic improvements to ensure the ongoing effectiveness of the native title system’.37 The Attorney-General’s Departmental submission to the Senate Inquiry into the Bill states:

… the Government took into account the ongoing development of native title case law and the broader native title system with a view to ensuring that any legislative changes met the current needs of the system. The options paper therefore focussed on improvements to native title claims resolution, agreement-making and dispute resolution processes, rather than proposing significant changes to key concepts of the law (including on connection and the content of native title).

38

The Attorney-General’s Department also informed the Committee that while ‘the bill reflects a package of measures which are broadly supported by key stakeholders in the native title system’ they were also ‘committed to ongoing engagement with stakeholders to continue to address emerging native title issues and future areas for reform’.39

33. Ibid., pp. 48-49. 34. Ibid., pp. 48, 50-51. 35. Ibid., p. 51.

36. C Barcham and C Hassing, ‘Summary of the proposed reforms to the Native Title Act 1993 (Cth)’, Native Title News, 1, 2018, pp. 19-21. 37. C Porter, ‘Second reading speech: Native Title Legislation Amendment Bill 2019’, House of Representatives, Debates, 17 October 2019, p. 4483. 38. Attorney-General’s Department (AGD), Submission to the Senate Legal and Constitutional Affairs Legislation Committee,

Inquiry into the Native Title Legislation Amendment Bill 2019, [Submission no. 6], 28 November 2019, p. 3. 39. Senate Legal and Constitutional Affairs Legislation Committee, Native Title Legislation Amendment Bill 2019 [Provisions], Senate, Canberra, 2020, p. 42.

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Native Title Legislation Amendment Bill 2019 14

The COAG Investigation On 10 October 2014 the Council of Australian Governments (COAG) announced an Investigation into Indigenous Land Administration and Use (‘the COAG Investigation’), to enable traditional owners to readily attract private sector investment and finance to develop their own land with new industries and businesses in order to provide jobs and economic advancement for Indigenous people. The investigation was conducted by senior public servants from relevant Commonwealth and state/territory ministries forming a Senior Officers Working Group, assisted by an Expert Indigenous Working Group made up of senior Indigenous public servants and experts.40

The resulting Investigation into Indigenous Land Administration and Use report was released in December 2015.41 It articulated principles and contained a number of wide ranging recommendations for improved cooperation over and governance of the Indigenous estate, and some specific recommendations for amendments to the Native Title Act 1993, laid out in two tables. Table 1 contains recommendations agreed upon by both the Senior Officers and the Expert Indigenous working groups, while Table 2 items were recommended for further consideration by the Senior Officers but not supported by the Expert Indigenous Working Group.42 The Bill implements several of these recommendations, principally items 2, 6, 8 and 14 of Table 1 and items 2, 4 and 10 of Table 2. These relevant recommendations are tabulated below.

Table 1 - Native Title Act amendment proposals recommended to be implemented (excerpted proposals implemented by the Bill) Item Table 1 PROPOSAL Explanatory notes

Chapter 1 - Gaining efficiencies and improving effectiveness in the process of recognition of rights

Implement changes to streamline authorisation, joinder and court processes

2

Amend the Native Title Act to provide that the applicant may act by majority, unless the terms of the authorisation provide otherwise. Refer ALRC 10-6.

This ALRC recommendation (along with Recommendations 1 and 3-5) would require minor changes to the Native Title Act and would be beneficial to improving the efficiency of claims resolution. Over the years, some features of the authorisation and joinder processes have become cumbersome and inflexible.

 A default position of decisions by majority where the authorisation does not provide otherwise could reduce delays.

Promote efficient processes in the resolution of native title claims

6

Amend section 47(1)(b)(iii) of the Native Title Act to permit the making of a determination that native title co-exists with a pastoral lease held by

This proposal would simplify the application of this beneficial provision and correct a technical oversight within the current

40. Council of Australian Governments (COAG), Senior Officers Working Group, Investigation into Indigenous land administration and use: report to the Council of Australian Governments, Department of the Prime Minister and Cabinet, [Canberra], December 2015, p. 4.

41. Ibid.

42. Ibid., pp. 11-20.

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Native Title Legislation Amendment Bill 2019 15

Item Table 1 PROPOSAL Explanatory notes

the claimants where claimants are members of a company that holds the pastoral lease. legislation.

Clarifying compensation processes

8

Consider amending Part 2, Division 5 of the Native Title Act to allow a Prescribed Body Corporate (PBC) to be the applicant on a compensation claim.

This proposal would allow native title holders the option to nominate their PBC, the body that holds or manages native title on behalf of native title holders, to manage and make decisions about the compensation process. This would create efficiencies as the standing of the PBC in compensation matters is currently unclear.

It is agreed action needs to be taken to address this issue but further work needs to be done to identify the best possible solution.

Chapter 3 - Improving the processes for doing business on Indigenous land and land subject to native title

Streamline agreement making processes relating to the future acts regime

14

Minor amendments to streamline ILUA processes based on Schedule 3 of the Native Title Amendment Bill 2012 (Cth), including allowing body corporate ILUAs to cover areas where native title has been extinguished, providing that an representative body is party to an area ILUA only if it enters into the agreement, allowing minor technical amendments to be made to ILUAs without requiring re-registration, removing the requirement that the Registrar give notice of an area ILUA if it was not satisfied the ILUA could be registered.

Streamline processes associated with ILUA negotiation and registration will reduce negotiation costs for all parties. This would improve the efficiency of processes for doing business on land subject to native title.

The Expert Indigenous Working Group support most elements of this proposal but do not support specific proposals that reduce the period for objection to uncertified area ILUAs, and the current form the proposal to address the need for broad consultation about the authorisation of an ILUA, where a native title determination has not yet been made. However, they support further consideration of how to address this issue.

Table 2: Native Title Act amendment proposals for further consideration (excerpted proposals implemented by the Bill) Item Table 2 PROPOSALS Explanatory notes

Chapter 3 - Improving the processes for doing business on Indigenous land and land subject to native title

Improving the processes for doing business on land subject to native title relating to the future acts regime

2

Consider amending section 199C of the Native Title Act to clarify that removal of details of an ILUA from the Register does not invalidate a future act

This proposal would improve future act processes by clarifying how the current law operates. Where a registered ILUA that

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Native Title Legislation Amendment Bill 2019 16

Item Table 2 PROPOSALS Explanatory notes

that is the subject of the ILUA. validates past or future acts is subsequently

removed from the register for reasons unrelated to the validation, it should be clear that the validation continues to apply. The clarifying amendment would limit uncertainty and consequent court processes to confirm validation.

4

Consider options for amending the objection process created by section 24MD(6B), which applies to some compulsory acquisitions of native title and the creation or variation of a right to mine for the sole purpose of constructing an infrastructure facility.

The objections process for this part of the Native Title Act is currently unclear, such as whether a Government party can proceed with an act where an objection to the act has been raised but not subsequently referred to an independent body for adjudication. Clarification of this process will provide a mechanism to deal with objections and support efficient processes for doing business on land subject to native title.

Chapter 5 - Building capable and accountable land holding and representative bodies

Build dispute resolution capability

10

Consider a system that delivers low cost and final resolution of disputes between members of the native title group and PBC.

Disputes can be a significant drain on PBC resources. For native title holders denied PBC membership, there is no independent arbitrator to make a decision about eligibility other than seeking redress through the courts. Further consideration should be given to identify an appropriate mechanism to address this issue.

Source: COAG, Investigation into Indigenous land administration and use, op. cit., pp. 13-20.

The McGlade decision and the Native Title Amendment (Indigenous Land Use Agreements) Act 2017 McGlade v Native Title Registrar [2017] FCAFC 10 (McGlade) was the result of objections to registration of the ‘Wagyl Kaip and Southern Noongar ILUA’, the ‘Ballardong People ILUA’, the ‘South West Boojarah #2 ILUA’ and the ‘Whadjuk People ILUA’. These ILUAs were four of the six which made up the South West Native Title Settlement, an agreement under which the Noongar people (represented by the South West Aboriginal Land and Sea Council) surrendered any native title over the south west area of Western Australia (including Perth) in exchange for a comprehensive package of recognition and benefits, sometimes referred to as ‘Australia’s first treaty’.43

43. H Hobbs, ‘The Noongar settlement: two lessons for treaty making in Australia’, AusPubLaw, blog, 24 October 2018.

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Native Title Legislation Amendment Bill 2019 17

Four of the Noongar native title claimants, possibly representing other Noongar community members who disagreed with the ILUAs, did not wish to surrender their native title rights and appealed the registration of four of the ILUAs on the grounds that not all native title registered parties had agreed to their registration.44 In the resulting 2017 McGlade judgment, the Full Court of the Federal Court decided that all members of the applicant are required to sign an ILUA in order for that agreement to be registered.45 This overturned a previous ruling (Bygrave) by a single Justice of the Federal Court that only one signatory was required to register an ILUA.46 McGlade created some uncertainty around the validity of the existing registrations of ILUAs that had not been signed by all individuals comprising the relevant registered native title claimant.

After this judgment the Government rapidly sought to have the Act amended by introducing the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017. Parliament subsequently passed this Bill as the Native Title Amendment (Indigenous Land Use Agreements) Act 2017 (the 2017 Act), which retrospectively altered the law of ILUA registration, and thus re-validated the Noongar ILUAs and all other ILUAs which had not been signed by all registered native title claimants.47 The 2017 Act sought to respond to the McGlade decision by confirming the status of existing ILUAs and ensuring that future ILUAs do not require every member of the claim group to be party to the agreement.48 The 2017 Act did not address the status of section 31 agreements, which were not directly addressed by either the McGlade decision or the previous Bygrave decision.49 The present Bill is intended to resolve any uncertainty about the validity of past, present or future section 31 agreements stemming from the McGlade decision.

The CATSI Act Review On 5 July 2017, following a study conducted by KPMG, the then Minister for Indigenous Affairs Senator Nigel Scullion and the Registrar of Indigenous Corporations Anthony Beven announced that the Office of the Registrar of Indigenous Corporations (ORIC) would lead a ‘technical review’ of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act).50 The purpose of the review was to consider whether any strengthening or improvement of the CATSI Act was necessary, and align it with ongoing changes in corporate law and regulation.51 The ORIC also produced a discussion paper to inform stakeholders, set out the prospective areas of reform and invited submissions.52

The review itself was conducted by DLA Piper. A number of recommendations from the resulting Technical review of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (‘the CATSI Act Review’) pertaining to Registered Native Title Bodies Corporate (RNTBCs), principally

44. R Hirini, ‘'Blood money': Noongar community divisions delay native title settlement’, National Indigenous Television (NITV) (online), 7 June 2018. 45. McGlade, op. cit., para. [267]. 46. QGC Pty Limited v Bygrave (No 2) [2010] FCA 1019. 47. This included the ILUA over the site of the controversial Adani coal mine in Queensland (see: A Tillett, ‘Senate resolves

native title concerns in boost for Adani coal mine’, Australian Financial Review (online), 14 June 2017). 48. For a detailed analysis of the Bill and the McGlade decision, see: C Raymond, Native Title Amendment (Indigenous Land Use Agreements) Bill 2017, Bills digest, 70, 2016-17, Parliamentary Library, Canberra, 2017. 49. Ibid., p. 11.

50. N Scullion (Minister for Indigenous Affairs), ‘Extra $4 million for ORIC to increase support for Indigenous corporations’, media release, 5 July 2017, p. [2]. 51. Office of the Registrar of Indigenous Corporations (ORIC), Technical review of the Corporations (Aboriginal and Torres Strait Islander) Act 2006: terms of reference, ORIC, [Canberra], [2017]. 52. ORIC, Technical review of the Corporations (Aboriginal and Torres Strait Islander) Act 2006: discussion paper, ORIC,

[Canberra], [2017].

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Native Title Legislation Amendment Bill 2019 18

recommendations 26 and 45-52, have been incorporated into the Bill.53 Those recommendations are:

• that breach of the native title legislation or substantial and repeated breaches of related party transaction rules be grounds to appoint a special administrator to a RNTBC (Recommendation 26). This recommendation has informed Schedule 8, Part 3 of the Bill

• seeking to ensure that all eligible common-law holders of native title may be registered by or members of the relevant RNTBCs (Recommendations 45-52). These recommendations have informed—though are not completely implemented by—Schedule 8, Part 1 of the Bill.

A number of other recommendations pertaining to Aboriginal and Torres Strait Islander Corporations were to be addressed by the Corporations (Aboriginal and Torres Strait Islander) Amendment (Strengthening Governance and Transparency) Bill 2018, which lapsed at the prorogation of the 45th Parliament. The Government has since announced a new review which will address the question of whether the CATSI Act is still justified as a Special Measure under the Racial Discrimination Act 1975.54 At the time of writing, a draft report had been released on which further feedback was sought.55

Consultation process The Bill was preceded by a consultation process conducted by the Attorney-General’s Department, including an options paper released in November 2017 and an exposure draft of the legislation released in October 2018.56 Release of an exposure draft is a positive development in the Indigenous affairs policy area, where there is often little visibility of proposed changes until they are tabled in Parliament. For example, the National Native Title Council commented ‘[t]he NNTC also commends the Government on the co-operative and inclusive approach it has adopted in the development of the Exposure Draft of the proposed Bill.’57 Stakeholders made submissions in response to both the options paper and the exposure draft, some of which have informed the final Bill. However, some stakeholders stated that the consultation process used in writing the options paper and exposure draft was too restricted to selected peak bodies.58

Committee consideration

Senate Legal and Constitutional Affairs Legislation Committee The Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 19 August 2020. Details of the inquiry are at the inquiry homepage.

The Committee received 27 submissions from stakeholders and interested individuals and organisations.59 These, and submissions on the exposure draft of the Bill, are the basis for the summaries of stakeholder concerns below.

53. DLA Piper Australia, Technical review of the Corporations (Aboriginal and Torres Strait Islander) Act 2006, DLA Piper, Melbourne, 2017. 54. National Indigenous Australians Agency (NIAA), ‘Review of the CATSI Act’, NIAA website, n.d. 55. NIAA, ‘CATSI Act review draft report’, NIAA website, updated 31 July 2020. 56. AGD, Reforms to the Native Title Act 1993 (Cth): options paper, AGD, Canberra, November 2017; AGD, ‘Exposure draft:

Native Title Legislation Amendment Bill 2018’, AGD, 2018. 57. National Native Title Council (NNTC), Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title Legislation Amendment Bill 2019, [Submission no. 4], 27 November 2019, p. 1. 58. For example: Seed Indigenous Youth Climate Network, Submission on the Exposure draft - Native Title Legislation

Amendment Bill 2018, 10 December 2018. 59. Senate Legal and Constitutional Affairs Legislation Committee, ‘Submissions’, The Senate, Canberra.

