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Native Title Legislation Amendment Bill 2019

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2016 - 2017 - 2018 - 2019

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

native title legislation amendment bill 2019

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the

Attorney-General, the Honourable Christian Porter MP)

 

               



 

native title legislation amendment bill 2019

General Outline

Purpose

1.                 The Native Title Legislation Amendment Bill 2019 (the Bill) amends the Native Title Act 1993 (Native Title Act) and the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act) to improve native title claims resolution, agreement-making, Indigenous decision-making and dispute resolution processes, including to:

a.        give greater flexibility to native title claim groups to set their internal processes;

b.       streamline and improve native title claims resolution and agreement-making;

c.        allow historical extinguishment over areas of national and state park to be disregarded where the parties agree;

d.       increase the transparency and accountability of registered native title bodies corporate; and

e.        create new pathways to address native title-related disputes arising following a native title determination.

2.                 The Bill will also confirm the validity of agreements made under Part 2, Division 3, Subdivision P of the Native Title Act (section 31 agreements) following the decision in McGlade v Native Title Registrar & Ors [2017] FCAFC 10 ( McGlade ).

3.                 The Bill is informed by feedback from stakeholders following consultation on an options paper for native title reform released in November 2017 and exposure draft legislation released in October 2018. The options for reform were drawn from a number of native title reviews, including:

a.        the Australian Law Reform Commission’s report on ‘ Connection to Country: Review of the Native Title Act 1993 (Cth) ’, published June 2015 (ALRC Report);

b.       the report to the Council of Australian Governments on the ‘ Investigation into Indigenous Land Administration and Use ’, published December 2015 (COAG Investigation); and

c.        the Office of the Registrar of Indigenous Corporation’s 2017 Technical Review of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act Review). 



 

Outline of the Bill

Role of the applicant (Schedule 1)

4.                 Under the Native Title Act, a native title determination or compensation claim is made by a person or group of people who seek recognition of rights and interests in an area of land and/or waters according to their traditional laws and customs.

5.                 The applicant is the person or group of people authorised by a native title claim group to make and manage a native title claim on their behalf. After a claim has been made, and the persons comprising the applicant appear on the Register of Native Title Claims, those persons also have a role representing the native title claim group in making agreements around access and use of areas where native title has been claimed or determined.

6.                 The ALRC Report and subsequent COAG Investigation recommended a number of reforms intended to support claim groups to develop their own internal decision-making structures, and to ensure the applicant is accountable to the broader claim group.

7.                 Consistent with these recommendations, the Bill amends the Native Title Act to:

a.        allow the claim group to impose conditions on the authority of the applicant, and to require public notification of any such conditions;

b.       clarify the duties of the applicant to the claim group;

c.        allow the applicant to act by majority as the default position;

d.       allow the composition of the applicant to be changed without a further authorisation process in certain circumstances, including where a member of the applicant is deceased; and

e.        allow the claim group to put in place succession-planning arrangement for individual members of the applicant as part of the authorisation process.

Indigenous land use agreements (Schedule 2)

8.                 The Native Title Act sets out processes by which native title groups can negotiate with other parties to form voluntary agreements in relation to the use of land and waters. A key agreement-making mechanism under the Act is an agreement known indigenous land use agreement (ILUA).

9.                 ILUAs may allow for certain ‘future acts’ to be done on land or waters, such as mining or grazing, in exchange for compensation to native title groups.

10.             The Bill makes amendments to the Native Title Act in relation to ILUAs to:

a.        allow body corporate ILUAs to cover areas where native title has been extinguished;

b.       remove the requirement for the Native Title Registrar to notify an area ILUA unless they are satisfied it meets the requirements to be an ILUA;

c.        allow minor amendments to be made to an ILUA without requiring a new registration process; and

d.       clarify that the removal of an ILUA from the Register of ILUAs does not invalidate future acts subject to that ILUA.

Historical extinguishment (Schedule 3)

11.             Generally, once native title is extinguished it cannot be revived. However, in certain circumstances, sections 47, 47A and 47B of the Native Title Act operate to allow the courts to disregard extinguishment on reserves set aside for Aboriginal or Torres Strait Islander peoples, pastoral leases held by traditional owners and unallocated Crown land.

12.             The Bill amends the Native Title Act to extend the circumstances in which historical extinguishment can be disregarded to:

a.        areas of national, state or territory parks where native title has been extinguished, with the agreement of the parties; and

b.       pastoral leases controlled or owned by native title corporations.

Allowing a registered native title body corporate to bring a compensation application (Schedule 4)

13.             The Bill amends the Native Title Act to allow a registered native title body corporate (the corporation established by traditional owners following a determination of native title) to bring a compensation application over an area where native title has been extinguished.

Intervention and consent determination (Schedule 5)

14.             The Bill makes a number of technical amendments to clarify the role of the Commonwealth Minister as intervener in native title proceedings, and the procedural requirements for the Federal Court to make determinations with the consent of the parties.

Other procedural changes (including section 31 agreements) (Schedule 6)

15.             The Bill makes a number of technical amendments in relation to the role of the government party in the negotiation of section 31 agreements, and to the objections procedures under the future acts regime.

16.             The Bill also requires the Native Title Registrar to create and maintain a public record of section 31 agreements.

National Native Title Tribunal (Schedule 7)

17.             The Bill confers on the National Native Title Tribunal a new function to allow it to provide assistance to registered native title bodies corporate and common law holders of native title (i.e. the persons who hold native title rights and interests) to promote agreement about native title and the operation of the Native Title Act.

Registered native title bodies corporate (Schedule 8)

18.             The Native Title Act requires common law holders to establish a corporation when a determination recognising native title is made. The Native Title (Prescribed Bodies Corporate) Regulations 1999 prescribed Aboriginal and Torres Strait Islander corporations for this purpose. Once registered on the National Native Title Register, these corporations are known as RNTBCs. The effective management of native title rights and interests relies on the sustainable operation of RNTBCs.  

19.             The Bill amends the CATSI Act to improve the accountability, transparency and governance of RNTBCs, with a particular focus on membership and improved dispute resolution pathways. In particular, the Bill:

a.        requires RNTBC constitutions to include dispute resolution pathways for persons who are or who claim to be common law holders;

b.       requires RNTBC constitutions to provide for all the common law holders to be directly or indirectly represented in the RNTBC;

c.        limits the grounds for cancelling the membership of a member of a RNTBC to those in the CATSI Act;

d.       removes the discretion of directors of RNTBCs to refuse membership when the applicant applies in the required manner and meets the eligibility requirements; and

e.        clarifies that the Registrar of Aboriginal and Torres Strait Islander Corporations may place a RNTBC under special administration where it has either seriously or repeatedly failed to comply with certain obligations imposed by the Native Title Act or any regulations made under that Act.

20.             The Bill also amends the CATSI Act to ensure that proceedings in respect of a civil matter arising under the CATSI Act that relate to a RNTBC are to be instituted and determined exclusively in the Federal Court, unless the Federal Court transfers the matter to another court with jurisdiction.

Just terms compensation and validation (Schedule 9)

21.             The Bill will confirm the validity of section 31 agreements potentially affected by the Full Federal Court’s decision in McGlade . The Bill also includes a ‘fail safe’ provision to ensure that if the Bill effects the acquisition of property of a person other than on just terms (within the meaning of paragraph 51(xxxi) of the Constitution), that person would be entitled to compensation.

FINANCIAL IMPACT

22.             The Bill will have nil financial impact.



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

Native Title Legislation Amendment Bill 2019

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

Overview of the Bill

2.       The Native Title Legislation Amendment Bill 2019 (the Bill) amends the Native Title Act 1993 (Cth) (the Native Title Act) and the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act).

3.       The Bill will deliver improvements to native title claims resolution, agreement-making, Indigenous decision-making and dispute resolution processes, including to:

·          give greater flexibility to native title claim groups to set their internal processes;

·          streamline and improve native title claims resolution and agreement-making;

·          allow historical extinguishment over areas of national and state park to be disregarded where the parties agree;

·          increase the transparency and accountability of registered native title bodies corporate; and

·          create new pathways to address native title-related disputes arising following a native title determination.

4.       The Bill will also confirm the validity of important mining and exploration-related native title agreements (‘section 31 agreements’) after the decision in McGlade v Native Title Registrar & Ors [2017] FCAFC 10 ( McGlade ).

5.       By making the above changes to the native title system, the Bill will give effect to a number of recommendations from the following reviews of native title:

·          the Australian Law Reform Commission’s report on ‘ Connection to Country: Review of the Native Title Act 1993 (Cth) ’, published June 2015 (ALRC Report);

·          the report to the Council of Australian Governments on the ‘ Investigation into Indigenous Land Administration and Use ’, published December 2015 (COAG Investigation); and

·          the Office of the Registrar of Indigenous Corporation’s 2017 Technical Review of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act Review).

Consultation

6.       Extensive consultation has been undertaken on the development of the Bill. This includes public consultation on an options paper (open from 29 November 2017 to 28 February 2018) and an exposure draft bill (open from 29 October 2018 to 10 December 2018). During both stages of consultation, the Government received submissions from, and conducted meetings with, a wide range of stakeholders in the native title system, including native title representative bodies, registered native title bodies corporate (the Indigenous corporations established following a determination of native title) and other Indigenous stakeholders.

7.       An Expert Technical Advisory Group - comprised of nominated representatives from the National Native Title Council, states and territories, industry peaks and the National Native Title Tribunal (NNTT) - was also convened to provide advice to the Government on the development of the Bill throughout this process of consultation.  

Human rights implications

8.       The Bill engages the following human rights:

·          the right to enjoy and benefit from culture;

·          the right to self-determination;

·          the right to an effective remedy;

·          the rights of equality and non-discrimination;

·          the right to equality before courts and tribunals; and

·          the right to a fair and public hearing by a competent, independent and impartial tribunal.

The right to enjoy and benefit from culture

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

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

11.   The United Nations Committee on Economic, Social and Cultural Rights (UNESCR) specifically refers to Indigenous peoples’ cultural values and rights associated with their ancestral lands and states that their relationship with nature should be regarded with respect and protected. [2]

12.   UNESCR has also provided guidance on the communal and individual aspects of the right to culture, in particular that the reference to ‘everyone’ in Article 15 of the ICESCR may denote either individual or collective rights to culture. [3] UNESCR has noted, in particular, that Indigenous peoples have the right to act collectively to protect their cultural heritage, traditional knowledge and cultural expressions. [4]

13.   The Native Title Act as a whole promotes the right to enjoy and benefit from culture by establishing processes through which native title can be recognised, and providing protection for native title rights and interests. Native title rights and interests are by their nature communal, held collectively by all individual holders of native title (known as ‘common law holders’) who are included in the determination of native title.

14.   The Native Title Act provides processes for native title holders to act collectively to promote cultural rights, for example processes through which a native title claim group authorises members of the ‘applicant’ to represent its interests during a claim, and through the establishment of registered native title bodies corporate (RNTBCs) to manage native title rights and interests once native title has been determined. These provisions provide balance between promoting the rights of individuals to be consulted in relation to their cultural rights, but not to frustrate decision-making processes in a way that would deny these rights to other individuals, or to prevent the collective enjoyment of the right to culture. 

15.   The amendments in this Bill continue to promote and balance these rights, by giving native title claims groups greater flexibility around setting their internal processes and streamlining agreement-making in the Native Title Act and other legislation.

16.   Extensive consultation processes have been undertaken to support the development of this Bill. Where limitations on individual rights to culture are necessary, this has assisted to ensure such limitations are justified, reasonable and proportionate, including where necessary to promote the rights of the broader group.

17.   The right to enjoy and benefit from culture, will be engaged by amendments to:

·          allow the applicant to act by majority as the default position (Schedule 1);

·          allow the claim group to place conditions on the authority of the applicant, put in place succession-planning arrangements and to clarify the duties of the applicant (Schedule 1);

·          allow body corporate ILUAs to include areas where native title has been extinguished (Schedule 2);

·          extend the circumstances where historical extinguishment can be disregarded, including areas of national, state and territory parks (Schedule 3);

·          provide a new function to the NNTT to provide assistance to RNTBCs and common law holders to promote agreement around native title (Schedule 7);

·          create new requirements for RNTBCs relating to eligibility for membership and limit the grounds for cancelling membership of an RNTBC (Schedule 8);

·          clarify that the Registrar of the Office of Indigenous Corporations (ORIC Registrar) may place an RNTBC under special administration where it has seriously or repeatedly failed to comply with its obligations under the Native Title Act or any regulations made under that Act (Schedule 8);

·          provide for a process whereby disputes related to membership and the RNTBC’s performance of its functions under native title legislation can be addressed (Schedule 8); and

·          confirm the validity of section 31 agreements that may be affected by McGlade (Schedule 9).

Allowing the applicant to act by majority (Schedule 1)

18.   As noted above, the applicant is the person or group of people authorised by a native title claim or compensation group (‘claim group’) to make and manage a native title or compensation claim (‘claim’) on their behalf. Once an applicant makes a native title determination or compensation application (‘claimant application’), and that claim is accepted for registration by the NNTT, the names of the people who make up the applicant appear on the Register of Native Title Claims. The members of the applicant are then also collectively known as the registered native title claimant (RNTC).

19.   Changes to allow the applicant to act by majority as the default will promote the right to enjoy and benefit from culture by promoting efficient determinations of native title and native title agreement making, to assist Indigenous Australians to realise the social and economic benefits of native title. While this change may impact on the cultural rights of minorities within the group, this is reasonable, necessary and proportionate to promote a balance between the rights of individuals and the rights of the broader claim group to enjoy and benefit from culture.

20.   The ALRC Report made a number of recommendations around the role of the applicant, including in relation to the process through which the claim group ‘authorises’ members of the applicant to act on their behalf (this process is known as ‘authorisation’). [5] One of the objectives of these recommendations was to support claim groups - before a determination of native title is made - to formalise their decision-making procedures and develop their governance structures and skills. [6] It noted that establishing such structures and skills during the pre-determination stage should leave groups better placed to manage their rights and interests post-determination. [7]

21.   With these objectives in mind, the amendments in Part 2 of Schedule 1 of the Bill give effect to the ALRC Report’s recommendation that the applicant should act by majority as a default position, unless the claim group requires otherwise. [8] This reverses the current position that the applicant is required to act jointly or in unanimity.

22.   These amendments also aim to address concerns that agreements that have been validly authorised by the broader native title claim group can be frustrated in circumstances when members of an applicant disagree. Disputes between applicant members and the broader claim group can lead to delays and burdensome costs.

23.   These amendments also extend the changes to the process for entering into Indigenous Land Use Agreements (ILUAs) made by the Native Title Amendment (Indigenous Land Use Agreement) Act 2017 (the 2017 Amendments) to all things the applicant can do under the Act. [9]

24.   While this amendment may limit the influence of individual members of the applicant and any sub-groups of native title holders that they represent, this limitation is necessary and proportionate to achieving the broader group’s right to enjoy and benefit culture. The measure also received support from native title representative groups, including the National Native Title Council, although some Indigenous stakeholders expressed concerns that allowing majority decision-making promotes outcomes at the expense of collective decision-making.

25.   To address this concern, the amendment will also operate in conjunction with the amendment to allow the claim group to impose conditions on the authority of the applicant (discussed below). This will allow the default rule to be displaced, and for a condition to be placed on the authority of the applicant requiring unanimous action, or any other threshold.

26.   Commencement of this provision will be delayed by six months to allow the native title claim group an opportunity to place any conditions on the authority of the applicant and to change the composition of the applicant if they so wish. This is an appropriate response that will give the claim group control over how the applicant should act on their behalf.

Conditions, duties and succession planning for the applicant (Schedule 1)

27.   Schedule 1 of the Bill also makes a number of other changes to implement other ALRC Report recommendations around the role of the applicant, including to:

·          allow the claim group to impose conditions on the authority of the applicant;

·          clarify the duties of the applicant to the claim group; and

·          allow the claim group to put in place succession-planning arrangements for members of the applicant.

 

28.   Part 1 of Schedule 1 makes amendments to allow the claim group to impose conditions on the authority of the applicant. This will provide the claim group with flexibility around how it wants the applicant to operate and to ensure the applicant acts in accordance with its wishes, promoting the claim group members’ right to culture. [10] Examples of conditions that the claim or compensation group would be able to place on the applicant include requiring the applicant bring key decisions back to the group for consideration or specific authorisation, such as agreeing to a consent determination, or discontinuing or amending an application. The conditions would need to be imposed in accordance with traditional decision-making processes, or if no such processes exist, by a process agreed to by the claim group.

29.   Schedule 1 also inserts a new provision into the Native Title Act to confirm that any obligation of the applicant under the Act does not affect, relieve or detract from the operation of any other duty the applicant has in common law or in equity to persons in the claim group. This amendment is included in light of the ALRC Report’s recommendation that the relationship between the applicant and claim group should be clarified, [11] and follows a subsequent decision of the Federal Court in Gebadi v Woosup [2017] FCA 1467 which confirmed that the applicant owes fiduciary duties to the claim group. This provision is intended to further protect the rights of members of the claim group to enjoy and benefit from culture by making clear the applicant’s obligations to the group.

30.   Finally, the amendments in Part 3 of Schedule 1 will simplify the process for a claim group to replace individual members of the applicant in circumstances where a member either passes away, or is no longer able to perform their duties, including through pre-agreed succession-planning arrangements. [12] Currently an authorisation process under section 251B of the Native Title Act, and a further application to the Federal Court under section 66B, is the only way to change the composition of the applicant. This process can be costly and time consuming for native title claim groups, and may not be necessary in circumstances where the claim group allows for changes to be made without reauthorisation.

31.   These amendments will allow members of the applicant to be replaced in circumstances where a member has died or is unable to perform the duties of the applicant due to mental or physical incapacity through an application to the Federal Court. These changes will also allow the claim groups to put in place pre-agreed arrangements to replace members of the applicant. For many communities the composition of the applicant is important because individual members will represent family groups or particular areas within the claim group. This amendment will promote individual rights to culture by allowing the claim group to specify specific persons to represent their family or community in advance of a member of the applicant passing away.

Extending the use of body corporate Indigenous Land Use Agreements (Schedule 2)

32.   A ‘body corporate Indigenous Land Use Agreement’ (ILUA) is an agreement between registered native title bodies corporate (RNTBC) and other parties (such as a government party) over an area where native title has been determined. Body corporate ILUAs may address a range of matters relevant to the right to enjoy and benefit from culture, including compensation for providing access or activities to occur over native title land.

33.   The Native Title Act presently does not allow for body corporate ILUAs to be made over areas where native title has been extinguished, which limits the circumstances in which these ILUAs can be utilised. This means only ‘area ILUAs’ - another kind of agreement-making mechanism under the Act - can be used in these circumstances, which involve a range of procedures (that are not needed for body corporate ILUAs) to be followed.

