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Native Title Amendment (Indigenous Land Use Agreements) Bill 2017



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BILLS DIGEST NO. 70, 2016-17 7 MARCH 2017

Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 Christina Raymond Law and Bills Digest Section

Contents

Purpose of the Bill ............................................................... 3

Structure of the Bill ............................................................. 4

Background ......................................................................... 5

The decision in McGlade v Native Title Registrar .................... 5

Facts and key provisions ........................................................ 5

Grounds of challenge ............................................................ 6

Key legal issue—interpretation of section 24CD ................... 7

Decision ................................................................................. 7

Reasons ................................................................................. 7

Joint judgment—North and Barker JJ ................................. 7

Individual judgment—Mortimer J ....................................... 8

Implications of the decision..................................................... 9

Development, introduction and passage of the Bill in the House of Representatives ...................................................... 11

Potential appeal from the Full Federal Court decision in McGlade ................................................................................ 13

Committee consideration .................................................. 13

Senate Legal and Constitutional Affairs Committee.............. 13

Legislative scrutiny committees ............................................ 13

Policy position of non-government parties/independents ... 14

Opposition and the Australian Greens .................................. 14

Independents and minor parties ........................................... 14

Position of major interest groups ....................................... 14

Public comments of native title sector stakeholders ............ 14

Evidence of stakeholder consultations on the Bill ................ 14

Date introduced: 15 February 2017

House: House of Representatives

Portfolio: Attorney-General's

Commencement: on Royal Assent

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

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

All hyperlinks in this Bills Digest are correct as at

March 2017.

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Financial implications ........................................................ 15

Special appropriation—Item 13 ............................................ 15

Statement of Compatibility with Human Rights .................. 15

Rights in relation to culture and self-determination ............. 15

Measures that may warrant further explanation .................. 16

Key issues and provisions................................................... 18

Items 1 and 5—Parties to ILUAs (area agreements) ............. 18

Items 9 and 10—retrospective validation of ILUAs and registration applications ........................................................ 22

Item 12—specific validation provision for the four ILUAs in the McGlade litigation ....................................................... 24

Items 14 and 11—Attorney-General’s rule-making power and related provisions ................................................ 24

Item 13—‘Just terms’ compensation .................................... 26

Other provisions ................................................................ 28

Items 4 and 6—Further amendments to the authorisation requirements for making ILUAs ...................... 28

Concluding comments ....................................................... 30

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Purpose of the Bill The Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 (the Bill) proposes to amend the Native Title Act 1993 (NTA) to address the effects of the decision of the Full Court of the Federal Court of Australia in McGlade v Native Title Registrar (McGlade).1

The Full Court in McGlade decided unanimously that all individual persons comprising the registered native title claimant (RNTC)2 must sign an Indigenous Land Use Agreement (ILUA)3 made under the NTA, in order for that ILUA to be registered.4 The decision created uncertainty about the validity of the registration of ILUAs that had not been signed by all individuals comprising the RNTC, because it overturned a previous decision of the Federal Court which held that an ILUA need only be signed by one or more of the individuals comprising the RNTC.5 The Bill proposes to remediate the effects of the decision in McGlade in the following ways:

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

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

c. ensure that in the future, area ILUAs can be registered without requiring every member of the RNTC to be a party to the agreement. 6

The Bill contains two additional measures,7 which implement recommendations of the Australian Law Reform Commission (ALRC) in its 2015 report, Connection to Country: Review of the Native Title Act 1993 (Cth) (2015 report).8 These measures relate to the authorisation by the wider claim group of the making of ILUAs, and applications for native title determinations or for compensation under the NTA.9 They do not appear to be

1. McGlade v Native Title Registrar [2017] FCAFC 10, 2 February 2017.

2. An RNTC is defined in section 253 of the NTA in the following way: ‘Registered native title claimant, in relation to land or waters, means a person or persons whose name or names appear in an entry on the Register of Native Title Claims as the applicant in relation to a claim to hold native title in relation to the land or waters’. As such, the RNTC in relation to a particular native title claim comprises all of the individual persons whose names are on the register as the relevant applicant in relation to that claim. However, the RNTC as a whole does not have legal personality as an entity separate to the individual applicants who jointly comprise it (for example, it is not a corporation).

3. An ILUA is a voluntary agreement between a native title group and others about the use of land and waters. The ILUA regime is established under subdivisions B-E of Division 3, Part 2 of the NTA. ILUAs can cover land and waters which are subject to a native title claim or a determination over all or part of the area (but do not require there to be a determination or claim over the area covered by the agreement). Broadly, ILUAs can include terms covering matters such as: the doing of acts which may affect native title (such as agreeing to a future development); how native title rights will coexist with the rights of other people; the extinguishment by surrender of native title; the provision of compensation; the provision of employment and economic opportunities for native title groups; and matters relating to cultural heritage. The ILUA regime was enacted by the Native Title Amendment Act 1998, which was a legislative response to the High Court decision in Wik Peoples v Queensland (1996) 187 CLR 1; [1996] HCA 40, 23 December 1996 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ). It replaced a more limited agreement-making regime under the NTA, which was available to native title holders but not claimants (formerly known as ‘section 21 agreements’). See further: G Neate, ‘Indigenous Land Use Agreements—an overview’, Indigenous Law Bulletin, 4(21), 1999; and National Native Title Tribunal (NNTT), About Indigenous Land Use Agreements (ILUAs), website.

4. Registration of an ILUA refers to the act of the Native Title Registrar in placing a copy of the ILUA on the Register of ILUAs established under Part 8A of the NTA, in accordance with the registration requirements prescribed by Subdivisions B-E of Division 3, Part 2. (For present purposes, the relevant requirements are set out in sections 24CG-24CL.) Subdivision E of Division 3, Part 2 of the NTA provides that the registration of an ILUA is legally significant in two key respects. First, registration gives the ILUA binding effect as between the parties (in addition to any binding effect under the general law of contract) as well as binding native title holders who are not parties to the ILUA (section 24EA). Secondly, registration has the effect of validating ‘future acts’ (being certain acts which affect native title in the land and waters within the area covered by the ILUA) where the ILUA includes a statement that the parties consent to the doing of such acts in the future, or a statement that the parties agree to validate acts which were done previously (sections 24EB and 24EBA).

5. QGC Pty Ltd v Bygrave (No 2) (‘Bygrave’) (2010) 189 FCR 412, [2010] FCA 1019, 17 September 2010.

6. Explanatory Memorandum, Native Title Amendment (Indigenous Land Use Agreements) Bill 2017, p. 2.

7. Schedule 1, items 4 and 6. 8. Australian Law Reform Commission (ALRC), Connection to country: review of the Native Title Act 1993 (Cth), ALRC, report, 126, June 2015, recommendations 10-1 and 10-2. See also: Explanatory Memorandum, Native Title Amendment (Indigenous Land Use Agreements) Bill 2017, pp. 10-11.

9. NTA, section 251A (authorising the making of ILUAs); and section 251B (authorising native title determination and compensation applications and dealing with matters arising in relation to those applications).

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strictly necessary to remediate the effects of the McGlade decision, but will improve flexibility in the decision-making processes of native title claim groups by removing some limitations in the current provisions.

Structure of the Bill The Bill contains a single schedule of proposed amendments, which is divided into two parts.

Part 1 (items 1-7) contains the main amendments to the NTA, which govern the process by which registered native title claimants are to become parties to an ILUA.

The key proposed amendments in Part 1 reverse the effects of the decision in McGlade by providing that an ILUA entered into after the commencement of the Bill must be signed and executed by either:

• a person or persons nominated or determined by the native title claim group or

• if the native title claim group has not nominated a person or persons, a majority of persons who comprise the registered native title claimant.10

Other proposed amendments in Part 1 implement two recommendations of the ALRC in its 2015 Report with respect to authorisation requirements,11 or are consequential to the amendments outlined above.12

Part 2 (items 8-14) contains application, transitional and savings provisions dealing primarily with existing ILUAs and registration applications and decisions that may be invalid as a result of the reasoning in McGlade.

The key measures in Part 2 propose to:

• validate retrospectively ILUAs made, registered or lodged for registration on or before the date of the McGlade decision (2 February 2017) that would otherwise be invalid as a result of the reasoning in McGlade (That is, not all of the individuals comprising the RNTC had signed the agreement)13

• separately validate the registration of the four ILUAs that were the subject of proceedings in McGlade (which form part of the South West Native Title Settlement in Western Australia)14

• confer a broad rule-making power on the Attorney-General to make disallowable legislative instruments prescribing matters of a transitional nature, and other matters considered necessary or convenient to give effect to the amendments15 and

• provide for the determination and payment of compensation, in the event a court were to find that any of the provisions of the Bill constituted an acquisition of property within the meaning of section 51(xxxi) of the Constitution, thereby seeking to protect the amendments from being found unconstitutional.16

10. Schedule 1, item 1. (Further proposed amendments specifying the means by which the native title claim group may nominate or determine persons to be party to the ILUA are contained in item 5.) 11. Schedule 1, items 4 and 6. See also, Explanatory Memorandum, Native Title Amendment (Indigenous Land Use Agreements) Bill 2017, p. 10. 12. Schedule 1, items 2, 3 and 7. 13. Schedule 1, items 9-11. 14. Schedule 1, subitem 9(4) and item 12. The South West Native Title Settlement covers approximately 200,000 square kilometres of land and

waters in Western Australia. It has been described as ‘the most comprehensive native title agreement proposed in Australian history’ and involves the full and final resolution of all native title claims in the South West of Western Australia as between the State and the Noongar People. There are six groups of native title claimants or holders involved in the settlement, which is proposed to be given effect via an ILUA with each group. See: Department of Premier and Cabinet, Western Australia (DPC WA), South West Native Title Settlement, website; and South West Aboriginal Land and Sea Council (SWALSC), Settlement agreement, website. See further: DPC WA, Statement on Federal Court judgment—McGlade v Native Title Registrar 2017, website, 14 February 2017; and SWALSC, Message from the CEO—Federal Court decision in McGlade v Native Title Registrar [2017] FCAFC 10, 2 February 2017. 15. Schedule 1, item 14. 16. Schedule 1, item 13.

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Background The decision in McGlade v Native Title Registrar

Facts and key provisions17 McGlade concerned a challenge to the proposed registration of four ILUAs forming part of the South West Native Title Settlement.18 (That is, the relevant ILUAs had been made but were not yet registered.)

Each of the four ILUAs in McGlade was a type of ILUA known as an ‘area agreement’ under Subdivision C of Division 3, Part 2 of the NTA.19 In broad terms, area agreements are used when there has not been a determination of native title over the whole of the geographical area covered by the agreement.20

Subdivision C prescribes who must, and who may, be parties to an area agreement. The applicable requirements depend on whether there is a native title determination (or determinations) or a registered native title claim (or claims) over land or waters within the geographical area covered by the agreement.21

In addition, to be registered, the making of an area agreement must be authorised22 by the persons who hold, or who claim to hold, native title in the land and waters in the agreement area.23 In other words, the ILUA is executed by a (generally) more limited group of persons who are parties to the agreement, but the making of the agreement must be authorised by a wider group of persons who hold or claim to hold native title. (Depending on the circumstances, the wider group might include members of a native title claim group for a registered native title claim over the agreement area, persons determined by the Federal Court to hold native title in land or waters within the agreement area, and other persons who say they hold native title over the agreement area but have not filed a native title claim, or their claim application is not registered.)24

The applicants in McGlade were persons who claimed to hold native title in land and waters within the areas covered by each of the four ILUAs. They sought orders declaring that each one of the four ILUAs was not an ‘agreement’ within the statutory meaning of that term in the NTA and therefore incapable of being registered.

Not all of the individual persons comprising the RNTCs for each of the four ILUAs had signed the relevant agreements. In some instances, the non-signing claimants were unwilling to sign the relevant ILUA (despite the native title claim groups for each ILUA authorising the making of the agreements, and directing the individual persons comprising the relevant RNTC to sign them). In other instances, the non-signing claimants were unable to sign the ILUA because they had passed away or were incapacitated.

17. The summary of facts in this section is drawn from McGlade, [1]-[30] (North and Barker JJ) and [278]-[288] and [317]-[340] (Mortimer J). 18. These agreements are: the ‘Wagyl Kaip and Southern Noongar ILUA’, the ‘Ballardong People ILUA’, the ‘South West Boojarah #2 ILUA’ and the ‘Whadjuk People ILUA’. Details of each agreement, including maps of the relevant areas and the terms of the agreements themselves, are available at: DPC WA, South West Native Title Settlement: settlement publications, DPC WA website.

19. ‘Area agreements’ are one of three different categories of ILUAs created under Subdivisions B-D of Division 3, Part 2 of the NTA (the other two categories being ‘body corporate agreements’ and ‘alternative procedure agreements’). Broadly, the demarcation of three categories of ILUA is designed to provide tailored arrangements for the making of agreements in different circumstances, depending on whether there are registered native title claims or native title determinations in relation to some or all parts of the land and waters in the area covered by the agreement. Subdivisions B-D prescribe different requirements in relation to the persons who must be a party to each type of agreement and the processes by which each type of agreement is to be registered. There are also some minor differences in the matters which can be the subject of each type of agreement. See further: N Duff, Authorisation and decision-making in native title, Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS), Canberra, 2017 at pp. 162-193 (Part 7.1—entering and authorising ILUAs).

20. For a useful summary of the circumstances in which area agreements can be used, see: Duff, op. cit., pp. 162-163. 21. In particular, subsections 24CD(1)-(3) of the NTA provide that several persons with native title interests in the land and waters in the agreement area must be parties to an area agreement. These persons are referred to collectively as the ‘native title group’ and individually comprise: all registered native title bodies corporate (where a native title determination or determinations exist over land or waters in the

area); all RNTCs (where a registered native title claim or claims exist over land or waters in the area); and any one or more of the following— persons who claim to hold native title, or representative Aboriginal/Torres Strait Islander bodies (where there is no registered native title claim or claims over land or waters in the area). Subsection 24CD(5) provides that Commonwealth, state and territory governments must be a party to an area agreement if the agreement makes provision for the extinguishment of native title rights by surrendering them to the relevant Commonwealth, state or territory. Subsections 24CD(4), (5) and (6) also provide that other persons may be a party to an area agreement. This includes native title and government parties where their participation is not required in the circumstances prescribed by subsections 24CD(1),(2), (3) and (5). It also includes any other person (for example, prospective land users such as mining companies). 22. NTA, section 251A sets out the requirements for the authorisation of the making of an ILUA by a native title claim group or holder, by

reference to the group’s decision-making processes. (This provision is discussed in the ‘key issues and provisions’ section, in the context of proposed amendments in item 4 of Schedule 1 to the Bill.) 23. See NTA, sections 24CG-24CL. 24. See further: NNTT, Authorisation of area agreements, fact sheet 11: a guide to authorisation of area agreements, NNTT, 2014.