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Native Title Legislation Amendment Bill 2019 19

The majority Committee report recommended that the Bill be passed. The Committee noted the extensive consultation process and general support for several measures of the Bill, in particular validation of Section 31 agreements. The Committee acknowledged the evidence of funding and resourcing challenges for RNTBCs and suggested that the review of the CATSI Act would be an opportunity to identify measures to assist RNTBCs. The Committee acknowledged calls for further reform of the Native Title Act but felt that this should not delay the reforms, some considered urgent, put forward by the Bill.60

ALP Senators Kim Carr and Patrick Dodson issued a minority report which supported the procedural reform objectives of the Bill but emphasised the calls for further reform of the Act, and the barriers faced by native title holders and RNTBCs, and made separate recommendations:

• Recommendation 1: Labor Senators called on the Minister for Indigenous Australians to instruct the Aboriginal and Torres Strait Islander Social Justice Commissioner to conduct a review of the operation of the Act and its impact on native title holders

• Recommendation 2: Labor Senators called on the Government to provide a comprehensive response to the 30 recommendations for reform in the ALRC report

• Recommendation 3: Labor Senators called on the Government to work with First Nations people on a comprehensive legislative package to overhaul the Act so that native title holders can better leverage their land and sea assets without putting at risk their native title rights and interests

• Recommendation 4: Labor Senators called on the Government to include a formal evaluation mechanism on the proposed changes in relation to their effect on the rights to culture and self-determination of First Nations peoples, consistent with the terms set out in the Parliament Joint Committee on Human Rights report (discussed below) and

• Recommendation 5: Labor Senators called on the Senate to support the Bill, with firm commitments from the Government to give effect to recommendations 1, 2 and 3 of this Minority Report, and the Government amending the Bill to give effect to Recommendation 4.61

The Australian Greens issued a dissenting report recommending that, owing to the many key concerns raised by stakeholders, the Bill not proceed until such concerns are addressed, or alternatively, that the provisions that do have support and are considered urgent are dealt with separately. Key concerns included: the power of the applicant to act by majority; validation of ILUAs removed from the ILUA Register for valid reasons; disregard of historical extinguishment in parks interfering with NSW land rights legislation; intervention by the Commonwealth in native title proceedings; and changes to RNTBC governance.62

Senate Standing Committee for the Scrutiny of Bills The Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) considered the Bill in Scrutiny Digest 8 of 2019, and considered its near-identical predecessor Bill in Scrutiny

60. Senate Legal and Constitutional Affairs Legislation Committee, Native Title Legislation Amendment Bill 2019 [Provisions], op. cit., pp. 46-47. 61. Labor Senators, Minority report, Senate Legal and Constitutional Affairs Legislation Committee, Native Title Legislation Amendment Bill 2019 [Provisions], op. cit., pp. 57-58. 62. Australian Greens, Dissenting report, Senate Legal and Constitutional Affairs Legislation Committee, Native Title Legislation

Amendment Bill 2019 [Provisions], op. cit., pp. 59-63.

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Native Title Legislation Amendment Bill 2019 20

Digest 2 of 2019.63 The Scrutiny of Bills Committee subsequently considered the Bill again in Scrutiny Digest 10 of 2019 following receipt of advice from the Attorney-General.64

In its first two reports the Committee expressed concerns about Schedule 9’s retrospective validation of Section 31 agreements to largely reverse the outcome of the McGlade decision. While noting uncertainty about formerly-valid agreements created by McGlade, and that the retrospective amendment was supported by a majority of submissions on the Bill, the Committee stated it had:

long-standing scrutiny concerns about provisions that have the effect of applying retrospectively, as it challenges a basic value of the rule of law that, in general, laws should only operate prospectively (not retrospectively). The committee has particular concerns if the legislation will, or might, have a detrimental effect on individuals. The committee considers that the explanatory materials have not adequately addressed this issue.

65

In Scrutiny Digest 10 of 2019, the Scrutiny of Bills Committee noted advice from the Attorney-General that the proposed approach to validation was ‘well-supported by the native title and Indigenous representatives, states and territories and peak industry groups’.66 In light of this, the Committee made no further comment on the Bill but recommended that the information provided by the Attorney-General be included in the Explanatory Memorandum to the Bill.67

Policy position of non-government parties/independents See the discussion of the Senate Legal and Constitutional Affairs Legislation Committee report above for the statements from Senators of the Coalition, ALP and Australian Greens on the Bill.

At the time of writing, no representatives of the minor parties and independents had commented on the Bill.

Position of major interest groups Comments by significant stakeholders on specific proposed sections of the Bill are noted in the relevant Key Issues and Provisions sections below.

Financial implications The Government states that the Bill will have no financial implications.68

The Australian Maritime Safety Authority (AMSA), a government statutory authority, made a submission to the Legal and Constitutional Affairs Legislation Committee inquiry noting that, as many of their Aids to Navigation (AtNs: lighthouses, beacons, etc.) are within national parks, state reserves or other conservation areas, Schedule 3, Part 1’s proposed amendments allowing parties to disregard extinguishment of native title in such areas, potentially including over public works (proposed subsection 47C(4), at item 2 of Schedule 3) may increase AMSA’s costs as it may need

63. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 8, 2019, The Senate, Canberra, 13 November 2019, pp. 25-26; Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 2, 2019, The Senate, Canberra, 28 March 2019, pp. 56-57.

64. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 10, 2019, The Senate, Canberra, 5 December 2019, pp. 53-54. 65. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 8, 2019, op. cit., p. 26. 66. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 10, 2019, op. cit., p. 54. 67. Ibid.

68. Explanatory Memorandum, op. cit., p. 5.

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Native Title Legislation Amendment Bill 2019 21

to negotiate ILUAs or future act agreements, and possibly pay compensation to native title holders, for ongoing access, maintenance, refurbishment and construction, and other works on AtN sites.69

Several stakeholders, including the National Native Title Council (NNTC) and the Central Land Council, noted that the requirements for RNTBCs to change their internal processes (Schedules 1 and 8) may impose extra costs on these groups which they may struggle to meet without government assistance.70 The Senate Legal and Constitutional Affairs Legislation Committee report noted that the current review of the CATSI Act would be an opportunity to consider the resourcing constraints on RNTBCs.71

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.72

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights (PJCHR) initially reported on the Bill in its first report of 2020.73 It subsequently concluded its consideration of the Bill in its fourth report of 2020, following receipt of a response from the Attorney-General.74 The PJCHR’s discussion in the reports focussed on the proposed amendments that will allow native title applicants to act by majority as the default rule, as well as the retrospective validation of section 31 agreements.

The PJCHR discussed at length whether these proposed changes were compatible with the right to culture and the right to self-determination. The Committee noted that the right to culture may be limited by these proposed amendments as ‘there may be a conflict between an individual’s or a sub-group’s right to culture, and the interests of the majority or of the group as a whole’.75 However the Committee also noted that the proposed amendments ‘appear to engage and seem likely to promote the collective right to self-determination, as a minority of members would not be able to prevent decisions being made unless the authorisation process allowed for this’.76

The PJCHR’s views in its first report was summarised as follows in its second report on the Bill:

Committee's initial view

69. Australian Maritime Safety Authority, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title Legislation Amendment Bill 2019, [Submission no. 22], 20 December 2019, pp. 2-3. 70. National Native Title Council (NNTC), Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title Legislation Amendment Bill 2019, [Submission no. 4], 27 November 2019, p. 9; Submissions

received for the Exposure draft native title reforms consultation (webpage), AGD, 19 December 2018, see: Central Land Council (p. 2). 71. Senate Legal and Constitutional Affairs Legislation Committee, Native Title Legislation Amendment Bill 2019 [Provisions], op. cit., pp. 46-47. 72. The Statement of Compatibility with Human Rights can be found at pages 6-23 of the Explanatory Memorandum to the Bill. 73. Parliamentary Joint Committee on Human Rights (PJCHR), Human rights scrutiny report, 1, 2020, 5 February 2020, pp. 47-

55.

74. PJCHR, Human rights scrutiny report, 4, 2020, 9 April 2020, pp. 139-148. 75. PJCHR, Human rights scrutiny report, 1, 2020, op. cit., p. 50. 76. Ibid., p. 52.

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Native Title Legislation Amendment Bill 2019 22

The committee noted the legal advice that allowing native title applicants to act by majority as the default rule, and retrospectively validating section 31 agreements, may engage and limit the right to culture.

However, the committee noted that the effect of the measures on certain individuals' enjoyment of their right to culture must be balanced against the fact that such measures also promote the right to culture for the group as a whole. In light of this, and that members of the applicant group may determine an authorisation process that differs from the majority-default position, the committee noted the advice that these measures may be a proportionate limit on the right to culture, depending on how these safeguards are implemented in practice.

The committee also noted the advice that the measures may promote the right to self-determination. However, while the statement of compatibility acknowledges that the right to self-determination is engaged by this amendment, it does not provide an analysis as to how this right is promoted.

Noting the importance of the obligation to consult with Indigenous peoples in relation to actions which may affect them, and the principles outlined in the United Nations Declaration on the Rights of Indigenous Peoples, the committee considered that ultimately much will depend on how the proposed amendments operate in practice.

As such, the committee sought the Attorney-General's advice as to whether it would be appropriate for the bill to be amended to require an evaluation to be conducted within an appropriate timeframe to assess the impact of these measures on the rights to culture and self-determination (for example, whether the safeguards are operating effectively to protect the capacity of sub-groups to influence decisions made by the majority of the native title claim group). (Emphasis added)

77

The Attorney-General’s response to the PJCHR’s first report noted that he does not consider that the Bill requires a formal evaluation mechanism to be legislated. The Attorney-General noted that the Bill followed extensive consultation and that ‘existing formal and informal consultation mechanisms will provide ample opportunity for feedback to be received on the operation of the provisions of the Bill, once enacted’. The Attorney-General noted that further amendments to the legislation will be considered should consultation draw attention to legitimate issues.78

In response, the PJCHR reiterated its view that while the Bill may limit the individual enjoyment of the right to culture, this right must be balanced against the promotion of the right to culture for a group as a whole. In addition the Committee again noted that the measures may promote the right to self-determination.79

The PJCHR concluded that given the importance of the obligation to consult with Indigenous peoples in relation to measures that may affect them, the Committee considered ‘that ultimately much will depend on how the proposed amendments and safeguards operate in practice’.80 The Committee commended the Attorney-General’s commitment to ongoing consultation and the amendment of the legislation if there is evidence of a negative impact on the rights to culture and self-determination.81

77. PJCHR, Human rights scrutiny report, 4, 2020, op. cit., pp. 144-145. 78. Letter from C Porter (Attorney-General) to S Henderson (Chair of PJCHR) in PJCHR, Responses from legislation proponents, 4, 2020, p. 50 (letter received 20 February 2020). 79. PJCHR, Human rights scrutiny report, 4, 2020, op. cit., p. 146. 80. Ibid., p. 147.

81. Ibid., p. 148.

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Native Title Legislation Amendment Bill 2019 23

In August 2020 however, the Government tabled proposed amendments that would add a formal evaluation mechanism into the Bill. Item 13 in Government Sheet QW110 inserts proposed section 209A into the Act which provides:

• before the end of the period of five years after the commencement of Schedule 6 of the Bill, the Commonwealth Minister must cause to be conducted an evaluation of the operation of the amendments made by the Bill

• the Commonwealth Minister must cause to be prepared a report of the evaluation and

• the Commonwealth Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the completion of the preparation of the report.

Key issues Stakeholder comments are collated in the relevant discussion of provisions (below). Some issues were raised by multiple stakeholders, or raised broader questions, so are also briefly discussed here.

Majority vs Minority situations Schedule 1, Part 2 of the Bill changes the current default decision making and ILUA agreement process for native title applicant groups from a unanimous, joint decision (which became the default in the wake of the McGlade decision) to a majority decision, unless the broader native title group places conditions on the applicant specifying a different decision-making process under proposed section 251BA (at item 23 of Schedule 1 to the Bill). These conditions must be imposed in accordance with traditional laws and customs if they exist (proposed paragraph 251BA(2)(a)), or otherwise ‘in accordance with a process of decision-making agreed to and adopted, by the persons, in relation to authorising things of that kind’ (proposed paragraph 251BA(2)(b)). It is not clear whether this agreement about a decision-making process must itself be unanimous, or whether it can also be made by a majority.

Clarification of the decision-making process, in particular clarifying the duties of the applicant and the ability of the group to place conditions on them, is a broadly-supported reform, recommended by both the ALRC report and the COAG investigation and supported by several Indigenous peak bodies such as the National Native Title Council.82 Given that the amendments are a response to the McGlade decision, the amendments were supported by the WA Government and by industry stakeholders such as the Minerals Council of Australia.83

However, several stakeholder and other submissions, including from the Indigenous Peoples’ Organisation Australia, Original Power (an Indigenous NGO), Professor Jon Altman, the Law Council of Australia (with respect to giving notice) and the Australian Human Rights Commission (with respect to Section 31 agreements) expressed concerns that the proposed amendments could lead to situations where the traditional or native title rights of a minority could be overridden by a majority of a larger group.84 The Indigenous Peoples’ Organisation and Professor Altman also

82. NNTC, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title Legislation Amendment Bill 2019, [Submission no. 4], 27 November 2019, p. 3. 83. Submissions to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title Legislation Amendment Bill 2019, see: Western Australian Government, [Submission no. 7]; Minerals Council of Australia, [Submission

no. 8].

84. Submissions to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title Legislation Amendment Bill 2019, see: Indigenous Peoples’ Organisation Australia, [Submission no. 20]; Original Power, [Submission

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Native Title Legislation Amendment Bill 2019 24

noted that this had the potential to undermine Indigenous culture and communities by imposing non-traditional, non-consensus forms of decision making on groups.85

For example, if several families or clans who had different traditional responsibilities for different parts of land in an area were part of a broader area native title settlement, and a mine or other development were proposed that only affected the traditional lands of one family, the majority of the native title applicant group could potentially approve that development without the consent or even notification of the minority sub-group concerned. Proposed subsections 31(1D) (at item 43 of Schedule 1), 87(1AB) (item 45 of Schedule 1) and 87A(1B) (item 47 of Schedule 1) require notice be given to all persons of a decision by the majority only ‘within a reasonable period after becoming parties to the agreement’ unless that subgroup had had the foresight to impose relevant conditions on the applicant group under proposed section 251BA.