34.   Amendments in Schedule 2 will allow body corporate ILUAs to include areas where native title has been extinguished. These amendments will promote the right to culture by enabling the wider use of body corporate ILUAs, and reduce transaction costs and registration timeframes in relation to native title claims. This simpler process recognises the role of RNTBCs as the entities responsible for managing native title rights and interests following a determination native title, and for negotiating agreements around activities which may affect native title on behalf of those who hold native title rights.

Disregarding historical extinguishment of native title (Schedule 3)

35.   Amendments in Schedule 3 of the Bill will extend the circumstances in which the past extinguishment of native title may be disregarded and subsequently recognised, thereby promoting the right to enjoy and benefit from culture. These circumstances are:

a.        in relation to areas of national, state and territory parks (new section 47C); and

b.       where a body corporate with members who are common law holders, for example an RNTBC, holds a pastoral lease over the relevant area (amended section 47).

36.   Native title is often extinguished over areas of state, territory and national parks. This means that native title may be unable to be recognised, even where traditional owners maintain strong connections to traditional lands and waters.

37.   The insertion of new section 47C recognises the cultural significance that national parks and reserves hold for many native title holders and is strongly supported by Indigenous stakeholders. Many native title holders maintain traditional connections to areas covered by national, state and territory parks, and the exercise of native title rights would generally not interfere or be inconsistent with the protection of these areas - for example, rights to carry out ceremonies or to be buried on country.

38.   The amendment may create opportunities for native title parties and governments to agree to joint or co-management arrangements for parks and reserves. This would further promote the right to enjoy and benefit from culture, including by providing greater opportunities for traditional owners to play a role in the management of parks and to live and work on traditional lands.

39.   Section 47 of the Native Title Act allows past extinguishment of native title to be disregarded in a native title determination over pastoral leases held by the common law holders in certain circumstances. Schedule 3 will amend the Act to clarify that section 47 can also apply to pastoral leases held by native title corporations, which have members rather than shareholders. This is a beneficial amendment which ensures that the provision operates as intended, with application to all types of corporate structures that may hold a pastoral lease.

New function for the National Native Title Tribunal to provide assistance to RNTBCs and common law holders (Schedule 7)

40.   Schedule 7 confers on the NNTT - an independent statutory agency established by the Native Title Act - a new function to provide assistance to RNTBCs and common law holders to promote agreement about native title and the operation of the Act. This amendment will support the right to enjoy and benefit from culture by allowing the NNTT to provide assistance in relation to the management of native title rights and interests, include assisting in the management or prevention of disputes following a determination of native title. This would support the enjoyment of both individual and collective rights to culture.

41.   Both RNTBCs and common law holders would be able to approach the NNTT for this assistance. The function is drafted broadly to provide flexibility in how it is used, but is intended to cover the NNTT providing assistance to RNTBCs/common law holders to:

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

·          support resolution of disputes between common law holders and RNTBCS, which may include mediation; and

·          facilitate collaboration and resolve disputes between RNTBCs.

 

42.   Giving RNTBCs the option to access the NNTT’s native title expertise to assist with promoting agreement about matters relating to native title or the operation of the Native Title Act will support the management of native title rights and interests for the benefit of common law holders, and in turn, the right to enjoy and benefit from culture.

Membership of RNTBCs (Schedule 8)

43.   Schedule 8 of the Bill makes a number of amendments to the CATSI Act to improve the accountability, transparency and governance of RNTBCs. These amendments collectively seek to ensure that common law holders enjoy and have control over their native title rights and interests, in particular, following a determination of native title.

44.   RNTBCs are the primary bodies that perform functions in relation to native title rights and interests. Accordingly, membership of an RNTBC allows common law holders to exercise important rights in relation to their native title rights and interests.

45.   The UNHRC has stated that “the enjoyment of [those rights protected by Article 27] may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them.” [13]

46.   The Bill will advance the rights of the common law holders by creating new requirements for RNTBCs relating to eligibility for membership and limiting the grounds for cancelling membership of an RNTBC. These measures will assist to prevent RNTBCs from arbitrarily acting to exclude common law holders from membership and to ensure that all common law holders may be represented in an RNTBC, directly or indirectly. This will allow common law holders to be involved in decision-making that may affect their native title rights and interests.

ORIC Registrar oversight (Schedule 8)

47.   Furthermore, Part 3 of Schedule 8 to the Bill clarifies that the ORIC Registrar may determine that an RNTBC is to be under special administration where it has seriously or repeatedly failed to comply with its obligations under the Native Title Act and regulations made for the purposes of that Act. Examples of this conduct are a failure to: (i) consult with and obtain the consent of common law holders for certain decisions; or (ii) act in accordance with the directions of common law holders where there is a significant consequence for common law holders.

48.   These amendments will advance the right to enjoy and benefit from culture as they ensure that an RNTBC is held accountable for how it involves common law holders in decision-making on actions that may impact native title rights and interests.

Requirements for RNTBC constitutions (Schedule 8)

49.   The Bill also contains amendments to the CATSI Act that require RNTBCs’ constitutions to provide for the resolution of certain disputes between the corporation and persons who are or who claim to be common law holders. Where there is a dispute about who is a common law holder or the RNTBC’s performance of its functions under native title legislation, these amendments will ensure there is a process whereby the dispute can be addressed.

50.   The right to enjoy and benefit from culture is furthered by the resolution of disputes as common law holders will have unfettered enjoyment of their native title.

Validation of section 31 agreements (Schedule 9)

51.   Schedule 9 will confirm the validity of section 31 agreements. This will promote the right to enjoy and benefit from culture by providing certainty around the benefits that flow to native title holders from these agreements, which can include compensation in return for the grant of mining or exploration tenements over native title land. Although there may be some limitations on the right to culture for individuals who wish to challenge the validity of these agreements, this limitation is reasonable, necessary and proportionate to provide certainty for all parties to the agreements.

52.   The Full Federal Court’s decision in McGlade held that a particular kind of native title agreement under the Native Title Act - area Indigenous Land Use Agreements - are invalid where not all members of the applicant were party to the agreement. The reasoning in McGlade could similarly affect section 31 agreements, which primarily relate to the grant of mining and exploration rights over land which may be subject to native title, and the compulsory acquisition of native title rights. The Bill confirms the validity of section 31 agreements potentially affected by the flaw identified in McGlade .

53.   Information obtained from the NNTT indicates that several thousand section 31 agreements have been made across the country. As with area ILUAs, stakeholders have indicated that a practice often used for making section 31 agreements prior to McGlade was to rely on the decision in QGC Pty Ltd v Bygrave and Others (No 2) (2010) 189 FCR 412 ( Bygrave ). Bygrave provided that if at least one member of the native title party (as the ‘applicant’ or ‘registered native title claimant’ is referred to in the context of section 31 agreements) was a party to the agreement, then the agreement was validly made.

54.   This means there are likely a significant number of section 31 agreements where not all members of the native title party have signed or entered into the agreement, and subsequently potentially affected by McGlade . The State of Western Australia, for example, in its submission to the options paper for native title reform indicated it was aware of 306 mining leases, 11 land tenure grants, and 4 petroleum titles which had section 31 agreements potentially affected by McGlade . [14]

55.   Section 31 agreements underpin commercial operations and provide benefits for affected native title groups. The uncertainty created by their potential invalidity poses a significant risk to both those commercial operations and the benefits flowing to native title groups. Potential challenges to section 31 agreements may also to divert resources away from finalising native title claims to litigate affected agreements and re-negotiate agreements that are already significantly resource-intensive.

56.   There is strong stakeholder support for the retrospective validation of section 31 agreements. The proposal to retrospectively validate section 31 agreements affected by the McGlade decision was consulted on as part of the options paper and exposure draft consultation processes. Those processes received 52 and 37 submissions respectively, and the vast majority of those (from native title representative bodies, Indigenous groups, governments and industry) favoured the retrospective validation of agreements.

57.   The Expert Technical Advisory Group also extensively considered this proposal, and agreed that section 31 agreements should be retrospectively validated, and that the validation should apply to all agreements made up to the commencement of the Bill.

58.   The validation provision in Schedule 9 substantially replicated the provision passed on 14 June 2017 by the Australian Parliament in the Native Title Amendment (Indigenous Land Use Agreements) Act 2017 (2017 Amendments) to confirm the validity of area ILUAs affected by McGlade .

59.   A key difference between the provision in this Bill from the 2017 Amendments is that they only validate section 31 agreements where at least one member of the relevant native title party is a party to the agreement (the 2017 Amendments did not include this requirement). Unlike ILUAs, there is no formal authorisation or registration process for section 31 agreements. As such, it would be inappropriate to extend validation to an agreement not signed by any of the members of the RNTC given the significant and binding effect of these agreements once they are made.

60.   While this amendment may limit the rights to culture of RNTC members who may wish to challenge section 31 agreements, this limitation is a necessary and proportionate response to the objective of providing certainty for all parties. Should this amendment result in an acquisition of property (being the right to challenge the operation of a potentially flawed section 31 agreement) other than on just terms, provision has been made for compensation to be payable (under Schedule 9).

61.    This provision is also complemented by amendments in Schedule 6 of the Bill to require the Native Title Registrar to create and maintain a public record of section 31 agreements. The public record would contain key details (such as the name of the parties and a description of land over which the agreement applies) to increase the visibility and transparency of these agreements, including by ensuring there is a central record of future section 31 agreements.

The right to self-determination

62.   The right to self-determination is a collective right, in that it pertains to groups of people, as opposed to individuals within a group.  The right to self-determination, as set out in Article 1 of the ICCPR and Article 1 of the ICESCR, entails the entitlement of peoples to have control over their destiny and to be treated respectfully. This includes peoples being free to collectively pursue their economic, social and cultural development without outside interference.

63.   The Native Title Act as a whole promotes the right to self-determination by recognising native title rights and interests, thereby restoring native title holders’ ability to speak for, manage and utilise their traditional lands. The Native Title Act also upholds the collective nature of native title rights and interests, consistently with the right to self-determination.

64.   Also consistently with the right to self-determination, the Native Title Act prioritises the use of traditional decision making or other processes determined by the group for the purpose of making decisions about native title.

65.   Although the right to self-determination is a collective right, it is important that individuals are heard with regard to contributing to the direction of the group. This may include adequately consulting and giving appropriate consideration to minority views to ensure that genuine agreement is reached. [15]

66.   The amendments to the Native Title Act and the CATSI Act will promote the right to self-determination by creating pathways to assist common law holders to participate in decision-making that affects their native title rights and interests. Both the applicant (before a native title determination is made) and RNTBCs (established following a determination of native title) are the representatives or vehicles for common law holders to advance their economic, social and cultural development through the management and use of native title rights.

67.   The right to self-determination will be engaged by amendments to:

·          to allow the claim group to place conditions on the applicant’s authority, allow the applicant to act by majority and to clarify the duties of the applicant to the claim group (Schedule 1);

·          clarify parties to objection applications under section 31 agreements (Schedule 6)

·          provide a new function to the NNTT to provide assistance to RNTBCs and common law holders to promote agreement around native title (Schedule 7);

·          create new requirements for RNTBCs relating to eligibility for membership, limit the discretion of directors regarding membership applications, and limit the grounds for cancelling membership (Schedule 8);

·          clarify that the ORIC Registrar may place a RNTBC under special administration where it has seriously or repeatedly failed to comply with its native title legislation obligations (Schedule 8);

provide for a process whereby disputes related to membership and the RNTBC’s performance of its functions under native title legislation can be addressed (Schedule 8); and

·          validate section 31 agreements that may be affected by the decision in McGlade (Schedule 9)

Role of the applicant Schedule 1)

68.   As with the right to enjoy and benefit from culture, the right to self-determination will be promoted by changes to allow the applicant to act by majority as the default. This change will facilitate native title groups’ ability to collectively pursue the determination of their native title rights and their economic, social and cultural development. It will also promote the efficient negotiation and settlement of native title determinations, to assist traditional owners to access the potential social and economic benefits of native title.

69.   Although this measure will reduce the influence of members of the applicant who are in the minority, and any sub-groups of native title holders they represent, this limitation is necessary and proportionate to meeting the objective. As discussed in the context of the right to culture, the nature of the authorisation process (emphasises traditional decision-making), the new ability of the claim group to place limitations on the applicant’s authority and the delayed commencement of the provision will allow claim groups to ameliorate the effect of the limitation. The reform is also broadly supported by stakeholders.

70.   The right to self-determination will be promoted by changes to give the native title claim group greater control and flexibility to define the scope of the authority of the applicant and to make arrangements for succession planning for members of the applicant.

71.   Consistent with the ALRC Report’s recommendations, the governance structures established by the claim group as part of the native title claims process may also be used post-determination. The structures these reforms will allow claim groups to put in place, and the experience of claim groups in managing these processes, are intended to support the ability of common law holders to realise rights of self-determination through the effective management of native title rights and interests following a native title determination.

New function for the National Native Title Tribunal to provide assistance to RNTBCs and common law holders (Schedule 7)

72.   Giving RNTBCs and common law holders the option to access the NNTT’s native title expertise to assist with promoting agreement about matters relating to native title or the operation of the Act will also further promote the right to self-determination.

73.   This may include supporting dispute resolution between establishing governance arrangements that support agreement about the collective exercise of native title rights.

 

Membership of RNTBCs (Schedule 8)

74.   The measures that relate to membership will improve the accountability and transparency of RNTBCs. In particular, the measures include: requiring RNTBCs to have in their constitution eligibility requirements that provide for all the common law holders to be represented, directly or indirectly; removing the discretion of directors of RNTBCs to refuse membership when the applicant applies in the required manner and meets the eligibility requirements; and limiting the grounds for cancelling the membership of a member of a RNTBC to those in the CATSI Act.

75.   The amendments to the CATSI Act that intend to prevent common law holders from being arbitrarily excluded from membership seek to maximise the opportunities for common law holders to be involved in the management of their native title through RNTBCs. Such involvement enables common law holders to be able to contribute to decisions that affect them.

ORIC Registrar oversight (Schedule 8)

76.   The amendments to the CATSI Act to provide the Native Title Registrar with oversight of RNTBCs’ compliance with their obligations under the Native Title Act and related regulations will increase transparency and accountability of RNTBCs to common law holders. Where an RNTBC has seriously or repeatedly failed to comply with their obligations under the Native Title Act or any regulations made under that Act, the ORIC Registrar may determine that the corporation is to be under special administration. This intervention will increase transparency and accountability for common law holders and thus provide them with greater capacity to understand and influence how RNTBCs’ perform their functions in relation to native title.

Requirements for RNTBC constitutions (Schedule 8)

77.   The amendments to the CATSI Act that require RNTBCs’ constitutions to provide for the resolution of certain disputes between the corporation and persons who are or who claim to be common law holders will increase the level of involvement of common law holders in relation to how their native title is managed. The amendments ensure that where there is a dispute about who is a common law holder or a common law holder has concerns with how the RNTBC is performing its functions in relation to their native title, the RNTBC will have procedures to address this dispute. Consequently, through improved dispute resolution pathways, common law holders will have greater opportunity to influence how an RNTBC performs its functions in relation to their native title.

The right to an effective remedy

78.   The right to an effective remedy is contained in Article 2(3) of the ICCPR. Article 6 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) also provides a right to an effective remedy for acts of discrimination contrary to that Convention.

79.   The right to an effective remedy provides a right to appropriate reparation where rights have been breached. This may include compensation, restitution and changes to laws and practices to protect against repetition of breaches of rights.

80.   The Native Title Act as a whole supports the right to an effective remedy by recognising native title rights and interests under Australian law, including by allow the extinguishment of native title to be disregarded in certain circumstances. The Act also establishes a statutory scheme for compensation for the extinguishment or impairment of native title for certain categories of acts.

81.   The Bill will further the right to an effective remedy by amendments to:

a.        allow historical extinguishment of native title to be disregarded in additional circumstances (Schedule 3), and 

b.       allow RNTBCs to make claims for compensation over areas where native title has been extinguished (Schedule 4).

Disregarding historical extinguishment of native title (Schedule 3)

82.   As discussed above, the Bill makes amendments to increase the circumstances in which historical extinguishment of native title may be disregarded. This will increase the circumstances in which native title rights and interests can be recognised. These circumstances are:

a.        over areas of national, state and territory parks (new section 47C), and

b.       where a body corporate  with members who are common law holders, for example an RNTBC, and holds a pastoral lease over the relevant area (amended section 47).

RNTBC compensation applications (Schedule 4)

83.   The Bill will promote the right to an effective remedy by making it easier for certain types of  compensation claims to be brought.

84.   Currently, RNTBCs can only bring compensation applications over areas where native title has been partially extinguished or impaired. Schedule 4 contains amendments that allow an RNTBC to make a compensation claim over areas within the external boundary of its determination area where native title has been fully extinguished.

85.   These amendments would allow a simpler process for this type of compensation claim. In particular, it would avoid the complexities of authorising an applicant in circumstances where there is already a recognised body that has the authority of relevant common law holders to represent their interests.

Rights of equality and non-discrimination

86.   The rights of equality and non-discrimination are contained in Articles 2, 3, 16 and 26 of the ICCPR, Article 2 of the ICESCR and Article 5 of the CERD. These rights recognise that all human beings have the right to be treated equally and not to be discriminated against.

87.   Of particular relevance in the context of the Bill, the CERD establishes a general prohibition on racial discrimination. The Racial Discrimination Act 1975 implements this prohibition in Australian domestic law.

88.   Subsection 8(1) of the Racial Discrimination Act 1975, in accordance with Article 1(4) of CERD, allows ‘special measures’ which are designed to ensure advancement of certain groups. ‘Special measures’ are an exception to the general prohibition on racial discrimination, and are designed to “secure to disadvantaged groups the full and equal enjoyment of human rights and fundamental freedoms.” For a measure to be characterised as a ‘special measure’ it must:

·          be for a particular group or individuals;

·          be taken for the sole purpose of securing the adequate advancement of that group or those individuals;

·          be ‘necessary’; and

·          not continue after its objective have been achieved.

 

89.   The measures in the Bill that amend the CATSI Act modify or complement existing measures in the CATSI Act. Accordingly, they may be characterised as components of a broader ‘special measure’, being the CATSI Act in its entirety. The objective of the amendments to the CATSI Act is to promote transparency, accountability and good governance in RNTBCs for the benefit of the common law holders.

90.   The proposed measures are appropriate, adapted and proportionate and promote the development of self-management and autonomy among Aboriginal and Torres Strait Islander people by increasing the transparency and accountability of RNTBCs to common law holders.

The right to equality before courts and tribunals

91.   Article 14(1) of ICCPR enshrines the right of a person to have a fair and public hearing by a competent, independent and impartial tribunal established by law. This article also sets out a general guarantee of equality before courts and tribunals that applies regardless of the nature of proceedings before such bodies. [16] Therefore, this right applies to civil matters.

