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Native Title Legislation Amendment Bill 2020

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(Circulated by authority of the

Attorney-General, the Honourable Christian Porter MP)






This addendum responds to concerns raised by the Senate Standing Committee for the Scrutiny of Bills in Scrutiny Digest 8 of 2019, dated 13 November 2019 and Scrutiny Digest 10 of 2019, dated 5 December 2019.


1.       On page 75, after paragraph 343, insert:


The necessity and appropriateness of retrospectively validating section 31 agreements


344.           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. 

345.           This means there is 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 are 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. [1]  

346.           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 divert resources away from finalising native title claims to litigate affected agreements and re-negotiate agreements that are already significantly resource-intensive. 

347.           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.

348.           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.

349.           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. 

350.           A key difference between the provisions 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. 

351.           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.



[1] Western Australian Government’s submission on the Reforms to the Native Title Act 1993 (Cth) Options Paper, January 2018.