In this context, Original Power noted the case of TJ (on behalf of the Yindjibarndi People) v State of Western Australia. In this case, a subgroup of the Yindjibarndi people, supplied with financial incentives, conducted a voting meeting which attempted to replace the members of the existing native title applicant group and instruct the new applicant group to pursue a form of native title determination which would have had the effect of limiting the broader Yindjibarndi people’s claim for exclusive native title over lands where Fortescue Metals Group had mining interests.86 Noting issues including the misleading nature of the notice for the meeting, Justice Rares found that this meeting was not ‘effective as an expression of the informed wishes of the majority of the claim group’ and dismissed the application to replace the existing applicant.87 Original Power expressed concerns that the proposed changes would make this kind of manipulation of a native title group easier to accomplish in future.88

Professor Altman also noted that in practice, the ability to slow proceedings is one of the few levers native title groups have in negotiations. He suggested that ostensibly neutral measures to make native title negotiations more efficient, and enable proponents to achieve agreements with only a majority rather than all native title applicant members, would in fact further weaken the bargaining position of native title holders.89

Whether or not such fears were made manifest, if the changes are seen as or feared to be weakening the rights of minority groups within broader native title claims, there is a risk that this could fragment or reverse the trend towards larger scale area native title resolutions, agreements and ILUAs, such as the South West Native Title Settlement, the single native title claim for Cape York, and the NSW South Coast People native title claim, as smaller groups may prefer to make multiple smaller claims rather than amalgamate if they fear their rights will not be protected within a broader settlement.90 If it were to happen, this could potentially both weaken the

no. 26]; Emeritus Professor Jon Altman, [Submission no. 5]; Law Council of Australia, [Submission no. 18]; Australian Human Rights Commission (AHRC), [Submission no. 3]. 85. Ibid.

86. TJ (on behalf of the Yindjibarndi People) v State of Western Australia (2015) 242 FCR 283, [2015] FCA 818. 87. Ibid., paragraph 124. 88. Original Power, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title Legislation Amendment Bill 2019, [Submission no. 26], 27 November 2019, p. 4.

89. Emeritus Professor Jon Altman, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title Legislation Amendment Bill 2019, [Submission no. 5], 28 November 2019, p. 2. 90. A Cape York Land Council webpage on the Cape York One Claim framework states: ‘The key principle of One Claim also remains as it has always been; that traditional owners, for each part of the claim area, will continue to speak for and make

decisions about, their traditional lands and waters according to their traditional laws and customs.’ The Cape York One

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Native Title Legislation Amendment Bill 2019 25

negotiation position of Indigenous groups and increase the legal and transaction costs to all parties including courts, governments and industry.

Key provisions

Schedule 1 Schedule 1 makes amendments to the Act in relation to the role of ‘the applicant’. The applicant is the person or persons authorised by a native title claim group or compensation group to make and manage applications for native title or compensation claims on their behalf.91 Section 61 of the Act sets out the persons who may make applications, while section 62A provides that an authorised applicant can deal with all matters arising under the Act in relation to the application.

Currently, under section 61 of the Act, an application for a native title claim is made by an applicant who is authorised by all the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed (that is, the native title claim group).92 Similarly under section 61, applications for compensation are made by an applicant who is authorised by all persons who claim to be entitled to compensation (that is, the compensation claim group).

Section 251B of the Act provides for two processes that constitute authorisation for the purposes of section 61, namely:

• where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind, then that process or

• where the above process does not exist—a process agreed to and adopted by the native title claim group or compensation claim group.

In relation to ILUAs, section 251A provides for similar requirements whereby the making of an ILUA can be authorised by a person holding native title in relation to land or waters in the area covered by the ILUA.

Part 1—Authorisation The amendments in Part 1 of Schedule 1 of the Bill primarily seek to implement Recommendation 10-5 of the ALRC Report, that the Act should be amended to clarify that the claim group may define the scope of the authority of the applicant.93 The ALRC has noted that in some cases claim groups have been ‘disinclined to hand over all decision-making responsibility to the applicant’. Currently claim groups sometimes include conditions in their authorisation; examples being that

Claim has had persistent doubts and concerns expressed by some of its constituent native title claimants that amalgamating their claims into one claim would result in them losing decision making powers over the parts of the claim that are their traditional country, for example: Cape York Partnership, Land Council says one claim isn’t taking away land owners’ rights, media release, 6 August 2018. Conflicts between minority and majority groups of native title claimants over whether to ratify the ILUAs that made up the South West Native Title Settlement resulted in the McGlade case, as some Noongar people preferred not to surrender their native title rights: Hirini, ‘'Blood money': Noongar community divisions delay native title settlement’, op. cit. 91. Subsection 61(2) of the Native Title Act 1993 (the Act). Determinations of native title are made under section 13 of the Act,

whereas determinations of compensation are made under section 50 of the Act. 92. It should be noted that section 61 of the Act also provides for non-claimant applications (i.e. seeking a determination that native title does not exist over a particular area) to be made by Commonwealth and state/territory ministers and any

person who holds a non-native title interest in the relevant area. 93. ALRC, Connection to country, op. cit., p. 304.

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Native Title Legislation Amendment Bill 2019 26

members of the applicant represent the whole group, not just their own family, and that the applicant must consult with elders before executing any agreement.94

However, while claim groups can include specific instructions and constraints on the applicant’s authority in their authorisation, the ALRC notes that the exact legal status of these conditions is unclear, hence the recommendation for greater clarity on this issue. The ALRC also notes that there is no Full Federal Court authority on the issue.95

Item 23, which inserts proposed section 251BA is the key amendment under Part 1 of Schedule 1. The proposed section allows the persons who authorise the making of an ILUA or who authorise the applicant to act in relation to a native title determination application or compensation application, to impose conditions on this authority. Proposed subsection 251BA(2) provides for the process around the imposing of conditions in similar terms to the process for authorisation under section 61 discussed above. That is, conditions must be imposed as follows:

• where there is a process of decision making that, under the traditional laws and customs of the relevant persons (that is, those who authorise the making of the ILUA, or the application for a native title determination or compensation), must be complied with in authorising things of that kind, then that process or

• where the above process does not exist—a process agreed to and adopted by the relevant persons.

Proposed subsection 251BA(3) stipulates that the authorised person must amend the claimant or compensation application to reflect a new or varied condition on the authorised person that occurs after the application is made.

The majority of the amendments in Part 1 of Schedule 1 of the Bill are consequential to the above amendment that allows claim groups to impose conditions on the authority of the applicant. Some examples are as follows:

• requiring the affidavit accompanying a claimant application to include details of the decision-making process under which the applicant was authorised, and any conditions placed on the applicant (item 6, which inserts proposed subsection 62(1A))

• amending the provision that empowers the applicant to deal with all matters under the Act in relation to the application to ensure that their actions are subject to any conditions imposed under proposed section 251BA (item 11, which inserts proposed subsection 62A(2))

• requiring an application for the registration of ILUAs to include a statement that any conditions imposed under proposed subsection 251BA have been met (item 1, which inserts proposed subparagraph 24CG(3)(b)(iii)) and

• stipulating that native title representative bodies can only certify a native title application or application for registration of an ILUA where any conditions imposed under proposed section 251BA on the authority relating to the making of the application or agreement have been satisfied (items 19 and 21, which insert proposed subparagraphs 203BE(2)(aa) and 203BE(5)(c) respectively).

The ALRC has noted the rationale for clarifying the authorisations provisions in the NTA and has acknowledged that there may be some stakeholder concerns:

94. Ibid., pp. 304-305. 95. Ibid., pp. 304-305.

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Native Title Legislation Amendment Bill 2019 27

… the purpose of the authorisation provisions is to ensure that the application is brought with the authority of the claim group, allowing the group to supervise proceedings and thus giving legitimacy to the proceedings.

The ALRC acknowledges that Recommendation 10-5 may raise concerns for those stakeholders who sought amendments that would allow third parties to make assumptions about the authority of the applicant in the context of agreement making. These stakeholders raised concerns that permitting claim groups to define the scope of the applicant’s authority could create uncertainty. However, as discussed earlier, it is not presently certain that the applicant has unfettered authority to enter into future act agreements without reference to the claim group. While the Native Title Act requires claim groups to authorise an applicant to act on their behalf in relation to both the claim and future act agreements, it does not require the claim group to delegate all decision-making powers to the applicant. In this respect, the members of the applicant have a different role from that of directors of a corporation. (Emphasis added)

96

In response to stakeholder concerns, the ALRC has also noted that ‘clarity and certainty may best be obtained by seeking the disclosure of the limits on the scope of the applicant’s authority when entering into negotiations.’97

Gebadi issue Item 12 of Part 1 of Schedule 1 of the Bill inserts proposed section 62B, titled ‘General law duties’. The proposed provision clarifies that the applicant may have obligations at common law or in equity to persons in the native title or compensation claim groups, despite any obligations arising under the Act.

The Gebadi case considered the question of whether an applicant owes a fiduciary duty or fiduciary obligation to a native title claim group.98 The judgement in the Gebadi case noted that the principles to be applied in determining this question were the same principles that applied when determining whether a person in general has fiduciary obligations to another.99 That is, a fiduciary relationship is a relationship of trust and confidence where one party is entitled to expect that the other will act in their interests, and where one party is vulnerable to abuse due to the position of the other party.100 Professional relationships (such as between a lawyer and their client) give rise to fiduciary obligations.101

Greenwood J held that the respondents in Gebadi, by reason of their role as applicant:

… enjoyed a special opportunity to exercise any such powers or discretions to the detriment of the claim group, and the claim group was, plainly enough, vulnerable to any abuse of position…[the respondents] thus stood in a fiduciary relationship, often described as a relationship of “trust or confidence” with the members of the Ankamuthi native title claim group. (Emphasis added)

102

96. Ibid., p. 306.

97. Ibid., p. 307.

98. Gebadi v Woosup (No 2), op. cit. 99. Ibid., para. [96]. 100. Ibid., see discussion at paras [96]-[100]. 101. See: B McEniery, ‘[27.1.230] Professional relationships give rise to fiduciary obligations’, The Laws of Australia, G Masel

(editor), Westlaw AU current as at 1 October 2015 (accessible through the Parliamentary Library’s online portal). 102. Ibid., para. [101].

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Native Title Legislation Amendment Bill 2019 28

As such it was found that a native title claim group and their authorised representative are in a fiduciary relationship.

The Explanatory Memorandum to the Bill notes that proposed section 62B clarifies the duties owed by the applicant to the claim group in light of the decision made in Gebadi.103 The Explanatory Memorandum states that this proposed section also addresses Recommendation 10-9 of the ALRC Report, which called for a legislative amendment to provide that a member of the applicant must not obtain an advantage or benefit at the expense of common law holders of native title.104 It should be noted that the ALRC Report predated the Gebadi decision.105

Part 2—Applicant decision making The ALRC noted in 2015 that under the Native Title Act at that point, while a claim group could authorise an applicant to act by majority, if there is no such authorisation from the group, then the applicant is obligated to act jointly.106 In the 2017 McGlade judgment, the Full Court of the Federal Court decided that all members of the applicant are required to sign an ILUA in order for that agreement to be registered.107 This decision created some uncertainty around the validity of the existing registrations of ILUAs that had not been signed by all individuals comprising the relevant registered native title claimant. Parliament therefore passed the Native Title Amendment (Indigenous Land Use Agreements) Act 2017 (the 2017 Act). The 2017 Act sought to respond to the McGlade decision by confirming the status of existing ILUAs and ensuring that future ILUAs do not require every member of the claim group to be party to the agreement.108

Part 2 of Schedule 1 of the Bill seeks to extend the changes made by the 2017 Act, thereby implementing Recommendation 10-6 of the ALRC Report and the corresponding COAG recommendation at Table 1, Item 2.109 Recommendation 10-6 of the ALRC Report proposed that the Act be amended to provide that the applicant may act by majority, subject to the terms of the authorisation. In other words, the ALRC’s recommendation involves reversing the current default position so that ‘where the terms of the authorisation are silent, the applicant may act by majority’.110

Item 44 inserts a new general rule under proposed section 62C which stipulates that where an applicant makes a native title determination or compensation application (with two or more persons jointly being the applicant) and the applicant is required to do something unanimously under the Act, the default rule is that the requirement for unanimity is satisfied if the thing is done by a majority of authorised persons. The default rule applies to the applicant acting in any capacity, including as an applicant, a registered native title claimant, a native title party, a negotiation party, a party or otherwise (proposed subsection 62C(5)).

Proposed subsection 62C(6) stipulates that authorised persons for the purpose of that section include persons who have died. The Explanatory Memorandum to the Bill notes that ‘this is

103. Explanatory Memorandum, op. cit., p. 29. 104. ALRC, Connection to country, op. cit., p. 314. 105. Explanatory Memorandum, op. cit., p. 29. 106. ALRC, Connection to country, op. cit., p. 308. 107. McGlade, op. cit., para. [267]. 108. For a detailed analysis of the Bill and the McGlade decision, see: C Raymond, Native Title Amendment (Indigenous Land Use

Agreements) Bill 2017, op. cit. 109. ALRC, Connection to country, op. cit., pp. 308-309; COAG, Senior Officers Working Group, Investigation into Indigenous land administration and use, op. cit., p. 13. 110. ALRC, Connection to country, op. cit., p. 308.

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Native Title Legislation Amendment Bill 2019 29

because excluding deceased persons from the calculation of a majority (or providing that a deceased person is taken to have agreed to do a particular thing) may undermine the expectations of the claim group as to how matters are managed on their behalf.’111

However, this default rule can be displaced if conditions are placed on the authority of the applicant under proposed section 251BA as inserted by Part 1 of Schedule 1 (see proposed subsection 62C(4)). Proposed subsection 62C(3) stipulates that the authorised persons who do a thing must notify the other authorised persons within a reasonable period of the action taken.