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Grounds of challenge25 In broad terms, the legal basis for the challenge was a technical issue of statutory interpretation concerning sections 24CA and 24CD of the NTA.

Section 24CA—meaning of ILUA (area agreement)

An ‘ILUA (area agreement)’ is defined in section 24CA of the NTA as an agreement that meets certain requirements as prescribed in other provisions of the NTA (namely, sections 24CB-24CE).

As mentioned above, the powers of the Native Title Registrar in Division 3 of Part 2 in relation to the registration of ILUAs are limited to those agreements which satisfy the statutory definition of an ILUA. (In relation to area agreements, this is the definition in 24CA.)

Section 24CD—‘all persons’ and ‘all RNTCs’

The requirements of section 24CD in relation to the parties to an area agreement must be satisfied for an area agreement to meet the requirements of section 24CA.

Subsection 24CD(1) provides that ‘all persons in the “native title group” in relation to the area must be parties to the agreement’.

The term ‘native title group’ for the purpose of subsection 24CD(1) is defined in subsections 24CD(2) and 24CD(3) according to whether there are, or are not, any RNTCs or registered native title bodies corporate26 in relation to any of the land or waters in the area covered by the agreement.

Subsection 24CD(2) defines the ‘native title group’ if there is a registered native title claimant, or a registered native title body corporate, in relation to any of the land or waters in the area.

Paragraph 24CD(2)(a) relevantly provides that the ‘native title group’ in relation to RNTCs consists of ‘all registered native title claimants in relation to the land or waters in the area’.

Hence, where there is an RNTC, the effect of subsections 24CD(1) and 24CD(2) and paragraph 24CD(2)(a) is that ‘all persons’ in the relevant ‘native title group’ (being ‘all RNTCs’) must be parties to the agreement.

Applicants’ submissions on section 24CD

The applicants in McGlade argued that the correct interpretation of the phrase ‘all persons’ in subsection 24CD(1) and ‘all RNTCs’ in paragraph 24CD(2)(a) is that each of the persons whose names appear on the Register of Native Title Claims as the applicant in relation to the claim must individually be a party to the relevant ILUA, and as a result, must sign and execute it.27

The applicants submitted that the Full Court should decline to follow a previous decision of a single judge of the Federal Court in the matter of Bygrave.28 There, Reeves J held that paragraph 24CD(2)(a) required the signature of one or more individual persons comprising the RNTC.29

On the view adopted by Reeves J, there was no requirement that all of the individual persons comprising the RNTC must act unanimously. Nor was there a requirement that each individual must assent to the agreement by the act of signature, or specifically provide consent to becoming a party.30

25. The following summary of the grounds of challenge is drawn from McGlade, [31]-[90] (North and Barker JJ) and [341]-[347] (Mortimer J). 26. Registered native title bodies corporate are corporate entities that are registered under the NTA and are nominated by native title holders to hold their native title rights and interests as their trustee or manage them as their agent once a native title determination is made: NTA, section 253.

27. McGlade, [61]-[75] (North and Barker JJ). 28. Bygrave, op. cit. The applicants’ submissions in relation to Bygrave are summarised in McGlade, [76]-[90] and especially [85] (North and Barker JJ). 29. Bygrave, [85] and the supporting reasoning at [66]-[84] (Reeves J). A useful summary and analysis of the decision in Bygrave is provided in

NNTT, Native Title Hot Spots: National Native Title Tribunal Legal Newsletter, 34, May 2011, pp. 4-15. 30. Ibid., [87]-[109] (Reeves J). This conclusion reflected Reeves J’s interpretation of the underlying purpose of the provision to ‘provide a statutory mechanism or device by which a large unincorporated group of indigenous persons with fluctuating memberships and

undetermined native title rights and interests can enter into an ILUA’ which necessarily required ‘a legal person or persons to act as the representative party for the large unincorporated group’. Hence, according to Reeves J, section 24CD was no more than a procedural device, and the individuals signing the agreement did not perform an active or substantive role in personally assenting to it: Bygrave, [60]-[70]. One reason Reeves J interpreted the statutory purpose of section 24CD as being merely procedural was that a contrary interpretation would,

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Key legal issue—interpretation of section 24CD The key issue for the Full Court was whether the phrases ‘all persons’ in subsection 24CD(1) and ‘all RNTCs’ in paragraph 24CD(2)(a) of the NTA meant that an ILUA (area agreement) must be signed by either:

• every individual comprising each RNTC within the area covered by the agreement or

• at least one individual from each RNTC within the area covered by the agreement.31

Decision The full court (North, Barker and Mortimer JJ) held, unanimously, that the four ILUAs were not agreements within the meaning of section 24CA of the NTA and, accordingly, were not registrable.32

Reasons All members of the full court held that section 24CD of the NTA requires all of the individual persons comprising an RNTC to sign an ILUA (area agreement) in order for it to be registrable.33 Their Honours unanimously declined to follow Bygrave on this point.34 However, some differences in reasoning were apparent between the joint judgment of North and Barker JJ and the individual judgment of Mortimer J.

Joint judgment—North and Barker JJ In their joint judgment, North and Barker JJ held that the term ‘RNTC’ as used in subsection 24CD(2) means the ‘entity’ comprising all of the individual persons whose names are recorded on the register of native title claims as applicants in relation to a native title claim over land or waters in the agreement area. On this view, the phrase ‘all RNTCs’ in paragraph 24CD(2)(a) meant all of the RNTC as ‘entities’ (that is, all individuals jointly).35

However, their Honours held that paragraph 24CD(2)(a) must be read in combination with the phrase ‘all persons in the native title group’ in subsection 24CD(1).36 They held that the combined effect of the text of subsections 24CD(1) and (2) is that ‘the various persons who jointly comprise the registered native title claimant or claimants in relation to each of the ILUA must be parties to each ILUA’.37

Their Honours further held that the consequence of a person being a party to an agreement, in the absence of any contrary intention in the NTA, is that each party must sign the agreement to indicate they are bound by it.38 Hence, if one of the individuals comprising the RNTC ‘refuses, fails, neglects or is unable’ to sign a proposed ILUA then ‘the document will lack the quality of being an agreement recognised for the purposes of the NTA’.39

Their Honours acknowledged that one consequence of their interpretation of subsection 24CD(1) and paragraph 24CD(2)(a) may be to effectively confer upon individuals comprising the RNTC an ability to ‘veto’ the registration of an ILUA (by declining to sign it) contrary to the wishes of the wider native title claim group.

in his Honour’s view, produce ‘an absurd and unfair result’—namely, that section 24CD would ‘provide an opportunity for an individual member of a registered native title claimant to frustrate, or veto, a native title contracting group entering into an ILUA, by refusing to become a representative party to that ILUA under section 24CD’. Reeves J considered that this outcome would frustrate the purpose of the ILUA provisions as a whole in Division 3 of Part 2 of the NTA, which was to enable and facilitate agreement making: Bygrave, [95]. 31. Note that the full court also considered an additional issue in relation to one of the four ILUAs (the Whadjuk People ILUA). This was whether

the fact that one RNTC signed the ILUA more than six months after a registration application was made to the Registrar had the consequence that the ILUA did not comply with the requirements of subsection 24CD(1) and paragraph 24CD(2)(a) and was therefore not an agreement within the meaning of section 24CA. A majority of the Full Court (North and Barker JJ) answered this question in the negative, on the basis that any impediment to registration had been removed because the agreement was ultimately signed before registration was completed: McGlade, [271] and [275] (North and Barker JJ). However, this issue was not material to the ultimate decision that the Whadjuk People ILUA was not registrable. The full court held that the agreement was not of a kind within the meaning of section 24CA on the basis that another person comprising the RNTC had not signed the agreement because he had passed away. 32. Ibid., [268], [272]-[277] (North and Barker JJ) and [507]-[521] (Mortimer J). 33. Ibid., [240]-[244] (North and Barker JJ) and [504]-[506] (Mortimer J). 34. Ibid., [267] (North and Barker JJ) and [490]-[495] (Mortimer J). 35. Ibid., [233]-[238] (North and Baker JJ). 36. Ibid., [239]-[241] (North and Barker JJ). 37. Ibid., [242] (North and Barker JJ). 38. Ibid., [243] and further at [246] (North and Barker JJ). 39. Ibid., [244] and further at [245]-[247] (North and Barker JJ).

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However, their Honours indicated that these consequences did not bear upon the technical construction of the provisions (contrary to the reasoning of Reeves J in Bygrave summarised above). They stated:

As inconvenient as this outcome may be considered to be by some, especially in a case such as the present where a large number of persons jointly comprise the registered native title claimants; where some signatures may have been difficult to obtain; and where some persons are deceased, the textual requirements of the NTA in Subdiv C are as they are. While this may mean that any one of the persons who jointly comprise a registered native title claimant can effectively veto the implementation of a negotiated area agreement by withholding their signature to the agreement, that is what the NTA recognises as possible. Whether the NTA should provide for some mechanism, apart from s 66B or in addition thereto, for responding to the types of agreement making issues raised in these proceedings, is a policy issue for the Parliament to consider, not this Court.

40

Individual judgment—Mortimer J In apparent contrast to the reasoning of North and Barker JJ, Mortimer J did not appear to base her decision on the construction of the phrase ‘all persons in the native title group’ in subsection 24CD(1).41

Rather, Mortimer J appeared to place weight upon the statutory concept of an ‘RNTC’ for the purpose of paragraph 24CD(2)(a) as an entity with a ‘collective, but singular, character’.42 She stated:

[T]he only signature which can constitute the signature of the registered native title claimant is the signature of each and every individual who constitutes that entity. That is, as the definition [of the term ‘RNTC’] in s 253 provides, the person or persons whose names are entered on the Register as the applicant. In my opinion, the will, or intention, of an entity such as a registered native title claimant is a collective will or intention, representing as it does the earlier expression of the will of the native title claim group. The disagreement of one individual constituting the registered native title claimant may represent the disagreement of a significant proportion of the native title claim group. If all individuals comprising the registered native title claimant sign the document then it can be said objectively that act represents the act of the native title claim group. Section 251A [which prescribes the process by which the claim group may authorise the making of an ILUA] then requires the will of the whole group to confirm what its representatives have done, or propose to do, before the whole group will be bound.

43

It followed that her Honour did not support the view of Reeves J in Bygrave that section 24CD should not be given a construction that would enable an individual person constituting an RNTC to ‘frustrate or veto’ the making of an ILUA. She stated:

[A]n individual who holds views different from those of the majority of the individuals constituting the registered native title claimant may nevertheless be conscientiously performing her or his representative role. If she or he is not, then she or he should be removed under s 66B, if the Court is satisfied on evidence that is appropriate. If she or he is performing such a role, then expressing a contrary view may lead to a change of mind, or at least a modification of views, in the remainder of the individuals constituting the registered native title claimant. One cannot assume the motives for entering into an ILUA are any more objectively appropriate and reasonable than the motives for not doing so. There are simply different perspectives, and it is for the claim group as a whole, and the claim group only, to decide which perspective should prevail. Ultimately, if the native title claim group desire the same outcome as the majority of individuals constituting the registered native title claimant, then the NT Act provides the solution in s 66B, read with s 251B, conditional upon the Court’s satisfaction.

44

40. Ibid., [265] (North and Barker JJ). 41. Ibid., [417]-[419] (Mortimer J). 42. Ibid., [397] and the supporting reasoning at [362]-[386] especially [379]-[380] (Mortimer J). 43. Ibid., [397] (Mortimer J). 44. Ibid., [494] (Mortimer J).

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Implications of the decision The decision in McGlade was limited to the registrability of four ILUAs, however, the reasoning extends to other ILUAs (area agreements). In particular, it would appear to have implications for:

• proposed ILUAs (area agreements) being those agreements which have been made but are not yet registered, and were not signed by all of the individual persons comprising the RNTC (or RNTCs) in relation to a native title determination application (or applications) covering land and waters in the agreement area and

• registered ILUAs (area agreements) that were not signed by all individual persons comprising the RNTC (or RNTCs) in relation to a native title determination application (or applications) covering land and waters within the agreement area. (For example, they were signed by one person purportedly on behalf of all RNTC, or they were not signed by some persons who had passed away, were incapacitated, were unavailable or declined to sign.)

It is possible, although not certain, that the reasoning in McGlade might potentially have some indirect implications for other forms of native title agreements made outside the ILUA scheme. These matters are outlined below.

Implications for proposed ILUAs (agreements made but not yet registered)

Validity of registration applications

The decision in McGlade indicates that the Native Title Registrar has no power under the NTA to register as an ILUA (area agreement) an agreement that is not within the meaning of section 24CA. A registration application in relation to an agreement that did not satisfy the requirements of section 24CA would not be a valid application under section 24CG. Accordingly, a proposed area agreement that did not satisfy the requirements of section 24CD, as interpreted in McGlade, could not be the subject of a valid registration application or a registration decision.

NNTT moratorium on registration

Theoretically, if an application were made to register such an ILUA under section 24CG, another person might make an application to the Federal Court to obtain orders to prevent its registration, on the basis that registration would exceed the jurisdiction conferred on the Native Title Registrar under the NTA (as occurred in McGlade).45

However, the likelihood that such applications may be made in the foreseeable future may be reduced by the announcement of the NNTT on 10 February 2017 that the Acting Native Title Registrar had placed a moratorium on the registration of all area ILUAs currently in the registration or notification stage that may be affected by the McGlade decision.46 On 16 February 2017, the NNTT announced that the Acting Native Title Registrar would maintain the moratorium until the outcome of the present Bill is known.47

Validity of agreements

In the absence of registration, an agreement would not have the legal force conferred by Subdivision E of Division 3, Part 2 of the NTA.48 While an agreement may have some force between its parties under the general law of contract, this may be of limited utility since it would not validate future acts for the purposes of the NTA and could not bind native title holders who are not parties.49

45. Note that in McGlade, the full federal court made orders declaring that the relevant ILUAs were not agreements within the meaning of section 24CA and that the Native Title Registrar had no jurisdiction under Division 3 of Part 2 of the NTA to register them. The Court declined to issue a writ of prohibition ordering the Registrar not to register the agreements, on the basis this was unnecessary as the Registrar is a public office holder who is presumed will comply with the law: McGlade, Order 2(2) and [273]-[276] (North and Barker JJ) and [517]-[521] (Mortimer J).