92.   As noted in the UNHRC General Comment no. 32: “[e]quality before courts and tribunals also requires that similar cases are dealt with in similar proceedings. If, for example, exceptional criminal procedures or specially constituted courts or tribunals apply in the determination of certain categories of cases, objective and reasonable grounds must be provided to justify the distinction.” [17]

93.   Under the Native Title Act, the Federal Court has exclusive jurisdiction to hear and determine applications relating to native title in Australia. The Native Title National Practice Area of the Federal Court has developed case management strategies that include allocating the native title proceeding to a Native Title National Practice Area Judge in the relevant registry, allocating a specialist Federal Court Native Title Registrar to assist in the case management of the proceeding and determining a list of priority native title cases so that cases are properly resourced and efficiently progressed to trial for agreed outcomes. Currently, state and federal courts have jurisdiction for civil matters under the CATSI Act.

94.   The Bill will further the right to equality before courts and tribunals by amendments to provide that all civil matters under the CATSI Act that relate to RNTBCs are to be instituted and determined exclusively in the Federal Court, unless the Federal Court transfers the matter to another court with jurisdiction (Schedule 8).

95.   This measure advances the right to equality before courts and tribunals because it ensures that similar native title matters are consolidated into one court with specialised expertise and procedures. In this manner, the Federal Court will continue to develop appropriate case management strategies and specialised expertise that will increase the coherency for native title-related matters.

The right to a fair and public hearing by a competent, independent and impartial tribunal

96.   The right to a fair and public hearing is contained in Article 14(1) of the ICCPR: “In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”

97.   As noted by the Parliamentary Joint Committee on Human Rights, the right to a fair hearing applies in both criminal and civil proceedings, including whenever rights and obligations are to be determined, such as private law rights, for example property, contract, negligence and other civil law proceedings. [18]

98.   The Bill will further the right to a fair and public hearing by amendments to institute all RNTBC civil-related matters in the Federal Court (Schedule 8).

99.   The Bill indirectly engages the right to a fair and public hearing by amendments that contain a strict liability offence that applies to directors of RNTBCs where they do not notify a member that their membership has been cancelled on the grounds of ineligibility or failure to pay fees (Schedule 8). However, the strict liability offence is considered reasonable, necessary and proportionate in the circumstances.

Improved dispute resolution pathways (Schedule 8)

100.           An important aspect of the fairness of a hearing is its expeditiousness and the UNHRC has noted that “delays in civil proceedings that cannot be justified by the complexity of the case or the behaviour of the parties detract from the principle of a fair hearing”. [19]

101.           Providing that all matters are instituted in the Federal Court allows the court to better allocate resources and apply its native title expertise to civil matters brought by litigants under the CATSI Act. The amendments promote the right to a fair hearing under Article 14 of the ICCPR by ensuring that case management techniques can be applied as appropriate.

Cancellation of membership of RNTBCs (Schedule 8)

102.           The Bill contains a strict liability offence that applies to directors of RNTBCs where the membership of a member has been cancelled on the grounds of ineligibility or failure to pay fees. Under this measure, directors must give the affected member a copy of the resolution cancelling the member’s membership (being either a resolution of the directors or a resolution of the general meeting) as soon as practicable after the resolution has been passed.

103.           Whilst strict liability offences engage and limit the presumption of innocence, Article 14(2) of the ICCPR applies to criminal offences. The strict liability offence in Schedule 8 to the Bill is a civil penalty provision, and, therefore, does not engage the criminal process rights under Articles 14 and 15 of the ICCPR.

104.           It is noted, however, that the strict liability offence is considered reasonable, necessary and proportionate. The offence is of a regulatory nature and is consistent with the CATSI Act’s enforcement regime, which includes other strict liability offences. It is considered necessary because members should be promptly informed when their membership of an RNTBC has been cancelled. The offence will thus help to ensure that RNTBCs act in a fair manner towards their members. This offence is proportionate in that it carries a relatively low penalty of 5 penalty units and only applies to those people subject to regulation under the CATSI Act.

105.           The benefits of ensuring that RNTBCs act in a fair manner towards their members justifies the imposition of a minor strict liability penalty.

 

Conclusion

106.           The Bill is compatible with human rights because it promotes the protection of human rights and to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.



Glossary of terms 
 The notes on clauses are to be read in conjunction with this glossary of terms. 
 The applicant is the person or group of people authorised by the claim group to make and manage native title determination or compensation applications and/or enter into native title agreements on their behalf. 
 CATSI Amendment Act means the proposed Corporations (Aboriginal and Torres Strait Islander) Amendment (Strengthening Governance and Transparency) Act 2019.
 The claim area is the area of land and/or waters over which the claim group declares they hold rights and interests. 
 The claim group is the native title claim or compensation group who seek a determination of, or compensation for, native title rights and interests according to traditional law and custom. 
 Common law holders are the people who hold native title rights and interests, whether or not a determination has been made by the Federal Court. 
 A native title agreement is a broad term to describe an agreement entered into between native title parties and others, such as an indigenous land use agreement (ILUA) or agreement made under section 31 of the Native Title Act (section 31 agreements). 
 A native title determination or compensation claim or claim is the claim made under the Native Title Act for a determination of native title or compensation. 
 The term native title party can refer to a registered native title body corporate and also a registered native title claimant (see sections 29 and 30 of the Native Title Act). 
 ORIC Registrar means the Registrar of Aboriginal and Torres Strait Islander Corporations.
 A registered native title body corporate or RNTBC is a corporation established to perform functions in relation to native title rights for the common law holders. The Native Title Act requires common law holders to establish a corporation where a determination recognising native title is made. 
 A registered native title claimant or RNTC is the applicant, once the applicant has made a native title application and that claim has been accepted for registration by the National Native Title Tribunal. The RNTC is responsible for managing the claim on behalf of the broader claim group, but they also have a role in native title agreement-making. 
 Registrar means the Native Title Registrar of the National Native Title Tribunal.
 A representative Aboriginal/Torres Strait Islander body or native title representative body or NTRB is a body appointed under the Native Title Act to perform a variety of functions, including facilitation and assistance functions under section 203BB, to assist registered native title body corporates, native title holders and persons who may hold native title with, among other things, native title applications and native title agreements. 
 
 NOTES ON CLAUSES

 

 

Preliminary

Clause 1 - Short title

1.                    This clause provides for the short title of the Act to be the Native Title Legislation Amendment Act 2019 .

Clause 2 - Commencement

2.                    This clause provides for the commencement of each provision in the Bill, as set out in the table. While some parts of the Bill commence the day after the Bill receives Royal Assent and Schedule 8 has its own commencement provisions (see below), the majority of the measures commence on a date to be fixed by Proclamation, with an additional number of measures to commence six months after Proclamation. There are two reasons for this staggered commencement.

3.                    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).

4.                    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.

5.                    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.

6.                    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 they wish to do so.

Specifics of commencement provisions

7.                    Item 1 of the table provides that sections 1 to 3, and anything else in the Bill that is not covered by the table, commence the day of Royal Assent. The substantive sections of the Bill do not amend the Native Title Act.

8.                    Item 2 of the table provides that Part 1 of Schedule 1 commences on a single day to be fixed by Proclamation. If the provisions contained in Part 1 of Schedule 1 do not commence within 6 months after Royal Assent, they commence the day after that 6 month period.

9.                    Items 4, 5, 7, 8, 10 and 13 of the table provide that Schedule 2, Division 1 of Part 1 of Schedule 3, Parts 2 and 3 of Schedule 3, Part 1 of Schedule 4, Schedules 5 to 7, and Parts 2 to 4 of Schedule 8 commence at the same time as Part 1 of Schedule 1 (on a single day to be fixed by Proclamation). Item 6 of the table provides that Division 2 of Part 1 of Schedule 3 commences immediately after Part 2 of Schedule 4 (Item 9 provides that Part 2 of Schedule 4 commences immediately after Part 1 of Schedule 1, which commences on a single day to be fixed by Proclamation).

10.                This alignment means that the majority of the measures in the Bill commence together. The measures which commence at a different time are:

·          Parts 2 and 3 of Schedule 1 of the Bill

·          Division 1, Part 1 of Schedule 8 of the Bill.

11.                Item 3 of the table provides that Parts 2 and 3 of Schedule 1 commence six months after Part 1 of Schedule 1 commences. These parts of the Bill are the provisions which affect the relationship between the applicant and the native title claim group.

Registered native title claimant - changes to definition

12.                Amendments in Part 2 of Schedule 1 clarify that a reference to the registered native title claimant (i.e. the members of the applicant after they appear on the Register of Native Title Claims), where the registered native title claimant is more than one person, should be taken to be a reference to the group of persons who comprise the registered native title claimant as a whole.

13.                This is the case even when, for example, a process of negotiation referring to the registered native title claimant was entered into before the commencement of the provisions. If that process continues after the provisions commence, the references to the registered native title claimant should be read as referring to the group as a whole.

14.                Item 11 of the table provides that Division 1 of Part 1 of Schedule 8 commences on 1 July 2019.

Registered native title bodies corporate

15.                Item 11 of the table provides that Division 1 of Part 1 of Schedule 8 is to commence on 1 July 2019. This is to align with the proposed commencement of the Corporations (Aboriginal and Torres Strait Islander) Amendment (Strengthening Governance and Transparency) Act 2019 (the CATSI Amendment Act) .

16.                Division 1 of Part 1 of Schedule 8 and the CATSI Amendment Act both create new requirements for the constitutions of existing Aboriginal and Torres Strait Islander corporations. The application provisions in Division 1 of Part 1 of Schedule 8 and in Part 2 of Schedule 1 to the CATSI Amendment Act both provide that the new requirements do not apply in relation to an existing corporation until the second anniversary that that division and that part commence. Aligning the commencement dates ensures that the period for which these amendments do not apply to existing corporations commence and finish on the same date. This will enable an aligned two year period for the existing corporations to update their constitutions with the new requirements before the requirements apply to them.

17.                Item 12 of the table provides that Division 2 of Part 1 of Schedule 8 commences on whichever occurs later:

·          immediately after the commencement of the provisions by table item 11; and

·          immediately after the commencement of Part 2 of Schedule 1 to the CATSI Amendment Act.

However, the provisions do not commence at all if Part 2 of Schedule 1 to the CATSI Amendment Act does not commence. 

18.                The amendments in Division 2 of Part 1 of Schedule 8 are contingent on the CATSI Amendment Act commencing. Accordingly, the amendments in this division are to commence, in effect, immediately after the commencement of Part 2 of Schedule 1 to the CATSI Amendment Act (whether that be on 1 July 2019, when the CATSI Amendment Act is proposed to commence, or on some other date, whichever is later). However, if Part 2 of Schedule 1 to the CATSI Amendment Act does not commence, then Division 2 of Part 1 of Schedule 8 will not commence at all.



19.                Item 13 of the table provides that Parts 2 to 4 of Schedule 8 commence at the same time as the provisions covered by table item 2.

20.                Item 14 of the table provides that Schedule 9 commences the day after Royal Assent.

Section 31 agreements - gap between validation and changes to required parties

21.                Schedule 9 confirms the validation of agreements under section 31 of the Native Title Act potentially affected by the decision in McGlade . That validation commences the day after Royal Assent, and will validate all agreements made up until the commencement of the validation provision.

22.                However, the amendments in Part 2 of Schedule 1 allowing the applicant to act by majority (which also allow the applicant - or native title party for the purpose of section 31 - to make section 31 agreements by majority) do not commence until six-months after the day fixed by Proclamation when the majority of Bill commences. This means that there will be a period of at least six months (and up to a maximum of 12 months) after the commencement of the Bill where section 31 agreements must be entered into unanimously by all members of the registered native title claimant in order to be valid.

Clause 3 - Schedules

23.                This clause provides that an Act that is specified in a Schedule is amended or repealed as set out in that Schedule, and any other item in a Schedule operates according to its terms.

Schedule 1—Role of the applicant

Part 1—Authorisation   

Native Title Act 1993

24.                The applicant is jointly the person or group of people authorised by a native title claim or compensation group (the ‘claim group’) to make and manage a native title or compensation claim on their behalf. Authorisation recognises the ‘communal character of traditional law and custom which grounds native title’ [20] and ensures that things are not done in relation to a claim or native title right without the consent of the broader group.

25.                After a claim has been made, and the persons comprising the applicant appear on the Register of Native Title Claims, those persons comprising the applicant are then also known as the registered native title claimant (RNTC). The applicant is also the ‘native title party’ for the purpose of the process through which agreements under section 31 of the Act are made.

26.                The amendments in Part 1 implement Recommendation 10-5 of the ALRC Report that the Native Title Act be amended to clarify that the claim group may define the scope of the authority of the applicant. This is given effect by amendments to allow the claim group to impose conditions on the authority of the applicant.

Item 1 - After subparagraph 24CG(3)(b)(ii)

27.   Section 24CG of the Native Title Act provides that parties to an area indigenous land use agreement (ILUA) may apply to the Registrar for the ILUA to be registered. Subsection 24CG(3) provides that the application must:

a.        have been certified by all representative Aboriginal/Torres Strait Islander bodies for the area; or

b.       include a statement to the effect that all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to the area have been identified, and that all of those persons identified have authorised the agreement.

28.                This item inserts new subparagraph 24CG(3)(b)(iii) which requires an application for registration of an ILUA to be accompanied by a statement that any conditions on the authority of the applicant under new section 251BA (see item 23, paragraphs 48 to 53 below) have been satisfied.

Items 2 to 4 - Sections 24CH, 24C and 24CK

29.                These items contain consequential amendments as a result of new paragraph 203BE(5)(c). New paragraph 203BE(5)(c) is explained at paragraph 47. 

Items 5 to 9 - Section 62

30.   During consultation on this Bill, stakeholders raised the need for public notification of any conditions on the authority of the applicant to ensure relevant parties are aware of any conditions in their dealings with the applicant.

31.   Items 5 to 9 amend section 62 of the Native Title Act, which sets out what information is required to be included in native title claimant and compensation applications and supporting affidavits. Items 5 to 9 will require the detail of any conditions on the authority of the applicant to be included in an originating claimant or compensation application and supported by affidavits accompanying the application. Details of any conditions on the authority of the applicant would also be recorded on the Register of Native Title Claims, or Schedule of claims, if not registered (see Item 13 at paragraph 43).

32.   Any changes to the conditions on the authority of the applicant would also require the originating application to be amended, in the same way that changing the composition of the applicant requires an application to the Federal Court to amend the originating application (see subitem 23(3) at paragraph 53).

33.   Item 5 repeals paragraph 62(1)(a) (to be amended and moved to new subsection 62(1A)). New paragraph 62(1)(a) provides that a claimant application must be accompanied by an affidavit stating the matters in new subsection 62(1A).

34.   Item 6 inserts new subsection 62(1A) which sets out the information which must be included in affidavits accompanying a claimant application. New subsection 62(1A) replicates existing paragraph 62(1)(a), but introduces a new requirement that any conditions on the authority of the applicant must form part of the detail required to be included in the originating claimant application. If there are no conditions on the authority of the applicant, this must also be expressly stated in the affidavit to ensure there is no confusion around the existence of any conditions.

35.   Item 7 inserts new paragraph 62(2)(i) which provides that a claimant application seeking a determination of native title must be accompanied by details of any conditions under section 251BA on the authority of the applicant to make the application and deal with matters arising in relation to it.

36.   Items 8 and 9 makes corresponding amendment to the requirements for a compensation application, including that a compensation application must be accompanied by an affidavit stating, among other things, that any conditions on the authority of the applicant have been satisfied (new paragraph 62(3)(a) and new subsection 62(4).

Items 10 and 11 - Section 62A

37.   Item 10 renumbers section 62A to provide for new subsection 62A(2) inserted by item 11.

38.   Section 62A currently provides that the applicant has the power to deal with all matters arising under the Native Title Act in relation to the application for which they have been authorised. [21] The section operates to ensure that, where the Act requires something to be done in relation to an application, the applicant has the power to do that thing.

39.   New subsection 62A(2) clarifies that the applicant’s power to deal with all matters to do with an application is subject to conditions on the authority of the applicant under new subsection 251BA (item 23 at paragraphs 48 to 53). For example, if the claim group specifies that the authority of the applicant is conditional on the applicant not changing the group’s legal representation without the further authorisation of the claim group, then the power conferred on the applicant by section 62A is limited accordingly.  

Item 12 - After section 62A

40.   On 7 December 2017, the Federal Court handed down its decision in Gebadi v Woosup [2017] FCA 1467 ( Gebadi ). Gebadi confirms that the applicant owes fiduciary obligations and duties to the claim group (outlined at paragraph 102 of the Court’s judgement). In particular, the Court found that members of the claim group are entitled to expect that the applicant will act in the best interests of the claim group in exercising any of the functions, powers, responsibilities and discretions conferred upon it.

41.   To clarify the duties owed by the applicant to the claim group, and in light of the Federal Court’s decision in Gebadi , item 12 inserts new section 62B which confirms that any obligation of the applicant under the Native Title Act does not relieve or detract from the operation of any other duty of the applicant at common law or in equity to persons in the claim group.

42.   Item 12 seeks to implement a modified version of Recommendation 10-9 of the ALRC Report which recommended the Act be amended to provide that a member of the applicant must not obtain an advantage or benefit at the expense of common law holders (noting the ALRC Report pre-dates the Court’s decision in Gebadi ).   

Item 13 - After paragraph 186(1)(g)

43.   Item 13 inserts new paragraph 186(1)(h) which requires the Register of Native Title Claims to record whether there are any conditions on the authority of the applicant.

Items 14 to 18 - Section 190C

44.   Items 14 to 18 amend section 190C to require the Registrar to be satisfied not only that the applicant is authorised by the claim group, but that any conditions on the authority of the applicant have been satisfied, when registering a claim on the Register of Native Title Claims. Specifically:

c.        item 14 repeals and replaces paragraph 190C(4)(b) to provide that the Registrar must be satisfied that the requirements of new subsection 190C(4AA) have been satisfied when registering the claim;

d.       item 15 is a consequential amendment removing the note in subsection 190C(4) because the note refers to the definition of a word that is no longer contained in the subsection;

e.        item 16 inserts new subsection 190C(4AA) which provides the Registrar must be satisfied that the applicant is a member of the claim group and is authorised to make the application by all persons in that group; and that there are no conditions on the authority of the applicant, or that any such conditions have been satisfied; 

f.        item 17 contains a consequential amendment to paragraph 190C(5)(a) as a result of the changes to paragraph 190C(4)(b) and new subsection 190C(4AA); and

g.       item 18 contains a consequential amendment to paragraph 190C(5)(b) to clarify that there are multiple conditions to be met under new subsection 190C(4AA).

45.   Paragraph 190C(5)(b) requires the application to set out grounds for the Registrar to consider whether there are conditions on the authority of the applicant. However, it does not require similar grounds to demonstrate that those conditions do not exist, in circumstances where the claim group chooses not to make such conditions. A statement that the claim group has not placed conditions on the authority of the applicant is sufficient.