Part 2 of Schedule 1 of the Bill also makes other amendments to the Act to reflect that an agreement has been entered into by the registered native title claimant if a majority of the members who comprise the registered native title claimant group are parties to the agreement. However if there are certain persons stipulated by any conditions imposed under proposed section 251BA, then those persons must be party to the agreement. The persons acting in the majority must notify the other persons comprising the registered native title claimant within a reasonable period after becoming party to an agreement. This principle of determining when a registered native title claimant is considered to be a party to an agreement is applied to the following:

• requirements relating to parties to area ILUAs (see amendment made by item 27)

• requirements relating to registration of area agreements not certified by representative Aboriginal and Torres Strait Islander bodies (see amendment made by item 35)

• requirements relating to parties to alternative procedure agreements (see amendment made by item 38)

• requirements relating to parties to a section 31 negotiation procedure (see amendment made by item 43)

• requirements relating to the power of the Federal Court where the parties have reached agreement (see amendment made by item 45) and

• requirements relating to the power of the Federal Court to make a determination for part of an area (see amendments made by items 46 and 47).

Part 3—Replacement of applicant Under existing section 66B of the Act, one or more members of a native title claim group can apply to the Federal Court for an order that the member or members replace the current applicant on certain grounds. The relevant members must be authorised by the claim group to make the application under section 251B.112 One of the legislated grounds whereby members can apply to replace the current applicant is that the relevant person has died or become incapacitated.113

The ALRC Report made two recommendations in the context of applicants being unable or unwilling to act. Recommendation 10-7 proposed that section 66B be amended so that where a member of the applicant is no longer willing or able to perform their functions, then the remaining members should be able to continue to act without reauthorisation (subject to the terms of the

111. Explanatory Memorandum, op. cit., p. 36. 112. Paragraph 66B(1)(b) of the Act. 113. Subparagraph 66B(1)(a)(ii) of the Act.

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Native Title Legislation Amendment Bill 2019 30

authorisation) and the remaining members should be able to apply to the Federal Court for an order that the remaining members constitute the applicant.114

Recommendation 10-8 of the ALRC proposes that where an authorisation provides for a particular member to replace an unwilling or incapacitated member, the applicant should be able to apply to the Federal Court for an order that the member be replaced by the specific person without requiring reauthorisation.115

Item 57 repeals the existing ground in relation to death or incapacity from current section 66B. Proposed subsection 66B(2A), inserted by item 59, then allows members to apply to the Federal Court to make certain orders where an applicant has died or becomes incapacitated, without needing to go through the authorisation process under section 251B.

Under proposed subsection 66(2B), the Federal Court may order that the following persons can replace the applicant:

• if there is an authorised ‘reserve’ member, then this member and any continuing members whose authority continues

• unless the authority of any continuing members ceases on the death or incapacity of the member, then the continuing members and

• if the applying members are authorised by the claim group to make the application and to deal with matters arising in relation to it, the applying members.

The Explanatory Memorandum to the Bill notes that the amendments in Part 3 of Schedule 1 of the Bill implement ALRC Report Recommendations 10-7 and 10-8.116 However the implementation of the ALRC’s proposal by the Bill is arguably narrower than what the ALRC envisaged. This is because the ALRC’s proposal at recommendation 10-7 refers to the replacement of applicants who are unwilling, not just those who are deceased or incapacitated.

Stakeholder comments The changes to allow decision making by majority attracted significant commentary, which is discussed above.

Submissions from the Law Council of Australia and Yamtaji Marlpa Aboriginal Corporation noted that changes to the conditions placed on the applicant, which alter a claim’s Form 1,117 could trigger the registration test under paragraph 190A(6A)(d) of the Act, which is a potentially time-consuming and costly process. They suggested that changes to conditions on the applicant should be exempt from this test.118

Submissions from Central Desert Native Title Services and Yamtaji Marlpa argued that the requirement to obtain all relevant claimant signatures (as opposed to having a group’s legal representatives sign) on consent determinations (items 45-47) would impose unnecessary cost or

114. ALRC, Connection to country, op. cit., pp. 309-311. 115. Ibid., p. 311. 116. Explanatory Memorandum, op. cit., p. 39. 117. Form 1 is used for an application mentioned in s 61(1) of the Native Title Act 1993 by a claimant for a determination of

native title in relation to an area for which there is no approved determination of native title (see: Federal Court of Australia (FCA) , ‘Forms under the Native Title (Federal Court) Regulations 1998’, FCA website). 118. Submissions to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title Legislation Amendment Bill 2019, see: Yamtaji Marlpa Aboriginal Corporation, [Submission no. 23], p. 1; Law Council of Australia,

[Submission no. 18], p. 8.

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administrative burdens on native title applicants.119 While broadly supportive of the amendments, Central Desert Native Title Services noted that it ‘would be given comfort by amendments that make it clear that the applicant need not sign an agreement for a consent determination where the legal representative has signed the agreement on their behalf’.120

Schedule 2—Indigenous land use agreements An ILUA is a voluntary agreement between a native title group and others about the use of land and waters. The Act provides for three types of ILUAs: body corporate agreements, area agreements and alternative procedure agreements.121

The National Native Title Tribunal notes that ILUAs can:

• be over areas where native title has, or has not yet, been determined

• be entered into regardless of whether there is a native title claim over the area or not and

• be part of a native title determination or settled separately from a native title claim

and that ILUAs can cover various topics including:

• native title holders agreeing to a future development

• how native title rights coexist with the rights of other people

• access to an area

• extinguishment of native title

• compensation

• employment and economic opportunities for native title groups

• cultural heritage and

• mining.122

Once registered, an ILUA binds all parties to the agreement and all persons holding native title in relation to any of the land or waters in the area covered by the ILUA.123

Part 1—Body corporate agreements and area agreements The amendments in Part 1 of Schedule 2 of the Bill seek to implement the following COAG Investigation proposal:

Minor amendments to streamline ILUA processes based on Schedule 3 of the Native Title Amendment Bill 2012 (Cth), including allowing body corporate ILUAs to cover areas where native title has been extinguished, providing that an representative body is party to an area ILUA only if it enters into the agreement, allowing minor technical amendments to be made to ILUAs without requiring

119. Submissions to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title Legislation Amendment Bill 2019, see: Yamtaji Marlpa Aboriginal Corporation, [Submission no. 23], p. 1; Central Desert Native Title Services, [Submission no. 1], pp. 3-4.

120. Central Desert Native Title Services, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title Legislation Amendment Bill 2019, [Submission no. 1], 26 November 2019, p. 4. 121. The National Native Title Tribunal provides fact sheets on each type of agreement. See: NNTT, ‘About Indigenous Land Use Agreements (ILUAs)’, NNTT website. 122. Ibid.

123. Native Title Act 1993 (the Act), section 24EA.

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Native Title Legislation Amendment Bill 2019 32

re-registration, removing the requirement that the Registrar give notice of an area ILUA if it was not satisfied the ILUA could be registered. 124

Currently section 24BC of the Act provides that a body corporate agreement can only be made where there are registered native title bodies corporate in relation to all of the area concerned. Proposed subsection 24BC(2), inserted by item 2, provides that where there is extinguishment of native title in relation to part of the area or the exclusion of part of the area covered by an approved determination of native title, then a registered native title body corporate is not required for that part of the area.

Item 3 amends subsection 24CH(1) to streamline the ILUA process by only requiring notification to relevant parties (such as the Commonwealth Minister) and the public where the ILUA meets the relevant requirements. Currently, notification is required even where the Registrar knows that an ILUA does not meet the statutory requirements and will fail registration.125

Part 2—Deregistration and amendment A future act is a proposal to deal with land in a way that affects native title rights and interests— examples include the granting of a mining tenement or the compulsory acquisition of land. A future act is invalid to the extent it affects native title unless it complies with certain procedural requirements under the Act.126

The amendments in Part 2 of Schedule 2 chiefly implement the COAG Investigation recommendation to amend section 199C of the Act to clarify that removal of details of an ILUA from the ILUA Register does not invalidate a future act that is the subject of the ILUA.127 Item 5 inserts proposed subsection 24EB(2A) and item 6 inserts proposed subsection 24EBA(7) which clarify that this is the case.

Further, item 7 inserts proposed section 24ED in order to implement the COAG Investigation recommendation to streamline ILUA processes with the intention of reducing negotiating costs for all parties.128 The proposed section essentially provides that the details of an agreement on the Register of ILUAs has effect as if the agreement included amendments agreed by all parties and notified to the Registrar in writing. The proposed section limits the kinds of minor amendments that can be made for this purpose—these are summarised in the Explanatory Memorandum as follows (emphasis added):

a. updating property descriptions previously covered by the ILUA, but not so as to result in the inclusion of any area of land (for example, where a particular area of land was originally included in the ILUA area but is now excluded from its boundaries)

b. updating the description of the parties to the agreement, including where a party has assigned or transferred rights or liabilities under the agreement (for example, where a project proponent sells the rights to undertake a project to another entity and also needs to transfer the rights and liabilities under an ILUA negotiated in relation to that project), or

124. COAG, Senior Officers Working Group, Investigation into Indigenous land administration and use, op. cit., p. 15 (Table 1, Item 14). 125. Explanatory Memorandum, op. cit., p. 41. 126. NNTT, ‘About future acts’, NNTT website. 127. COAG, Senior Officers Working Group, Investigation into Indigenous land administration and use, op. cit., p. 17 (Table 2,

Item 2).

128. Ibid., p. 15 (Table 1, Item 14).

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Native Title Legislation Amendment Bill 2019 33

c. doing a thing specified in a legislative instrument under subsection 24ED(3). 129

Stakeholder comments During the exposure draft and Senate Inquiry process, many stakeholders and legal commentators (University of Western Australia, Law Council of Australia, Northern Land Council, National Native Title Council, Australian Human Rights Commission, ANTaR)130 raised concerns that items 5 and 6 will validate future acts done under an ILUA that is removed from the Register, even if the ILUA was legally invalid or was removed under subsection 199C(3) of the Act because it was found to have been signed due to fraud, duress or undue influence.131 Conversely, the WA Government supported these clauses and suggested in its submission to the Senate Committee inquiry that the amendment should also validate any payments made under ILUAs removed from the register.132

The Australian Human Rights Commission raised concerns in both the exposure draft consultation and in submission to the Senate inquiry that item 7 effectively enables the Minister, by legislative instrument, to allow potentially wide ranging amendments to ILUAs without them being re-registered under proposed subsection 24ED(3) and so opposed this amendment.133

Central Desert Native Title Services suggested that the ability for native title claimant groups to make ILUAs and work with others on management of land should be further extended to cover all areas where native title rights and interests cannot be recognised because of extinguishment or exclusive possession.134

Schedule 3—Historical extinguishment

Historical extinguishment Extinguishment or partial extinguishment of native title is the result of certain past acts of government including the granting of freehold land, granting of leases or the construction or establishment of public works that are inconsistent with the ongoing enjoyment of native title rights.135 Native title and interests cannot revive once extinguished, even if the act that causes the extinguishment ceases to have effect.136

The Act however provides that prior extinguishment must be disregarded when deciding claimant applications in relation to areas that are pastoral leases held by traditional owners,137 reserves set aside for Aboriginal or Torres Strait Islander peoples,138 and vacant Crown land.139

129. Explanatory Memorandum, op. cit., p. 42. Proposed subsection 24ED(3) gives the Commonwealth Minister power to specify, by way of legislative instrument, additional types of amendments which may be captured by the provision. 130. Submissions received for the Exposure draft native title reforms consultation, op. cit., see: University of Western Australia (p. 4), Law Council of Australia (pp. 9-10), Northern Land Council (p. 4), NNTC (p. 4), AHRC (p. 17); Submissions to the Senate

Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title Legislation Amendment Bill 2019, see: ANTaR, [Submission no. 10], p. 5; NNTC, [Submission no. 4], p. 4; Law Council of Australia, [Submission no. 18], p. 11. 131. The National Native Title Tribunal has advised the Parliamentary Library that subsection 199C(3) has never been activated, although this does not mean that it may not be needed in future. 132. Western Australian Government, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry

into the Native Title Legislation Amendment Bill 2019, [Submission no. 7], November 2019, p. 4. 133. Submissions received for the Exposure draft native title reforms consultation, op. cit., see: AHRC (p. 18); AHRC, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title Legislation Amendment

Bill 2019, [Submission no. 3], 27 November 2019, pp. 2-3. 134. Central Desert Native Title Services, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title Legislation Amendment Bill 2019, [Submission no. 1], 26 November 2019, pp. 4-5. 135. M Cawthorn, ‘Native title, rights and interests’, Prescribed Bodies Corporate website, updated 31 August 2020. 136. Native Title Act 1993, section 237A. 137. Ibid., section 47.

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Native Title Legislation Amendment Bill 2019 34

Following the Mabo (No 2) decision140:

When initial government proposals in September 1993 suggested that validation of pastoral leases would extinguish native title, Aboriginal opposition, based on the opinion that pastoral leases did not completely extinguish native title, resulted in the introduction of a compromise. If the native title holders came to hold a pastoral lease, any extinguishment of native title by the grant of the lease or any other historic extinguishment was to be disregarded: NTA 1993 s 47. The provision for disregarding historic extinguishment on Aboriginal pastoral leases set a precedent for the 1998 amendments to the NTA 1993 with respect to Aboriginal land and reserves and vacant Crown land.

141

After the Mabo decision it was also thought that native title would potentially continue to exist in national parks and other such areas, as the Mabo judgement had stated: ‘Native title continues where the waste lands of the Crown have not been so appropriated or used or where the appropriation and use is consistent with the continuing concurrent enjoyment of native title over the land (e.g., land set aside as a national park).’142 However this presumption was largely reversed by the High Court’s 2002 Ward decision, which found that the Crown’s reservation of land largely extinguished native title, even if the land was physically undisturbed.143

The Rudd/Gillard Government’s Native Title Amendment Bill 2012 proposed a mechanism very similar to that of the current Bill by which extinguishment could be disregarded over park areas by agreement between the relevant government(s) and the native title claimants.144 That Bill lapsed at the dissolution of the 43rd Parliament.

Part 1— Park areas The key provision in Part 1 of Schedule 3 is proposed section 47C (inserted by item 2) which extends the types of native title applications where historic extinguishment can be disregarded to include native title applications (and revised native title applications) in relation to areas that comprise the whole or part of a park area. A park area is defined at proposed subsection 47C(3) as an area that is set aside or over which an interest is granted or vested by a law of the Commonwealth or state or territory for purposes that include preserving the natural environment of the area (such as a national or state or territory park).