46. NNTT, ‘Statement from the Native Title Registrar: McGlade v Native Title Registrar [2017] FCAFC 10’, NNTT website, 10 February 2017. 47. NNTT, ‘Government introduces legislation to address McGlade decision’, NNTT website, 16 February 2017. 48. NTA section 24EA (registered ILUA is binding upon the parties and non-party native title holders); section 24EB (validation of proposed future acts where consented to under registered ILUA); and section 24EBA (validation of prior future acts where validated under registered ILUA).

49. NTA, section 24OA (unless a provision of the NTA provides otherwise, a future act is invalid to the extent that it affects native title). In the case of ILUAs, sections 24EB and 24EBA (see above note) are the provision which ‘provide otherwise’ for the purpose section 240A.

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Practical impacts

In the absence of remedial legislation and the inability to register an area agreement on the basis of the decision in McGlade, it seems that the finalisation and registration of some proposed area agreements may be prolonged, or may be impossible if the agreement of all individuals comprising the RNTC cannot be obtained.

For example, if remedial legislation were not passed, it would be necessary for parties to take additional steps to ensure that the requirements of section 24CD, as interpreted in McGlade, were complied with in order to ensure that their agreements are registrable.

This may include, for example, identifying all individuals comprising the RNTCs and ensuring that each individual signs the agreement. In cases of death, incapacity or refusal of one or more individuals comprising an RNTC to sign the agreement, it may be necessary for the claim group to apply to the Federal Court under section 66B of the NTA to have the person removed as an RNTC.50 A new authorisation under section 251A might be required. It would also be necessary to make a new registration application, which would attract new notification and objection periods.51 These measures may have significant resource implications.

Further, in the absence of a remedial legislative response, the interpretation applied to sections 24CA and 24CD in McGlade might potentially have some indirect influence on non-native title parties’ behaviour in relation to the use of non-negotiated settlements. For example, if not all of the individual persons comprising an RNTC were willing to sign an ILUA, the prospective grantees of interests in land might consider approaching state governments about possible compulsory acquisitions of native title rights and interests; or they might consider making non-claimant determination applications.52

Numbers of affected ILUAs made but not yet registered

It is unknown how many proposed ILUAs (area agreements) might be affected by the decision in McGlade. In relation to the ILUAs that were the subject of proceedings in McGlade, the Western Australian Government has stated that the decision ‘will delay the commencement of the 6 South West Native Title Settlement Agreements’.53 It is also reported that the McGlade decision could preclude the registration of a proposed ILUA relating to the Carmichael coal mine and rail project in Far North Queensland, as the relevant agreement was reportedly not signed by all individual members comprising the RNTC.54

Implications for registered ILUAs that were not signed by all individuals comprising the RNTC

The McGlade decision also calls into question the validity of previous decisions to register ILUAs that were not signed by all individual persons comprising the RNTC over the land and waters covered by those agreements.

Since the reasoning in the McGlade decision indicates that those agreements would not have been ILUAs within the meaning of section 24CA, registration decisions may be vulnerable to judicial review on the grounds of jurisdictional error. This may also cast doubt upon the legally binding effect of such ILUAs under section 24EA, and the validity of actions done under or in accordance with such ILUAs under sections 24EB and 24EBA (such as the granting of interests in land, like issuing mining, pastoral or other specific purpose leases).55

50. An application for an order of the Federal Court under section 66B may, in turn, require resolution of any disputes about whether the members of the claim group possessed the necessary authorisation to make the application, and about the grounds for the application, generally that the individual member of the RNTC who declined to sign the ILUA did so in excess of the authority given by the claim group. See: NTA, subparagraph 66B(1)(a)(iv) and paragraph 66B(1)(b).

51. Examples of additional steps which may lead to delay were identified in the submissions of the South West Aboriginal Land and Sea Council (SWALSC) in McGlade, summarised in the joint judgment at [131]-[132] (North and Barker JJ). 52. A non-claimant application seeks a decision from the court as to whether native title exists in relation to the area of land or water covered by the application (an applicant with a non-native title interest is effectively seeking a determination that native title does not exist). In the event

the application is unopposed, the future act process in Subdivision F of Division 3 of Part 2 of the NTA applies. See further: NNTT, ‘Non-claimant applications in NSW’, Information sheet, n.d. 53. DPC WA, ‘Federal Court judgment—McGlade v Native Title Registrar 2017’, DPC WA website, 14 February 2017. (Note that item 12, Schedule 1 to the Bill provides that the four ILUAs in the South West Native Title Settlement will be validated from the commencement of the

proposed amendments, which is the day of Royal Assent. This provision is discussed below.) 54. M McKenna, ‘Adani project frozen by shock land rights ruling’, The Weekend Australian, 11 February 2017, p. 1. See also: ‘Traditional owners challenge Adani mine deal’, Sky News, 13 February 2017; and Wangan & Jagalingou Family Council, ‘No surrender—traditional owners move

to defeat Adani’s fake Indigenous Land Use Agreement in the wake of Noongar ruling’, media release, 7 February 2017. 55. Section 24EA provides that while details of an agreement are entered on the Register of ILUAs, the agreement has effect between the parties and all non-party native title-holders. Section 24EB validates future acts where, at the time they are done, there is an agreement on the

Register including a statement to the effect that the parties consent to the doing of the act. Section 24EBA contains a similar validating

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The total number of affected ILUAs on the Register is unclear. On 11 February 2017, it was reported that the NNTT had commenced an audit of registered agreements to identify those which were potentially affected and, at that time, had identified a possible 123 area agreements that relied upon the reasoning in Bygrave, most of which were in Queensland.56 Since then, it has been reported that the number is ‘at least 126 … covering mines, gas fields and infrastructure projects’.57 Others have estimated that there are around 150 such agreements.58

It has also been suggested that ‘the problem could be even worse, however, because pre-Bygrave, the Native Title Registrar did not deny ILUA registration applications where the only missing signatures were those of deceased members of the registered claimant’.59

Possible implications for other native title agreements, or actions in relation to claimant applications

The decision and reasoning in McGlade is concerned specifically with ILUAs (area agreements) and the interpretation of sections 24CA and 24CD of the NTA. The NNTT has previously found that the interpretation applied in Bygrave to the requirements for the execution of agreements is specific to ILUAs. In particular, the NNTT found that the Bygrave decision did not have direct application to the ‘right to negotiate’ procedure under Subdivision P of Division 3 of Part 2 of the NTA, under which the negotiation parties may reach agreement about the doing of a future act under section 31, or proceed to an arbitral determination under section 38.60

Nonetheless, it has been suggested that ‘the ramifications of the decision are likely to extend beyond ILUAs’ and in particular the decision may mean that ‘in all circumstances, including with respect to making right-to-negotiate, cultural heritage and other agreements, instructing lawyers, or taking steps in a native title claim, and despite any direction to the contrary that may be given by the claim group, the individuals who comprise an applicant or registered claimant will be required to act unanimously’.61

Development, introduction and passage of the Bill in the House of Representatives

Policy announcement

On 13 February 2017, in response to a Question without notice in the Senate, the Attorney-General announced the Government’s intention to introduce a Bill to the Parliament that week, containing urgent amendments to ‘reverse the effect of the McGlade decision’ and effectively ‘legislatively reinstate the Bygrave decision’.62

The Attorney-General stated that he had instructed his Department in the previous week to prepare amending legislation, following a briefing on the decision.63 The Attorney-General further stated that the decision in McGlade was considered to be ‘a very significant development in the law’ which ‘had not been anticipated’.64

provision for previous future acts that have already been done invalidly, where details are on the Register of an agreement that includes a statement to the effect that the parties validate the act. However, these provisions may not apply if the registration of an area agreement was void ab initio due to jurisdictional error. It might also be argued, in any event, that the term ‘agreement’ in sections 24EA, 24EB and 24EBA should be interpreted consistently with the meaning of the term ‘agreement’ in section 24CA (in the case of area agreements). On this view, an area agreement that did not satisfy the requirements of section 24CD would not be an agreement to which sections 24EA, 24EB and 24EBA apply. 56. McKenna, ‘Adani project frozen by shock land rights ruling’, op. cit., p. 1. 57. M McKenna, ‘Native Title Act changes “urgent"’, The Australian, 14 February 2017, p. 2. 58. S Fitzpatrick, ‘Indigenous groups laud native title bill changes’, The Australian, 17 February 2017, p. 7. 59. Clayton Utz, ‘Legislative fix for McGlade native title decision to confirm ILUAs due this week', Clayton Utz website, 14 February 2017.

(Readers may wish to note that this firm is retained to act for Adani Mining Pty Ltd in relation to the Carmichael coal and rail project: Clayton Utz, Expertise: native title, Clayton Utz website, 2017. The McGlade judgment indicates this firm acted for three of the respondents in that case.) 60. Queensland Gas Company Limited & Ors /Iman People No 2; Mandandanji People/Queensland, [2010] NNTTA 210, 17 December 2010 (Sosso DP) at [44]. See also: NNTT, Native Title Hotspots: National Native Title Tribunal legal newsletter, op. cit., pp. 14-15. 61. Clayton Utz, ‘Native title agreement-making turned on its head’, Clayton Utz website, 3 February 2017. 62. G Brandis, ‘Answer to Question without notice: native title’, [Questioner: D Smith], House of Representatives, Debates, 13 February 2017, pp. 39-40. See also G Brandis, ‘Transcript of interview with Ray Hadley—2GB’, media release, 14 February 2017; and See further: G Brandis, Senate Legal and Constitutional Affairs Legislation Committee, Official committee Hansard, (proof), 28 February 2017, pp. 71-72. 63. Brandis, ‘Answer to Question without notice: native title’, op. cit., p. 39. 64. Ibid.

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Prior warning in August 2016

On 13 February 2017 it was reported that the National Native Title Council (NNTC) had written to the Attorney-General in August 2016 warning of the potential impacts if the applications in the McGlade matter were upheld, and recommending remedial amendments to the NTA.65

The letter reportedly stated that such a result would ‘generate a major rupture for industry, government and native title parties’ and warned that ‘it is to be expected that each of these sectors would seek urgent remedy in the form of NTA amendments along the lines of those being recommended in this correspondence’.66 The NNTC’s proposal was reportedly:

[A] very simple amendment to the NTA to clarify that for an agreement to be registered as an ILUA, not all RNTCs (applicants) are required to sign an agreement once it has been properly authorised … in a meeting on behalf of the wide traditional owner group … This would in effect codify Bygrave, eliminate the likelihood of repeated litigation on this point and re-establish the certainty and confidence in the ILUA provisions of the NTA that all parties need.

67

During a media interview on 13 February 2017 the Attorney-General expressed the view that the above report was ‘misleading’ and stated:

[A] letter was sent to me, which was dealt with in the ordinary manner by my Department in the second half of last year, but the point made in that letter … did not suggest that the law was [otherwise] than it had been understood to be in Bygrave's case in 2010.

Now you don't legislate against the possibility that a higher court might overturn the decision of a lower court which has settled the law. So it wouldn't have been appropriate to legislate at that time. 68

A representative of the Attorney-General’s Department gave evidence to the additional estimates hearing of the Senate Legal and Constitutional Affairs Committee on 28 February 2017 indicating that the Department had been considering potential legislative amendments (subject to government approval) to address the NNTC’s concerns as part of a broader package of legislative amendments to implement recommendations of the ALRC’s 2015 Report. He indicated that no proposals were made for immediate or urgent legislative action in response to the NNTC’s letter on the basis that Bygrave ‘was still the law’ and ‘was considered settled’. However, he stated that ‘we were working on it. And the fact that we had been working on it was one of the reasons we were in a good position to respond when the McGlade decision was handed down’.69

Introduction, debate and passage in the House of Representatives

The Bill was introduced to the House of Representatives on 15 February 2017 and, in somewhat unusual circumstances, was read for a second time, debated and passed by that chamber on 16 February 2017.70 The Bill was also introduced in the Senate on 16 February 2017.71

During the debate of the Bill in the House of Representatives, members of the Government argued that the urgency of the Bill required its passage through the House on the same day, with a Senate Committee inquiry into the provisions of the Bill to be conducted during the four-week period before the Senate would next sit on

65. M McKenna, ‘Brandis failed to act on land rights warning’, The Australian, 13 February 2017, p. 1. (The NNTC is an alliance of Native Title Representative Bodies (NTRBs) and Native Title Service Providers (NTSPs). Its activities include advocacy and representation of the views of NTRBs and NTSPs, as well as information-sharing among its members and providing a platform for outside organisations to consult with NTRBs and NTSPs. See: NNTC, ‘About us’, NNTC website.)

66. Ibid.

67. Ibid.

68. G Brandis, Attorney-General, ‘Transcript of interview with Peter van Onselen—Sky News’, media release, 13 February 2017. See also: G Brandis, Senate Legal and Constitutional Affairs Legislation Committee, Proof Committee Hansard, 28 February 2017, pp. 69-70. 69. A Walter, Attorney-General’s Department, Senate Legal and Constitutional Affairs Legislation Committee, Official committee Hansard, (proof), 28 February 2017, p. 70. 70. Australia, House of Representatives, Votes and proceedings, (proof), 34, 2016-17, 16 February 2017, pp. P559-P561. The House agreed to a

motion moved by the Leader of the House to suspend Standing Orders so as to enable the Bill to proceed to a third reading without delay. (Prior to the debate of the Bill, the House did not agree to a motion moved by the Leader of Opposition Business calling upon the House to note, among other things, the Government’s intention to put the Bill through all stages of debate before 2pm that day, and calling upon the Government to ‘abandon this approach and allow time for proper consultation with Aboriginal and Torres Strait Islander communities’: Australia, House of Representatives, Votes and proceedings, op. cit., p. P551.) 71. Australia, Senate, Journals, (proof), 30, 2016-17, 16 February 2017, p. 1009.

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20 March 2017. It was said that the Senate Committee inquiry would provide an opportunity for public consultations on the proposed amendments.72

Members of the Opposition and the Australian Greens argued that the timing for the debate of the Bill in the House did not allow time for appropriate scrutiny, including stakeholder consultation. (This is discussed subsequently in the Policy position of non-government parties/independents section of this Bills Digest.)

Potential appeal from the Full Federal Court decision in McGlade At the time of writing this Bills Digest it is not known whether any of the respondents in McGlade have filed, or may file, an application in the High Court for special leave to appeal the full Federal Court decision. However, the remedial legislative response proposed by the present Bill may make the prospects of an appeal less likely.