Items 19 to 22 - Section 203BE

46.   Section 203BE of the Native Title Act currently requires native title representative bodies (NTRBs) to certify that applications for the determination of native title and the registration of ILUAs are properly authorised.

47.   New paragraph 203BE(2)(aa) (item 19) and paragraph 203BE(5)(c) (item 21) provide that an NTRB may only certify a native title application or agreement where it is of the opinion that any conditions on the authority of the applicant that relate to the making of the application or agreement have been satisfied.

Item 23 - Section 251BA

48.   Item 23 inserts new section 251BA, which allows a claim group to impose conditions on the authority of the applicant.

49.   While the applicant currently has the power under section 62A to deal with all matters arising in relation to a native title application (see para 38 above), in practice many claim groups expect that the applicant will bring key decisions back to the group for consideration or specific authorisation.

50.   Examples of conditions that the claim group could be able to place on the authority of the applicant under new section 251BA include requiring the applicant to seek specific authorisation from the claim group before agreeing to a consent determination, or before discontinuing or amending an application. The group may also impose a condition that the applicant is required to act unanimously (displacing the rule in new section 62C that the applicant may act by majority as a default position - see paragraphs 82 to 91). 

51.   New subsection 251BA(1) allows for conditions to be imposed on the authority of the applicant as part of the authorisation processes under sections 251A and 251B. Section 251B sets out the process for authorising an applicant, and conditions placed on the authority of the applicant under this process will affect the conduct of the applicant as it carries out its responsibilities under the Native Title Act generally in relation to the claim and any agreement-making in relation to the native title rights claimed. Section 251A sets out the process for authorising an area ILUA, and conditions placed on the authority of the applicant under this process will relate to the making of such an agreement.

52.   New subsection 251BA(2) provides that such conditions must be imposed in accordance with traditional decision-making processes, or if no such processes exist, a process agreed to by the claim group.

53.   Where there are any changes to conditions imposed on the authority of the applicant by a subsequent authorisation, new subsection 251BA(3) requires that the person or persons authorised must seek leave of the Court to amend the claimant or compensation application made under section 61 to reflect the new condition, or any variations or revocations of previously imposed conditions. Once a claimant or compensation application has been amended, existing Court processes ensure that the updated conditions are notified to all parties to the proceedings and the Registrar of the NNTT.

Item 24 - Application and transitional provisions

54.   This item provides for application and transitional provisions for this Part. The effect of this item is that where a claim group authorises an applicant or an ILUA under sections 251A or 251B prior to the commencement of this item on Proclamation, the current registration provisions for the claim or agreement would continue to apply to that agreement or claim, even after the item commences. Where the authorisation of an applicant does not occur until after the commencement of this item, the new provisions would apply (provided the relevant claimant or compensation application, or native title agreement occurs after commencement). 

Area agreements

55.   Subitem 24(1) provides that the amendments contained in this Part only apply in circumstances where the application for registration of the agreement and the relevant authorisation decision take place after the commencement of this item.

Claimant applications and compensation applications

56.   Subitem 24(2) provides that the amendments contained in this Part only apply in circumstances where the claimant or compensation application and the relevant authorisation decision take place after the commencement of this item.

Conditions on authority

57.   Subitems 24(3) and (4) provide that the amendments to sections 62A and 186 of the Native Title Act contained in this Part, and new section 251BA as inserted by this Part, apply in relation to any authorisation decision that takes place after the commencement of this item.



 

Part 2—Applicant decision-making   

Native Title Act 1993

58.   Part 2 implements recommendations of the ALRC Report (Recommendation 10 -6) and the COAG Investigation (Table 1, Item 2) for the Native Title Act to be amended so that the applicant may act by majority as a default position.  

59.   The applicant is currently required to act jointly or unanimously when carrying out its duties or preforming its functions under the Native Title Act. The Full Federal Court’s decision in McGlade held that all members of the applicant - or the registered native title claimant (RNTC) for the purpose of ILUAs - must be party to an area ILUA before the agreement can be registered and come into effect (including members of the applicant who are deceased).

60.   The Native Title Amendment (Indigenous Land Use Agreements) Act 2017 (the ‘2017 amendments’) was passed by the Australian Parliament in response to the decision in McGlade . The 2017 amendments changed the default position for making future area ILUAs so that only a majority of the members of the RNTC are required to be a party to the agreement, unless the claim group determines otherwise.

61.   The 2017 amendments partly implemented the ALRC Report and COAG Investigation recommendations to allow the applicant to act by majority as a default position. Part 2 extends the changes made by the 2017 amendments to all of the things that the applicant is required or permitted to do under the Native Title Act as a default rule, unless the claim group imposes a condition on the authority of the applicant that requires the applicant to operate differently (including, for example, a condition to require the applicant to act unanimously). The new rule applies to the applicant acting in any capacity under the Act, including as the RNTC or native title party.

62.   The changes extend only to positive things that the applicant has to do (for example, a decision to file an interlocutory application) as opposed to things done to the applicant by others under the Native Title Act (for example, where there is a requirement to notify the applicant of something, that requirement cannot be satisfied by only notifying a majority of the members of the applicant).

63.   This change is given effect in this Part through the introduction of a new general rule in section 62C (see item 44 at paragraphs 82 to 91) to allow the applicant to act by majority as a default position. This Part also makes specific amendments to the provisions relating to making of area ILUAs, alternative procedure ILUAs and section 31 agreements to make clear that only a majority of the applicant (or RNTC or native title party) is required to be a party to those agreements.

Items 25 to 28 - Sections 24CD (area ILUAs)

64.   Section 24CD sets out who is required to be party to an area ILUA. Items 25 and 28 amend the terminology used in section 24CD to ensure that the reference to the RNTC is read to refer to the group of individuals who comprise the RNTC as a whole.

65.   Item 26 repeals the amendments to section 24CD made by the 2017 amendments, which specify that the RNTC can enter into an area ILUA by majority (as the default position), or through the individual members of the RNTC nominated by the claim group under the authorisation of the ILUA. This specific process is no longer necessary as a result of other amendments made by this Bill to allow the RNTC to act by majority, and the claim group to impose conditions on the authority of the applicant under Part 1, Schedule 1. The item also reinstates the version of paragraph 24CD(2)(a) in the Act prior to the 2017 amendments, which provides that the RNTC, where one exists, is required to be a party to an area ILUA.

66.   Item 27 inserts new subsections (2A) and (2B) into section 24CD which set out how the requirement that an RNTC be party to an area ILUA can be satisfied. Subsection (2A) provides that the requirement is satisfied by a majority of the persons who comprise the RNTC (as the default rule), or in accordance with any conditions on the authority of the applicant (if such conditions exist). This means that the default position for making an area ILUA will be that a majority of the RNTC become party to the agreement, but a claim group can impose a condition which requires a higher threshold or unanimity (under the process set out at item 23) if they choose to do so.

67.   Subsection (2B) requires the members of the RNTC who enter into an agreement, if the agreement is not made unanimously, to notify the other members of the RNTC that the agreement has been made within a reasonable time. This amendment seeks to ensure all members of the RNTC are kept informed as to whether any such agreements have been made and to promote transparency between members of the RNTC. Failure to satisfy this condition will not invalidate the area ILUA and would not prevent the Registrar from registering the agreement provided other requirements of registration are met.

Items 29 and 30 - Section 24CG (area ILUAs)

68.   Section 24CG sets out the requirements for an application to register an area ILUA. The 2017 amendments added an additional subsection to section 251A, which is referred to in the note at subsection 24CG(3). Item 50 (see paragraphs 102 below) repeals the additional subsection to section 251A. Items 29 and 30 update the note at subsection 24CG(3) to ensure that it is current with the other amendments made by this Bill.

Items 31 to 35 - Section 24CL (area ILUAs)

69.   Section 24CL sets out the requirements for the registration of an area ILUA which is not certified by an NTRB. Certification by an NTRB is evidence that the authorisation of an area ILUA was properly conducted. Where the area ILUA is not certified, the application for registration must satisfy the Registrar that the authorisation requirements for the area ILUA were met.

70.   Items 31 to 34 amend the terminology used in subsection 24CL(2) - which sets out who must be a party to an area ILUA for the Registrar to register the agreement under section 24CL -  to ensure that the reference to the RNTC in section 24CL refer to the group of individuals who comprise the RNTC as a whole.

71.   Item 35 inserts new subsections (2A) and (2B) into section 24CL which set out how the requirement that an RNTC be party to an area ILUA can be satisfied. Subsection (2A) provides that the requirement is satisfied by a majority (as the default rule), or in accordance with any conditions on the authority of the RNTC (if such conditions exist). This means that the default position for an area ILUA to be registered will be that a majority of the RNTC enter into the agreement, but if a claim group imposes a condition on the authority of the RNTC which requires a higher threshold or unanimity, then that condition must be met for the area ILUA to be registered.

72.   Subsection (2B) requires members of the RNTC who enter into an agreement, if the agreement is not made unanimously, to notify other persons who comprise the RNTC within a reasonable time that the agreement has been made. This provision ensures that all members of the RNTC are kept informed as to whether any such agreements have been made and promotes transparency between members of the RNTC. However, failure to satisfy this condition does not invalidate the agreement and would not prevent the Registrar from registering the agreement provided other conditions of registration are met.

Items 36 to 38 - Section 24DE (alternative procedure ILUAs)

73.   Section 24DE sets out the required parties to alternative procedure ILUAs. Alternative procedures ILUAs can be made in relation to any of the matters set out in section 24DB, including alternative procedures for the doing of future acts, the manner of exercise of any native title rights and interests in relation to the area, and any other matter concerning native title rights and interests in relation to the area.

74.   Items 36 and 37 amend the terminology used in section 24DE to ensure that the reference to the RNTC under section 24DE is read to refer to the group of individuals who comprise the RNTC as a whole.

75.   Item 38 inserts new subsections (5) and (6) into section 24DE which set out how the requirement that an RNTC be party to an alternative procedure ILUA can be satisfied. Subsection (5) provides that the requirement is satisfied by a majority (as the default rule), or in accordance with any conditions on the authority of the applicant (if such conditions exist). This means that the default position for making an alternative procedure ILUA will be that a majority of the RNTC enter into the agreement, but a claim group can impose a condition on the authority of the applicant which requires a higher threshold or unanimity (under the process set out at item 23) if they choose to do so.

76.   Subsection (6) requires the members of the RNTC who enter into an agreement, if the agreement is not made unanimously, to notify the other persons who comprise the RNTC that the agreement has been made within a reasonable time. This provision ensures that all members of the RNTC are kept informed as to whether any such agreements have been made and promotes transparency between members of the RNTC. Failure to satisfy this condition will not invalidate the alternative procedures ILUA and would not prevent the Registrar from registering the agreement provided the other requirements of registration are met.

Items 39 to 43 - Sections 29, 30 and 31 (section 31 agreements)

77.   Sections 29, 30 and 31, taken together, provide for how a section 31 agreement can be made. Section 30A sets out the parties to a negotiation of a section 31 agreement, which includes (at paragraph (b)), ‘any native title party’. The ‘native title party ‘for the purpose of section 30A is set out in sections 29 and 30, including, where relevant, the RNTC.

78.   Item 39 amends the terminology used in the note to subparagraph 29(2)(b)(i) referring to the RNTC to ensure that the reference to the RNTC is read to refer to the group of individuals who comprise the RNTC as a whole.

79.   Items 40 to 42 amend the terminology used in section 30 referring to the RNTC to ensure that:

·          the reference to the RNTC is read to refer to the group of individuals who comprise the RNTC as a whole

·          the role of the RNTC in relation to a section 31 agreement extends only so far as the RNTC remains an RNTC, and

·          where the composition of members of the applicant change - because the applicant in the proceedings has changed - then the new applicant, once it is registered as the RNTC, is the relevant party to the section 31 agreement.

80.   Section 31 sets out the negotiation procedures for section 31 agreements. Item 43 inserts new subsections (1C) and (1D) into section 31 to set out how the requirement that a native title party which is an RNTC be party to a section 31 agreement can be satisfied. Subsection (1C) provides that the requirement is satisfied by a majority (as the default rule), or in accordance with any conditions on the authority of the applicant (if such conditions exist). This means that the default position for making a section 31 agreement will be that a majority of the RNTC enter into the agreement, but a claim group can impose a condition on the authority of the RNTC which requires a higher threshold or unanimity (under the process set out at item 23) if they choose to do so.

81.   Subsection (1D) requires the members of the RNTC who enter into a section 31 agreement, if the agreement is not made unanimously, to notify the other persons who comprise the RNTC that the agreement has been made within a reasonable time. This provision ensures that all members of the RNTC are kept informed as to whether any such agreements have been made and promotes transparency between members of the RNTC. Failure to satisfy this condition will not invalidate the agreement.

Item 44 - After section 62B

82.   This item inserts new section 62C. New section 62C creates a general rule that the applicant may act by majority when exercising a power or performing a function under the Native Title Act. However, the claim group will be able to displace this default rule by placing a condition on the authority of the applicant which would require unanimous action (or any other threshold) in the terms of the authorisation (consistent with the amendments in Part 1 of Schedule 1). 

83.   New paragraph 62C(1)(a) provides that the rule only applies after a native title determination or compensation application has been made on the basis that all members of the applicant should be named on the application and provide an accompanying affidavit under section 62 (noting this is the point in time at which the composition of the applicant becomes ascertainable).

84.   New paragraph 62C(1)(b) provides that new section 62C only applies if two or more persons are jointly the applicant (and provides that these persons are the authorised persons for the purpose of section 62C).

85.   New paragraph 62C(1)(c) provides that the rule applies where the applicant is required or permitted under the Native Title Act, or for the purposes of the Native Title Act under another Commonwealth law, to do something. The provision is only intended to apply to actions by the applicant, and is not intended to affect how other people do things in relation to the applicant (for example, how notice is given to the applicant).

86.   New paragraph 62C(1)(d) provides that new section 62C only applies if, apart from new section 62C, for the applicant to do something, all ‘authorised persons’ comprising the applicant must do it. In effect, new section 62C applies to the doing of things that were previously required to be done unanimously by the applicant.  

87.   New subsection 62C(2) provides that default rule is that the ‘authorised persons’ may act by majority unless new subsection 62C(4) applies.

88.   New subsection 62C(3) provides that where a majority of the authorised persons do a thing under the Native Title Act, they are required to notify the other authorised persons within a reasonable time. This ensures that all members of the applicant are aware of decisions made in their absence, to ensure transparency and promote consultation between members of the applicant. However, per new subsection 62C(6), notice does not have to be given to an authorised person who has died. 

89.   New subsection 62C(4) provides that the rule is subject to any conditions on the authority of the authorised persons. This means that a group could choose to specify that, for example, if the applicant wishes to enter into a native title agreement relating to certain areas of the native title claim, the agreement must be entered into unanimously, instead of by majority. It is similarly open to the claim group to specify that the applicant must always act jointly or unanimously in carrying out its powers under the Native Title Act.

90.   New subsection 62C(5) provides that the rule applies to the applicant acting in any capacity under the Native Title Act, including as the RNTC or native title party.

91.   New subsection 62C(6) provides that for the purposes of new subsection 62C, ‘authorised persons’ includes any ‘authorised persons’ who have died. This is 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. It will be possible for deceased members of the applicant to either be removed through an authorisation process under section 66B of the Act, or through a new process of applying to the Federal Court (see items 56 to 60 at paragraphs 117 to 121).

Item 45 - After subsection 87(1)

92.   Section 87 of the Native Title Act allows the Federal Court to make orders in relation to native title and compensation proceedings in terms agreed by the relevant parties. 

93.   This item inserts new subsections 87(1AA) and (1AB). New subsection 87(1AA) provides that an RNTC is taken to be a party to an agreement on a proposed determination of native title if the majority of the RNTC is party to the agreement and sign its terms. However, if a condition under new section 251BA specifies who must become a party to the agreement and sign its terms (see item 23 at paragraphs 48 to 53), an RNTC is taken to be a party to such an agreement if those specified people are parties to the agreement and sign its terms.

94.   New subsection 87(1AB) provides that those in the majority of the RNTC must notify those in the minority within a reasonable period after becoming parties to the agreement and signing its terms. However, failing to do so will not invalidate the agreement or signature. These provisions are intended to promote transparency between members of the RNTC.

Items 46 and 47 - Subsection 87A(1)

95.   Section 87A of the Native Title Act allows the Federal Court to make orders for part of a claim area where certain persons set out under subparagraph 87A(1)(c) agree.

96.   Item 46 amends paragraph 87A(1)(c) to remove the word “persons” from the paragraph. This clarifies that it is not just persons who are required to be party to the agreement (because, for example, each representative Aboriginal/Torres Strait Islander body for any part of the determination area who is a party to the proceeding at the time the agreement is made is required to be a party to the agreement).

97.   Item 47 inserts new subsections 87A(1A) and (1B). New subsection 87A(1A) provides that an RNTC is taken to be a party to an agreement on a proposed determination of native title in relation to part of an area included in the application if the majority of the RNTC is party to the agreement and sign its terms. However, if a condition under new section 251BA specifies who must become a party to the agreement and sign its terms (see item 23 at paragraphs 48 to 53), an RNTC is taken to be a party to such an agreement if those specified people are parties to the agreement and sign its terms.

98.   New subsection 87A(1B) provides that those in the majority of the RNTC must notify those in the minority within a reasonable period after becoming parties to the agreement and signing its terms. However, failing to do so will not invalidate the agreement or signature. These provisions are intended to promote transparency between members of the RNTC. Failure to do so does not invalidate the agreement.

Item 48 - Paragraphs 190A(2)(h) and 190E(8)(h)

99.   Sections 190A and 190E relating to applications for the Registrar to consider claims, or reconsider claims, for registration on the Register of Native Title Claims.

100.           This item amends the terminology used in paragraphs 190A(2)(h) and 190E(8)(h) to ensure that the reference to the RNTC is read to refer to the group of individuals who comprise the RNTC as a whole.

Items 49 to 52 - Sections 251A and 251BA

101.           The 2017 amendments inserted subsection 251A(2) into the Native Title Act. This was to enable a claim group to authorise a person or group of persons, who are also members of the RNTC, to be a party to an area ILUA under section 24CD.

102.           Items 49 and 50 collectively repeal subsection 251A(2), because this specific process to allow the RNTC to enter into an area ILUA by majority is no longer necessary. This mechanism is now dealt with in new section 62C, which provides a general rule that the applicant may act by majority when exercising a power or performing a function under the Native Title Act, and which extends to its role as the RNTC when entering into area ILUAs.

103.           Item 52 inserts a second note below new subsection 251BA(2) providing examples of conditions that may be imposed on the authority of the applicant. Given item 52 inserts a second note (that commences after the existing note), item 51 numbers the existing note.

Items 53 and 54 - Section 253

104.           Item 53 removes the reference to subsection 251A(1) in the definition of authorise in section 253 and replaces it to refer to section 251A. This is a consequential amendment because subsection 251A(2) will be repealed and section 251A will therefore no longer involve subsections.