Proposed section 47C however differs significantly from the existing requirements in relation to pastoral leases, reserves and vacant Crown land in that agreement is required to be reached with the relevant federal, state or territory government. To this end, proposed paragraph 47C(1)(b) refers to an agreement area - that is an area that comprises the whole or part of a park area that has been agreed to in writing by the:

• registered native title body corporate concerned or the applicant and

138. Ibid., section 47A. 139. Ibid., section 47B. 140. Mabo, op. cit. 141. R Bartlett, Native title in Australia, 4th edn, LexisNexis Butterworths, Chatswood NSW, 2020, p. 524. 142. Mabo, op. cit., Brennan J at [83] (emphasis added). 143. Western Australia v Ward, (2002) 213 CLR 1, [2002] HCA 28; Webb, ‘Nature reserves, national parks and native title after

Ward’, op. cit.; For a broader discussion of the impact of the Ward decision, see: Reilly, ‘From a jurisprudence of Regret’, op. cit. 144. Spooner, Magarey and Fox, Native Title Amendment Bill 2012, op. cit., p. 2.

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Native Title Legislation Amendment Bill 2019 35

• the jurisdiction (Commonwealth, state or territory) under whose law the park area was set aside or the interest granted or vested

and where the agreement area is Crown land or covered by a freehold estate held by the Crown or a statutory authority of the Crown in any of its capacities.145 Existing requirements in relation to pastoral leases, reserves or vacant Crown land (as discussed above) cannot apply in relation to the agreement area.146

An agreement in relation to an agreement area can also contain a statement allowing the extinguishing effect of relevant public works to be disregarded within a park area.147 Relevant public works are public works constructed by or on behalf of the Commonwealth or a state or territory government.148 The Bill also provides for a consultation process that must give interested persons an opportunity to comment on a proposed agreement for at least three months.149

Once a relevant agreement is made, the Bill provides that, in relation to a claimant application or revised native title application, prior extinguishment must be disregarded in relation to the following acts:

• the creation by the relevant government of the park area itself

• the creation of any other prior interest in relation to the agreement area and

• the construction or establishment of any relevant public works.150

Applicants will still need to show the existence of any connection with the land or waters in the area as may be required by native title requirements at common law.151

Proposed subsection 47C(9) provides that if there is a determination that native title rights and interests exist in an agreement area, it does not affect:

• the validity of the creation of the park area and of any prior interest in the agreement area

• any Crown interest in public works in the area and

• any existing public access to the area.

Proposed paragraph 47C(9)(b) provides for the non-extinguishment principle in relation to these acts, which means that ‘any interests created prior to the determination will continue to exist and, to the extent of inconsistency with native title rights, prevail’.152

The creation of an interest that confirms or confers ownership of natural resources on the Crown is not included in the scope of the term ‘creation of an interest in relation to an area' in proposed section 47C.153 This means that the creation of an interest in natural resources is not to be disregarded for the purposes of proposed section 47C.

The remaining amendments under Part 1 of Schedule 3 of the Bill mostly make amendments consequential to this new requirement relating to disregarding prior extinguishment.

It might be noted that the amendments made by Schedule 3 to disregard historical extinguishment can be seen as a legislative response to the Ward decision, as they have the effect

145. Native Title Legislation Amendment Bill 2019 (The Bill), proposed paragraphs 47C(1)(b) and (c). 146. Ibid., proposed paragraph 47C(1)(d). 147. Ibid., proposed subsection 47C(4). 148. Ibid., proposed subsection 47C(11). 149. Ibid., proposed subsection 47C(6). 150. Ibid., proposed subsection 47C(8). 151. This is clarified by the Note under proposed subsection 47C(8). 152. Explanatory Memorandum, op. cit., p. 47. 153. Proposed subsection 47C(10) of the Act.

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Native Title Legislation Amendment Bill 2019 36

of partially reverting the condition of native title in national parks and reserves to the understanding pertaining between the Mabo and Ward decisions.154

Part 2—Pastoral leases held by native title claimants Item 18 of Schedule 3 amends subparagraph 47(1)(b)(iii) of the Act so that past extinguishment of native title can be disregarded in relation to a pastoral lease held by claimants who are members of a body corporate that does not have shareholders. Currently, extinguishment in relation to pastoral leases held by a company can only be disregarded where claimants are the company’s only shareholders.155 This implements a COAG Investigation recommendation, which noted that the proposed amendment ‘would simplify the application of this beneficial provision and correct a technical oversight within the current legislation’.156

Stakeholder comments Stakeholders were divided on the proposal to disregard extinguishment in parks.

Objections or further limitations desired The National Farmers Federation (NFF) objected on general grounds that the Schedule would ‘undermine certainty’ and ‘open a door to native title claims that currently don’t exist’. The NFF specifically expressed concerns about the definition of a park area as land with purposes ‘including’ preservation of the environment, noting that this may include land primarily reserved for other purposes. The NFF also expressed concerns about the impact on any agricultural or other concessions in park areas (no examples were given, but this might include bee-keeping, or the former practice of allowing cattle in some alpine parks).157

The Western Australian Government did not object to the proposal in general, but also suggested that the definition of a park area was too broad, arguing that it should only apply to land where preservation of nature is ‘the primary purpose’ of the area. It also suggested that current rights and interests in a park area should not trigger the Act’s future acts regime, as otherwise there would be a disincentive for states and territories to enter into agreements with prospective native title holders. The WA Government also suggested limiting the scope of taking comments to those ‘whose interest may be affected by the proposed agreement’. It also expressed some technical concerns about the procedures to be followed in making agreements between the relevant state body and the native title claimants, in particular whether the agreement may be in the form of an ILUA.158

The Minerals Council of Australia (MCA) expressed concerns about compensation liabilities that might arise from past acts in areas which are now park areas, where there was no future acts regime in place at the time (as native title was considered extinguished) and suggested amendments such that, as a minimum, any person with current or past interests in the park area must be consulted.159

154. Western Australia v Ward, op. cit.; Webb, ‘Nature reserves, national parks and native title after Ward’, op. cit. 155. See subparagraph 47(1)(b)(iii) of the Act. 156. COAG, Senior Officers Working Group, Investigation into Indigenous land administration and use, op. cit., p. 14 (Table 1, Item 6).

157. National Farmers Federation, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title Legislation Amendment Bill 2019, [Submission no. 19], Attachment 1, November 2019, pp. 2, 4. 158. Western Australian Government, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title Legislation Amendment Bill 2019, [Submission no. 7], November 2019, pp. 5-7. 159. Minerals Council of Australia, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into

the Native Title Legislation Amendment Bill 2019, [Submission no. 8], 28 November 2019, p. 3.

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Native Title Legislation Amendment Bill 2019 37

The Australian Maritime Safety Authority (AMSA) raised specific concerns about its network of 224 land-based Aids to Navigation (AtNs: lighthouses, beacons, for example). Most of the lands on which AtNs stand are now part of, or connected to, national parks and state conservation reserves. AMSA expressed the concern that if native title extinguishment is disregarded over land with public works (such as AtN), it may render AMSA liable to negotiation with and compensation to the native title holders in order to carry out future acts such as maintenance and upgrades on the AtN network. AMSA suggested that if extinguishment over public works is to be disregarded (as provided for under proposed subsections 47C(4) and (5)), then the agency concerned should be consulted or required to consent.160

Support Conversely, some submissions from Indigenous, legal and academic bodies, while being broadly supportive of these amendments, suggested that they did not go far enough. The Law Council of Australia noted that the proposal leaves the rights of native title claimants ‘at the discretion and goodwill of the government of the day’.161 The Australian Human Rights Commission suggested that the ability to disregard extinguishment should not be restricted (such as in relation to park areas); the Commission instead believes that it should be possible to disregard extinguishment over any areas of Crown land where there is agreement.162 Professor Altman suggested that managing and regenerating degraded land now set aside for conservation may place additional financial burdens on native title holders.163

Both the NSW Aboriginal Land Council and the Law Council of Australia, while supporting the amendments in the Schedule, sought clarification on how the law would interact with the Aboriginal Land Rights Act 1983 (NSW) and other state/territory land rights legislation which may allow land rights to be claimed over some categories of Crown land. They sought assurance that land claims would be recognised as ‘interests’ in the land, and that the legislation would not frustrate the interests or land claims of Aboriginal Land Councils.164

Schedule 4—Allowing a registered native title body corporate to bring a compensation application Under Part 2 of the Act, compensation may be payable in relation to:

• validated past acts (Division 2)

• validated intermediate period acts (Division 2A)

• validation of transfers under New South Wales land rights legislation (Division 2AA)

• confirmation of past extinguishment of native title by certain valid or validated acts (Division 2B)

160. Australian Maritime Safety Authority, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title Legislation Amendment Bill 2019, [Submission no. 22], 20 December 2019, pp. 2-3. 161. Law Council of Australia, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title Legislation Amendment Bill 2019, [Submission no. 18], 5 December 2019, p. 11. 162. AHRC, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title

Legislation Amendment Bill 2019, [Submission no. 3], 27 November 2019, p. 3; Submissions received for the Exposure draft native title reforms consultation, op. cit., AHRC, p. 19. 163. Emeritus Professor Jon Altman, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title Legislation Amendment Bill 2019, [Submission no. 5], 28 November 2019, pp. 4-5. 164. Submissions to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title Legislation

Amendment Bill 2019, see: Law Council of Australia, [Submission no. 18], p. 12; NSW Aboriginal Land Council, [Submission no. 11], p. 2.

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Native Title Legislation Amendment Bill 2019 38

• future acts (Division 3) and

• compensation otherwise payable under the Racial Discrimination Act 1984 (Division 4).

Currently, a registered native title body corporate (RNTBC) can make a compensation application in relation to an area of land or waters held by the RNTBC on behalf of common law holders or as an agent in relation to native title rights.165 This current requirement is clarified by the amendment to subsection 61(1) by item 7 of Schedule 4.

More significantly, item 7 amends subsection 61(1) to allow RNTBCs ‘to make a compensation claim over areas within the external boundary of its determination area where native title has been fully extinguished.’166 Currently, applications can only be made over areas where native title has been partially extinguished or impaired. The Explanatory Memorandum notes:

The reason for restricting the RNTBC’s ability to claim compensation for extinguished areas to those which fall wholly within the boundaries of areas of existing native title is because where two native title determinations share a boundary, and an area of extinguishment falls over or between that boundary, it may be difficult to determine which RNTBC is the appropriate applicant for a compensation claim over that area.

In those circumstances, it is appropriate that the relevant persons whose native title rights have been extinguished, who seek to claim compensation for that extinguishment, authorise an applicant to make a compensation claim on their behalf. 167

Items 2-5 make amendments to section 58 of the Act to allow Regulations (currently, the Native Title (Prescribed Bodies Corporate) Regulations 1999) to make provision regarding the functions of RNTBCs in relation to compensation applications.

Part 2 of Schedule 4 provides for changes to requirements for compensation applications by RNTBCs, namely that the application be accompanied by:

• a sworn affidavit—the affidavit must set out:

- the belief that native title rights and interests exist or have existed in relation to the area - that the statements in the application are believed to be true and - that the RNTBC holds or is an agent in relation to the native title in the area; or the area is within the external boundary of a determination of native title rights and interests that the

RNTBC holds or is an agent in relation to and • details that would be required if the compensation application were instead a determination application (such as maps and relevant factual information).168

Stakeholder Comments There were no objections to this Schedule. Yamtaji Marlpa suggested that RNTBCs should only be empowered to bring compensation claims if authorised by the people who would be the native title holders, if not for extinguishment.169

165. Native Title Act 1993, section 61. 166. Explanatory Memorandum, op. cit., p. 50. 167. Ibid., pp. 50-51. 168. Proposed subsections 62(5)-(6), inserted by item 11 of Schedule 4. 169. Yamtaji Marlpa Aboriginal Corporation, Submission to the Senate Legal and Constitutional Affairs Legislation Committee,

Inquiry into the Native Title Legislation Amendment Bill 2019, [Submission no. 23], 26 May 2020, p. 2.

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Native Title Legislation Amendment Bill 2019 39

Schedule 5—Intervention and consent determinations Part 4 of the Act relates to the rules for the processing Federal Court applications and the making of determinations relating to native title.170 Sections 87 and 87A provide for consent determinations to be made by the Federal Court in relation to an area or part of an area subject to an application, respectively. Consent determinations provide an alternative to litigated determinations and:

… aim to provide an efficient and resourceful means of settling native title issues. The process has been described as: encouraging relationship building between Indigenous communities and others; less intrusive on Aboriginal culture than litigated determinations; and often more expert driven…171

Part 1—Intervention in proceedings The key amendments under Part 1 of Schedule 5:

• clarify that the Commonwealth Minister’s agreement is required for consent orders made under section 87 if the Commonwealth Minister is intervening in the proceedings at the time the agreement is made172

• clarify that the Commonwealth Minister’s consent is not required for orders made under section 87A where the Minister has withdrawn from the matter (the current language of subparagraph 87A(1)(c)(vii) provides that the agreement of the Minister is required if they have intervened at any point)173

• clarify that the Commonwealth Minister’s consent/participation is required when finalising a statement of facts (if the Minister is intervening in the proceeding at the time a statement of facts is agreed).174

These amendments apply to proposed agreements filed with the Federal Court after the commencement of the Schedule, regardless of whether the relevant proceedings commenced or Ministerial intervention occurred before or after commencement.175

Part 2—Consent determinations The Explanatory Memorandum notes that consultation has shown that there is confusion around the use of sections 87 and 87A where:

… part of a native title application is being determined, but that part consists of the remainder of the area covered by the application. That is, where section 87A has previously been used to finalise a determination over part of a claim area, it is unclear whether the remaining part of the claim area can be finalised through section 87A, or section 87 must be used.

176

Jagot J in Yaegl People #2 v Attorney-General of New South Wales clarified the operation of the respective sections by looking at the context of the provisions with other sections of the Act:

These provisions indicate that where there has been a determination over part of a claim area and all that remains to be determined is the balance of the claim area, the applicable provision is s 87 rather

170. See section 79A of the Native Title Act 1993 for on overview of Part 4. 171. Indigenous Studies Program (University of Melbourne), ‘Consent determination (Native Title Act 1993 (Cth)) (Australia)’, Agreements, treaties and negotiated settlements (ATNS) website, 2011. 172. Proposed paragraph 87(1)(aa), inserted by item 3; paragraph 87(1)(b), amended by item 4. 173. Item 6 repeals this existing provision and inserts proposed subparagraph 87A(1)(c)(vii). 174. Proposed subsections 87(12) and 87A(13), inserted by items 5 and 7 respectively. 175. See the Application provisions at item 8 of Schedule 5. 176. Explanatory Memorandum, op. cit., p. 54.