Committee consideration Senate Legal and Constitutional Affairs Committee On 16 February 2017, the Bill was referred to the Senate Standing Committee on Legal and Constitutional Affairs for inquiry and report by 17 March 2017.73 At the time of writing this Bills Digest, the Committee’s website indicated that it had received 14 submissions. It had also announced a public hearing in Brisbane on 13 March 2017. Further details are available at the inquiry homepage.

Some stakeholders representing traditional owners and Indigenous communities have argued that an extension of the reporting date is required to enable their communities to work through the proposed amendments and comment on them.74 Others have suggested that further public hearings at other locations would be desirable to ensure that Indigenous communities can participate directly.75

Legislative scrutiny committees At the time of writing this Bills Digest, the Senate Standing Committee for the Scrutiny of Bills and the Parliamentary Joint Committee on Human Rights had not reported on their consideration of the Bill. This reflects that the Bill was introduced outside the reporting period covered by the committees’ reports which were tabled on 15 and 16 February 2017 respectively.76

If there is an intention for the Bill to be debated in the Senate in the sitting week of 20 March 2017, it is uncertain whether Senators will have an opportunity to consider these committees’ reports on the Bill prior to debate. It is also unclear whether the timing for the debate of the Bill will enable each committee to receive, and report on, responses to any requests for further information in advance of the Bill being debated.

72. See for example, J Leeser, ‘Second reading speech: Native Title Amendment (Indigenous Land Use Agreements) Bill 2017’, House of Representatives, Debates, 16 February 2017, pp. 21 and 22. See also: K Wyatt, ‘Second reading speech: Native Title Amendment (Indigenous Land Use Agreements) Bill 2017’, House of Representatives, Debates, 16 February 2017, p. 25; and M Keenan, ‘Third reading remarks, Native Title Amendment (Indigenous Land Use Agreements) Bill 2017’, House of Representatives, Debates, 16 February 2017, p. 33.

73 Senate Standing Committee for the Selection of Bills, Report, 2 of 2017, 16 February 2017, p. 3 and Appendices 2 and 3. The Senate did not agree to the motion of the Australian Greens to extend the reporting date to 8 May 2017: Australia, Senate, Journals, (proof), 30, 2016-17, 16 February 2017, p. 993. See also: R Siewert, Senate, Debates, 16 February 2017, p. 17 and R Di Natale, Senate, Debates, 16 February 2017. The Opposition indicated that it was ‘sympathetic’ to the comments made by Senator Siewert on the motion, but considered that the reporting date of 17 March 2017 was appropriate. The Opposition also indicated that it would ‘await further advice from the Committee once that inquiry is undertaken to see whether any further extensions are required’: K Gallagher, Senate, Debates, 16 February 2017, p. 18.

74. N Thorpe, ‘Native title being watered down for big mining, traditional owners say’, NITV News (online), 3 March 2017; Seed Youth Indigenous Climate Network, Consultation period for changes to Native Title Act a complete sham, media release, 2 March 2016; and Wangan & Jagalingou Family Council, Traditional owners say Native Title Bill being rammed through needs more time and proper negotiation, media release, 2 March 2017.

75. P Dodson, Senate Legal and Constitutional Affairs Legislation Committee, Official committee Hansard, (proof), 28 February 2017, p. 71. 76. The Senate Scrutiny of Bills Committee Scrutiny Digest, 2 of 2017, was tabled on 15 February 2017, covering the Bills introduced the previous sitting week (at p. ix). The Parliamentary Joint Committee on Human Rights Human rights scrutiny report, 1 of 2017, was tabled on 16 February 2017 and examined Bills introduced between 28 November 2016 and 9 February 2017 (at p. 1).

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Policy position of non-government parties/independents Opposition and the Australian Greens The Opposition and the Australian Greens voted against the Bill in the House of Representatives, on the basis that the 24-hour period between introduction and debate did not provide an adequate opportunity to scrutinise its provisions.77

In their contributions to the second reading debate in the House, Members of the Opposition stated that the Opposition accepted, in principle, the need for a remedial legislative response to the decision in McGlade. However, they indicated that the Opposition’s position on the substantive provisions of the Bill would depend on the outcomes of further scrutiny, including consultations with key stakeholders—particularly native title claimants and holders and their representative bodies, and Indigenous communities.78

The Australian Greens also supported the need for further scrutiny of and consultation on the Bill before it was debated or voted upon, particularly direct consultations with Indigenous communities and organisations throughout Australia.79 At the time of writing this Bills Digest, the Australian Greens do not appear to have announced an ‘in-principle’ position on whether there is a need for remedial legislation in response to the decision in McGlade.

Independents and minor parties In the House of Representatives, the independent Members (the Member for Denison and the Member for Indi) and the Nick Xenophon Team (the Member for Mayo) voted for the Bill.80

At the time of writing this Bills Digest, members of the cross-bench in the Senate do not appear to have announced their respective positions on the Bill.

Position of major interest groups Public comments of native title sector stakeholders A number of native title sector stakeholders are reported to have supported the need for legislative amendments to reverse the effect of the McGlade decision. These include the National Native Title Council (NNTC),81 the Queensland Government,82 and the Queensland Resources Council.83

It is unclear from the reported comments whether all of these stakeholders support the passage of the Bill as introduced without any amendments to its individual provisions; or whether their comments are more general statements supporting the need for the urgent passage of remedial legislation to address the effects of the McGlade decision. This may become apparent in the Senate Legal and Constitutional Affairs Committee inquiry into the provisions of the Bill.

Evidence of stakeholder consultations on the Bill The Explanatory Memorandum to the Bill states that ‘given the limited timeframe, the Attorney-General’s Department consulted with stakeholders in relation to the legal implications of the McGlade decision to the

77 Australia, House of Representatives, Votes and proceedings, (proof), 34, 2016-17, 16 February 2017, pp. P560-P561. 78 See, for example: M Dreyfus, ‘Second reading speech: Native Title Amendment (Indigenous Land Use Agreements) Bill 2017’, House of Representatives, Debates, (proof), 16 February 2017, pp. 16-18; L Burney, ‘Second reading speech: Native Title Amendment (Indigenous Land Use Agreements) Bill 2017’, House of Representatives, Debates, (proof), 16 February 2017, pp. 23-24; W Snowdon, ‘Second reading speech:

Native Title Amendment (Indigenous Land Use Agreements) Bill 2017’, House of Representatives, Debates, (proof), 16 February 2017, pp. 29- 30; and T Burke, ‘Second reading speech: Native Title Amendment (Indigenous Land Use Agreements) Bill 2017’, House of Representatives, Debates, (proof), 16 February 2017, p. 30. See also: P Dodson, Senate Legal and Constitutional Affairs Legislation Committee, Official committee Hansard, (proof), 28 February 2017, p. 71. 79 A Bandt, ‘Second reading speech: Native Title Amendment (Indigenous Land Use Agreements) Bill 2017’, House of Representatives, Debates,

(proof), 16 February 2017, pp. 27-28. 80 Australia, House of Representatives, Votes and proceedings, (proof), 34, 2016-17, 16 February 2017, pp. P560-561. 81 McKenna, ‘Native Title Act changes urgent’, op. cit.; and Fitzpatrick, op. cit. 82. Ibid.

83. Queensland Resources Council (QRC), ‘Statement by QRC Chief Executive Ian Macfarlane on Native Title Amendment’, media release, 16 February 2017. See also: See also: B McHugh, ‘Changes to legislation being looked at as ruling on Indigenous agreements throws industry, governments into turmoil’, ABC News, (online edition), 9 February 2017.

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greatest extent possible, including State and Territory governments, the National Native Title Tribunal and the National Native Title Council’.84

The Explanatory Memorandum refers to departmental consultations with a limited group of stakeholders on the legal implications of the McGlade decision. It does not indicate whether these stakeholders were consulted on the specific remedial approach proposed in the Bill, or whether they were given an opportunity to comment on draft provisions prior to the introduction of the Bill. Nor does the Explanatory Memorandum indicate whether the stakeholders consulted are supportive of the particular remedial approach proposed in the Bill, or its specific provisions. Again, the respective positions of these and other stakeholders may become apparent during the Senate Legal and Constitutional Affairs Committee inquiry into the provisions of the Bill.

Further, some provisions of the Bill deal with particular ILUAs—namely, the four agreements forming part of the South West Native Title Settlement which were the subject of proceedings in McGlade.85 The extrinsic materials to the Bill do not indicate whether the parties to these ILUAs were specifically consulted on these provisions, and if so, whether they are supportive of the proposed measures. In considering any consultations conducted with the State of Western Australia on the proposed amendments, regard might be had to the caretaker conventions in force in that State from 1 February 201786 (the day before the Full Federal Court decision in McGlade).87

Financial implications The Explanatory Memorandum states that the Bill is anticipated to have a nil or insignificant financial impact on Commonwealth departments or agencies.88

Special appropriation—Item 13 Item 13 of Schedule 1 to the Bill could potentially have significant financial implications if the Bill is passed. It contains a standard compensation clause of a kind commonly used to manage constitutional risk arising from section 51(xxxi) of the Constitution.89 It provides that the Commonwealth is liable to pay ‘reasonable compensation’ in the event that the operation of the proposed amendments would amount to an acquisition of property by the Commonwealth other than on just terms within the meaning of section 51(xxxi). Item 13 provides that the Consolidated Revenue Fund is appropriated for the purpose of making payments of compensation, in the event that the operation of the amendments would amount to an acquisition of property other than on just terms, within the meaning of those concepts in section 51(xxxi). This item is examined in the ‘key issues and provisions’ section below.

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.90

Rights in relation to culture and self-determination The Statement of Compatibility identifies that the Bill engages the right to enjoy and benefit from culture,91 and the right to self-determination.92 It suggests that the Bill is compatible with these rights because it promotes and protects them.93

84 Explanatory Memorandum, Native Title Amendment (Indigenous Land Use Agreements) Bill 2017, p. 5. 85 Schedule 1, subitem 9(4) and item 12. 86. Western Australian Electoral Commission (WAEC), ‘Election timeline—key election dates’, WAEC website. 87. See: Department of Premier and Cabinet (Western Australia), State General Election 2017: caretaker conventions: guidelines applying in

Western Australia during the state General Election period, 2017. (See, for example, p. 5: ‘Major project approvals or policy decisions should be deferred unless there is appropriate consultation with the Opposition parties. Whether a particular decision qualifies as “major” is a matter for judgement.’) 88 Explanatory Memorandum, Native Title Amendment (Indigenous Land Use Agreements) Bill 2017, p. 5. 89 Such clauses are sometimes referred to colloquially as ‘historic shipwrecks clauses’ reflecting their first use in the Historic Shipwrecks Act 1976, section 21. Contemporary Commonwealth drafting policy with respect to the use of these clauses is set out in: Office of Parliamentary Counsel, Drafting Direction No. 3.1—Constitutional law issues, reissued January 2017, pp. 2-3. A useful summary of these clauses is also provided in: Australian Law Reform Commission (ALRC), Traditional rights and freedoms—encroachments by Commonwealth laws, Interim report, 127, July 2015, paragraph [7.33]. 90. The Statement of Compatibility with Human Rights can be found at page 6 of the Explanatory Memorandum to the Bill.

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The Statement of Compatibility places emphasis on the objective of the proposed amendments to enable ILUAs to be made more efficiently and ‘thereby assist Indigenous Australians to enjoy the cultural values and rights associated with their traditional lands’.94 In particular, it notes the objective of the proposed amendments to remove the ability of a small number of individuals comprising an RNTC to effectively frustrate an agreement by declining to sign it, including in circumstances involving disputes between individual RNTC members and the broader claim group.95

The Statement of Compatibility further emphasises the Government’s intention that the amendments will provide native title claim groups with greater discretion to determine who can be a party to an ILUA.96 It also notes the intention of the Bill to provide claim groups with greater flexibility in relation to their authorisation processes for the making of ILUAs.97

Measures that may warrant further explanation The Statement of Compatibility is framed at a broad level of generality, focusing on the overall objectives of the proposed amendments without analysing the details of specific measures.

The compatibility of two proposed measures in the Bill would have benefited from specific explanation in the Statement of Compatibility, as they do not appear to be addressed fully by the general explanation summarised above. The first proposed measure is contained in item 1, and the second in items 4 and 6.

Compatibility of the proposed ‘party requirements’ with the right to self-determination—item 1

Item 1 provides for the means by which individual persons comprising an RNTC are to become parties to an ILUA, through the insertion of new paragraph 24CD(2)(a) in the NTA.

The Statement of Compatibility notes that the proposed amendments will promote the right of Indigenous Australians to self-determination by ‘providing native title holders [and presumably native title claimants] with greater discretion to determine who can be party to an agreement’.98

Proposed subparagraph 24CD(2)(a)(i) evidently fulfils this objective by providing that a native title claim group may nominate or determine which individual persons comprising the RNTC may be parties to an ILUA, and therefore represent the claim group’s interests.

However, the Statement of Compatibility does not specifically explain the basis upon which the ‘default rule’ in proposed subparagraph 24CD(2)(a)(ii)99 is considered to be compatible with the right of a native title claim group to self-determination.100 The application of a ‘default rule’ necessarily involves the Parliament imposing a

91. Recognised in International Covenant on Civil and Political Rights, done in New York on 16 December 1966, [1980] ATS 23 (entered into force for Australia (except Art. 41) on 13 November 1980; Art. 41 came into force for Australia on 28 January 1994), Article 27; and International Covenant on Economic, Social and Cultural Rights, done in New York on 16 December 1966, [1976] ATS 5 (entered into force for Australia on 10 March 1976), Article 15.

92. Recognised in ICCPR, Article 1 and ICESCR, Article 1. 93. Explanatory Memorandum, Native Title Amendment (Indigenous Land Use Agreements) Bill 2017, p. 8. 94. Ibid., p. 7. 95. Ibid.

96. Ibid., p. 8. 97. Ibid., p. 7. 98. Ibid., p. 8. 99. The relevant default rule specified in proposed subparagraph 24CD(2)(a)(ii) is that a majority of persons comprising the RNTC must be parties

to the ILUA, in the event that the claim group does not make a decision under proposed subparagraph 24CD(2)(a)(i) about the individuals who are to be parties to the agreement, or about a process for determining the individuals who are to be parties to the agreement. 100. As the Statement of Compatibility observes (at p. 8), the standards in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) provide context as to how human rights standards under international law apply to the particular situation of Indigenous peoples.