105.           Item 54 amends the definition of registered native title claimant in section 253 to ensure that the terminology used to refer to the registered native title claimant, where it is a group of individuals, is consistent throughout the NTA.   

Item 55 - Application

106.           The transitional provisions provided for in this item mean that the current provisions of the Native Title Act continue to apply to section 31 agreements and ILUA registration applications made before the commencement of the new provisions, even in circumstances where the registration decision is not made or the section 31 agreement does not take effect until after the new provisions commence.

Indigenous land use agreements

107.           Subitem 55(1) provides that the amendments of sections 24CD, 24CL, 24DE and 251A made by this Part apply to any agreements to which an application for registration is made after the commencement of this item. This ensures that the amendments only apply to:

·          area ILUAs where the application for registration is made after commencement; and

 

·          section 31 agreements which are made after commencement. 

Registered native title claimants

108.           Subitem 55(2) provides that the amendments of subsection 30(1) and the definition of registered native title claimant in section 253 made by this Part apply in relation to any RNTC.

Section 31 agreements

109.           Subitem 55(3) provides that the amendments of subsection 30(2) made by this Part apply in relation to any RNTC that ceases to be a RNTC after the commencement of this item.

110.           The effect of subitem 55(4) is that if an agreement is not made before commencement in accordance with the requirements that apply under section 31 at that time (for example, some but not all of the persons comprising the RNTC had signed), it would need to be remade after commencement to take advantage of the new majority rule.

General rule

111.           Subitem 55(5) provides that new section 62C applies in relation to anything done after the commencement of this item.

Consent determinations

112.           Subitem 55(6) provides that new subsections 87A(1A) and (1B) apply in relation to any proposed determination filed with the Federal Court after commencement.

Registration of claims

113.           Subitem 55(7) provides that the amendments of subsections 190A(2) and 190E(8) made by this Part apply in relation to any claim, if a notice mentioned in those subsections is given after the commencement of this item.

Part 3—Replacement of applicant

Native Title Act 1993

114.           The Native Title Act currently requires a claim group to replace individual members of the applicant in all circumstances by authorising a new applicant under section 251B, and having the new applicant make an application for the Federal Court to replace them under section 66B. This is the case even where a member of the applicant is deceased or unable to act as the applicant because of physical or mental incapacity. 

115.           This Part amends the Native Title Act to allow one or more members of the claim group to apply to the Court without needing to go through an authorisation process under section 251B in circumstances where an individual member of the applicant is deceased or is unable to act as a member of the applicant. It will also allow claim groups to put in place succession-planning arrangements for individual members of the applicant as part of the authorisation process.

116.           Part 3 implements Recommendations 10-7 and 10-8 of the ALRC Report.

Items 56 to 60 - Section 66B

117.           These items amend section 66B of the Native Title Act to set out the process by which the remaining members of the applicant may apply to the Federal Court for, and the power of the Court to order, a replacement applicant in circumstances where a previous member of the applicant dies or is unable to act as an applicant because of physical or mental incapacity.

118.           New subsection 66B(2A) provides that when a member of an applicant dies or is unable to act, one or more members of the claim group may apply to the Court for an order that certain persons replace the current applicant.

119.           New subsection 66B(2B) allows the Court to make orders:

·          where there is an authorised ‘reserve’ member of the claim group, this person and the other continuing members of the applicant constitute the applicant (new paragraph 66B(2B)(a) - this is the succession-planning scenario);

 

·          the continuing members of the applicant may continue to act despite the death or incapacity of one member (new paragraph 66B(2B)(b); and

 

·          members of the claim group applying for the order may be added to the continuing members of the applicant if so authorised by the claim group (new paragraph 66B(2B)(c)).

120.           If the Court orders under section 66B that the applicant is replaced by more than one person, new subsection 66B(2C) provides that the relevant people are jointly considered to be the applicant.

121.           The effect of the amendments to section 66B is that when a member of an applicant dies or is incapable of performing the duties of the applicant, the Court can order that certain people - either the remaining members of the applicant, the remaining members of the applicant plus a replacement member under a succession plan, or a new group of people entirely - are now the applicant.

Item 61 - Section 253 (definition of applicant )

122.           This item is a consequential amendment as a result of new subsection 66B(2C). Previously, section 253 provided that the term ‘applicant’ had the meaning as affected by subsection 61(2). Given new subsection 66B(2C) also affects the definition of the term ‘applicant’, item 61 amends section 253 to provide for this.

Item 62 - Application

123.           This item provides that the amendments to sections 66B and 253 made by this Part apply in relation to applications to the Federal Court under section 66B made after the commencement of this item, whether the death or incapacity of the member of an applicant occurred before or after that commencement.

124.           This means that where an application is made to remove or replace a member of the applicant who has died or becomes incapacitated, provided the application is made after the commencement of this item, the new process applies irrespective of the date that the person dies or becomes incapable of performing the duties of the applicant.

Schedule 2—Indigenous land use agreements

Part 1—Body corporate agreements and area agreements

Native Title Act 1993

Items 1 and 2 - Section 24BC

125.           After a determination of native title has been made, a registered native title body corporate (RNTBC) is established to hold native title rights as agent or on trust for the common law holders. Once an RNTBC has been established, it is able to enter into agreements through the process set out in Part 2, Division 3, Subdivision B of the Act - known as a body corporate Indigenous Land Use Agreement (ILUA).

126.           The process for making a body corporate ILUA is generally less procedurally onerous than that for area ILUAs - in particular, the making of a body corporate ILUA does not involve an authorisation or objections process. The simpler process recognises the role of RNTBCs as the entities responsible for managing native title rights and interests.

127.           Section 24BC currently provides that body corporate ILUAs can only be made where there are RNTBCs in relation to all of the agreement area. This means even though compensation for extinguishment is one of the subject matters body corporate ILUAs can deal with under section 24BB, claim groups are required to enter into area ILUAs to deal with compensation over areas where native title is fully extinguished. This limits the circumstances in which body corporate ILUAs can be used. 

128.           Items 1 and 2 renumber section 24BC to provide for subsection 24BC(1) and insert subsections 24BC(2) to allow body corporate ILUAs to include areas where native title has been extinguished. These amendments would implement recommendations made by the COAG Investigation (Table 1, Item 14).

129.           Subsection 24BC(2) will allow a body corporate ILUA to include areas for which the relevant native title determination expressly or impliedly states that there is no native title over an area.    

Item 3 - Subsection 24CH(1)

130.           Section 24CH addresses the notification requirements for area ILUAs. Currently, section 24CH requires the Registrar to instigate the notification process for an agreement even if the Registrar is not satisfied that the agreement meets the requirement to be an ILUA as set out in sections 24CA to 24CE. This means that even where the Registrar knows that an ILUA will fail registration, they must notify the ILUA to the public.

131.           Requiring an ILUA to be notified where it cannot satisfy the registration test is impractical and unnecessary. This item provides that the Registrar only needs to proceed to notify an ILUA if the Registrar is satisfied that the ILUA meets the requirements of sections 24CA to 24CE.  This item would implement recommendations made by the COAG Investigation (Table 1, Item 14). 

Item 4 - Application

132.           This item provides that the amendments in Part 1, Schedule 2 apply to any application for registration of an ILUA made after the commencement of that Part, even if the agreement was entered into before commencement. The application provision refers to the date of an application for registration of an ILUA as a matter of certainty.  

Part 2—Deregistration and amendment

Native Title Act 1993

Items 5 and 6  - After Subsection 24EB(2)

133.           New subsections 24EB(2A) and 24EBA(7) clarify that the removal of the details of an ILUA from the Register of ILUAs would not affect any future acts done in accordance with the ILUA, or any future acts already invalidly done which were purportedly validated by an ILUA. This ensures that, once an ILUA expires or is otherwise concluded, the validity of the future act to which the ILUA relates is not uncertain.

134.           These amendments would implement recommendations by the COAG Investigation (Table 2, Item 2) to clarify the validity of future acts under ILUAs removed from the ILUA Register.

Item 7 - Section 24ED

135.           This item inserts new section 24ED, which sets out a process to allow minor amendments to be made to an ILUA without requiring an entirely new ILUA to agreed by the parties and registered on the Register of ILUAs. This amendment would implement a recommendation by the COAG Investigation (Table 1, Item 14), and is intended to provide a streamlined process with lower transactions costs for parties to update certain details on an ILUA.

136.           New paragraphs 24ED(1)(a) and (b) will require any minor amendments to the ILUA to have been agreed to by the parties to the agreement, and to be notified to the Registrar in writing.

137.           New paragraphs 24ED(1)(c) to (e) will limit the circumstances in which minor amendments can be made to :

·          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)

 

·          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

 

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

138.           New subsection 24ED(2) confirms the ILUA’s binding effect on common law holders after the details have been amended.

139.           New subsection 24ED(3) is to be read with new paragraph 24ED(1)(f). These new provisions provide that an amendment to an ILUA can do a thing specified by the Minister in a legislative instrument made under new subsection 24ED(3). This is to confirm that the responsible Commonwealth Minister would be able to specify a thing that an amendment to an ILUA can do, if it becomes apparent in the future that there are other minor details which might usefully be a ground for updating an ILUA under this process. Any instrument made under the subsection is disallowable.

Item 8 - At the end of section 199B

140.           This item inserts subsection 199B(5) to provide that if any changes to an ILUA changes any detail of the ILUA that is entered in the Register of ILUAs, the Registrar must update the Register of ILUAs to reflect this.

Items 9 and 10 - Subsection 199C(1) (note)

141.           These items insert a second note to subsection 199C(1) (which relates to the removal of details of an ILUA from the Register of ILUAs) to note the existence of new subsections 24EB(2A) and 24EBA(7) and confirm their operation by providing that the removal of ILUA details from the Register of ILUAs does not affect the validity of a future act that has already been done. See paragraphs 133 and 134 for an explanation of new subsections 24EB(2A) and 24EBA(7). 

Item 11 - Application

142.           This item provides that new section 24ED, which allows for minor amendments to ILUAs, applies in relation to any agreement, the details of which are on the Register of ILUAs after this item commences. This ensures that any ILUAs already registered, and any ILUAs registered after the commencement of the item, can be amended in this way.

 

 



 

Schedule 3—Historical extinguishment

Part 1—Park areas

143.           Generally, once native title is extinguished it cannot be revived. However, in some circumstances, sections 47, 47A and 47B of the Native Title Act will operate to allow the the courts to disregard extinguishment on reserves set aside for Aboriginal or Torres Strait Islander peoples, pastoral leases held by traditional owners and unallocated Crown Land. Sections 47, 47A and 47B are intended to overcome the effect of past extinguishment and to allow native title claim groups to have their claim determined by the courts.

144.           This Part will enable parties to agree to disregard the historical extinguishment of native title over an area that has been set aside or vested to preserve the natural environment (such as national, state and territory parks and reserves), even where native title may otherwise have been extinguished.

Division 1—Amendments commencing on Proclamation

Native Title Act 1993

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

145.           This item inserts new paragraph 13(5)(c) which provides that the grounds for varying or revoking an approved determination of native title includes that the determination includes an area that an agreement under new paragraph 47C(1)(b) (an agreement from the relevant federal, state or territory government allowing historical extinguishment of the relevant national, state or territory park to be disregarded) has been entered into.

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

146.           This item inserts new section 47C which will allow historical extinguishment of native title to be disregarded over areas set aside for the preservation of the natural environment (national, state and territory parks), where the native title party and the relevant government party agree. This means those areas can be included in claims for native title (including an application for revised native title determination), provided that the relevant conditions are met, and that any previous acts which may have extinguished native title can be set aside for the purpose of determining the claim.

147.           New section 47C differs from the other sections allowing historical extinguishment to be set aside (sections 47, 47A and 47B), in that the relevant federal, state or territory government responsible for the park would need to agree that extinguishment can be disregarded (paragraph 47C(1)(b)). Once this agreement is reached, it would be open to the Court to determine that native title exists in the area, provided it is established in the usual way (including by demonstrating connection with the land or waters concerned).

When new section 47C applies

148.           New subsection 47C(1) outlines when new section 47C applies. In effect, these new subsections provide that new section 47C applies if:

·          a native title application (including a revised native title determination application) is made in relation to a park area (see paragraph 150 of this explanatory memorandum for an explanation of what is meant by the term ‘park area’); and

 

·          any RNTBC or applicant for any claim group concerned and the relevant government (the Commonwealth, state or territory) have agreed in writing that extinguishment is to be disregarded in relation to the agreement area (the ‘agreement area’ is the area within the park area (noting it may be the entire park area) in relation to which the agreement to disregard extinguishment has been made); and

 

·          the agreement area is Crown land or covered by a freehold estate held by the Crown, or a statutory authority of the Crown (this is intended to exclude from the operation of section 47C privately held freehold over which a government has declared an environmental interest); and

 

·          none of sections 47, 47A or 47B apply in relation to the area.

149.           New subsection 47C(2) clarifies that new section 47C can still apply, regardless of whether the area in question is:

·          subject to a lease; or

 

·          covered by a dedication, reservation, proclamation, condition or declaration; or

 

·          covered by the making, amendment or repeal of legislation under which the area is to be used for a public purpose; or

 

·          held on trust for the benefit or another person; or

 

·          subject to native title.

Meaning of park area

150.           New subsection 47C(3) provides that section 47C applies in relation to an area within a national, state or territory park that is set aside (or an interest is granted or vested over) for purposes that include the preservation of the natural environment. The operation of new section 47C is not intended to capture freehold title. 

Public works

151.           New subsections 47C(4) and (5) allow the extinguishing effect of relevant public works (constructed or established directly by the Commonwealth, State or Territory, or by another person on behalf of the Commonwealth, State or Territory) within the park area to be disregarded. New subsection 47C(11) defines what constitutes a relevant public work .

152.           New subsection 47C(4) allows the government which is party to the broader agreement to apply new section 47C in the proceedings to include a statement in that agreement that historical extinguishment as a result of relevant public works can be disregarded.

153.           New subsection 47C(5) would ensure that if a different government - for example, the Commonwealth (where the park in question is a state park) - is responsible for the relevant public work, that government can also agree in writing to extinguishment, as a result of its public works within the park area, being disregarded.

Notice and comment

154.           New subsections 47C(6) and (7) require the government party to the agreement to publicly notify its intention to include the park area in a determination under section 47C, and allow at least three months for public comment before the agreement can be made, consistent with other notice periods in the Native Title Act.

Prior extinguishment to be disregarded

155.           New subsection 47C(8) requires historical extinguishment to be disregarded over relevant park areas where the parties have reached the required agreement. The subsection sets out the types of extinguishing acts which must be disregarded under the application of the provision, being:

·          the setting aside, granting, or vesting of a an area for purposes relating to preservation of the natural environment

·          the creation of any other prior interest in relation to the area

·          the construction of any relevant public work, provided that the relevant government party has made a statement to that effect or agreed to disregard the extinguishing effect of the work.

156.           The note below new subsection 47C(8) clarifies that the applicant still needs to demonstrate connection with the land or waters concerned, as is required for a determination of native title.

Effect of determination

157.           Where a determination relying on section 47C is made, it preserves (by new subsection 47C(9)) the following:

·          the validity of the act creating the park or any prior extinguishing act;

 

·          the validity of the creation of any other prior interest in relation to the agreement area;

 

·          the interest of any person in the public works on the land (whether or not it is a ‘relevant public work’), and access to the public works; and

 

·          public access to the park area, as well as applying the non-extinguishment principle to those acts.

158.           This ensures the application of section 47C does not affect any prior interest in relation to the agreement or whether the prior acts were validly done. It also preserves any interest in public works and public access to park areas and ensures that these acts suppress, rather than extinguish, native title. This means that any interests created prior to the determination will continue to exist and, to the extent of inconsistency with native title rights, prevail. 

Exclusion of Crown ownership of natural resources

159.           New subsection 47C(10) provides that the creation of an interest that confers ownership of natural resources on the Crown, or confirms ownership of natural resources by the Crown, is not to be disregarded for the purposes of new section 47C. This means that the non-extinguishment principle will not apply to such interests.

Definitions

160.           New subsection 47C(11) sets out definitions of ‘crown land’ and ‘relevant public work’ as those terms are used within section 47C.

Items 3 to 11 - Division 1, Part 3

161.           Part 3, Division 1 of the Native Title Act deals with applications to the Federal Court for native title determinations, revised native title determinations and compensation. Items 3-10 provide for consequential amendments, relevant to applications to the Federal Court, as a result of new section 47C.  

162.           Items 3 and 4 ensure that in relation to the restrictions on making of certain applications (section 61A), subsection (2) or (3) are not intended to apply in section 47, 47A, 47B or 47C cases.

163.           Item 5 inserts new paragraph 62(1)(d) to ensure that any agreement made under new section 47C is provided to the Federal Court with an application under section 61.

164.           Item 6 inserts new paragraph 63(ba) to ensure that any agreement made under new section 47C is provided, as soon as practicable, to the Registrar with the application under section 61.

165.           Item 7 is a consequential amendment as a result of Item 8, amending the heading of the subsection from Exception to Exceptions , to reflect the insert of new subsection 64(2A).

166.           Item 8 inserts new subsection 64(2A) to ensure that subsection 64(1) does not prevent an amendment to an application that results in the inclusion of additional areas that were not covered by the original application, provided that the operation of section 47C has been agreed to in writing in accordance with 47C(1)(b) in relation to the area after the making of the original application. New paragraph 66A(1)(f) (item 9) ensures that where an application is amended to include an area claimed under new section 47C, that other persons with interests in the area are notified that this has occurred.  

167.           Item 10 is an amendment to insert the heading Notification day above paragraph 66A(1B).

168.           Item 11 is a consequential amendment as a result of new paragraph 66A(1)(f) to provide that a notice under paragraph 1A(e) must specify a day as the notification day for the amendment.

Item 12 - Paragraph 82(3)(a)

169.           This item is a consequential amendment as a result of new section 47C, and clarifies that ‘section 47C’, as used in paragraph 82(3)(a), refers to section 47C of the Federal Court of Australia Act 1976.

Item 13 - Subparagraph 84(3)(b)(ii)

170.            This item is a consequential amendment as a result of new subsection 66A(1)(f). Section 84(3)(b)(ii) deals with parties to proceedings in relation to Federal Court applications to which section 61 applies. This item provides that persons are party to the proceedings if notice of an amended application is given under new paragraph 66A(1A)(f).

Item 14 - After subparagraph 190A(6A)(d)(ii)

171.           Item 14 provides that if the Registrar is satisfied that the only effect of the following amendment is to give effect to the operation of section 47C in relation to the application as mentioned in subsection 64(2A), the Registrar must accept the claim (the later claim ) for registration.

Item 15 - Paragraph 190B(9)(c)

172.           This item is a consequential amendment as a result of new subsection 47C(8). Section 190B deals with the registration of native title claims and this item provides that the application and accompanying documents must not disclose to the Registrar that the native title rights and interest claimed have otherwise been extinguished (except to the extent the extinguishment is to be disregarded under subsection 47(2), 47A(2), 47B(2) or new subsection 47C(8)).