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Native Title Legislation Amendment Bill 2019 40

than s 87A of the NTA. This indication is supported by s 87A(3) which requires “notice to the other parties to the proceeding that the proposed determination of native title has been filed with the Court”, the assumption apparently being that in the case of an agreement under s 87A the parties to the agreement may not be all of the parties to the proceeding (an assumption that cannot be correct where, as here, the agreement relates to all land in the extant claim area).

177

The Explanatory Memorandum notes that the amendments in Part 2 of Schedule 5 of the Bill are aimed at clarifying the operation of sections 87 and 87A as a result of the Court’s decision in this case.178 Item 9 provides that, in line with the Court’s decision, section 87A applies only where the agreement relates to an area that is part of, but not all of, the area covered by the native title application.179 Once a determination has been made under section 87A, the remaining undetermined area becomes the ‘whole of the area covered by the application’, and any consent determinations in respect of this are therefore dealt with under section 87.180

Stakeholder Comments Central Desert Native Title Services, the National Native Title Council and Australians for Native Title and Reconciliation (ANTaR) objected to the amendments made by Schedule 5, Part 1, items 3-8 on the grounds that allowing the Commonwealth Minister to become a party to matters before the Court where the Commonwealth was not otherwise concerned (including matters currently before the Court when the legislation commences) gave the Commonwealth an effective veto over agreements between other parties.181

Schedule 6—Other procedural changes

Part 1—Objections

Objections to freehold acts Division 3 of Part 2 of the Act provides that ‘to the extent that a future act affects native title, it will be valid if covered by certain provisions of the Division, and invalid if not.’182 Subdivision M of Division 3 further provides for the ‘freehold test’, namely that ‘future acts should only be valid over native title lands or waters if they could be done over freehold and subject to similar conditions and procedural requirements.’183

Section 24MD of the Act sets out an objections process for future acts that pass the freehold test and affect native title. Currently under paragraph 24MD(6B)(f), if a claimant or RNTBC has objected to the doing of such an act, then at their request the Commonwealth, State or Territory must arrange for the objection to be heard by an independent person or body.

Item 1 of Schedule 6 amends this requirement so that the objection must be heard by an independent body if it has not been withdrawn after 8 months, regardless of whether a request is

177. Yaegl People #2 v Attorney-General [2017] FCA 993, para. [18]. 178. Explanatory Memorandum, op. cit., pp. 54-55. 179. Paragraph 87A(1)(b), as amended by item 9. 180. Explanatory Memorandum, op. cit., pp. 54-55. Item 10 inserts a note to subsection 87A(1) clarify that section 87 applies for

agreements reached in relation to the whole of the area covered by the application. 181. Submissions to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title Legislation Amendment Bill 2019, see: Central Desert Native Title Services, [Submission no. 1], p. 7; NNTC, [Submission no. 4], p. 4;

Australians for Native Title and Reconciliation (ANTaR), [Submission no. 10], p. 5. 182. Native Title Act 1993, subsection 24AA(2). 183. Bartlett, Native title in Australia, op. cit., p. 581.

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Native Title Legislation Amendment Bill 2019 41

made by the claimant or body corporate. The Explanatory Memorandum notes that this amendment ‘is intended to ensure that an objection does not perpetually go unheard, while also providing native title parties an appropriate amount of time to formulate arguments in support of the objection.’184

Expedited procedure When a government party proposes to do an act which gives rise to a right to negotiate,185 it must give notice of its intention to (among others) any RNTBC, any registered native title claimant and any representative Aboriginal or Torres Strait Islander body in relation to any land or waters that will be affected by the act.186 The notice(s) may include a statement that the government party considers that the act attracts the ‘expedited procedure’.187 In this circumstance, if the native title parties do not lodge an objection with the National Native Title Tribunal (NNTT), the Government party may do the act.188 However, a native title party may lodge an objection with the NNTT against the inclusion of the government statement that the act attracts the expedited procedure.189 If an objection is lodged, the NNTT must determine whether the act attracts the expedited procedure. If it determines that it does, the government may do the act.190 However, if the NNTT determines that the act does not attract the expedited procedure, the normal negotiating procedure applies under section 31 of the Act, which requires the parties to negotiate in good faith.

Right to negotiate applications Section 139 of the Act provides that the National Native Title Tribunal must hold an inquiry into applications for a ‘right to negotiate’. Under section 75 of the Act, a right to negotiate application can be made to the National Native Title Tribunal by either a native title party objecting to an act attracting the expedited procedure (as explained above), or by a negotiation party in relation to a future act determination. The effect of such an application is that the Tribunal will need to decide whether the relevant future act is an act attracting the expedited procedure process (where a native title party raises an objection) or whether the act itself can be done (on application of a negotiation party).191

184. Explanatory Memorandum, op. cit., p. 56. 185. ‘The “right to negotiate” is, in effect, a mechanism for preserving the status quo for native title holders pending the formal determination of their native title claim. In relation to a well-founded claim, it reflects the protection that may be available in law for fully determined native title rights’, The Laws of Australia, ‘Right to negotiate’, [1.3.1550], Westlaw AU; North

Ganalanja Aboriginal Corporation & Waanyi People v Queensland (1996) 185 CLR 595. See also the Preamble to the Native Title Act 1993 ‘In future, acts that affect native title should only be able to be validly done if, typically, they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate’. 186. Native Title Act 1993, section 29. The Laws of Australia, ‘Right to negotiate’, [1.5.1580], Westlaw AU. 187. Native Title Act 1993, subsection 29(7). Section 237 provides that an act is an ‘act attracting the expedited procedure’ if the

act: is not likely to interfere directly with the carrying on of the community or social activities of the native title holders; is not likely to interfere with sites of particular significance to the native title holders; is not likely to involve major disturbance to any relevant land or waters; and is not likely to create rights whose exercise is likely to involve major disturbance to any relevant land or waters. 188. Ibid., subsection 32(1). 189. Ibid., subsection 32(4). 190. Ibid., subsection 32(4). 191. See: M Perry and S Lloyd, eds, Australian native title law, 2nd edn, Lawbook Co., Sydney, 2018, pp. 417-418.

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Native Title Legislation Amendment Bill 2019 42

Where native title parties make an application objecting to an expedited procedure process,192 subsection 141(2) currently provides that the parties to an inquiry in relation to this application are the Government party, the native title parties and the grantee parties.193

The Explanatory Memorandum notes that stakeholders are concerned that this requirement means that native title parties who do not object to an expedited procedure process are still required to participate in an inquiry.194 The amendments made by item 2 of Schedule 6 clarify that for an expedited procedure objection application, the participants include any native title party that has lodged an objection.195 The National Native Title Tribunal noted that this could exclude a native title party which had a native title determination made during the course of the inquiry from being party to the objection.196

Part 2—Section 31 agreements Subdivision P of Division 3 of Part 2 of the Act provides for a right to negotiate in relation to certain future acts (such as the conferral of mining rights and the compulsory acquisition of native title rights and interests).197 Section 31 of the Act provides for the ‘normal negotiation’ procedure, including that the negotiation parties must negotiate in good faith with a view to obtaining the agreement of each of the native title parties to the doing of the act or conditions on which the act can be done.198

Item 5 inserts proposed subsection 31(1A). This proposed subsection inserts the requirement that the Government party does not need to negotiate about matters that do not affect it, as long as the other parties consent. Proposed subsection 31(1B) clarifies that the Government party must still be a party to the agreement. The Explanatory Memorandum notes that currently the ‘government party to a section 31 agreement is not always involved in the doing of the act the subject of the agreement, and can therefore unnecessarily be involved in the negotiations.’199

Item 4 makes a consequential amendment to the overview of Subdivision P as set out in section 25 of the Act, to reflect the changes made by item 5. Item 6 makes a consequential amendment to subsection 36(2) so that the Government does not fall afoul of the requirement to negotiate in good faith if it has chosen not to negotiate.

Register of section 31 agreements Existing section 199A requires a register of ILUAs to be established and section 199B sets out the contents of the Register. Signed ILUAs are not themselves included on the Register.200 The ILUA Register is available online.201 There is currently no equivalent register for section 31 agreements.

192. Sections 32 and 237 of the Act provide for requirements around the expedited procedures for the approval of future acts. 193. Under Subdivision P of Division 3 of Part 2 to the Native Title Act 1993, the right to negotiate arises if the Commonwealth, a state or territory ‘proposes to grant certain mining interests or undertake certain compulsory acquisitions of native title rights for the benefit of a non-government party’: The Laws of Australia, ‘Right to negotiate’, [1.3.1550], Westlaw AU.

194. Explanatory Memorandum, op. cit., p. 56. 195. Proposed paragraph 141(2)(c). 196. National Native Title Tribunal, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title Legislation Amendment Bill 2019, [Submission no. 17], 29 November 2019, p. 4.

197. See overview of Subdivision P at section 25 of the Act. 198. Paragraph 31(1)(b) of the Act. 199. Explanatory Memorandum, op. cit., p. 57. 200. Ibid., p. 58. 201. NNTT, ‘Search Register of Indigenous Land Use Agreements’, NNTT website.

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Native Title Legislation Amendment Bill 2019 43

The Explanatory Memorandum notes that proposed amendments in Part 2 of Schedule 6 aim to provide a similar level of transparency for section 31 agreements as exists for ILUAs.202

Under section 41A of the Act, the negotiation parties must give a copy of a section 31 agreement to the arbitral body.203 The proposed amendment by item 7 means that the arbitral body will also receive advice on whether there is any further written agreement made between the negotiation parties.

Item 8 further amends section 41A to require the arbitral body to give a copy of any agreement or advice to the Native Title Registrar.204 Proposed section 41B, inserted by item 9, creates a requirement that the Registrar must keep records in relation to these section 31 agreements. To the extent known to the Registrar, the record must include the following information:

• a description of the area of land or waters to which the agreement relates

• the name of each party to the agreement and the address at which the party can be contacted

• if the agreement specifies the period during which it will operate—that period and

• whether or not there is any other written agreement made between some or all of the parties to the agreement in connection with the doing of the act to which the agreement relates.

This information must be made available to a person on request, subject to notification from a party that they do not wish some or all of the information to be made available.205 Parties must notify the Registrar of any changes and the Registrar must update the records accordingly.206 Item 10 inserts proposed section 98AA to provide the Registrar with the relevant powers set out in proposed section 41B in relation to records of section 31 agreements. Item 11 amends section 215 so that Regulations made under the Act can provide for fees to access information on the proposed register of section 31 agreements.

Stakeholder comments The Attorney-General’s Department’s submission to the Senate committee inquiry stated that during the consultation process, many stakeholders had expressed concerns about the lack of transparency of section 31 agreements, hence the changes to establish a register.207 The Law Council of Australia submitted that there was still insufficient transparency and a full register of future act agreements, including section 31 agreements and ancillary agreements, should be created and be accessible by parties to the agreement and the members of the relevant native title claim group.208 Wintawari Guruma, a RNTBC from the Pilbara, suggested that details of a section 31 agreement should not be public as a default, as parties should automatically have the right to keep the agreement confidential.209 The Western Australian Government suggested that the legislation should clarify that the grantee party and the native title party are responsible for

202. Explanatory Memorandum, op. cit., p. 58. 203. Arbitral bodies are defined at section 27 of the NTA; arbitral bodies can be formed under state or territory laws, otherwise the arbitral body is the National Native Title Tribunal. 204. Proposed subsection 41A(4). 205. Proposed subsections 41B(5) and (6). 206. Proposed subsections 41B(3) and (4). 207. AGD, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title

Legislation Amendment Bill 2019, [Submission no. 6], 28 November 2019, p. 4. 208. Law Council of Australia, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title Legislation Amendment Bill 2019, [Submission no. 18], 5 December 2019, p. 13. 209. Wintawari Guruma Aboriginal Corporation, Submission to the Senate Legal and Constitutional Affairs Legislation

Committee, Inquiry into the Native Title Legislation Amendment Bill 2019, [Submission no. 27], 19 March 2020, p. 2.

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Native Title Legislation Amendment Bill 2019 44

notifying the NNTT of the existence of ancillary agreements. Western Australia also raised concerns about being a party to an agreement that it had not participated in negotiating.210

Schedule 7 - National Native Title Tribunal The National Native Title Tribunal (NNTT) is established under Part 6 of the Act, with functions in relation to:

• applications, inquiries and determinations

• mediation for Federal Court proceedings

• reconsideration of claims

• assistance and mediation and

• research.211

Item 1 of Schedule 7 confers a new function on the NNTT by inserting proposed section 60AAA. Proposed section 60AAA allows RNTBCs and common law native title holders to request the NNTT to provide assistance in promoting agreement about matters relating to native title and the operation of the Act between common law holders, between RNTBCs and between common law holders and RNTBCs. The NNTT may enter into an agreement with RNTBCs and common law holders that requires them to pay the Commonwealth for this assistance.212 Item 4 makes a consequential amendment to subparagraph 123(1)(b)(ii) to expand the matters in relation to which the President of the NNTT can give directions, to capture the provision of any assistance under the Act.

It is not clear from the language of the Bill what sort of activities this ‘assistance’ to RNTBCs and common law holders from the NNTT could entail. While not mandated by the proposed amendments under the Bill, the Explanatory Memorandum notes that the Government’s intention is that the NNTT will provide assistance to RNTBCs and common law holders to:

a. establish governance processes that are consistent with the Native Title Act and [Native Title (Prescribed Bodies Corporate) Regulations 1999], e.g. agreed processes that are consistent with traditional decision making

b. support resolution of disputes between common law holders and RNTBCs, which may include mediation, and

c. facilitate collaboration between RNTBCs. 213

Item 3 inserts proposed section 115A which provides for the Commonwealth Minister to make acting appointments (during vacancies or absences) for any member of the NNTT, including the President and Deputy President.

Persons appointed must still meet the qualifications for the respective offices of the NNTT as set out in section 110 of the Act, and the Minister can impose terms and conditions on a person appointed to act in an office (other than a Judge or an assessor).214

210. Western Australian Government, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title Legislation Amendment Bill 2019, [Submission no. 7], November 2019, p. 8. 211. See section 108 of the Native Title Act 1993. 212. Proposed subsection 60AAA(3). 213. Explanatory Memorandum, op. cit., p. 61. 214. Proposed subsections 115A(4) and (5).