The following articles of the UNDRIP may be relevant to interpreting the right of a native title claim group to self-determination in the context of deciding upon the individual persons comprising the RNTC to be parties to an ILUA: Article 4 (‘Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs’); Article 18(1) (‘Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own Indigenous decision-making institutions’); Article 33 (Indigenous peoples have the right to ‘determine their own identity or membership’ and to ‘determine the structures and to select the membership of their institutions in accordance with their own procedures’); and Article 35 (‘Indigenous peoples have the right to determine the responsibilities of individuals to their communities’). See: UNDRIP, GA Res 61/295, UN GAOR, 61st Sess, 107th Plen Mtg, Supp No 49, UN Doc A/RES/61/295 (13 September 2007).

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legal rule, based on an external set of values or interests to those of a claim group, to define the composition of the relevant ILUA parties who are to represent the interests of the relevant claim group.101

It might be accepted that it is desirable, from a pragmatic perspective, for the Parliament to prescribe some kind of statutory ‘default rule’ to enable the agreement-making process to proceed in the event that the claim group does not make a decision in accordance with proposed subparagraph 24CD(2)(a)(i). (This might cover circumstances in which the claim group has been unable to make a decision about the relevant parties, or the mechanism for selecting them, as a result of an internal ‘deadlock’ or disagreement.)102

However the Statement of Compatibility does not address the compatibility of the specific ‘default rule’ in proposed subparagraph 24CD(2)(a)(ii), being a majority of the persons comprising the RNTC. For example, it does not identify or seek to address the possibility that a ‘default’ majority requirement might not be regarded as legitimate by a claim group, and could serve to promote or exacerbate intra-group disputes. (Noting that an intra-group dispute or disputes might have prevented the claim group from reaching a decision about the nomination of the ILUA parties, or a process for determining these parties, in the first place.)

The substance of a potential ‘default rule’ in proposed subparagraph 24CD(2)(a)(ii) is discussed further under the Key issues and provisions section of this Bills Digest.

Human rights compatibility of the amendments to the authorisation requirements—items 4 and 6

The general explanation provided in the Statement of Compatibility appears to focus on the proposed amendments to the NTA governing the means by which individual persons comprising the RNTC are to become parties to an ILUA (items 1 and 5). The Statement of Compatibility appears to make only a brief reference to the proposed amendments to the authorisation requirements for the making of ILUAs in existing paragraphs 251A(a) and 251A(b) (item 4).103 It does not appear to provide any commentary on the corresponding proposed amendments to the authorisation requirements for native title determination and compensation applications in existing paragraphs 251B(a) and 251B(b) (item 6).

As mentioned above, items 4 and 6 purport to implement recommendations of the ALRC in its 2015 report (recommendations 10-1 and 10-2). These measures are not limited to remediating the decision in McGlade. The proposed amendments to section 251A in item 4 will have a considerably broader application to all types of ILUAs, not only area agreements. Similarly, the proposed amendments to section 251B in item 6 will apply to all actions done in relation to native title determination and compensation applications. The Statement of Compatibility would have benefited from a separate analysis of these measures, which identified explicitly their broader application and analysed their compatibility in that context.

101. It is, of course, acknowledged that the new ‘party requirements’ in proposed paragraph 24CD(2)(a) would not replace the authorisation requirements under existing section 251A. The claim group would still be required to authorise the making of the ILUA, and proof of such authorisation would remain a condition of registration under existing subsection 24CG(3) and existing sections 24CK and 24CL (as applicable).

102. As native title lawyer Nick Duff observed (op. cit., pp. 87 and 235-236), the Parliament is presented with two alternative options in framing legislative requirements for claim groups’ decision-making processes in relation to authorisation, where there is disputation within a claim group that prevents the group from reaching agreement. First, the legislation could adopt a statutory ‘default criterion’ in the form of a ‘majoritarian failsafe’ rule, which deems the group to have agreed in certain circumstances—for example, if a majority of individuals agree. Alternatively, the Parliament could adopt a statutory position whereby the group is taken not to have provided any authorisation at all, with the result that the relevant agreement or action in relation to the claim cannot proceed. Duff noted competing policy or philosophical arguments for and against each option, emphasising that ‘it is a genuine policy choice that is seldom recognised as such’ (at p. 236). He noted that, if Parliament stays neutral in relation to intra-Indigenous decision-making and does not impose a statutory default rule of the kind identified in the first option, the outcome of the alternative option may seem ‘impractical or unfair from the perspective of the Native Title Act's statutory purposes, since it would act as a brake ... But, if we are to take seriously the idea of Indigenous political groupings making their own decisions, it is difficult to see how the Australian legal system can resolve an apparent impasse at the most basic procedural level without simply resorting to “picking winners” ... Perhaps such imposition is justifiable but the Native Title Act does not contain any justifying rationale nor provide any guidance about which procedural values should be imposed in the event of a deadlock’ (at p. 87). It is suggested that comments of this kind affirm the importance of justifying proposals to impose a default rule in the NTA, and the content of that rule.

103. Explanatory Memorandum, Native Title Amendment (Indigenous Land Use Agreements) Bill 2017, p. 7 at paragraph [15]. However, the brief reference to the objective of ‘providing native title groups with greater discretion to determine how decisions will be made (using traditional decision making processes or other agreed processes)’ is made in the specific context of a discussion of area ILUAs, and a policy intention to prevent or minimise the impacts of intra-Indigenous disputes between individual persons comprising the RNTC and the broader claim group. While the proposed amendment in item 4 would have some application in this specific context, it would also have a considerably broader application to the authorisation of the making of all types of ILUAs under Subdivisions B-D of Division 3, Part 2 of the NTA.

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Further, given the stated objective of implementing ALRC recommendations 10-1 and 10-2 is to provide claim groups with ‘maximum flexibility’ in making decisions about authorisation,104 consideration might be given to whether this could be complemented with further measures in the ALRC’s recommended package of reforms to authorisation requirements in Chapter 10 of its 2015 Report. In particular, a number of the ALRC’s recommendations may add protections to ensure that additional flexibility delivers outcomes that are beneficial to the group’s interests. For example, the ALRC recommended that the NTA should be amended to impose a statutory duty on each member of the applicant to avoid obtaining a benefit at the expense of the common law native title holders.105

Key issues and provisions Items 1 and 5—Parties to ILUAs (area agreements) Outline of items

Item 1 of Schedule 1 to the Bill proposes to repeal existing paragraph 24CD(2)(a) and substitute a new provision which prescribes the manner in which an RNTC is to become a party to an ILUA (area agreement) as required by subsections 24CD(1) and (2).

As noted above, existing paragraph 24CD(2)(a) provides that, if there is an RNTC in relation to the land or waters in the agreement area, the ‘native title group’ whose members must all be a party to the agreement is comprised of ‘all RNTCs in relation to land or waters to the area’. As also mentioned above, this provision must be read in conjunction with subsection 24CD(1) which requires ‘all persons in the native title group’ to be a party to the agreement.

Item 1 will replace existing paragraph 24CD(2)(a) with a new provision which provides that, if there is an RNTC in relation to the land or waters in the agreement area, the native title group will consist of the following, for each RNTC in relation to land and waters in the area:

(i) if a person has been nominated or determined under subsection 251A(2) by the native title claim group concerned to be a party to the agreement—that person or those persons; or

(ii) if no persons have been nominated or determined under subsection 251A(2) by the native title claim group concerned to be a party to the agreement—a majority of the persons who comprise the registered native title claimant.

In other words, the proposed amendment displaces the interpretation of the existing provisions in McGlade that all individual persons comprising an RNTC must be parties to an ILUA (area agreement) with a provision enabling the claim group to choose individual parties, or a process for determining individual parties, from among the persons comprising the RNTC: proposed subparagraph 24CD(2)(a)(i). In the event that the claim group does not exercise a choice, proposed subparagraph 24CD(2)(a)(ii) provides a ‘default rule’ that a majority of individuals comprising the RNTC must be parties to the agreement.

Item 5 makes amendments to section 251A to prescribe the process by which a claim group may nominate or determine a person or persons to be a party to the ILUA.

It inserts proposed subsection 251A(2), which is the provision referred to in proposed subparagraphs 24CD(1)(a)(i) and (ii) (outlined above).

Proposed subsection 251A(2) provides that, when authorising the making of an agreement, a claim group may do either or both of the following:

(a) nominate one or more of the persons who comprise the registered native title claimant for the group to be a party or parties to the agreement;

(b) specify a process for determining which of the persons who comprise the registered native title claimant for the group is to be a party, or are to be parties, to the agreement.

104. M Keenan, ‘Second reading speech: Native Title Amendment Indigenous Land Use Agreements) Bill 2017’, House of Representatives, Debates, (proof), 16 February 2017, p. 8. 105. ALRC, Connection to country, op. cit., recommendation 10-9 and [10.94]-[10.95] and [10.101]-[10.111].

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The proposed amendments in item 5 appear to address a limitation in the existing scope of section 251A identified by the Full Court in McGlade—namely, that the power of a claim group to authorise the making of an agreement does not confer a power upon the group to control the constitution of the RNTC for the purpose of determining the individuals who are to be a party to an ILUA.106 Item 5 confers an express power to nominate or determine individual persons from among the claim group to be ILUA parties, and provides that this power is exercisable contemporaneously with the power to authorise the making of the agreement.

If the Bill is passed, the amendments in items 1 and 5 will apply prospectively to agreements made on or after the commencement of the amending Act, being the day of Royal Assent.107

Explanation for the proposed legislative approach

The Explanatory Memorandum contains a general justification for the overall approach to the proposed amendments in items 1 and 5 in the form of creating a general rule (enabling the claim group to self-select the ILUA parties) and a default rule (applicable in the event the claim group does not self-select the parties). The Explanatory Memorandum states that the proposed amendments are intended to ‘provide native title claim groups with greater discretion to decide who comprises the native title group’ and ensure that the claim group ‘retains control over who must be a party to the agreement for it to be an ILUA’.108

The Explanatory Memorandum further states that this approach is intended to remove the ‘unnecessary barrier’ to agreement making as a result of the decision in McGlade and ‘support the integrity of the authorisation process’.109 It also states that this approach will ‘give primacy to the role of authorisation, reflecting the view that authorisation, along with other [checks] and balances established under the Act, provides sufficient protection for the claim group’.110

The Explanatory Memorandum does not outline the reasons for selecting the particular ‘default rule’ in proposed paragraph 24CD(2)(a)(ii) that a majority of individual persons comprising each RNTC in relation to the agreement area must be parties to the ILUA, if the claim group does not nominate or determine the parties. However, the Minister’s second reading speech states that this measure is consistent with recommendations of the ALRC in its 2015 report that the applicant in relation to a native title claim should be able to act by majority as the default position, rather than jointly.111

Comments

Different legislative approaches to in relation to future and extant ILUAs (area agreements)

Items 1 and 5 will remove the effects of the decision in McGlade in relation to ILUAs (area agreements) made in the future.112 Specifically, these items will remove from section 24CD any express or implied statutory requirement that all individual persons comprising the RNTC must sign an ILUA in order for it to be registrable.

However, items 1 and 5 will not reinstate the interpretation of section 24CD applied in Bygrave (namely, that only one or more of the individual persons comprising the RNTC need sign the agreement).

Rather, items 1 and 5 will apply a new set of rules to ILUAs made in the future. The Bill, through the measures in Part 2 of Schedule 1, will only reinstate the interpretation of section 24CD applied in Bygrave in relation to extant ILUAs and associated registration decisions and registration applications (being those ILUAs and registration decisions or registration applications made on, or before, 2 February 2017).

The Explanatory Memorandum includes a general acknowledgement that the Bill proposes to regulate extant and future ILUAs differently.113 However, it does not appear to contain a direct explanation of the reasons that a

106. McGlade, [261]-[262] (North and Barker JJ), [430]-[431] and [441] (Mortimer J). (Rather, the Full Court held that any such authority derived only from section 66B of the NTA, which authorises a member or members of the claim group to apply to the Federal Court to have an individual person comprising the RNTC removed from the register of claims.)

107. Item 8 (application of amendments in item 1) and clause 2 (commencement). 108. Explanatory Memorandum, Native Title Amendment (Indigenous Land Use Agreements) Bill 2017, pp. 9 and 10. 109. Explanatory Memorandum, Native Title Amendment (Indigenous Land Use Agreements) Bill 2017, p. 4. 110. Ibid. 111. M Keenan, Minister for Justice, ‘Second reading speech, Native Title Amendment Indigenous Land Use Agreements) Bill 2017’, House of

Representatives, Debates, 16 February 2017, p. 8. See also, ALRC, Connection to country, op. cit., recommendation 10-1 and [10.81]-[10.83]. 112. That is, ILUAs made on or after the date upon which the proposed amendments would, if enacted, commence (being Royal Assent).

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different approach to the interpretation of section 24CD in Bygrave was evidently thought necessary in relation to future ILUAs.

Should the provisions governing future ILUAs adopt the interpretation of section 24CD applied in Bygrave?

In the absence of direct explanation in the extrinsic materials to the Bill—and in view of public commentary about the general objectives of the Bill to effectively reinstate the position in Bygrave—it might be asked why item 1 does not simply adopt the interpretation in Bygrave as the legal rule in proposed paragraph 24CD(2)(a)?

In particular, it might be asked why the interpretation of section 24CD applied in Bygrave may not have been thought suitable (or optimal) as either the sole legal rule governing the means by which persons comprising the RNTC are to become parties to an ILUA; or as the default rule in place of the majority requirement in proposed subparagraph 24CD(2)(a)(ii)?

On one hand, it might be argued that the legislative adoption of the interpretation applied to section 24CD in Bygrave could give stronger effect to the policy objective identified in the Explanatory Memorandum to ‘give primacy to the role of authorisation’.114 On the basis of Reeves J’s reasoning in Bygrave, it could do so by reducing the role of an RNTC in being a party to an ILUA (area agreement) to a statutory mechanism or device through which the wider claim group (which lacks legal personality) could enter into the ILUA.115 Hence, it would only be necessary for at least one individual comprising the RNTC to be a party to the agreement. That person would be taken to have executed the agreement as a representative party for the claim group. The main focus of inquiry and assessment for the purpose of registration would be whether the claim group had authorised the making of the agreement.116

On the other hand, reducing the role of the RNTC as an ILUA party to a purely procedural mechanism by which the claim group may enter into the agreement might not necessarily ‘support the integrity of the authorisation process’.117 For example, as Mortimer J observed in McGlade, a requirement that only one individual comprising an RNTC need sign and execute an ILUA (area agreement) might produce unintended consequences in the authorisation of area agreements covering more than one claim area, as a result of disparities in the relative size and influence of two or more claim groups.118 On this view, the approach proposed in item 1 and 5 might provide a stronger degree of assurance that the will of the claim group is likely to be given effect in the execution of the agreement.