Item 16 - Application

173.           This item clarifies that the amendments made by this Part apply to both applications that are made after the provisions commence and applications that are on foot when the provisions commence. This item also confirms that applications for native title that are on foot when the provisions commence can be amended to include an area under new section 47C. 

Division 2—Amendments commencing immediately after Part 2 of Schedule 4

Native Title Act 1993

Item 17 - At the end of section 62

Revised native title determination application

174.           This item inserts new subsection 62(7) which provides that an application for a revised native title determination that covers an area to which the operation of new section 47C has been agreed to (an area within a park area to which it has been agreed that extinguishment is to be disregarded) must be accompanied by a copy of any agreement made under new section 47C.

Part 2—Pastoral leases held by native title claimants

Native Title Act 1993

Item 18 - Subparagraph 47(1)(b)(iii)

175.           Section 47 of the Native Title Act allows past extinguishment of native title to be disregarded in a native title determination over pastoral leases held by the claim group, a trustee on trust for any of the native title claimants, or a company whose shareholders are any of the claim group.

176.           While section 47 includes companies whose shareholders are any of the claim group, it does not other corporate structures, such as companies without shareholders whose members are members of the claim group.

177.            To address this issue, this item amends subparagraph 47(1)(b)(iii) to clarify that section 47 applies to a body corporate that has members rather than shareholders, and holds a pastoral lease over an area subject to an application under section 61. This amendment implements a recommendation of the COAG Investigation (Table 1, Item 6).    

Item 19 - Application

178.           This item ensures that the amendment made by item 18 applies to both applications that are made after the provision commences and applications that are on foot when the provision commences. This means that where an application has been made, but not finally determined before the commencement of the provision, the provision still applies.

 

 



 

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

Native Title Act 1993

179.           It is generally understood that the present terms of the Native Title Act do not allow an RNTBC to bring a compensation application over areas where native title has been fully extinguished. Currently, RNTBCs can only bring compensation applications over areas where native title has been partially extinguished or impaired. This Schedule contains amendments to allow an RNTBC to also be able to make a compensation claim over areas within the external boundary of its determination area where native title has been fully extinguished.

Part 1—Amendments commencing on Proclamation

Item 1 - Subsection 13(2) (note)

180.           This item amends the note at subsection 13(2) to refer broadly to section 62 rather than subsection 62(3).

Items 2 to 5 - Section 58

181.           Existing section 58 of the Native Title Act provides a head of power for the Native Title (Prescribed Bodies Corporate) Regulations 1999 (PBC Regulations) to make provisions for the functions of an RNTBC.

182.           Items 2 to 5 amend section 58 to provide that the PBC Regulations may make provisions regarding the functions of RNTBCs in relation to compensation applications.

Item 6 - Subsection 61(1)

183.           This item amends subsection 61(1) to clarify that ‘native title claim group’ is to be read as defined in the first instance.

Item 7 - Subsection 61(1)

184.           This item clarifies the scope of circumstances under which an RNTBC can make a compensation application by amending the column headed ‘Persons who may make application’ in subsection 61(1). 

185.           The amended table in subsection 61(1) clarifies the current position that an RNTBC can make a compensation application over areas held by the RNTBC on behalf of the common law holders or as an agent in relation to the native title.

186.           The amended table also allows an RNTBC to make a compensation application on behalf of all the persons who claim to be entitled to the compensation if there is an area where native title is extinguished which falls within the external boundary of the determination for which the RNTBC holds native title rights and interests on trust.

187.           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.

188.           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.

Item 8 - Subsection 62(3) (heading)

189.           This item amends the heading of subsection 62(3) to Compensation applications—compensation claim group.

Item 9 - Paragraph 63(b)

190.           Existing section 63 provides that the Registrar of the Federal Court must give copies of native title applications, affidavits and prescribed documents to the Native Title Registrar.

191.           Item 9 will ensure that affidavits made by RNTBC applicants for compensation will also be required to be provided to the Native Title Registrar (the requirements for these affidavits created by the new subsection 62(5), inserted by item 11 of this Schedule).

Item 10 - Application and transitional

192.           Subitem 10(1) provides that the amendments to section 58 do not affect the continuity of the PBC Regulations that were made for the purposes of that section and in force before commencement.   

193.           Subitem 10(2) provides that the amendments to section 61, 62 and 63 apply to applications made after commencement of this item.

194.           This means that an RNTBC can make an application for compensation after measures commence, irrespective of when the RNTBC was incorporated.

Part 2—Amendments commencing immediately after Part 1 of Schedule 1

Item 11 - Section 62

195.           Section 62 sets out requirements for applications for determinations of native title (‘claimant applications’) and native title compensation.

196.           This item inserts requirements for applications for compensation made by RNTBCs. It applies to applications for compensation for both areas where there is full and areas where there is partial extinguishment of native title.

197.           New paragraph 62(5)(a) and subsection 62(6) require applications to be accompanied by sworn affidavits stating:

a.        the belief that native title rights and interests exist or have existed in relation to the relevant area and that the statements in the application are true, and

b.       that the RNTBC applicant either:

                                                              i.       holds or is an agent in relation to the native title rights and interests already determined over the relevant area, or

                                                            ii.       that the relevant 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.

198.           The new paragraph 62(5)(b) provides that an RNTBC application for native title must contain details that would be required to be provided if the application was instead an application for a determination of the native title that has been extinguished and for which compensation is sought. This will include requirements for RNTBCs to provide relevant maps and information about the factual basis on which it is asserted that native title rights and interests had existed.

199.           It is expected that, in practice, much of the information required under new paragraph 62(5)(b) would have been prepared for the previous determination of native title rights and interests.

 



 

Schedule 5—Intervention and consent determination

Part 1—Intervention in proceedings

Native Title Act 1993

Item 1 - Subsection 84A(1)

200.           This item amends subsection 84A(1) (which relates to the Commonwealth Minister’s power of intervention in native title proceedings) to expressly include reference to proceedings in the ‘High Court’, in addition to other proceedings in the Federal Court.

Items 2 to 5 - Section 87

201.           Items 2 to 5 amend section 87 to address an inconsistency in the provisions relating to the Federal Court’s power to make orders in relation to the whole of a claimed area (under section 87) and part of a claimed area (section 87A). Specifically, the amendments seek to clarify that the Commonwealth Minister’s consent, as intervener, is required to agree to the terms of the orders under both section 87 and 87A.

Items 6 and 7 - Section 87A

202.           These items seek to clarify that the consent of the Commonwealth Minister - as intervener or party to a native title proceeding - is not required in circumstances where the Minister has withdrawn from a matter.

203.           Item 6 replaces subparagraph 87A(1)(c)(vii) with a new provision to confirm that the consent of a Commonwealth Minister who has intervened in a proceeding - and has not withdrawn at the time the agreement is reached - must be party to an agreement reached for the purposes of section 87A. However, item 6 also clarifies that the agreement of a Commonwealth Minister who has intervened in a proceeding, but subsequently withdrawn, is not required. 

204.           Subsections 87A(9) to (12) sets out the process for the parties to a proceeding to come to an agreed statement of facts to accompany an application for a court determination under this section. Item 7 inserts new subsection 87A(13) which clarifies that the Commonwealth Minister, if intervening at the time a statement of facts is agreed, must also participate in the process for finalising that statement.

Item 8 - Application

205.           Item 8 deals with how the amendments to the provisions in this Part apply.

206.           Subitem 8(1) deals with the amendments to allow the Commonwealth Minister to intervene in matters in the High Court by right rather than by application. The subitem provides that the Minister can intervene in any proceeding commenced after the item commences, and any proceeding commenced before the item commences, if it has not been finally determined at the time the item commences.

207.           This means that the Commonwealth Minister can intervene in any High Court matter on foot at the time the provision commences, and any High Court matters instigated after the provision commences.

208.           Sub item 8(2) addresses the requirement that the Commonwealth Minister as intervener be party to an agreement to resolve the proceedings under section 87. The Commonwealth Minister’s participation in any such agreement filed after the item commences is required, irrespective of whether the proceeding commenced or whether the Minister intervened before or after the commencement of the item.

209.           Sub item 8(3) deals with the amendment to clarify that the Commonwealth Minister is not required to be a party to an agreement under section 87A in circumstances where the Minister intervened and later withdrew. The subitem provides the amendments apply to all proceedings where a consent determination is filed after the item commences irrespective of whether the proceeding commenced or whether the Minister intervened before or after the commencement of the item.

210.           Sub item 8(4) provides that any agreed statement of facts filed with the Federal Court after the commencement of the relevant items under the processes set out in either section 87 or 87A must include the consent of the Commonwealth (as party or intervener) where relevant. The date that the statement of facts is agreed between the parties is not relevant to whether the changes apply.

Part 2—Consent determinations

Native Title Act 1993

Items 9 and 10 - Section 87A 

211.           Section 87 currently allows the Federal Court to make orders in relation to native title proceedings in terms agreed by the relevant parties. Section 87A allows the Federal Court to make orders for part of a claim area where certain holders agree. Section 87A allows the parties to reach agreement, and a court to make orders, over a particular part of a claim area if, for example, the native title claim over that part is not contentious.

212.           Consultation for the development of this Bill has indicated that there is presently confusion around the appropriate 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.

213.           The Federal Court decision in Yaegl People #2 v AG New South Wales [2017] FCA 993 clarified that section 87 should be used 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.

214.           In light of the Court’s decision, items 9 and 10 clarify that only section 87 may be used where a part of an area of a native title application is being determined, and that part consists of the remainder of the area covered by the application. Specifically:

·          item 9 amends paragraph 87A(1)(b) to clarify that section 87A should be used where a determination is to be made for part of an area, and following that determination, an undetermined part of the claim area will remain; and

 

·          item 10 inserts a note at the end of subsection 87A(1) referring to section 87 where an agreement is reached in relation to the whole of the area covered by the application. Once a determination has been made under section 87A, the remaining undetermined area is “the whole of the area covered by the application”.

Item 11 - Application

215.           This item provides that the amendments to section 87A to clarify its operation apply to any consent determination filed with the Federal Court after the commencement of the section. This means that the date at which the parties come to an agreement is irrelevant, and that the assessment of whether section 87 or section 87A must be used to make an order in the terms of the agreement depends on the date the agreement was filed with the court.

 



 

Schedule 6—Other procedural changes

Part 1—Objections

Native Title Act 1993

Item 1 - Paragraph 24MD(6B)(f)

216.           Section 24MD sets out an objections process for future acts that pass the freehold test - that is, acts proposed to be done which affect native title the same way they would affect a person with freehold interest in land.

217.           A person whose native title interests will be affected by a proposed future act may object to the doing of the act and to be consulted on ways to minimise the effect of the act on their native title rights. An RNTBC or an RNTC  has the right to request that the issue be referred to an independent person or body (which is generally the National Native Title Tribunal). At present, however, if the native title party does not refer the matter to an independent person or body, stakeholders have raised concerns that there may be no way to properly resolve the objection, as neither the government or proponent party currently have the right to refer the matter to adjudication.

218.           This item amends paragraph 24MD(6B)(f) to provide that if there has been an objection (that has not been withdrawn within 8 months after notification of the act), the Commonwealth, the State or the Territory must ensure that the objection is heard by an independent body. This 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.   

Item 2 - Subsection 141(2)

219.           This item amends subsection 141(2) to clarify that only native title parties who object to an act attracting the expedited procedure process are party to the NNTT’s inquiries into those objection applications. The expedited procedure is a streamlined approval process for future acts done under Subdivision P, Division 3, Part 2 of the Native Title Act.

220.           This amendment is intended to address stakeholder concerns that the current drafting of section 141 means that native title parties who do not object to the use of the expedited procedure process are nevertheless required to participate in an objection application lodged by another party.  

Item 3 - Application

221.           Subitem 3(1) provides that the amendments of subsection 24MD(6B) made by this Part apply to any objections process that is live when this item commences or any objections process that begins after this item commences, unless the objections process has already been resolved.

222.           Subitem 3(2) provides that the amendments of section 141 made by this Part apply in relation to any right to negotiate application made after the commencement of this item.

Part 2—Section 31 agreements 

Native Title Act 1993

Item 4 and 5 - Subsection 25(2) and subsection 31(1)

223.           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. Accordingly, these items make amendments to allow the government party to withdraw from negotiations provided the other parties agree.

224.           Item 4 amends subsection 25(2) to provide that the government party to a section 31 agreement can limit its participation in negotiations if the other parties consent.

225.           Item 5 inserts new subsections 31(1A) and 31(1B). New subsection 31(1A) provides that the government party does not need to participate in negotiations that the government party determines do not affect it, provided the other parties to the negotiation consent to this in writing.

226.           New subsection 31(1B) confirms that, regardless of a government reducing its involvement in negotiations, the government party must still be a party to the agreement.

Item 6 - Subsection 36(2)

227.           Subsection 36(2) currently provides that if any negotiation party satisfies the arbitral body that any other negotiation party (other than a native title party) did not negotiate in good faith, the arbitral body must not make the determination on the application.

228.           If a government party chooses not to negotiate about matters that do not affect it (with the written consent of the other parties), that government party will not strictly be negotiating those matters in good faith.

229.           This item amends subsection 36(2) to provide that it does not apply where a government party has chosen not to negotiate about matters that do not affect it (with the written consent of the other parties) per new subsection 31(1A). This item also clarifies that if matters that are unrelated to the effect of the act on the registered native title rights and interests of the native title parties have not been negotiated in good faith, the arbitral body can still make the determination on the application.   

Item 7 - At the end of subsection 41A(1)

230.           When entering into an ILUA or section 31 agreement, the native title and grantee parties may also negotiate a confidential further agreement which details matters additional or ancillary to the matters required to be outlined in the main agreement.

231.           Currently, the Native Title Act requires parties to section 31 agreements and all three types of ILUAs to provide copies of their agreement to the National Native Title Tribunal, and in the case of section 31 agreements, to advise the Attorney-General of the making of the agreement. For ILUAs, the Act also specifies that the Native Title (Indigenous Land Use Agreements) Regulations 1999 (ILUA Regulations) may set out other documents which should accompany a registration application. Neither the Native Title Act nor the ILUA Regulations require the parties to provide ancillary agreements to the Tribunal or even to note whether they exist.

232.           This item inserts paragraph 41A(1)(a) to provide that the parties to a section 31 agreement must advise the relevant arbitral body about the existence of any other written agreement made in connection with the doing of the act covered by the section 31 agreement. This amendment does not require parties to provide a copy of their ancillary agreements to the arbitral body.

233.           It is intended that complementary changes will be made to the ILUA Regulations to require information about the existence of ancillary agreements be provided to the Native Title Registrar as part of registering an ILUA.

Item 8 - At the end of section 41A

234.           This item inserts subsection 41A(4) to provide that the arbitral body must give a copy of any agreement or advice the arbitral body receives under subsection 41A(1) to the Registrar. This means that the arbitral body must give the Registrar a copy of any section 31 agreement it receives under paragraph 41A(1)(a) and any advice it receives under new paragraph 41A(1)(c) about the existence of any other written agreement made in connection with the doing of the act covered by the section 31 agreement.

Item 9 - After section 41A

235.           Section 199A of the Native Title Act requires the Registrar to keep a publicly available Register of ILUAs. The Register of ILUAs is available on the NNTT website and contains specific details of ILUAs as required by section 199B. The Registrar may also publish any other details of the agreement that the Registrar considers appropriate. The signed ILUA itself is currently not publically available.

236.           There is no registration process for section 31 agreements. Accordingly, there is currently no publicly available register that records any details of these types of agreements.

237.           To create a similar level of transparency for section 31 agreements as exists for ILUAs, item 9 inserts new section 41B which requires the Registrar to keep a record in relation to section 31 agreements (a record in relation to each agreement received under new subsection 41A(4)). While new section 41B requires the record to contain similar information to that of the Register of ILUAs, the record of section 31 agreements is not intended to have the same legal effect as the Register of ILUAs (i.e. when an ILUA is registered, it has the effect of binding all persons holding native title within the area of the agreement - this is not the case in regards to the record of section 31 agreements under new section 41B). The signed section 31 agreements themselves will also not be publicly accessible.  

238.           New subsection 41B(2) provides that the record of section 31 agreements must include the following information (provided the Registrar is aware of such information):

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

·          the name and address of each party to the agreement

·          the period, if specified, during which the agreement will operate, and

·          whether there are any ancillary agreements made between some or all of the parties. 

239.           New subsection 41B(3) provides that a party to the agreement must notify the Registrar in writing of any change to the information mentioned in new subsection 41B(2).

240.           New subsections 41B(5) to (7) provide that the Registrar must make the information mentioned in new subsection 41B(2) available to a person on request, unless a party to the agreement requests the Registrar not to disclose some or all of the information. If a party requests the Registrar not to disclose some or all of the information, that party must notify each other party to the agreement about this request.

241.           New subsection 41B(8) provides that the Registrar does not need to keep a record, or provide information, in relation to a section 31 agreement that has expired.    

Item 10 - After section 98

242.           Part 5 of the Native Title Act deals with, among other things, the powers of the Registrar. Section 98 provides that the Registrar has the powers set out in Parts 7, 8 and 8A of the Native Title Act in relation to the Register of Native Title Claims, the National Native Title Register and the Register of ILUAs.

243.           As new section 41B (item 9) requires the Registrar to keep a new record (of section 31 agreements), item 10 inserts new section 98AA to provide that the Registrar has the powers as set out in new section 41B in relation to the record of section 31 agreements.

Item 11 - Subparagraph 215(2)(aa)(i)

244.           This item amends subparagraph 215(2)(aa)(i) to provide that regulations made under subsection 215(1) may prescribe fees to be paid to obtain access to, or information from, records or information kept by the Registrar under new section 41B (i.e. the record of section 31 agreements). However, such regulations can also waive or refund, in whole or part, such fees as provided for by existing subparagraph 215(2)(aa)(ii).

Item 12 - Application

245.           Subitem 12(1) provides that new subsection 31(1A), which provides that the government party to a section 31 agreement does not need to participate in negotiations that the government party determines do not affect it, provided the other parties to the negotiation consent to this in writing, applies in relation to negotiations commencing before or after commencement of this item. This means that where negotiations are on foot at commencement, a government party can choose not to participate further in those negotiations that do not affect it, permitted the other parties agree in writing.

246.           Subitem 12(2) provides that subsection 31(1B), which provides that the government party must still be a party to the agreement, applies in relation to any agreement made after the commencement of this item.

247.           Subitem 12(3) provides that the amendments of section 41A made by this Part only apply in relation to any section 31 agreement made after commencement.

248.           Subitem 12(4) provides that the amendments of section 215 made by this Part do not affect the continuity of regulations made for the purposes of that section and in force before commencement. 