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Native Title Legislation Amendment Bill 2019 45

Stakeholder comments The NNTT strongly supported the proposed extension of its functions and suggested that it be conferred an arbitration power as well as its existing mediation power.215

Conversely, some Indigenous stakeholders were sceptical of this extension of the NNTT’s functions. Central Desert Native Title Services suggested that dispute resolution by the NNTT should be a function of last resort as more culturally appropriate services already existed. Queensland South Native Title Services suggested RNTBCs would struggle to pay any fees charged by NNTT under proposed subsection 60AAA(3).216

Schedule 8—Registered native title bodies corporate RNTBCs are prescribed body corporates that hold native title rights and interests on trust or as an agent where there is an approved determination of native title.217 RNTBCs are incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act).218 RNTBCs are therefore subject to the requirements of the CATSI Act, including the relevant governance requirements. Part 3-2 of the CATSI Act provides for rules dealing with the internal governance of Aboriginal and Torres Strait Islander corporations.219 The outline at section 57-1 notes that there are four kinds of rules that provide for the internal governance of these corporations:

• common law rules

• rules in the CATSI Act that cannot be replaced by the corporation’s constitution

• replaceable rules in the CATSI Act that can be modified or replaced by the corporation’s constitution and

• rules that are in the corporation’s constitution.

A list of the current governance rules and whether they are replaceable rules is provided in a table under section 57-5 of the CATSI Act.

Part 1—Requirements for constitutions The amendments in Part 1 of Schedule 8 of the Bill are aimed at improving ‘accountability, transparency and governance of RNTBCs’220 in relation to the following areas:

• dispute resolution pathways with common law holders

• eligibility requirements for membership of RNTBCs and

• the grounds for cancelling membership of RNTBCs.

215. National Native Title Tribunal, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title Legislation Amendment Bill 2019, [Submission no. 17], 29 November 2019, p. 4. 216. Submissions to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title Legislation Amendment Bill 2019, see: Central Desert Native Title Services, [Submission no. 1], p. 8; Queensland South Native Title

Services, [Submission no. 12], p. 5. 217. See definition of registered native title body corporate under section 253 of the Native Title Act 1993 and when a RNTBC is so prescribed under paragraphs 193(2)(e) and (f) and subsection 193(4) of the Act. 218. Applications for registration of an Aboriginal and Torres Strait Islander corporation, including RNTBCs, are provided for

under Part 2-2 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act). 219. Aboriginal and Torres Strait Islander corporations are effectively corporations that are registered under (and therefore meet certain requirements under) the CATSI Act, see section 16-5 of the CATSI Act. 220. Explanatory Memorandum, op. cit., p. 63.

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Native Title Legislation Amendment Bill 2019 46

Dispute resolution Subsection 66-1(3A) of the CATSI Act stipulates that the constitution of a CATSI corporation must provide for the resolution of disputes internal to the operation of the corporation. Item 6 inserts proposed subsection 66-1(3B) as an additional requirement for RNTBCs, namely that where a corporation is a RNTBC, the corporation’s constitution must also provide for a mechanism for the resolution of disputes between the corporation and a common law holder in relation to:

• whether or not the person is a common law holder of native title or

• the corporation’s performance of its functions under Native Title legislation.221

Proposed paragraph 63-1(c), inserted by item 5, categorises such a rule as an internal governance rule. This means that such rules are subject to the requirements under the CATSI Act for internal governance rules, including that they be internally consistent, workable and consistent with the CATSI Act and Native Title legislation.222

This amendment effectively requires a dispute resolution process in relation to native title holders who are not members of the RNTBC itself. The Attorney-General noted the justification for these amendments in his second reading speech:

According to statistics held by ORIC [Office of the Registrar of Indigenous Corporations], native title corporations are subject to a relatively large number of disputes about how a corporation is managing the native title.

… This reform ensures corporations have procedures to address disputes with native title holders, whether or not they are members of the corporation, and aims to resolve disputes early and internally before the corporation needs to obtain costly legal advice or the disputes escalate. The process would be designed by the corporation to meet their needs and circumstances.

223

Eligibility requirements for membership Section 141-20 of the CATSI Act provides that an individual who is at least 15 years of age is eligible for membership of an Aboriginal and Torres Strait Islander corporation. Section 141-25 currently provides that the constitution of an Aboriginal and Torres Strait Islander corporation may provide for other eligibility requirements for membership of the corporation. Item 11 inserts proposed subsection 141-25(2) so that in the case of RNTBCs, criteria must include eligibility requirements for membership that provide for all common law holders of native title to be represented directly or indirectly. Indirect representation is intended by the Government to capture representative membership of native title holders.224

The Explanatory Memorandum notes that the proposed changes ‘aim to prevent a RNTBC from arbitrarily changing eligibility requirements for membership to exclude some common law holders from membership.’225

221. Native Title legislation is defined at section 700-1 of the CATSI Act and includes the NTA and any Regulations made under the NTA, as well as any other prescribed laws or provisions of a law. 222. See Division 66 of Part 3-2 of the CATSI Act for internal governance rules requirements. 223. Porter, ‘Second reading speech’, op. cit. 224. Explanatory Memorandum, op. cit., p. 65. 225. Ibid., p. 64.

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Native Title Legislation Amendment Bill 2019 47

Cancellation of membership The CATSI Act currently sets out the following grounds on which membership of an Aboriginal and Torres Strait Islander corporation can be cancelled:

• the member is not contactable (section 150-25)

• the member is not an Aboriginal and Torres Strait Islander person (section 150-30) and

• the member misbehaves (section 150-35).

In addition, the CATSI Act provides for a replaceable rule under section 150-20 whereby membership can be cancelled where the member is not eligible for membership, has ceased to be eligible for membership or has not paid membership fees. As a replaceable rule, this requirement applies only to the extent to which the rule is not modified or replaced by the corporation’s constitution.226

Item 17 inserts proposed section 150-22, which largely mirrors current section 150-20. Proposed subsection 150-22 provides that a person’s membership of a RNTBC can be cancelled on the basis of:

• not being eligible for membership

• if the member has ceased to be eligible for membership or

• the person has not paid the relevant membership fees.

Proposed section 150-22, as with current section 150-20, provides for a process of cancelling the membership which involves giving the member notice in writing and the requirement to cancel the membership only by resolution in general meeting if the member objects.

Similar to the other grounds for cancellation listed above, proposed subsection 150-22(1) stipulates that the section applies to a RNTBC despite any provision of its constitution. Items 12 and 16 amend sections 150-15 and 150-20 respectively so that the current replaceable rule under section 150-20 does not apply to RNTBCs.

In addition, proposed subsection 150-15(2A), inserted by item 14, provides that a RNTBC may not cancel membership ‘on any other ground’. The Explanatory Memorandum to the Bill provides that the intention of proposed subsection 150-15(2A) is to ‘confirm that the constitution of a RNTBC must not provide for cancellation of membership on any other ground than those specified in subsection 150-15(2)227 or [proposed] section 150-22’.228 As explored below, the Law Council of Australia considers that the drafting of proposed subsection 150-15(2A) lacks clarity.

The intended effect of these amendments under Part 1 of Schedule 8 appears to be to provide a high degree of certainty for members of RNTBCs in terms of how their membership may be cancelled, as there is no scope for RNTBCs to depart from legislated requirements in this area. In addition, it restricts the ability for a RNTBC to cancel membership arbitrarily. However, item 18 amends section 187-5 so that a RNTBC or its directors can apply to the Office of the Registrar of Indigenous Corporations (ORIC) for an exemption from the mandatory requirements in relation to cancellation of membership provided for by the Bill.

226. CATSI Act, section 60-1. 227. That is, cancellation under sections 150-25, 150-30 and 150-35 of the CATSI Act. 228. Explanatory Memorandum, op. cit., p. 66.

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Native Title Legislation Amendment Bill 2019 48

Proposed subsections 150-22(7) and (8) provide for a strict liability penalty of five penalty units ($1,110) for failing to giving the member a copy of the relevant resolution if their membership is cancelled.229 This penalty is consistent with the penalties provided for in relation to the other mandatory requirements currently in the CATSI Act for cancellation of membership on other grounds.

Item 19 of Schedule 8 provides that a RNTBC registered before the commencement of that item has two years to update its constitution to reflect the requirements inserted by Part 1 of Schedule 8 as well as to reflect the ability for RNTBCs to bring compensation applications as provided for by Schedule 4 of the Bill.

Part 2—Refusal of membership Section 144-10 of the CATSI Act provides for the determination of applications for membership in respect of an Aboriginal and Torres Strait Islander corporation. Subsection 144-10(3) provides directors with the discretion to refuse to accept membership applications, even if the applicant applies in the required manner and meets the eligibility requirements of the corporation.

Item 21 amends subsection 144-10(3) so that this discretion does not apply to the directors of a RNTBC. In addition, item 22 creates an obligation for the directors of a RNTBC to accept a membership application if it is made in the required manner and meets the eligibility requirements of the corporation. The RNTBC is still able to determine eligibility requirements under section 141-25 (subject to the amendment made by item 11 discussed above).

Despite the mandatory requirements imposed on the directors of RNTBCs by item 21 of Schedule 8, as per the amendment proposed by item 23, RNTBCs are still required to reject an application if it would affect the legislated indigeneity requirements for the corporation.230

The amendments in Part 2 of Schedule 8 together with Part 1 significantly restrict the discretion of RNTBCs in relation to constitution and membership requirements, in contrast to other Aboriginal and Torres Strait Islander corporations under the CATSI Act, and provide for more prescriptive requirements in relation to them. In justifying the amendments under Part 2, the Explanatory Memorandum notes:

… there have been cases of directors of RNTBCs using this discretion [that is the discretion to refuse membership applications] to arbitrarily refuse to accept a membership application in circumstances where a person would otherwise be eligible for membership. 231

Part 3—Registrar oversight Section 487-5 of the CATSI Act sets out the grounds when the ORIC may put an Aboriginal and Torres Strait Islander corporation under special administration. For example, a corporation can be determined to be under special administration if its affairs are being conducted in a way that is oppressive or unfairly discriminatory to members or contrary to the interests of members.232

Item 25 inserts an additional ground on which the ORIC can determine that a RNTBC is to be under special administration. Proposed paragraph 487-5(1)(ca) provides that the ORIC can determine a

229. The value of a penalty unit is prescribed under section 4AA of the Crimes Act 1914; under the Notice of Indexation of the Penalty Unit Amount a penalty unit is currently $222. 230. The indigeneity requirement for a corporation formed under the CATSI Act is set out at section 29-5. 231. Explanatory Memorandum, op. cit., p. 69. 232. CATSI Act, paragraph 487-5(1)(e).

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Native Title Legislation Amendment Bill 2019 49

RNTBC to be under special administration if there has been a serious failure or a number of failures by the RNTBC to comply with its Native Title legislation obligations.

Native Title legislation obligations are the following obligations imposed on RNTBCs by the Native Title Act and any Regulations made under the Act (as well as other laws as prescribed):

• an obligation to consult with the common law holders of native title

• an obligation to act in accordance with the directions of the common law holders of native title

• an obligation to act only with the consent of the common law holders of native title and

• an obligation to take any other action in relation to the common law holders of native title.233

This effectively means that Native Title legislation obligations as defined by the CATSI Act are narrower than all requirements provided for by the Native Title Act and relevant Regulations, and only compliance with these specific obligations by a RNTBC will be considered by the ORIC.

In addition, only a serious failure or a number of failures to comply with these obligations will enliven the grounds for the ORIC to determine that a RNTBC is to be under special administration. There is no guidance under the Bill or the CATSI Act broadly as to what constitutes a ‘serious’ failure for the purposes of proposed paragraph 487-5(1)(ca). The Explanatory Memorandum however provides the following examples of ‘a serious failure’:

a. a RNTBC has failed to consult a relevant group of common law holders (such as a particular family group of common law holders or common law holders in a particular geographic location) and the failure has a serious impact for that group; or

b. a RNTBC has applied substantial amounts of money held in trust without obtaining the directions of the common law holders. 234

Existing requirements under the CATSI Act will remain if the ORIC is to make a determination on this new ground.

Part 4—Courts Under the CATSI Act, references to ‘the court’ means any court and references to ‘the Court’ can mean several courts including the Federal Court, the Supreme Court of a State or Territory or the Family Court of Australia.235 In addition, the general presumption is that proceedings in relation to a matter under the CATSI Act can be brought in any court.236 Conversely, under the Native Title Act, the Federal Court has exclusive jurisdiction to hear and determine applications filed in that Court that relate to native title (with the exception of the High Court).237

Item 27 inserts proposed section 581-30 into the CATSI Act so that civil proceedings relating to a RNTBC must be brought in the Federal Court. Items 28 and 29 amend section 694-35 of the CATSI Act so that the presumption that proceedings can be brought in any court is subject to proposed section 581-30.

233. Ibid., section 700-1. The relevant Regulations made under the NTA are the Native Title (Prescribed Bodies Corporate) Regulations 1999. 234. Explanatory Memorandum, op. cit., p. 71. 235. CATSI Act, subsection 694-35(1). 236. Ibid., subsection 694-35(2). 237. Native Title Act 1993, section 81.

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Native Title Legislation Amendment Bill 2019 50

Stakeholder comments In their responses to the exposure draft, several stakeholders (including the National Native Title Council and the Central Land Council) expressed concerns that RNTBCs may have difficulty introducing the changes to membership rules specified by Part 1 of this Schedule within the transitional period provided by the legislation (as discussed above, item 19 specifies a transitional period of two years after commencement, which is six months after Royal Assent unless an earlier date is fixed by Proclamation). 238 The Australian Human Rights Commission suggested that the changes may limit the flexibility of RNTBCs to respond to their particular circumstances when making their membership rules.239 In a submission to the Senate Inquiry, the National Native Title Council (supported by the submission of ANTaR), recommended a five-year rather than two-year transition period.240 The Australian Human Rights Commission suggested providing more technical and financial resources to RNTBCs to help them meet their obligations.241

As mentioned above, the Law Council of Australia expressed concerns that the drafting of proposed subsection 150-15(2A) is imprecise and on one reading would effectively prevent RNTBCs cancelling membership on the grounds of misbehaviour by the member.242 Wintawari Guruma, a RNTBC from the Pilbara, objected to provisions limiting powers to reject membership applications and suggested instead that directors should be required to give reasons for a refusal which could be appealed through dispute resolution processes.243

With respect to Part 1, in the exposure draft of the Bill the Registrar was given the power to place RNTBCs under special administration:

if the affairs of the corporation are being conducted in a way that is contrary to the interests of:

• the common law holders of native title as a whole; or

• a class of the common law holders of native title. 244

Many stakeholders (Australian Human Rights Commission, First Nations Legal and Research Services, National Native Title Council) opposed this broadly defined power.245 In the Bill, as discussed above, this has been restricted to cases where the RNTBC has repeatedly or seriously breached Native Title legislation obligations. The Australian Human Rights Commission considered that the amendment in the Bill regarding the Registrar’s power is an improvement to the provision that was in the Exposure Draft.246 However some stakeholders, including Queensland South Native

238. Submissions received for the Exposure draft native title reforms consultation, op. cit., see: NNTC (p. 12) and Central Land Council (p. 2). 239. Submissions received for the Exposure draft native title reforms consultation, op. cit., see: AHRC (pp. 21-22) 240. Submissions to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title Legislation

Amendment Bill 2019, see: National Native Title Council, [Submission no. 4], p. 9; ANTaR, [Submission no. 10], p. 5. 241. AHRC, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title Legislation Amendment Bill 2019, [Submission no. 3], 27 November 2019, p. 4. 242. Law Council of Australia, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the

Native Title Legislation Amendment Bill 2019, [submission no. 18], 5 December 2019, p. 13. 243. Wintawari Guruma Aboriginal Corporation, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title Legislation Amendment Bill 2019, [Submission no. 27], 19 March 2020, p. 2. 244. Exposure draft—Native Title Legislation Amendment Bill 2018, item 1 of Schedule 8, proposed paragraph 487-5(1)(ea) of

the CATSI Act. 245. Submissions received for the Exposure draft native title reforms consultation, op. cit. See: AHRC, pp. 20-21; First Nations Legal and Research Services, p. 5; NNTC, p. 11. 246. AHRC, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title

Legislation Amendment Bill 2019, [Submission no. 3], 27 November 2019, p. 4.