Ultimately, a decision about the means by which the individuals comprising the RNTC are to become parties to an ILUA under section 24CD will require a policy decision about the desired role of the RNTC in the agreement-making process, and its relationship with the wider claim group. There may be value in exploring this underlying policy issue with relevant non-government and government stakeholders in the native title sector, in addition to consulting them on the legal and practical implications of the proposed approach in items 1 and 5.

113. Explanatory Memorandum, Native Title Amendment (Indigenous Land Use Agreements) Bill 2017, p. 4. (The EM states that ‘the Bill will preserve the status quo for agreements registered under the Act or that were pending registration on or before the date of the McGlade decision … The Bill also overturns the position in McGlade that every person who comprises the RNTC must be a party to an ILUA in relation to agreements made on or after the commencement of the Act as amended’.)

114. Explanatory Memorandum, Native Title Amendment (Indigenous Land Use Agreements) Bill 2017, p. 4. 115. Bygrave, [66]-[85] (Reeves J). See especially his Honour’s remarks at [69] that ‘the particular purpose of s 24CD is to provide a statutory mechanism or device by which a large unincorporated group of Indigenous persons with fluctuating memberships and undetermined native title rights and interests can enter into an ILUA under the Act’. (This is in contrast to the view of the Full Federal Court in McGlade, in which it

was held that the individuals comprising the RNTC are not merely ‘fictional parties, but parties in their own, individual right’ who were expected to indicate their assent to the agreement by signing it: [252] (North and Barker JJ). See also: [264] (North and Barker JJ) and [492]-[494] (Mortimer J).) 116. In a similar vein, some commentators have noted suggestions that the NTA could be amended to give express effect to the outcome in Bygrave by removing the requirement in section 24CD that individuals comprising the RNTC must be parties to, and must execute, an area agreement. It has been suggested that one way of achieving this would be for Subdivision C of Division 3, Part 2 of the NTA to provide that authorisation alone is sufficient for the purpose of the registration of an ILUA (area agreement), and no further step is required in relation to the execution of the agreement. An alternative approach may be that, if the authorisation of the making of an agreement is certified by the native title representative body (NTRB) in relation to land or waters within the agreement area in accordance with paragraph 203BE(1)(b), then the NTRB could be empowered to execute the agreement on behalf of the group: Duff, op. cit., p. 171. 117. Explanatory Memorandum, Native Title Amendment (Indigenous Land Use Agreements) Bill 2017, p. 4. 118. McGlade at [388] (Mortimer J).

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Possible unintended or unacknowledged consequences of items 1 and 5

A further issue in relation to items 1 and 5 is whether these measures may have unintended consequences; or may have broader consequences that are intended by the proponents of the Bill but may have not been specifically identified in the extrinsic materials. Two potential unintended or unacknowledged consequences are outlined below.

An implied function or power to remove individuals comprising the RNTC as ILUA parties?

The first such consequence is whether items 1 and 5 may, in conferring a function or power on the claim group to nominate or determine the individual persons comprising the RNTC to be parties to an ILUA, be open to interpretation as conferring an implied function or power to remove or substitute such persons as ILUA parties.

Such an interpretation would seem to alter the existing position that section 66B of the NTA is the vehicle for removing individual persons comprising an RNTC who are unwilling or unable to sign an ILUA, the making of which has been authorised by the claim group.

From a policy perspective, the merits of such an interpretation are open to debate and may warrant further exploration and consultation with native title sector stakeholders. To ensure clarity and certainty, consideration might be given to including an express provision in the Bill giving effect to the desired policy position (or including a statement of the intended interpretation in the Explanatory Memorandum).

Effects of conferring a limited statutory power to act by majority

The second such consequence is whether the proposed amendments may risk creating unintended consequences by reason of enacting a limited statutory power to act by majority. That is, the proposed amendments:

• make specific provision for individuals comprising the RNTC to act by majority in relation to becoming parties to and executing an ILUA (unless otherwise decided by the claim group) and

• simultaneously do not make corresponding amendments to expressly enable individuals comprising the RNTC/applicant to act by majority in various other matters provided for under the NTA—for example:

- dealing with matters arising under the NTA in relation to a native title determination or a compensation arrangement119 or - executing agreements in relation to future acts.120 This may mean that an RNTC/applicant is subject to different statutory rules about whether it can act by majority, or whether it is required to act jointly, in the context of different actions it may take in relation to the native title claim.121 It might be questioned whether this may lead to confusion or arbitrariness, or may produce unintended consequences for the interpretation of individual provisions of the NTA in their broader context.

Further, it might be questioned whether the present Bill may reflect a policy intention to single out ILUAs for differential treatment in this regard; or whether there is an intention to introduce comparable amendments to other provisions of the NTA in the future—for example, as part of a response to the ALRC’s 2015 report.122

119. See NTA, subsection 61(2) (definition of applicant), section 62A (applicant may deal with all matters arising under the NTA in relation to the application) and section 251B (authorising the making of applications and dealing with matters arising in relation to the application). 120. NTA, Subdivision P, Division 3, Part 2. See further: ALRC, Connection to country. 121. For example, in the context of ILUA negotiations by a native title claim group, item 1 of the Bill would have the effect that the individuals

comprising the RNTC may act by majority in becoming parties to the agreement and executing it, in those circumstances in which proposed subparagraph 24CD(2)(a)(ii) applies. However, if the RNTC (applicants) to a native title claim are contemplating taking other action in relation to the claim application (such as engaging lawyers or amending or discontinuing a claim application) then it appears that they would be required to act jointly, unless specifically authorised by the claim group to act by majority. (Useful summaries of case law are provided in ALRC, Connection to country, op. cit., [10.81]; and Duff, op. cit., pp. 109-11. However, as noted by Mortimer J in McGlade at [435]-[436], the available case law indicates some differences in judicial opinion as to whether section 251B of the NTA is capable of enabling a claim group to authorise the individual applicants/RNTC to make decisions by majority. In McGlade, Mortimer J indicated at [437]-[441] that her Honour was inclined to support an interpretation in the negative, but did not consider it necessary to determine the issue.) 122. ALRC, Connection to country, op. cit., recommendation 10-6 and [10.81]-[10.83]. (The ALRC recommended that the NTA should be amended

to provide that the applicant may act by majority, unless the terms of the authorisation provided by the claim group provide otherwise.)

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Items 9 and 10—retrospective validation of ILUAs and registration applications

Outline of items

Items 9 and 10 of Schedule 1 provide for the retrospective validation of ILUAs and their registration (item 9) and registration applications (item 10) made on or before 2 February 2017, being the date on which the McGlade judgment was handed down.123

Both items are expressed as applying to ILUAs that were not agreements within the meaning of section 24CA only because not all of the persons who comprised the RNTC (or RNTCs) for the area covered by the agreement were parties to it, but at least one of the persons who comprised the RNTC (or RNTCs) were parties.124

That is, the validation provisions apply if the sole reason that an agreement did not fall within section 24CA was that it did not meet the requirements of section 24CD as interpreted in McGlade, but the agreement met the requirements of that provision as previously interpreted in Bygrave. (Namely, the agreement was not executed by all of the individuals comprising the RNTC or RNTCs in relation to the area covered by the agreement, but it was executed by at least one individual comprising the relevant RNTC or each of the relevant RNTCs.)

In this way, the proposed validation provisions will not cure any invalidity arising from any non-compliance with other requirements of sections 24CB-24CE, which are prescribed in section 24CA as essential elements of an ILUA (area agreement).

If the relevant ILUA meets the conditions summarised above, it is taken to be, and always to have been, an ILUA within the meaning of section 24CA in relation to the area.125 Similarly, the relevant registration or registration application is taken to be, and always to have been, as valid and effective as it would have been had the relevant agreement been, and always have been, an ILUA.126

The retrospective validation of registration decisions by item 9 will ensure that the legal effects of registration under sections 24EA, 24EB and 24EBA of the NTA applies continuously to affected ILUAs from their date of registration. (That is, the agreement is binding as between the parties and non-party native title holders, and previous future acts authorised or validated by the ILUA remain valid.)

Similarly, the retrospective validation of registration applications by item 10 ensures that parties to proposed agreements lodged for registration do not need to make new applications (including repetition of preliminary steps such as re-executing the ILUA, and obtaining new authorisation or certification) that would, in turn, have triggered new notification and objection periods under the NTA.

Subitem 9(4) provides that the validation provisions in item 9 do not apply to four named ILUAs forming part of the South West Native Title Settlement in Western Australia. These are the four ILUAs that were the subject of proceedings in McGlade. Item 12 (discussed below) makes separate provision for the validation of these ILUAs.

Comments

Items 9 and 10 appear to implement faithfully the stated policy intention to restore the legal position to that articulated in Bygrave, in relation to those ILUAs that were made and lodged for registration in reliance on the interpretation of section 24CD in Bygrave, on or prior to the judgment date in McGlade. In making specific provision for the retrospective validation of such ILUAs, as well as their registration and registration applications, these items appear to provide effective coverage of major areas of risk.

Apparent gap in coverage—ILUAs made between 3 February 2017 and commencement of the amendments

However, there is an apparent gap in relation to the application of items 9 and 10. These items are expressed as applying to ILUAs and registration applications made on, or before, the judgment date in McGlade of 2 February

123. See further item 8, which provides that the main amendments to the NTA in Part 1 of Schedule 1 apply prospectively to ILUAs made on or after the commencement of the amending Bill, if enacted (which is on the day of Royal Assent: per clause 2). 124. Subitems 9(1) (ILUAs and registration decisions) and 10(1)(d)-(e) (registration applications) 125. Subitem 9(2). 126. Subitem 9(3) (registration decisions) and subitem 10(2) (registration applications). Note that the reference in these provisions to the

registration or registration application being ‘as valid and effective as it would have been’ makes clear that the validation provisions will not cure invalidity as a result of non-compliance with other registration requirements (for example, authorisation or certification requirements) or override the powers of the Registrar to uphold objections to registration. See NTA, sections 24CG-24CL.

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2017, whereas the proposed amendments in Part 1 of Schedule 1 will apply prospectively from the date on which the amending Act receives Royal Assent.

Accordingly, the Bill does not appear to make provision for ILUAs made or lodged for registration during the interim period between 3 February 2017 and day before Royal Assent. It appears that the legal position in McGlade would apply to any such ILUAs—perhaps unless the rule-making power in item 14 was interpreted as authorising the making of rules that could prescribe different requirements.127 (Item 14 is discussed below.)

In practical terms, it is conceivable that this apparent gap in coverage may not affect a significant number of ILUAs (if any) given the NNTT’s moratorium on registrations, and the native title sector’s awareness of the present Bill as a remedial response to the McGlade decision. These factors might result in parties electing to defer the finalisation of any extant negotiations nearing completion, and the execution of agreements and lodgement of registration applications, until the outcome of the Bill is known.

Nonetheless, Members and Senators may wish to seek an explanation from the Government for the reasons for the apparent gap in coverage, which is not acknowledged or justified in the extrinsic materials to the Bill.

If there is an intention that the proposed rule-making power in item 14 would be exercised in relation to agreements made between 3 February 2017 and the day before Royal Assent, such information may also assist in scrutinising the proposed scope and breadth of the rule-making power (noting that this matter is also unexplained in the extrinsic materials to the Bill, as discussed below).

Potential complexity—Creation of at least three different sets of rules

The gap in the application of items 9 and 10 also means that Bill would create at least three different sets of legal rules governing the parties to extant or future ILUAs.128 These rules are:

• ILUAs made on or after the commencement of the Bill will be governed by the amendments to the NTA in Part 1 of Schedule 1—namely, the claim group must specify, or agree to a process for determining, the individuals comprising the RNTC who are to be parties to the ILUA; or the NTA will impose a default rule that the relevant parties must be a majority of individuals constituting the RNTC

• ILUAs made on or before 2 February 2017 will be governed by the retrospective validation provisions of Part 2 of Schedule 2, which will generally provide that the position in Bygrave applies—namely, that the agreement must have been executed by at least one individual person comprising each RNTC in relation to the land and waters within the agreement area, and

• ILUAs made between 3 February 2017 and the day before the commencement of the Bill will likely be governed by the position in McGlade. This will mean that agreements made or lodged for registration during this period must be executed by all individual persons comprising the RNTC or RNTCs in relation to the land and waters within the agreement area. (There may be some question as to whether the proposed rule-making power in item 14 is capable of authorising rules that effectively provide for a different outcome.)

The existence of three different sets of rules may generate complexity. It might be questioned whether the different arrangements could be streamlined further.

127. Item 14 may not be capable of supporting such an interpretation, in view of the limitations imposed by subitem 14(1)(b) (rules must be necessary or convenient for the purpose of carrying out or giving effect to the Act) and subitem 14(4)(e) (for the avoidance of doubt, the rule-making power does not extend to rules that directly amend the text of an Act).

128. The phrase ‘at least’ in the above sentence denotes that item 12 will apply separate rules to the named ILUAs in subitem 9(4).

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Item 12—specific validation provision for the four ILUAs in the McGlade litigation

Outline of item

As noted above, subitem 9(4) excludes the four ILUAs that were the subject of litigation in McGlade from the general rules relating to the retrospective validation of ILUAs and their registration. Item 12 further provides that the agreements prescribed in subitem 9(4) are taken to be ILUAs within the meaning of section 24CA of the NTA from the date of commencement of the amending Act (if the Bill is passed).

Importantly, item 12 will validate these ILUAs if they were invalid only because they failed to comply with the requirements of section 24CD as a result of the McGlade decision. (That is, they were not signed by all individuals comprising the RNTC or RNTCs for the area covered by the agreement). It will not validate these ILUAs if they otherwise do not comply with the requirements of sections 24CB-24CE, and are therefore not agreements within the meaning of section 24CA.129

Comments

The extrinsic materials to the Bill do not explain why separate validation provisions are needed for the four named ILUAs in subitem 9(4).130 The inclusion of item 12 in the Bill evidently suggests that there is a perceived practical need for these provisions. However, there does not appear to be any information available on the public record to inform the Parliament about the reasons underlying this position.