 

Schedule 7—National Native Title Tribunal

Native Title Act 1993

249.           Schedule 7 confers a new function on the National Native Title Tribunal (NNTT) to allow it provide assistance to registered native title bodies corporate and common law holders of native title, including following a determination of native title, to promote agreement about native title and the operation of the Native Title Act. This function is intended to assist in the prevention and management of post-determination native title disputes.

250.           The Schedule also provides for amendments to allow for the Commonwealth Minister to make acting arrangements for members of the NNTT.

Item 1 - After section 60 

251.           This item inserts new section 60AAA which confers on the NNTT a new function to allow it to provide assistance to RNTBCs and common law holders to promote agreement about native title and the operation of the Native Title Act. Both RNTBCs and common law holders would be able to approach the NNTT for this assistance. The function is drafted broadly to provide flexibility in how it is used, but it is intended to allow the NNTT to provide providing assistance to RNTBCs and common law holders to:

·          establish governance processes that are consistent with the Native Title Act and PBC Regulations, e.g. agreed processes that are consistent with traditional decision making

 

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

 

·          facilitate collaboration between RNTBCs.

252.           This function will operate in addition to the NNTT’s existing function under subsection 203BK(3) of the Native Title Act to assist NTRBs in the performance of their dispute resolution functions (under existing section 203BF of the Native Title Act).

253.           Although the function will allow the NNTT to provide support in the event of conflicts, it is expected that RNTBCs will go through their internal dispute resolution processes prior to seeking the assistance of the NNTT. This expectation is complemented by the new requirement for RNTBCs to establish internal dispute resolution processes with non-member common law holders (in Schedule 8 Part 1 of this Bill).

254.           Assistance may be requested by an RNTBC (under new subsection 60AAA(1)) or by a common law holder (under new subsection 60AAA(2)). 

255.           New paragraph 60AAA(1)(a) allows RNTBCs to request the NNTT’s assistance to promote agreement with another RNTBC.

256.           New paragraphs 60AAA(1)(b) and paragraph 60AAA(2)(a) will allow assistance to be provided to promote agreement between an RNTBC and its common law holders.

257.           New paragraph 60AAA(1)(c) allows assistance to be provided to promote agreement between common law holders, where requested by the RNTBC.

258.           New paragraph 60AAA(2)(b) allows assistance to be requested by common law holders to promote agreement with one or more other common law holders and the RNTBC.

259.           New subsection 60AAA(3) allows the NNTT to enter into a costs agreement with the RNTBC or common law holder under which either or both would be liable to pay the Commonwealth for assistance. This provision allows the NNTT to seek contributions to recover the costs of the assistance where this would support the NNTT’s exercise of the function, for example travel or mediation costs. It is not intended that these agreements would go beyond cost recovery. This provision has a similar effect to subsection 203BK(3), which requires the NNTT to enter into cost agreements with native title representative bodies for assistance provided.

260.           New subsection 60AAA(4) prevents the NNTT from disclosing information it has obtained in the course of exercising this function without the prior consent of the person who provided the information.

Item 2 - Paragraph 108(1B)(b)

261.           Section 108 lists the NNTT’s functions. Item 2 amends paragraph 108(1B)(b) to include the NNTT’s new function of entering into costs agreements in subsection 60AAA(3) to the list of the NNTT’s functions. The performance of the new function under section 60AAA more broadly will be covered by the existing paragraph 108(1B)(a).

Item 3 - After section 115

262.           Subsection 111(1) provides that members (including the President and Deputy President) of the NNTT are appointed by the Governor-General.

263.           This item inserts new section 115A which allows the responsible Commonwealth Minister to appoint a person to act as the President, Deputy President or other member during periods where the relevant position is vacant or the incumbent is absent from duty. This is consistent with arrangements for acting statutory appointments in other Commonwealth legislation.

264.           New subsection 115A(4) provides that an acting appointee would still need to hold the qualifications for the relevant position that are set out in section 110.

265.           New subsection 115(5) provides that the Minister may place terms and conditions on the acting appointment.

266.           The President would retain the ability to delegate his or her powers to one or more of the members of the NNTT under section 113.

Item 3 - Subparagraph 123(1)(b)(ii)

267.           The amendment to this subparagraph broadens the description of assistance which the NNTT may give directions in relation to, to include the new function under section 60AAA.



77.                 

Schedule 8—Registered native title bodies corporate

Corporations (Aboriginal and Torres Strait Islander) Act 2006

268.           Schedule 8 makes amendments to the CATSI Act in relation to RNTBCs. These amendments aim to improve the accountability, transparency and governance of RNTBCs and streamline dispute resolution.

Part 1—Requirements for constitutions

Division 1 - Main amendments

269.           Part 1 of Schedule 8 introduces new requirements for the constitutions of RNTBCs. These new requirements relate to establishing dispute resolution pathways with common law holders; creating eligibility requirements for membership to RNTBCs; and limiting the grounds for cancelling membership of a RNTBC.

Dispute resolution pathways

270.           Whilst subsection 66-1(3A) of the CATSI Act requires a corporation to have dispute resolution pathways relating to the internal operation of the corporation, a common law holder may not be a member of the relevant RNTBC. To ensure that all RNTBCs are prepared to address certain disputes with common law holders, items 4 to 10 make amendments to the CATSI Act to require RNTBCs to have dispute resolution pathways in their constitutions to deal with certain disputes with common law holders, whether or not the common law holder is a member of the RNTBC.

Items 1 to 4 - Section 57-5

271.           Items 1 to 4 make consequential amendments to the table in section 57-5 of the CATSI Act to reflect amendments made by Part 1 of Schedule 8. Item 1 amends table item 1A to confirm that the internal governance rule in subsection 66-1(3A) of the CATSI Act relates to the resolution of internal disputes. This is because item 6 of Schedule 8 inserts a new dispute resolution rule, which may involve disputes with external parties (that is, common law holders who are not members of the RNTBC).

272.           Item 2 repeals table item 1 and inserts table items 1B, 1C and new table item 1 into the table in section 57-5 of the CATSI Act. This amendment indicates that the rules in new subsection 66-1(3B), and sections 141-25 and 144-1 of the CATSI Act are to be considered internal governance rules.

273.           Item 4 inserts table item 12A into the table in section 57-5 of the CATSI Act indicating that new section 150-22 (see item 17 of Schedule 8) is to be considered an internal governance rule. Item 3 amends table item 12 to indicate that section 150-20 does not apply to RNTBCs (see items 15, 16, 23, and 24).

Item 5 - Section 63-1

274.           Item 5 replaces existing paragraph 63-1(c) of the CATSI Act with new paragraphs 63-1(c) and (d). New paragraph 63-1(c) provides that the rules (if any) in the corporation’s constitution providing for the resolution of disputes between the corporation and persons who are or who claim to be common law holders are internal governance rules.

275.           This amendment was made as item 6 of Part 1 of Schedule 8 inserted new subsection 66-1(3B) into the CATSI Act. New subsection 66-1(3B) of the CATSI Act is an internal governance rules requirement by virtue of its insertion into section 66-1 of the CATSI Act (see subsection 66-1(1) of the CATSI Act).  By amending section 63-1 of the CATSI Act, item 5 confirms that this new requirement is also an internal governance rule, ensuring consistency between the internal governance rules and the internal governance rules requirements. 

276.           New paragraph 63-1(d) replicates current paragraph 63-1(c) of the CATSI Act to ensure that any other rules dealing with the internal governance of the corporation that are in the corporation’s constitution also constitute the internal governance rules of the corporation.

Item 6 - New subsection 66-1(3B)

277.           Item 6 amends section 66-1 of the CATSI Act to insert new subsection 66-1(3B).

278.           New subsection 66-1(3B) requires that if the application for registration of the corporation seeks registration for the purpose of becoming a RNTBC, or the corporation is a RNTBC, the corporation’s constitution must provide for the resolution of certain disputes between the corporation and a person who is or who claims to be a common law holder (whether or not the person is a member of the corporation). The disputes to which the constitution must provide for resolution are disputes in relation to:

h.       whether or not the person is a common law holder; and

i.         the RNTBC’s performance of its functions under the Native Title legislation (‘Native Title legislation’ is defined in section 700-1 of the CATSI Act).

279.           For example, a dispute about the RNTBC’s performance of its functions under the Native Title legislation could include a dispute about whether a RNTBC has invested or otherwise applied money held in trust as directed by the common law holders. This amendment ensures that RNTBCs are prepared to address native title related disputes described in new subsection 66-1(3B) of the CATSI Act.

280.           By virtue of subsection 66-1(1) of the CATSI Act, this new requirement under new subsection 66-1(3B) is an internal governance rules requirement for the purposes of the CATSI Act. 

Item 7 - Subsection 66-1(5)

281.           Item 7 makes minor amendments to subparagraph 66-1(5)(d)(i) of the CATSI Act to ensure drafting consistency with the rest of section 66-1 of the CATSI Act.

Membership eligibility requirements of RNTBCs

282.           Items 8 to 11 make amendments to the CATSI Act that relate to membership eligibility requirements of RNTBCs. These amendments aim to prevent a RNTBC from arbitrarily changing its eligibility requirements for membership to exclude some common law holders from membership.

Items 8 and 9 - Section 135-1 and subsection 141-1(3)

283.           Items 8 and 9 make consequential amendments to the outline of Part 4-2 in section 135-1 and to the overview in subsection 141-1(3) to account for the additional eligibility requirement imposed on RNTBCs by new subsection 141-25(2) of the CATSI Act (see item 11 of Part 1 of Schedule 8). These amendments ensure that the summaries of the relevant provisions reflect the amended provisions.

Item 10 - Section 141-25

284.           Item 10 makes a consequential amendment to section 141-25 to change the existing provision into subsection 141-25(1). This is to accommodate the insertion of new subsection 141-25(2) into the CATSI Act (see item 11).

Item 11 - New subsection 141-25(2)

285.           Item 11 inserts subsection 141-25(2) into the CATSI Act. This amendment creates an additional requirement for RNTBCs in relation to eligibility requirements for membership of a RNTBC. Under this new requirement, RNTBCs must have eligibility requirements that provide for all common law holders to be represented within the RNTBC, either directly (for example, through personal membership of the RNTBC) or indirectly (for example, a single family member may become a member of the RNTBC to represent a family group of common law holders).

286.           However, this amendment does not require a RNTBC to have eligibility requirements that require all common law holders to be personal members of a RNTBC. Permitting all common law holders to be represented indirectly permits representative membership of native title holding groups.

Cancellation of membership of RNTBCs

287.           Items 12 to 18, and items 22 to 26, relate to limiting the grounds for cancellation of membership of a RNTBC. Currently, the CATSI Act sets out certain grounds for cancellation of membership (see sections 150-25, 150-30, and 150-35 of the CATSI Act). Section 150-20 of the CATSI Act is a replaceable rule that provides a model for the cancellation of membership on the grounds of ineligibility for membership or failure to pay fees. Accordingly, a RNTBC’s constitution can modify or replace section 150-20 of the CATSI Act.

288.           These items remove the applicability of section 150-20 of the CATSI Act in relation to RNTBCs and prohibit a RNTBC’s constitution from providing for cancellation of membership on any ground other than those set out in the CATSI Act. The effect of these amendments is that a RNTBC can only cancel membership on the grounds, and following the procedures, set out in the CATSI Act. The grounds available to RNTBCs for cancelling membership are:

a.        the member is ineligible for membership or has failed to pay fees (under new section 150-22 of the CATSI Act);

b.       the member is uncontactable (under section 150-25 of the CATSI Act);

c.        the member is not an Aboriginal and Torres Strait Islander person (under section 150-30 of the CATSI Act); and

d.       the member has misbehaved (under section 150-35 of the CATSI Act).

289.           These amendments ensure that RNTBCs cannot create new grounds to arbitrarily cancel the membership of members or classes of members.

Item 12 - Subsection 150-15(1)

290.           Item 12 amends subsection 150-15(1) to confirm that section 150-20 is only a replaceable rule for Aboriginal and Torres Strait Islander corporations other than RNTBCs.

Item 13 - New subsection 150-15(1A)

291.           Item 13 inserts new subsection 150-15(1A) into the CATSI Act. This subsection outlines that section 150-22 provides for cancellation of membership of a RNTBC on the grounds of ineligibility for membership or failure to pay fees and confirms that, if a RNTBC cancels membership on these grounds, it can only do so in accordance with new section 150-22 (see item 17).

Item 14 - New subsection 150-15(2A)

292.           Item 14 inserts new subsection 150-15(2A) 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) or section 150-22 of the CATSI Act. As section 150-15 sets out an overview of how membership of an Aboriginal and Torres Strait Islander corporation may be cancelled, the amendments made by items 12 to 14 confirm that a RNTBC can only cancel membership as expressly provided under the CATSI Act.

293.           The note to new subsection 150-15(2A) draws to the reader’s attention that an application may be made, under section 187-5 of the CATSI Act, to exempt the corporation, or the directors of the corporation, from the requirements of this new subsection (see item 18).

Item 15 - Section 150-20 (heading)

294.           Item 15 makes a consequential amendment to the heading of section 150-20 of the CATSI Act in light of the amendment by item 16 of Part 1 of Schedule 8 (and items 23 and 24 of Division 2 of Part 1 of Schedule 8).

Item 16 - Subsection 150-20(1)

295.           Item 16 amends subsection 150-20(1) of the CATSI Act to exclude section 150-20 from applying to RNTBCs. By removing the applicability of section 150-20 of the CATSI Act to RNTBCs, this ensures that it is no longer a replaceable rule for RNTBCs. Section 150-20 is also subject to contingent amendments (see items 23 and 24 of Division 2 of Part 1 of Schedule 8).

Item 17 - New section 150-22

296.           Item 17 inserts new section 150-22 into the CATSI Act. New section 150-22 provides that membership of a RNTBC may be cancelled on the grounds that the member is not eligible for membership or has not paid the member’s membership fees. New section 150-22 largely mirrors the procedural aspects of existing section 150-20 of the CATSI Act. However, whereas section 150-20 is a replaceable rule, subsections 150-22(1) and 150-22(2) confirm that an RNTBC’s constitution cannot modify or replace section 150-22.

297.           New subsection 150-22(1) provides that this section operates despite any provision of the constitution of the RNTBC. The intention of subsection 150-22(1) is that section 150-22 is to prevail over any inconsistent provisions of a RNTBC’s constitution (however, see the application and transition provisions at item 19 of Division 1 of Part 1 of Schedule 8 for when this requirement commences).

298.           Additionally, new subsection 150-22(2) mandates that, if the membership of a member of a RNTBC is to be cancelled on the ground that the member is ineligible for membership or has failed to pay the membership fees, the membership may only be cancelled in the manner and circumstances set out in new subsections 150-22(3) to (6).

299.           The combined effect of this subsection and subsection 150-15(2) of the CATSI Act is that, if a member’s membership of a RNTBC is to be cancelled on the grounds set out in sections 150-22, 150-25, 150-30, and 150-35 of the CATSI Act, it can only be cancelled as provided for in the applicable section notwithstanding any provisions in the corporation’s constitution.

300.           New subsection 150-22(3) permits the directors of a RNTBC, by resolution, to cancel the membership of a member of the RNTBC if:

a.        either the member is not eligible for membership or the member has ceased to be eligible for membership of the corporation, or

b.       the member has not paid the member’s membership fees (if any).

301.           New subsections 150-22(4) to (7) sets out the manner in which a member’s membership may be cancelled on these grounds. These subsections largely mirror the procedural aspects of existing subsections 150-20(2) to (6) of the CATSI Act. This has been largely mirrored to ensure that RNTBCs have a mechanism to cancel membership for ineligibility or failure to pay fees which is similar as the mechanism available to other Aboriginal and Torres Strait Islander corporations.

302.           New subsection 150-22(7) requires the directors to give the member whose membership has been cancelled a copy of the resolution cancelling his or her membership as soon as practicable after the resolution has been passed. An offence against this requirement carries a penalty of 5 penalty units. New subsection 150-22(8) makes the offence against new subsection 150-22(7) an offence of strict liability.

303.           Currently, similar offences in subsections 150-25(4), 150-30(4), and 150-35(4) of the CATSI Act are offences of strict liability. Making the offence under new subsection 150-22(7) an offence of strict liability ensures consistency with similar provisions of the CATSI Act’s enforcement regime. Such consistency will assist directors to understand the liability attaching to their obligations under subdivision 150-C of the CATSI Act and ensures the integrity of the CATSI Act’s enforcement and regulatory regime. This offence is also of a regulatory nature, carries a relatively low maximum penalty of 5 penalty units, and requires the directors to provide notification as soon as practicable.

304.           Furthermore, the cancellation of a person’s membership of a RNTBC for ineligibility can be significant if it raises questions of a person’s status as a common law holder. By making the offence under new subsection 150-22(7) an offence of strict liability, it provides a stronger incentive for the directors to inform a person, as soon as practicable, that his or her membership has been cancelled. It would also be difficult to prosecute the fault element of this offence. If fault had to be proved, this would significantly undermine the ability to incentivise directors to notify members of the cancellation of their membership. 

305.           For these reasons, making the offence under new subsection 150-22(7) an offence of strict liability is justified and is consistent with the principles in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (September 2011 edition developed by the Criminal Justice Division of the Attorney-General’s Department).

Item 18 - subsections 187-5(2) and 187-15(2)

306.           Item 18 amends subsections 187-5(2) and 187-15(2) of the CATSI Act to insert new paragraphs (aa) and (ab) into each subsection. The effect of amending subsections 187-5(2) and 187-15(2) of the CATSI Act is that new subsection 150-15(2A) (item 14) and new section 150-22 (see item 17) will be exemptible provisions for the purposes of section 187-5 and section 187-15 of the CATSI Act.

307.           This enables a RNTBC, or the directors of a RNTBC, to apply to the ORIC Registrar to be exempt from the new requirements in subsection 150-15(2A) and 150-22 of CATSI Act.

Item 19 - Application and transition

308.           Item 19 creates application and transition provisions in relation to the new requirements in Part 1 of Schedule 8 and the amendments made by Schedule 4.

309.           Subitem 19(1) provides that the amendments made by Part 1 of Schedule 8 do not apply in relation to a corporation that was a registered Aboriginal and Torres Strait Islander corporation immediately before the commencement of this item until the second anniversary of the day this item commences. The note beneath subitem 19(1) confirms that subitem 19(1) applies in relation to amendments made by both Divisions 1 and 2 of Part 1 of Schedule 8.

310.           The effect of this sub-item is that already existing RNTBCs are given a two year period from 1 July 2019 to update their constitutions with the new requirements made by Part 1 of Schedule 8 prior to the amendments applying in relation to them.

311.           Division 1 of Part 1 of Schedule 8 commences on 1 July 2019 (see table item 11 in clause 2). The CATSI Amendment Act (which also commences on 1 July 2019) also creates new requirements for the constitutions of Aboriginal and Torres Strait Islander corporations and has likewise provided a two year period for corporations to update their constitutions with those new requirements. Aligning the commencement dates on 1 July 2019 ensures that the two year period for RNTBCs to update their constitutions with the new requirements under this Bill and the CATSI Amendment Act commence and finish on the same date.