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Native Title Legislation Amendment Bill 2019 51

Title Services, ANTaR and the National Native Title Council still objected to this increased power on the grounds that it interfered with native title holders’ rights of self-determination.247

Schedule 9—Just terms compensation and validation As discussed above in this Digest, the Federal Court in McGlade held that all members of an applicant are required to sign an ILUA in order for it to be valid. Part 2 of Schedule 2 of the Bill responds to this decision by providing that where an applicant is required or permitted to do something under the Act, they are permitted to act by majority as a default position.

As noted above in this Digest, the Native Title Amendment (Indigenous Land Use Agreements) Act 2017 confirmed the validity of existing ILUAs.248 The Government has however noted there are similar concerns around the validity of existing section 31 negotiation agreements.249 To this end, item 2 of Schedule 9 retrospectively validates section 31 agreements where:

• the agreement was made before commencement of the item (that is, the day after the Bill receives Royal Assent)250 and

• the agreement was not valid only because not all the persons who comprised the relevant registered native claimant or claimants were parties to the agreement and

• at least one person who comprised the registered native title claimant was a party to the agreement in relation to any land or waters affected.

Item 43 of Schedule 1 implements the new default rule that a claimant may act by majority in relation to any future section 31 agreement made. As per subitem 55(3) of Schedule 1, this requirement will apply to any agreement made from the date that is six months after Part 1 of Schedule 1 commences (which is the earlier of a single day to be fixed by Proclamation or six months from Royal Assent).

This means that section 31 agreements made after commencement of Schedule 9 but before the commencement of Part 2 of Schedule 2 will need to comply with the current rules, that is, they must be entered into unanimously by all members of the registered native title claimant in order to be valid.251

Item 1 of Schedule 9 provides that where the provisions of the Bill result in the acquisition of property of a person other than on just terms within the meaning of the Australian Constitution, then that person is entitled to compensation (including compensation in addition to that otherwise provided for under the Act). This compensation flows from either a state or territory or the Commonwealth, dependent on which party the acquisition of property is attributable to. While this item applies to the whole Bill, it appears to be inserted in response to the Bill’s role in retrospectively validating section 31 agreements. The Explanatory Memorandum notes the following example as to when item 1 may be enlivened:

… if the Bill were enacted and then it was found that in a particular case, the provision retrospectively deeming an agreement to be an agreement within the meaning of section 31 of the Native Title Act would result in the Commonwealth acquiring a right to challenge the operation of that agreement, the

247. Submissions to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title Legislation Amendment Bill 2019, see: Queensland South Native Title Services, [Submission no. 12], p. 6; NNTC, [Submission no. 4], p. 4; ANTaR, [Submission no. 10], p. 5.

248. Native Title Amendment (Indigenous Land Use Agreements) Act 2017, section 9. 249. Explanatory Memorandum, op. cit., p. 74. 250. Subclause 2(1) (item 11 in table) of the Bill. 251. Explanatory Memorandum, op. cit., p. 26.

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Native Title Legislation Amendment Bill 2019 52

person from whom that right was acquired would be entitled to compensation for the acquisition of the right. 252

Stakeholder comments In the exposure draft process, the Australian Human Rights Commission (AHRC) raised concerns about retrospective validation of section 31 agreements, noting that McGlade has been the law since 2 February 2017. The AHRC encouraged the Attorney-General’s Department to investigate the issue further before retrospectively validating agreements made in breach of the law as it stood after this date.253 The AHRC and the Law Council of Australia also noted a risk that this may validate section 31 agreements which were not signed with consent of the broader native title group in the first place (as only one member of the native title claimant is required to be a signatory under the proposed laws), although this risk could be mitigated by establishing a full register of section 31 agreements, with capacity for claim group members or native title holders to challenge validity of the agreement.254 The Northern Land Council also noted this risk but felt there was ‘little choice’ but to support the amendments given the potential risk to benefits already gained by Native Title holders from existing section 31 agreements.255 The clauses were supported by some other Indigenous stakeholders such as the First Nations Legal and Research Services.256

Stakeholders including the Minerals Council of Australia and the WA government also supported retrospective validation in submissions to the Senate Committee Inquiry.257 The Attorney-General’s Departmental submission noted that its consultations found strong agreement on retrospectively validating section 31 agreements, but also found a need for these agreements to have increased transparency, hence the provisions of Schedule 6.258

Other Issues In submissions on the options paper, exposure draft, and the Bill, many Indigenous and other stakeholders commented not on what the Bill contains but what it does not contain: more fundamental changes to the Act which would strengthen the rights and economic position of native title holders and claimants, in particular those recommended by the ALRC report.259 More wide ranging proposals for reform than those featuring in the Bill were also put forward by the Treasury Working Group report and the COAG Investigation, particularly by the Indigenous Expert Working Group of the COAG Investigation. While it did not generate recommendations feeding into this Bill, the Australian Human Rights Commission’s Project on Indigenous Property Rights also

252. Ibid., p. 74. 253. Submissions received for the Exposure draft native title reforms consultation, op. cit., AHRC, 31 January 2019, pp. 15-16. 254. Submissions received for the Exposure draft native title reforms consultation, op. cit., Law Council of Australia, p. 12. 255. Submissions received for the Exposure draft native title reforms consultation, op. cit., Northern Land Council, p. 4. 256. Submissions received for the Exposure draft native title reforms consultation, op. cit., First Nations Legal and Research

Services, p. 4.

257. Submissions to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title Legislation Amendment Bill 2019, see: Minerals Council of Australia, [Submission no. 8], pp. 1-2; Western Australian Government, [Submission no. 7], p. 9.

258. AGD, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title Legislation Amendment Bill 2019, [Submission no. 6], p. 4. 259. Submissions to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title Legislation Amendment Bill 2019, see: NNTC, [Submission no. 4]; ANTaR, [Submission no. 10]; AHRC, [Submission no. 3, Attachment 1];

Australian Lawyers Alliance, [Submission no. 9]; Queensland South Native Title Services, [Submission no. 12]; Indigenous People’s Organization (IPO), [Submission no. 20]; Emeritus Professor Jon Altman, [Submission no. 5]; Ross Mackay, [Submission no. 13]; mentioned in many other Indigenous groups’ submissions and testimony before Senate Committee (for example, Mr Tyronne Garstone, Acting Chief Executive Officer, Kimberley Land Council, Senate Legal and Constitutional Affairs Legislation Committee, Proof Committee Hansard, 12 March 2020, pp. 2-3).

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Native Title Legislation Amendment Bill 2019 53

stressed that Indigenous people wanted greater strength and security of tenure of their native title.

The Government’s perspective is that the native title legislative framework is ‘broadly operating well’.260 However, if measured against the stated aim of supporting the government objective to ‘activate the economic potential of land rights’,261 several studies have argued that the majority of Aboriginal and Torres Strait Islander people who are native title parties have not significantly benefited from ILUAs and other agreements. Factors cited include failure to monitor (and revise where necessary) and implement commitments made under agreements, and the poor bargaining position of Indigenous parties. This leads to payments and benefits which are often token in nature.262 One expert commented:

… the general outcome is that Aboriginal people are getting somewhere between 0.5%-2% of the total value of the project. This does not reflect or demonstrate any real value in the ownership interest in the resources or the land. It reflects a payment to accommodate the procedural aspects of the process. It is to pay people to shut-up really. If we were talking even 5%, I think we would be talking about a more equitable arrangement.

263

As former Attorney-General Brandis noted, in some respects the Act ‘has not lived up to the promise of providing opportunities for Indigenous people’ and the consultation process for reforming the Act (culminating in this Bill) will not ‘remedy all of these failures’.264

A number of submissions to the options paper and exposure draft stages, and the National Native Title Council submission to the Senate Committee inquiry, noted that the Native Title Amendment Bill 2012, which lapsed at dissolution of the 43rd Parliament, had proposed substantially strengthening the ‘good faith’ provisions of the Act and extending the time available for native title groups to negotiate with project proponents before arbitration could be sought. 265

Then Attorney-General Roxon stated in 2012 (in relation to that previous Bill):

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

The government does not believe these practices are widespread, but this amendment will clearly set out the expectations of all parties—both Indigenous and non-Indigenous—in operating under the 'right to negotiate' regime. This bill is designed to address these types of situations. 266

260. Porter, Second reading speech, op. cit., p. 4483. 261. Ibid.

262. Langton and Palmer ‘Modern agreement making’, op. cit.; Allbrook and Jebb, ‘Implementation and resourcing of native title’, op. cit.; O'Faircheallaigh, ‘Native title and mining negotiations’, op. cit.; Howard-Wagner, ‘Scrutinising ILUAs’, op. cit. 263. Howard-Wagner, ‘Scrutinising ILUAs’, op. cit., p. 108. 264. Brandis, ‘Honouring Mabo’s legacy’, op. cit., p. 52. 265. Submissions to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title Legislation

Amendment Bill 2019, NNTC, [Submission no. 4], p. 3. See: Spooner, Magarey and Fox, Native Title Amendment Bill 2012, op. cit. 266. Roxon, ‘Second reading speech’, op. cit.

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Native Title Legislation Amendment Bill 2019 54

In this context, while Schedules 1 and 4 of the Native Title Amendment Bill 2012 reappear in the current Bill largely unchanged, and parts of Schedule 3 are reproduced, Schedule 2, which would have had the effect of strengthening ‘good faith’ negotiation requirements, has not been adopted by the Government.

The National Native Title Council reports that between 2009 and 2017 the NNTT dealt with over 100 applications to arbitrate the grant of a mining title because agreement could not be reached between the parties. On only two occasions has there been a determination that the grant of a mining title could not proceed.267

The ALRC report and several stakeholders have put forward proposals that would significantly strengthen Aboriginal and Torres Strait Islander people’s bargaining power, their native title rights, and the economic value of those rights. These include the proposal to presume connection to country has endured in the absence of evidence to the contrary (making it easier to claim native title), changing the Act to specify that native title rights can be commercial in nature (making it easier to use their economic potential), extending the right to negotiate regime to sea country and the proposal to create a new corporate form to proactively invest payments stemming from native title put forward in the Treasury Working Group report.268

Conversely, it may be expected that any more substantive amendment to native title that may give wider scope for native title claims and more economic bargaining power to Indigenous people is likely to arouse opposition from some key stakeholders in the Australian economy. The Attorney-General’s Department has stated that the Bill ‘reflects a package of measures which are broadly supported by key stakeholders in the native title system’.269

This raises the question of whether significant economic gains for native title holders and claimants can be made without making amendments to the system that may attract less broad support. While strengthening the scope and negotiating position of native title claimants may mean additional costs for industry, the current situation in which native title claims are limited by the high burden of proof of connection, and ILUAs are not producing significant economic benefits, also contributes to high costs for government stemming from welfare dependency and poverty. As the Expert Indigenous Working Group of the COAG Investigation put it:

The Expert Indigenous Working Group is adamant that the time has come for a very different conversation. The outdated ‘traditional’ approach to making land administration and use more efficient through weakening and mandating time limits for procedural rights afforded to Indigenous land holders has been shown not to work. The Expert Indigenous Working Group would argue that any approach on Indigenous land and waters that does not properly recognise and respect traditional ownership of that land (whether or not that ownership is fully recognised at law) will only lead to ill-feeling, project uncertainty and delays. Such an approach has the effect of diminishing hard fought gains in this area and well established principles around the human rights of traditional owners. Such an approach also has the effect of entrenching the current cycle of welfare dependency and poverty by creating a culture of

267. NNTC, Submission to the Joint Standing Committee on Northern Australia, Inquiry into the Opportunities and Challenges of the Engagement of Traditional Owners in the Economic Development of Northern Australia, 13 March 2019, [Submission no. 22], p. 15.

268. Australian Law Reform Commission (ALRC), Connection to country: review of the Native Title Act 1993 (Cth), op. cit., pp. 29- 34, 82-85; Australian Lawyers Alliance, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title Legislation Amendment Bill 2019 [Submission no. 9]; Emeritus Professor Jon Altman, [Submission no. 5]; Taxation of Native Title and Traditional Owner Benefits and Governance Working Group, Report to Government, op. cit. Appendix B (the original joint proposal from the Minerals Council of Australia and the National Native Title Council).

269. Senate Legal and Constitutional Affairs Legislation Committee, Native Title Legislation Amendment Bill 2019 [Provisions], op. cit., p. 42.

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Native Title Legislation Amendment Bill 2019 55

dependency on government. It also does little to shift the responsibility for the social wellbeing of Indigenous people from the current status quo of inefficient, tax payer-funded government service delivery and provision of welfare…

It is important that government recognises that where money is not invested to support Indigenous participation in the economy and reforms are not instituted to empower Indigenous economic development, government will inevitably be required to pick up the tab and subsidise the impacts on Indigenous people which accrue from non-participation and the cycle of welfare dependency which delivers little in the way of economic or social returns.

270

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270. COAG, Senior Officers Working Group, Investigation into Indigenous land administration and use, op. cit., pp. 5-6.