Further, item 12 represents a call upon the Parliament to pass a law that singles out individual agreements for differential legal treatment and, by extension, the persons who will be bound by those agreements or otherwise affected by their terms. In light of this, members of the Parliament may wish to seek further information about the Government’s reasons for this proposal, and obtain the views of the parties to the relevant agreements and others who might be bound or otherwise affected by their terms.131

Items 14 and 11—Attorney-General’s rule-making power and related provisions

Outline of items

Item 14 of Schedule 1 provides that the Minister administering the NTA (the Attorney-General) may, by legislative instrument, make rules prescribing matters that are required or permitted to be prescribed by the rules; or matters that are necessary or convenient to be prescribed for carrying out or giving effect to the amending Act.132

Item 14 further provides that the rule-making power may include matters of a transitional nature (including savings and application provisions) relating to Parts 1 and 2 of Schedule 1.133

The item also contains a standard provision of a declaratory nature, which provides that a general rule-making power of the kind prescribed in item 14 does not authorise the making of rules of a punitive, intrusive or otherwise significant nature.134

Item 11 is related to the rule-making power in item 14. It purports to validate an application for the registration of an ILUA that was made on or before 2 February 2017, in circumstances that would not be covered by the general validation provision in item 10 due to the application of rules made under item 14.

129. Subitems 12(1)(a)-(b) collectively provide that item 12 applies to an agreement if item 9 would have applied to the agreement, but for its exclusion as a named ILUA in subitem 9(4). 130. The Explanatory Memorandum (at p. 12) contains a single sentence statement of the legal effect of the provision. 131. A representative of the Attorney-General’s Department gave evidence to the additional estimates hearing of the Senate Legal and

Constitutional Affairs Committee inquiry on 28 February 2017 that ‘the ILUAs that were the subject of the McGlade and related decisions are not affected by the Bill … the rights of those who objected [to the making and registration of the ILUAs] are not affected in any way by this Bill’. I Anderson, Attorney-General’s Department, Senate Legal and Constitutional Affairs Legislation Committee, Official committee Hansard, (proof), 28 February 2017, p. 71. As this statement is difficult to reconcile with the express provisions in subitems 9(4) and 12, members of the Parliament may wish to seek clarification about the intended effect of these proposed measures. 132. Subitem 14(1). 133. Subitem 14(2). 134. Namely, the rules that create an offence or civil penalty; confer powers of arrest, detention, entry, search and seizure; impose taxation;

set the amount of an appropriation; or directly amend the text of the primary Act: Subitem 14(3). See also: Office of Parliamentary Counsel, Drafting Direction No. 3.8—subordinate instruments, reissued June 2016, pp. 3 and 6-7.

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In particular, item 11 validates applications for the registration of agreements that were not ILUAs under section 24CA of the NTA due to the decision in McGlade, but would have been validated by subitem 9(2) of the Bill, and where the application had not complied with another requirement for registration as prescribed in the rules.135 Subitem 11(2) provides that a registration application that meets the above requirements is taken to be, and always to have been, as valid and effective as it would have been if the matters prescribed by the rules had been satisfied.136

Comments

Absence of contextual explanation and justification for the proposed amendments

The Explanatory Memorandum to the Bill does not provide information about the circumstances in which it is anticipated that statutory rules would be required to be made pursuant to item 14, including rules made for the purpose of item 11. Nor does it contain justification for the scope and breadth of the proposed rule-making power.137

In a general sense, it might reasonably be surmised that some degree of flexibility is necessary to ensure that different factual scenarios in relation to the potentially wide variety of affected ILUA are covered.138 Some form of delegation of legislative power might be considered appropriate to deal efficiently with possible unforeseen and unintended consequences that might arise in individual cases, which would otherwise require legislative amendments to remove potentially arbitrary outcomes.

However, the absence of information in the extrinsic materials to the Bill about the intended use of the rule-making power makes it impossible to undertake meaningful analysis, in the abstract, of the proposed scope and effect of the proposed rule-making power.

Insufficient information about the scope and intended use of the rule-making power in relation to item 11

Item 11 appears to validate registration applications affected by the McGlade decision that would otherwise be invalid for other reasons, in addition to the non-compliance of the relevant agreements with sections 24CA and 24CD because they were not signed by all individuals comprising the RNTC. Proposed paragraph 11(1)(d), in combination with proposed paragraph 14(1)(a), provides that the rules may specify the other reasons. Neither provision appears to limit the types of reasons that may be prescribed by the rules. In this regard, it appears that item 11 could effectively enable the rules made for the purpose of proposed paragraph 11(d) to exempt ILUAs that are validated by subitem 9(2) from any number of the general requirements for registration applications in section 24CG of the NTA and the Native Title (Indigenous Land Use Agreements Regulations) 1999 (ILUA Regulations), by prescribing the relevant provisions of section 24CG and the ILUA Regulations in the rules.

Section 24CG and the ILUA Regulations prescribe some important requirements to ensure the integrity of the registration process, and by extension the making and authorisation of agreements. These include a requirement in subsection 24CG(1) and regulation 7(2)(b) that all parties must agree in writing to the making of the application; a requirement in subsection 24CG(2) and regulation 7 that certain documents or information must accompany the application; and a requirement in subsection 24CG(3) that the application must be accompanied by a certificate or a statement (and an explanation of grounds) that all reasonable efforts have been made to identify potential native title holders in the land or waters, and that all persons so identified have authorised the making of the agreement.

The Explanatory Memorandum does not identify the types of reasons intended to be prescribed in the rules made for the purpose of proposed paragraph 11(1)(d), or explain more broadly why the inclusion of item 11 is considered necessary. These matters do not appear to be self-evident on the face of the proposed provisions.

135. Subitem 11(1) especially paragraphs (d) and (e). 136. Subitem 11(2). 137. The Explanatory Memorandum (at p. 12) contains a single sentence statement that item 14 ‘gives the Minister the power to make legislative instruments to address transitional issues that relate to any of the other items in the Bill’. This statement does not appear to be accurate to

the extent it may suggest that the rule-making power is limited to transitional matters. Subitem 14(2) provides that the rule-making power extends to matters of a transitional nature (including prescribing savings or application provisions). However, this provision is expressed as ‘without limiting’ the broader rule-making power in subitem 14(1) (which appears to extend beyond transitional matters). 138. As commentators have noted (in different contexts) it is not possible to design a ‘one-size fits all’ approach to native title agreement-making. See, for example: ALRC, Connection to country, op. cit., [10.33], citing views of submitters to the inquiry and M Langton, From conflict to cooperation: transformations and challenges in the engagement between the Australian minerals industry and Australian Indigenous peoples, Public policy analysis produced for the Minerals Council of Australia, Canberra, February 2015, p. 43.

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It is unclear which scenarios (or which particular proposed ILUAs) are in contemplation as the beneficiaries of item 11, and why their differential treatment was thought necessary or appropriate. Information about this matter may assist the Parliament to scrutinise item 11. Such scrutiny might include consideration of any impacts that item 11 may have on the rights and interests of ILUA parties or others who may be affected by the terms of an agreement, if it were registered despite the defect (or defects) in its application that are effectively waived by the validation provision in subitem 11(2).

Insufficient information about other aspects of the proposed rule-making power in item 14

It is unclear why the rule-making power in subitem 14(1) should extend beyond matters of a transitional nature as specified in subitem 14(2). The apparent effect of subitem 14(1) is that the rule-making power may be exercised in relation to all matters considered necessary or convenient for carrying out or giving effect to the amending Act (if the Bill is passed) for as long as the amending Act is in force.

Further, in relation to the transitional rule-making power in subitem 14(2), it is also unclear, in the absence of explanation in the extrinsic materials, why powers of a transitional nature are considered necessary in relation to the proposed amendments to the NTA in Part 1 of Schedule 1. As item 8 provides that the measures in Part 1 apply in relation to agreements made on or after the commencement of the amending Act (and not to extant ILUAs), it is unclear on the face of the proposed provisions what, if any, transitional matters would arise.

As noted in the above discussion of items 9 and 10, it might also be questioned whether there is an intention to rely upon item 14 to make rules that prescribe transitional matters in relation to agreements executed between 3 February 2017 and the day before the amending Act commences (if the Bill is passed).139 If there is such an intention, there may be some debate as to whether the general rule-making power in item 14(1)(b) or subitem 14(2) would be capable of supporting such an interpretation.140

Item 13—‘Just terms’ compensation

Outline of item

As mentioned above, item 13 of Schedule 1 contains a standard clause used in Commonwealth legislation to manage the risk that it may be found invalid for contravening the ‘just terms guarantee’ in section 51(xxxi) of the Constitution.

Section 51(xxxi) of the Constitution provides that the Commonwealth Parliament may only legislate with respect to the acquisition of property by the Commonwealth upon ‘just terms’. Legislation that results in an acquisition of property other than on just terms will be invalid.

Item 13 of Schedule 1 to the Bill appears to be designed to manage any potential constitutional risk arising from the possible application of section 51(xxxi) to the retrospective validation measures in Part 2 of Schedule 1.

Subitem 13(1) provides that, if any provision of the Bill (if enacted) results in an ‘acquisition of property’ to which section 51(xxxi) of the Constitution applies from a person other than on just terms, then the Commonwealth is liable to pay compensation to that person.

Subitem 13(2) further provides that, if the Commonwealth and the other person do not agree on the amount of compensation payable, the person may commence proceedings in the Federal Court for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

Subitem 13(3) creates a special appropriation from the Consolidated Revenue Fund for the purpose of making payments under subitems 13(1) and (2).

Relationship of item 13 to existing compensation provisions in the Native Title Act

139. Noting that the position in McGlade would appear to apply to such agreements, as outlined in the above discussion of items 9 and 10. 140. The conferral of a general rule-making power to undertake actions that are ‘necessary or convenient’ to give effect to a statute is unlikely to be interpreted as authorising the making of rules that amend the provisions of an Act, or that otherwise widen the application of the primary legislation into a further field of regulation. See, for example: Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402,

[1951] HCA 42 at 410 (Dixon, McTiernan, Williams, Webb, Fullagar and Kitto JJ; and Shanahan v Scott (1957) 96 CLR 245 at 250, [1957] HCA 4 (Dixon CJ, Williams, Webb and Fullagar JJ.)

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The NTA contains several compensation provisions, some of which are constitutional ‘just terms’ compensation clauses.141

However, the existing compensation provisions in the NTA are of no application to the proposed retrospective validation provisions in Part 2 of Schedule 1 to the Bill. This is because the retrospective validation provisions are not proposed to be enacted as amendments to the NTA, but rather will be enacted as stand-alone provisions of the amending Act. (The proposed amendments to the NTA in Part 1 of Schedule 1 to the Bill will, if enacted, be covered by the corresponding compensation clauses in the NTA, particularly that in section 53.)

How might the measures in the Bill result in an acquisition of property other than on just terms?

Acquisition of property

The Explanatory Memorandum to the Bill makes brief reference to the possibility that the retrospective validation measures in Part 2 of Schedule 1 may be found to result in an ‘acquisition of property’ within the meaning of section 51(xxxi) of the Constitution. It notes the possibility that the effective extinguishment of a person’s right to seek the review of a decision to register an ILUA might be found to constitute an ‘acquisition of property’.142

This might include, for example, the retrospective removal of a right to seek the judicial review of a registration decision on the grounds of jurisdictional error—namely, that the agreement did not meet the requirements of section 24CD and was therefore not an agreement within the meaning of section 24CA, because it was not executed by all individual persons comprising the RNTC.143

The High Court has held that legislation that extinguishes a right in the form of a ‘chose in action’144 can constitute an acquisition of property for the purpose of section 51(xxxi) in certain circumstances. This is generally where the extinguishment confers an ‘identifiable and measurable countervailing benefit or advantage’ on another.145

The Explanatory Memorandum states that ‘it is not thought likely that the Bill involves the acquisition of property otherwise than on just terms’.146 This may reflect a view that any ‘benefit’ accruing to the Commonwealth (or others) from the limitation of judicial review rights would not possess the requisite ‘identifiable’ and ‘measurable’ characteristics to constitute an ‘acquisition’ within the meaning of section 51(xxxi).

The position outlined in the Explanatory Memorandum may also be based on decisions of the High Court that legislation that removes or modifies rights of a purely statutory nature, which are inherently susceptible to variation, are not laws with respect to the acquisition of property within the meaning of section 51(xxxi).147 The position asserted in the Explanatory Memorandum might further seek to rely upon jurisprudence indicating that legislation will not be characterised as a law ‘with respect to the acquisition of property’ within the meaning

141. In particular, section 53 of the NTA provides that, where the doing of any future act, or the application of any of the provisions of the NTA in any particular case would result in an acquisition of property from a person other than on just terms, that person is entitled to compensation as is necessary to ensure that the acquisition is made on just terms within the meaning of section 51(xxxi). The Federal Court is invested with jurisdiction to hear and determine matters in relation to section 53 (such as disputes about the quantum of compensation) See also: NTA sections 18 and 22E (further provisions for constitutional ‘just terms’ compensation in certain circumstances). See further: Division 5, Part 2, which imposes a ‘just terms’ requirement on other forms of (non-constitutional) compensation payable under the NTA.

142. Explanatory Memorandum, Native Title Amendment (Indigenous Land Use Agreements) Bill 2017, pp. 4 and 12. 143. As was the case in Bygrave, a review application might be lodged at an earlier stage on similar grounds. (For example, the decision of the Registrar under section 24CH not to notify an agreement that is the subject of a registration application, on the basis that the relevant agreement was not an ‘ILUA—area agreement’ within the meaning of section 24CA because the requirements of section 24CD were not

complied with.) Judicial review rights may be available variously under the Administrative Decisions (Judicial Review) Act 1977, or under section 75(v) of the Constitution (in the High Court) or section 39B of the Judiciary Act 1903 (corresponding jurisdiction in the Federal Court). See further, Bygrave [19]-[38] (Reeves J). 144. Broadly, a chose in action is an intangible property right that does not confer a right of possession of a tangible object. A common example is a cause of legal action (for example a right to sue a person seeking the enforcement of a contractual right to payment, or damages in tort). 145. Mutual Pools and Staff Pty Ltd v Commonwealth (1994) 179 CLR 155, 185, [1994] HCA 9 (Deane and Gaudron JJ). 146. Explanatory Memorandum, Native Title Amendment (Indigenous Land Use Agreements) Bill 2017, p. 4. 147. A convenient summary of the legal position is provided in: Wurridjal v Commonwealth (2009) 237 CLR 309, 439-440, [2009] HCA 2 (Crennan J). (It might be suggested that the present Bill is a scheme with respect to purely statutory rights which are inherently susceptible to modification on the basis that: the ILUA scheme is a purely statutory creation; and the procedural provisions governing the registration of ILUAs constitute a scheme of a kind that will inevitably require modification over time. That is, to ensure that the procedural arrangements for native title agreement-making remain adapted and appropriate to contemporary circumstances.)