312.           Furthermore, a RNTBC’s internal governance rules must be consistent with the Native Title legislation (paragraph 66-1(5)(d) of the CATSI Act) and a RNTBC must meet this requirement at all times after registration (subsection 66-1(6) of the CATSI Act). Schedule 4 amends the Native Title Act to confer new functions on RNTBCs. In some circumstances, the functions of a RNTBC may be set out in its constitution.

313.           To avoid any inconsistency between a RNTBC’s functions set out in its constitution and the functions conferred under the Native Title Act, subitem 19(2) provides that, until the second anniversary of the commencement of item 19, an Aboriginal and Torres Strait Islander corporation that was registered immediately before the commencement of item 19 does not fail to comply with the requirement in paragraph 66-1(5)(d) of the CATSI Act merely because its constitution is not consistent with the Native Title Act as amended by Schedule 4. This has the effect of allowing two years for RNTBCs to update their constitutions to specify, where appropriate, these new functions.

Division 2 - Amendments contingent on the CATSI Amendment Act

314.           The CATSI Amendment Act also makes a number of amendments to the CATSI Act which interact with amendments made by this Bill. This division makes amendments to the CATSI Act that are contingent on the CATSI Amendment Act commencing.

Item 20 - Section 57-1

315.           Item 20 replaces paragraph (c) in the simplified outline in section 57-1 of the CATSI Act (as amended by the CATSI Amendment Act) to ensure drafting consistency with amendments made by items 2 and 5 of Division 1 of Part 1 of Schedule 8. This ensures that paragraph (c) is consistent with the description of internal governance rules in section 63-1 of the CATSI Act (as amended by this Bill and the CATSI Amendment Act).

Item 21 - Section 66-10 (new table item 1A)

316.           Item 33 of Part 2 of Schedule 1 to the CATSI Amendment Act inserts a table at section 66-10 of the CATSI Act setting out what the conditional replaceable rules are and where they are found in the CATSI Act. Conditional replaceable rules are those rules that are only relevant if the condition set out in the table in section 66-10 applies to the corporation.

317.           Item 21 of Division 2 of Part 1 of Schedule 8 inserts table item 1A into the table in section 66-10 of the CATSI Act. This amendment confirms that section 150-20 is a conditional replaceable rule. This means that section 150-20 is a replaceable rule only if the corporation is not a RNTBC and the application for registration of the corporation did not seek registration for the purpose of becoming a RNTBC.

Item 22 - Subsection 150-15(1) (note)

318.           Item 22 repeals and substitutes the note in section 150-15(1). This amendment is a consequential amendment in light of item 21 to confirm that section 150-20 is a conditional replaceable rule.

Item 23 - Subsection 150-20(1)

319.           Item 23 amends subsection 150-20(1) to accommodate new subsection 150-20(1A) of the CATSI Act (see item 24).

Item 24 - New subsection 150-20(1A)

320.           Item 24 inserts new subsection 150-20(1A) into the CATSI Act. This amendment confirms, consistent with items 12, 15, and 16 of Division 1 of Part 1 of Schedule 8, that section 150-20 does not apply to existing RNTBCs or to corporations that have applied for registration as RNTBCs but have not yet been registered as RNTBCs.

Item 25 - Subsection 150-22(1)

321.           Item 25 repeals and substitutes subsection 150-22(1) of the CATSI Act. This provides that section 150-22 (inserted into the CATSI Act by item 17 of Division 1 of Part 1 of Schedule 8) operates despite any provision of the constitution of:

a.        the RNTBC, or

b.       the corporation if the application for registration of the corporation sought registration for the purpose of becoming a RNTBC.

322.           This ensures that the types of corporations described in subsection 150-22(1) of the CATSI Act are able to cancel membership on the grounds of ineligibility or failure to pay fees.

323.           The note following subsection 150-22(1) explains that the corporation, or the directors of the corporation, may make an application to the ORIC Registrar, under section 187-5 of the CATSI Act, to be exempt from the requirements of section 150-22 of the CATSI Act.

Item 26 - Subsections 150-22(2) and (3)

324.           Item 26 makes consequential amendments to subsections 150-22(2) and (3) of the CATSI Act in light of the amendment in item 25. This amendment is to ensure drafting simplicity.

Part 2 - Refusal of membership

325.           Part 2 of Schedule 8 makes amendments to section 144-10 of the CATSI Act to remove the discretion of directors of RNTBCs to refuse to accept a membership application.



326.           Under current subsection 144-10(3) of the CATSI Act, the directors may refuse to accept a membership application even if the applicant applies for membership in the required manner and the applicant meets the membership requirements of the corporation. There have been cases of directors of RNTBCs using this discretion to arbitrarily refuse to accept a membership application in circumstances where a person would otherwise be eligible for membership. The purpose of these amendments is to remove this discretion in relation to directors of RNTBCs. This means that directors of RNTBCs would only be able to decide whether the other requirements of section 144-10 of the CATSI Act have been complied with.

Item 27 - Subsection 144-10(3) (heading)

327.           Item 27 amends the heading above subsection 144-10(3) of the CATSI Act to clarify the circumstances when the directors of an Aboriginal and Torres Strait Islander corporation may refuse a membership application.

Item 28 - Subsection 144-10(3)

328.           Item 28 amends subsection 144-10(3) of the CATSI Act to remove the applicability of this subsection to directors’ of a RNTBC. Where the corporation is a RNTBC, this has the effect of removing the directors’ discretion to refuse to accept a membership application even where the applicant applies for membership in the required manner and the applicant meets the eligibility requirements of the corporation.

Item 29 - New subsection 144-10(3A)

329.           Item 29 inserts new subsection 144-10(3A) into the CATSI Act which mandates that the directors of a RNTBC must accept a membership application where the applicant applies for membership in the required manner and the applicant meets the eligibility requirements of the corporation. Whilst this measure requires the directors to accept a membership application in certain circumstances, RNTBCs continue (subject to the requirements of subdivision 141-C of the CATSI Act as amended by this Bill) to have the ability to set the eligibility for membership requirements of a RNTBC.

Item 30 - Subsection 144-10(4)

330.           Item 30 amends subsection 144-10(4) of the CATSI Act to clarify that, despite subsection 144-10(3) and (3A), the directors must not accept an application for membership if, by accepting the application, the corporation would be in breach of the requirement in section 141-10 of the CATSI Act. This amendment ensures that amended subsection 144-10(3) and new subsection 144-10(3A) do not have the effect of overriding the Indigeneity requirement in section 141-10.

Item 31 - Application

331.           Item 31 provides that the amendments to section 144-10 of the CATSI Act made by Part 2 of Schedule 8 only apply to membership applications made after the commencement of item 31. Particularly, this has the effect that the requirement under new subsection 144-10(3A) does not apply to applications received before the commencement of item 31. Furthermore, the directors of RNTBCs retain their discretion under subsection 144-10(3) in relation to applications made before the commencement of item 31. 

Part 3 - Registrar oversight

Items 32 and 33 - Subsection 487-5(1)

332.           Item 32 of Part 3 of Schedule 8 amends the CATSI Act to clarify that the ORIC Registrar may determine that a RNTBC (as an Aboriginal and Torres Strait Islander corporation) is to be under special administration where he or she is satisfied that there has been a serious failure, or a number of failures, by the corporation to comply with its Native Title legislation obligations.

333.           Grounds currently exist in the CATSI Act to place a RNTBC under special administration in relation to how it performs its functions, or conducts its affairs, in relation to its members. The amendment in item 32 of Part 3 of Schedule 8 recognises that RNTBCs also perform functions in relation to common law holders (who may or may not be members of the RNTBC).

334.           ‘Native Title legislation obligations’ is defined in section 700-1 of the CATSI Act to mean certain obligations imposed by the Native Title Act and regulations made under that Act (currently, the PBC Regulations) on a RNTBC in relation to common law holders.

335.           In considering whether this ground is satisfied, the ORIC Registrar must firstly be satisfied that the RNTBC has failed to comply with its Native Title legislation obligations. In forming this opinion, it is not intended for the ORIC Registrar to consider whether the conduct of the RNTBC complies with the requirements of the Native Title Act or the PBC Regulations. It is intended for the ORIC Registrar to consider whether there is sufficient evidence to determine whether or not the RNTBC has complied with its Native Title legislation obligations. The Native Title Act and the PBC Regulations describes in what circumstances the obligations arise.

336.           For example, in considering whether a RNTBC has failed to comply with the obligation to act only with the consent of common law holders, the ORIC Registrar may consider whether there is evidence of the common law holders’ consent to act in a particular circumstance. Where there is evidence of the common law holders’ consent, it is not intended for the ORIC Registrar to consider whether the consent was given in accordance with the PBC Regulations.

337.           Secondly, if there has been a failure, the ORIC Registrar will need to be satisfied that the failure is either serious or repeated.

338.           For a serious failure, the ORIC Registrar will need to be satisfied, in the relevant circumstances, that the failure is serious. A serious failure could mean that the failure to comply with an obligation was more than trivial or that the failure to comply with a Native Title legislation obligation had significant consequences.

339.            Possible examples of a serious failure may include where:

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.

340.           For repeated failures, the ORIC Registrar must be satisfied that the RNTBC has failed to comply with its Native Title legislation obligations on a number of occasions. This may mean that the RNTBC has repeatedly failed to comply with a specific obligation or the RNTBC has failed to comply with different obligations.

341.           This measure adds a new ground to the grounds available for special administration. All other requirements relating to special administration remain. The ORIC Registrar must make a determination that a RNTBC is to be under special administration under subsection 487-1(1) of the CATSI Act in accordance with procedures (including a show cause procedure) under section 487-10 of the CATSI Act. Furthermore, the ORIC Registrar’s determination that an Aboriginal and Torres Strait Islander corporation is to be under special administration is subject to internal review (see Division 620 of the CATSI Act) and merits review by the Administrative Appeals Tribunal (under Division 623 of the CATSI Act).

342.           Item 33 amends subsection 487-5(1) of the CATSI Act to provide that any paragraph in subsection 487-5(1), rather than just paragraph (j), does not limit any of the other paragraphs in this subsection.

Part 4 - Courts

Item 34 - New section 581-30

343.           Item 34 inserts new section 581-30 into the CATSI Act. Section 581-30 creates a requirement that proceedings in respect of a civil matter arising under the CATSI Act that relate to a RNTBC (other than subsection 586-5(3) proceedings) may not be instituted in a court other than the Federal Court.

344.           The effect of this requirement is that all proceedings described in section 581-30 of the CATSI Act must be instituted and determined in the Federal Court, unless the Federal Court transfers the proceeding to another court with jurisdiction under subdivision 586-C of the CATSI Act (Note 1 following section 581-30 of the CATSI Act confirms that the Federal Court retains the ability to transfer proceedings). It is not intended that section 581-30 will apply to proceedings in which a civil matter arises under the CATSI Act that relate to a RNTBC after the proceeding commences.

345.           Subsection 586-5(3) proceedings are expressly excluded from section 581-30 of the CATSI Act as a Supreme Court may be required to transfer such proceedings to the Federal Court under section 586-35 of the CATSI Act. This is confirmed in Note 2 following section 581-30 of the CATSI Act.

346.           Under the Native Title Act, the Federal Court has exclusive jurisdiction to hear and determine applications relating to native title in Australia. The Native Title National Practice Area of the Federal Court has developed case management strategies that include allocating the native title proceedings to a Native Title National Practice Area Judge in the relevant registry; allocating a specialist Federal Court Native Title Registrar to assist in the case management of the proceedings; and determining a list of priority native title cases so that cases are properly resourced and efficiently progressed to trial for agreed outcomes.

347.           In requiring all proceedings described in section 581-30 of the CATSI Act to be instituted in the Federal Court, the objective of this measure is to consolidate the adjudication of native title related dispute matters within one court. This is to enable the Federal Court to continue to develop, on a national basis, case management and related strategies to facilitate the resolution of such disputes. This measure will also permit the Federal Court to consistently apply its native title related expertise where there are disputes involving RNTBCs under the CATSI Act.

Item 35 - Subsection 694-35(2)

348.           Section 694-35 provides the meaning of ‘court’ and ‘Court’ in the CATSI Act. Subsection 694-35(2) of the CATSI Act creates a general presumption that proceedings in relation to a matter under the CATSI Act may be brought in any court, subject to Part 14-3 of the CATSI Act or a clear expression of contrary intention.

349.           Item 35 amends subsection 694-35(2) to also make it subject to new section 581-30 of the CATSI Act.

Item 36 - Subsection 694-35(2) (note)

350.           Item 36 repeals the note after subsection 694-35(2) of the CATSI Act. It replaces it with two notes:

a.        Note 1 draws to the reader’s attention that section 581-30 requires certain proceedings relating to RNTBCs to be instituted in the Federal Court.

b.       Note 2 replicates the existing note after subsection 694-35(2) of the CATSI Act.

Item 37 - Application

351.           Item 37 provides that section 581-30 of the CATSI Act only applies to proceedings instituted after the commencement of this item. The requirement in section 581-30 is not intended to apply to proceedings in respect of a civil matter arising under the Aboriginal and Torres Strait Islander Corporation legislation that relate to a RNTBC that was instituted in courts with jurisdiction other than the Federal Court before the commencement of item 37.

352.           Furthermore, it is also intended that subsection 581-30 applies to proceedings instituted for the first time after the commencement of this item. Therefore, it is not intended that section 581-30 apply to appeals instituted after the commencement of item 37 when the proceedings being appealed were instituted before the commencement of item 37.



 

Schedule 9—Just terms compensation

Item 1 - Entitlement to “just terms” compensation

353.           This item is a ‘fail safe’ provision (often referred to as an ‘historic shipwrecks clause’) to ensure that if, apart from this item, any of the provisions of the Amendment Act would acquire property of a person other than on just terms (within the meaning of paragraph 51 (xxxi) of the Constitution), that person would be entitled to compensation.

354.           For example, 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 person from whom that right was acquired would be entitled to compensation for the acquisition of the right.

355.           Subitem (1) provides that the party to which the future act that gives rise to compensation is attributable to (for example, the Commonwealth, State or Territory), is the party to which the compensation is to be sought from.

356.           Subitem (2) provides that the Federal Court has exclusive jurisdiction (other than the High Court) of matters arising under this item. 

Item 2 - Validating section 31 agreements made on or before commencement

357.           Item 2 will validate section 31 agreements potentially affected by the Full Federal Court’s decision in McGlade v Native Title Registrar & Ors [2017] FCAFC 10 ( McGlade ).

358.           The Full Federal Court’s decision in McGlade held that a particular kind of native title agreement under the Native Title Act - area ILUAs - are invalid where not all members of the applicant were party to the agreement. While clause 9 of the Native Title (Indigenous Land Use Agreements Act) 2017 confirmed the validity of area ILUAs affected by McGlade , there are significant concerns that the reasoning in McGlade could similarly affect section 31 agreements where not all members of the registered native title claimant have entered into the agreement. 

359.           Stakeholder consultation has indicated that there are likely hundreds of section 31 agreements potentially affected in this way. This is partly because, prior to McGlade , many parties relied on the decision in  QGC Pty Ltd v Bygrave and Others (No 2) (2010) 189 FCR 412 as authority for the proposition that only one member of the registered native title claimant needed to formally enter into or sign an agreement for it to be valid.

360.           Item 2 has retrospective application, and subitem 2(2) provides that agreements to which it applies are taken to be, and to have always been, section 31 agreements.

361.           Item 2(1)(a) provides that any section 31 agreement made up until the commencement of the provision (i.e. upon the Bill receiving Royal Assent) will be confirmed as valid in accordance with the other provisions in Item 2.

362.           Item 2(1)(c) provides validation only extends to section 31 agreements invalid because not all members of the registered native title claimant were not parties to the agreement.

363.           Item 2(1)(d) provides that validation will only apply to section 31 agreements where at least one member of the registered native title claimant were party to the agreement. This is because, unlike area ILUAs, there is no authorisation or registration process for section 31 agreements to take legal effect (i.e. they take effect on the agreement of the parties). It would be inappropriate to extend validation to agreements not signed by any members of the registered native title claimant, given the significant and binding effect of these agreements on common law holders once made.   

 

 




[1] UNHCR, General Comment No. 23 (1994) at paragraph 7.

[2] UNESCR, General Comment No. 21 (2009) at paragraph 36.

[3] UNESCR, General Comment No. 21 (2009) at paragraphs 9 and 37.

[4] UNESCR, General Comment No. 21 (2009) at paragraph 37.

 

[5] ALRC Report, Recommendations 10-1 to 10-9.

[6] ALRC Report, p299.

[7] ALRC Report, p300.

[8] ALRC Report, Recommendation 10-6.

[9] The Parliamentary Joint Committee on Human Rights noted in its report on the Native Title Amendment (Indigenous Land Use Agreement) Act 2017 ‘are likely to be a reasonable and proportionate limit on the individual right to culture and accordingly may be compatible with the right to culture’ (Report 4 of 2017).

[10] ALRC Report, Recommendation 10-5.

[11] ALRC Report, Recommendation 10-9.

[12] ALRC Report, Recommendations 10-7 and 10-8.

[13] UNHCR, General Comment No. 23 (1994) at paragraph 7.

[14] Western Australian Government’s submission on the Reforms to the Native Title Act 1993 (Cth) Options Paper, January 2018: available at https://www.ag.gov.au/Consultations/Documents/Reformstothenativetitleact1993/Western-australian-government.pdf [accessed on 19 January 2019].

[15] Parliamentary Joint Committee on Human Rights comment on Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 , paragraph 1.87.

[16] UN Human Rights Committee (HRC), General comment no. 32, Article 14, Right to equality before courts and tribunals and to fair trial, 23 August 2007, CCPR/C/GC/32, available at: https://www.refworld.org/docid/478b2b2f2.html , p. 1 [accessed 8 January 2019].

[17] UN Human Rights Committee (HRC), General comment no. 32, Article 14, Right to equality before courts and tribunals and to fair trial, 23 August 2007, CCPR/C/GC/32, available at: https://www.refworld.org/docid/478b2b2f2.html , p. 4 [accessed 8 January 2019].

[18] Parliamentary Joint Committee on Human Rights, Guide to human rights, June 2015, p . 23 [accessed 8 January 2019].

[19] UN Human Rights Committee (HRC), General comment no. 32, Article 14, Right to equality before courts and tribunals and to fair trial, 23 August 2007, CCPR/C/GC/32, available at: https://www.refworld.org/docid/478b2b2f2.html , p. 8 [accessed 8 January 2019].

[20] French J in Strickland v Native Title Registrar (1999) 168 ALR 242, [57].

[21]   See, for example, Anderson on behalf of the Wulli Wulli People v State of Queensland [2011] FCA 1158 .