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of section 51(xxxi) if the purpose of that legislation is the ‘adjustment of competing rights, claims or obligations of persons in a particular relationship or area of activity’.148

Monetary compensation as ‘just terms’

Broadly, the standard for ‘just terms’ is regarded as what is fair and just—or what a legislature could reasonably regard as fair and just—between the community and the owner of the thing taken.149 The High Court has generally held that legislation that provides for the payment of ‘reasonable compensation’ as determined by a court is legislation that provides for ‘just terms’ within the meaning of section 51(xxxi) of the Constitution.150

The validity of the existing ‘constitutional compensation clauses’ in the NTA has not yet been tested in litigation to determine whether they satisfy the legal standard for just terms under section 51(xxxi). There has been some suggestion that the purely monetary compensation contemplated by standard constitutional compensation clauses in Commonwealth legislation might not satisfy the just terms requirement in relation to acquisitions of property that are constituted by the extinguishment of rights that are not readily replaced or compensated by the payment of money—potentially including native title rights and Aboriginal land rights.151

However, any rights ‘acquired’ by the present Bill within the meaning of section 51(xxxi) would not appear to be native title rights per se, but rather rights of a procedural character in relation to the execution and registration of an ILUA. Arguably, an acquisition of procedural rights of this kind could be treated as compensable in pecuniary terms, or otherwise by existing provisions of the NTA that accord procedural fairness to the relevant person.152

Other provisions Items 4 and 6—Further amendments to the authorisation requirements for making ILUAs Outline of items

Item 4 and 6 of Schedule 1 contain additional measures to those that purport to reverse the effects of the decision in McGlade. These proposed amendments would implement recommendations of the ALRC in its 2015 report to amend the provisions of sections 251A and 251B of the NTA that govern the authorisation of the making of ILUAs (section 251A) and native title determination and compensation applications and related matters (section 251B).153

Existing section 251A provides for the process by which a native title claim group may authorise the making of an ILUA (as is required for the registration of an area agreement under sections 24CG-24CL). It provides that if the

148. Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 LCR 134 at 161 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ). (The present Bill might be characterised as a law with respect to the adjustment of the role of the RNTC as a party to ILUAS—area agreements and the relationship of the RNTC and the wider claim group, and consequently the rights of those ‘entities’ and their individual members as between one another. Effecting a change in the relationship between these parties, by amending the terms of section 24CD, necessarily changes the meaning of an ‘agreement’ under section 24CA, and consequently the jurisdiction of the Registrar to register such agreements. By extension, the scope and contents of rights to judicial review of a registration decision on the grounds of jurisdictional error must necessarily change as an incident of any change to the relationship between ILUA parties and the claim group in section 24CD.)

149. Grace Bros Pty Ltd v Commonwealth (1946) 72 CLR 269, 280 (Latham CJ), 285 (Starke J), 291 (Dixon J), 295 (McTiernan J); and Nelungaloo Pty Ltd v Commonwealth (1947) 75 CLR 495, 569 (Dixon J). 150. See, for example, Wurridjal v Commonwealth (2009) 237 CLR 309, 389 (Gummow and Hayne JJ) and 429 (Heydon J). 151. See, for example, dicta in Wurridjal v Commonwealth (2009) 237 CLR 309, 433-434 (Heydon J) and 425-426 (Kirby J, in dissent). See also:

C Winnett, ‘Just terms or just money? Section 51(xxxi), native title and non-monetary terms of acquisition’, UNSW Law Journal, 33(3), p. 776. (However, it is also worth noting that the Federal Court has applied other, non-constitutional compensation provisions in Division 5, Part 2 of the NTA to calculate monetary compensation for the extinguishment and impairment of native title. While these provisions are separate to the constitutional ‘just terms’ compensation clauses for the purposes of section 51(xxxi), they also include a statutory ‘just terms’ requirement. This might hold some persuasive value in cases concerning ‘just terms’ compensation in relation to section 51(xxxi) of the Constitution. For example, in Griffiths v Northern Territory of Australia (No. 3) [2016] FCA 900, 24 August 2016, Mansfield J ordered the Northern Territory Government to pay $3.3 million compensation under the statutory compensation scheme in Division 5 of the NTA for the extinguishment and impairment of native title rights. This included $1.3 million for non-economic loss.) 152. For example, provisions of Division 3, Part 2 of the NTA including: notice requirements in relation to ILUAs (section 24CH) and provisions in

the registration process for the making of applications, objections about registration, and the authorisation and certification of applications (NTA, sections 24GC-24CL). See further: Wurridjal v Commonwealth (2009) 237 CLR 309, 425-426 (per Kirby J) who observed, in obiter, that the (then) Northern Territory National Emergency Response Act 2007, authorising the Northern Territory intervention, may require the provision of ‘just terms’ of a non-pecuniary kind in certain circumstances, such as ‘consultation before action, special care in the execution of the laws; and active participation in performance’. 153. Explanatory Memorandum, Native Title Amendment (Indigenous Land Use Agreements) Bill 2017, pp. 10-11. See also: ALRC, Connection to

country, op. cit., recommendations 10-1 and 10.2.

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group has a traditional decision-making process for authorising an agreement, it must use such a process and cannot choose to utilise a different process. Only if the group does not have a traditional decision-making process can it choose to utilise a decision-making process as agreed to, and adopted by, the group.

Similarly, existing section 251B requires a claim group to use a traditional decision-making process for authorising an applicant to make a determination or compensation claim (or to deal with matters arising in relation to the application). If the group has such a traditional process, it must use that process. If it does not have such a process, it must use a decision-making process agreed to, and adopted by, the group.

ALRC recommendations

The ALRC recommended the amendment of sections 251A and 251B to enable the claim group to choose either a traditional decision-making process, or a decision-making process agreed to and adopted by the group. The ALRC considered that allowing the group to choose its own decision-making process would promote the autonomy of the group, would ensure that the group maintained its ‘ultimate authority’, and would remove practical problems arising from a lack of clarity about the existence of a traditional decision-making process or limitations in the utility of traditional processes.154

The ALRC acknowledged that its proposed amendments would not overcome all of the difficulties of a group choosing a decision-making process (such as choices between one vote per family group, or one vote per adult which may variously disempower larger or smaller family groups). However, the ALRC considered that an alternative approach of prescribing a process by statute would create new problems—for example, if the statute specified a majority vote as a general rule, this may not be regarded as legitimate by some claim groups and might serve to fuel rather than resolve disputes, and undermine the autonomy of the claim group.155

Amendments in items 4 and 6

Items 4 and 6 implement the ALRC’s recommendations by providing that the two processes specified in paragraphs (a) and (b) of each of sections 251A and 251B are alternatives. They remove the requirement that non-traditional decision-making processes may only be used if there is no traditional decision-making process.

Comments

Items 4 and 6 are not strictly necessary to implement a legislative response to the McGlade decision. Nonetheless, these measures appear to remove artificial limitations on the decision-making processes prescribed by sections 251A and 251B in relation to authorisation, which were supported by the ALRC and a majority of submitters to the ALRC’s inquiry.156

Given that the inclusion of items 4 and 6 may evince an intention to implement broader measures to improve authorisation requirements, it might be questioned whether the Bill could be amended to include measures implementing two further recommendations of the ALRC, which called for corresponding amendments to other provisions of the NTA and regulations made under the NTA that prescribe identical authorisation requirements to those in sections 251A and 251B.157

In particular, the ALRC recommended that corresponding amendment should be made to subsection 203CB(2) of the NTA, which prescribes the process that a native title holder must follow in providing consent to a native title representative body taking action on its behalf. (The provision uses the same formulation as that in sections 251A and 251B in relation to the use of a traditional process if there is one, or a decision-making process agreed to and adopted by the group to which the person belongs.)158

The ALRC also recommended amendments to the Native Title (Prescribed Bodies Corporate) Regulations 1999, subregulations 8(3) and 8(4) of which prescribe the process by which common law holders of native title must give consent for a native title decision (using the same formulation as sections 251A and 251B noted above). The ALRC agreed with stakeholder views that, if sections 251A and 251B were amended, these regulations

154. ALRC, Connection to country, op. cit., [10.51]-[10.55]. 155. Ibid., [10.56]. 156. ALRC, Connection to country, op. cit., [10.57] and [10.59] (summary of stakeholder views on the ALRC’s proposals, indicating majority support).

157. Ibid., recommendations 10-3 and 10-4 and [10.60]-[10.61]. 158. Ibid., recommendation 10-1 and [10.61].

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should also be amended to ensure consistency.159 (While it would be legally possible to amend the regulations via legislation, the usual means would be via the making of amending regulations. The extrinsic materials to the Bill also do not identify whether the Government intends to make amending regulations to implement this recommendation, which would complement items 4 and 6.)

Concluding comments Public policy objectives

Amending the NTA to remediate the effects of the McGlade decision appears to be a sensible and prudent step. Such amendments could provide certainty to the ILUA parties, non-party native title holders and other land users about the legal status of extant ILUAs and acts done pursuant to their terms. Amendments would also ensure that there are clear and certain procedural requirements governing the making and registration of ILUAs in the future.

Individual provisions of the Bill

The detailed provisions of the Bill arguably merit further scrutiny. An opportunity to hear and consider the views of key stakeholders within the native title sector might be considered particularly important to ensure that the Bill will achieve its desired objectives in a manner that is workable, and avoids creating unintended legal or practical consequences. In this regard, much may depend on the evidence provided to the Senate Legal and Constitutional Affairs Committee inquiry into the Bill, and the findings and recommendations of that Committee.

Two proposed measures that may warrant close attention are the proposed requirements governing the means by which individuals comprising the RNTC may become parties to an ILUA in new paragraph 24CD(2)(a) (item 1), and the broad rule-making power proposed to be conferred on the Attorney-General that includes, but is not limited to, transitional matters (items 14 and 11).

Item 1—Parties to an ILUA (area agreement)

Item 1 will remove the effects of the McGlade decision in relation to future ILUAs made after the commencement of the amending legislation, but will not restore the legal position to that set down in Bygrave.

The requirements in proposed new paragraph 24CD(1)(a) differ to the interpretation of existing subsection 24CD(2) in Bygrave that at least one of the individual persons comprising the RNTC need sign an ILUA (area agreement) in order for it to be registrable.

The stated policy objective underlying the Bill is that primacy should be given to the role of authorisation.160 If this view is supported as a matter of policy, then consideration might be given to whether the legislative adoption of the Bygrave interpretation of subsection 24CD(2) would be more compatible with this objective.

Item 14—rule-making power

Item 14 also proposes to confer an apparently broad rule-making power upon the Attorney-General. The extrinsic materials to the Bill do not appear to provide a substantive explanation of the reasons for the proposed scope and nature of the power. They do not identify the types of circumstances or scenarios in which it is envisaged that statutory rules would be made; or the types of matters intended to be prescribed in the rules for the purpose of the validation provision in item 11, which would enable an ILUA to be registered despite the application’s non-compliance with the prescribed matters.

Items 4 and 6—Authorisation requirements for the making of ILUAs and native title applications

A further issue that may merit further scrutiny is whether the proposed amendments to the authorisation requirements in sections 251A and 251B of the NTA (items 4 and 6) will be fully effective if implemented in isolation from the broader suite of reforms to authorisation requirements recommended by the ALRC in its 2015 report.161 The ALRC’s recommendations included amendments to the consent requirements in other provisions

159. Ibid., recommendation 10-3 and [10.60]. 160. Explanatory Memorandum, Native Title Amendment (Indigenous Land Use Agreements) Bill 2017, p. 4. 161. See especially, ALRC, Connection to country, op. cit., Chapter 10—authorisation.

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of the NTA and regulations, which correspond to its proposed amendments to the authorisation requirements in sections 251A and 251B (now proposed to be implemented by items 4 and 6 of the Bill).162

Potential unintended consequences

A further issue is whether the Bill may have unintended (or unacknowledged) consequences in some respects.

For example, there may be some question as to whether the conferral of a function or power upon a claim group to nominate or determine the parties to an ILUA might be construed to include, by necessary implication, a power to remove or substitute those parties. In any event, there may be a substantive policy question as to whether the Bill should, or should not, confer such a power.

The Bill might also have the potential to create unintended consequences by authorising individual persons comprising an RNTC to act by majority in executing an ILUA, without making corresponding amendments to enable an applicant/RNTC to act by majority in other circumstances. (For example, in dealing with matters arising under the NTA in relation to a native title determination or compensation applications, or in negotiating and executing agreements in relation to future acts.) It may mean that RNTCs/applicants are subject to different statutory rules about whether they can act by majority, or whether they are required to act jointly, in the context of different actions they may take in relation to the native title claim. This may lead to arbitrariness or confusion, or may produce unintended consequences for the interpretation of individual provisions of the NTA in their broader context.

Unknown status of a Government response to the ALRC’s 2015 report on the NTA

A further matter, closely related to the above issue, is that the present Bill proposes to implement partially a small number of the ALRC’s recommendations in its 2015 report. This raises the question of whether the Government will release a substantive response to the ALRC’s 2015 report and, if so, when such a response will be released and implemented.

Procedural issues

Finally, in a broader sense, it might be questioned whether the manner in which the Bill was introduced and debated in the House of Representatives was conducive to the effective Parliamentary scrutiny of the Bill, having regard to the complexity of the legislative regime of which it forms part, and its significant legal and practical impacts on the native title sector. The contention that the decision in McGlade ‘had not been anticipated’ by the Government163 might also tend to suggest that there could be scope to improve upon existing contingency planning arrangements, and their execution, in relation to matters of this nature.

162. Ibid., recommendations 10-3 and 10-4 and [10.60]-[10.61] which supported corresponding amendments to the subregulations 8(3) and 8(4) of the Native Title (Prescribed Bodies Corporate) Regulations 1999 and subsection 203BC(2) of the NTA. (These provisions deal with the provision of consent to native title decisions by common law native title holders; and action taken by a native title representative body on behalf of a native title holder or claimant. The requirements in these provisions currently mirror those in sections 251A and 251B, and the ALRC recommended that they should also be amended to ensure consistency.)

163. G Brandis, ‘Response to question without notice’, op. cit., p. 39.

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