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	Murdoch University Electronic Journal of Law

Frames Version

Indigenous Land Use Agreements Under The Amended Native Title Act

Author:	Peter van Hattem Partner, Freehill, Hollingdale & Page (Barristers & Solicitors)
Issue:	Volume 5, Number 3 (September 1998)

Contents

• Introduction
• Scope of this paper
• The position under the Native Title Act 1993
• Changes under the Amendment Act
• Outline of provisions
• Requirements common to all indigenous land use agreements
• Area covered by the agreement
• Subject matter
• Parties
• Differences
• Body corporate agreements - Subdivision B
• Area covered by the agreement
• Parties
• Subject matter
• Registration
• Area agreements - Subdivision C
• Area covered by the agreement
• Parties
• Subject matter
• Registration
• Alternative procedure agreements - Subdivision D
• Area covered by the agreement
• Parties
• Subject matter
• Registration
• Effect of registration - Subdivision E
• The Register of Indigenous Land Use Agreements
• Contractual effect of registration
• Effect of registration on proposed acts
• Effect of registration on acts which have previously been done
Notes

Introduction

Scope of this paper

1. The Native Title Amendment Act 1998 will amend the Native Title Act 1993 substantially when its various provisions come into effect.[1] This paper addresses the provisions relating to indigenous land use agreements, and their practical application.

The position under the Native Title Act 1993

2. The Native Title Act presently classifies all future acts[2] as either permissible future acts[3] (which are generally valid,[4] with some exceptions[5]) or impermissible future acts[6] (which are generally invalid to the extent that they affect native title,[7] again with some exceptions[8]).
   
   
3. A future act which would otherwise be "impermissible" becomes "permissible" if it is authorised by an agreement between native title holders and the Commonwealth, a State or a Territory under section 21.[9] While superficially a worthwhile provision, section 21 is fraught with difficulties, and remains largely unused. For example:
 
(a) Before an approved determination of native title[10] has been made, there is no way of knowing with any acceptable degree of confidence who the native title holders are. It might later transpire that the people signing the agreement are not the native title holders. Consequently, an agreement entered into before an approved determination has been made simply can not be relied upon as satisfying the requirements of s.21.

 (b) Even if the identity of the native title holders is known, before an approved determination has been made there is no body corporate, and the native title rights are held communally by the common law holders. There is no statutory or common law basis for one or more of the common law holders to enter into an agreement on behalf of the others, particularly those who lack legal capacity due to age or mental infirmity. This is a further reason why an agreement entered into before an approved determination has been made can not be relied upon.

 (c) Section 21 is confined in its scope to agreements with government. There is no provision for agreements under s.21 between native title holders and developers. Although a practice has emerged by which "ancillary" agreements are made between native title claimants and developers in the context of the right to negotiate procedures, this has not been followed in the case of section 21 agreements.[11]

 (d) Although an agreement under s.21 converts an impermissible future act into a permissible future act, it does not obviate the need to comply with the right to negotiate procedures in the case of mining and petroleum titles, and compulsory acquisitions for third party grant.[12]



4. For these reasons, and possibly others, section 21 has largely been unworkable.

Changes under the Amendment Act

5. The Amendment Act was an opportunity to address these problems. The result, hopefully, is a comprehensive and workable statutory regime for binding agreements to be made which permit development, while safeguarding the interests of aboriginal people, and avoiding the cost, delay and adverse relationship consequences of arbitration and litigation.
   
   
6.  The Amended Native Title Act retains the concept of future acts, but removes the further (and at times confusing) classifications of permissible and impermissible future acts. Under the Amended Native Title Act, all future acts[13] are invalid to the extent that they affect native title[14] unless covered by a provision of Part 2, Division 3. Those provisions exhaustively list the future acts which, having regard to matters such as their purpose,[15] effect,[16] applicable procedures,[17] and so on, are valid despite their effect on native title.
   
   
7. The provisions apply in the order in which they appear in the Act, so that a future act covered by one provision is not covered by a subsequent provision.[18] The provision which takes precedence over all others is section 24EB, which deals with the effect of registered indigenous land use agreements on future acts. To the extent that a future act is covered by a registered indigenous land use agreement under section 24EB, it is not covered by any of the other future act validity provisions.[19] Indigenous land use agreements therefore give rise to an ability to "contract out" of the future act provisions and the right to negotiate procedures.

Outline of provisions

8. The indigenous land use agreement provisions of the Amended Native Title Act are principally contained in Part 2 (native title), Division 3 (future acts and native title), Subdivisions B to E inclusive.
   
   
9.  There are 3 types of indigenous land use agreement, described in Subdivisions B,C and D. These are (a) body corporate agreements, (b) area agreements, and (c) alternative procedure agreements.
   
   
10.  Each of those Subdivisions provides for a particular type of agreement, its coverage, registration, and other matters. The effect of registration is provided for in Subdivision E.

Requirements common to all indigenous land use agreements

Area covered by the agreement

11. An indigenous land use agreement must relate to an area.[20] An agreement will probably not satisfy Subdivisions B, C or D if the area covered is not clearly defined. It should be possible to say with certainty whether a defined parcel of land is covered by the agreement.
    
    
12.  Consequently, agreements should be drafted with care to ensure that the area covered is defined with precision, and any land where native title has been extinguished is excluded.

Subject matter

13. To be an indigenous land use agreement, an agreement must be about one or more specified matters in relation to an area. The matters specified vary, depending on the type of agreement, but there are some common elements:

 the doing of particular future acts, or future acts included in classes - for example, the grant of a particular mining lease; the grant of all prospecting and exploration licences; or the grant of all tenements applied for by a particular company; etc; particular future acts, or future acts included in classes, that have already been done - for example, validation of acts done after 1993 which are not otherwise validated; withdrawing, amending, or varying applications for determinations of native title, or of compensation; the relationship between native title rights and interests and other rights and interests; the manner of exercise of native title rights and interests and other rights and interests; compensation for any act affecting native title; any other matter concerning native title rights and interests. 



14.  The Amended Native Title Act does not impose any general limits on the conditions which can be included in indigenous land use agreements. It does not authorise conditions which contravene any law.[21] Presumably, this includes State and Territory laws, so that the payment of royalty based compensation for mining, prohibited under the Mining Act 1978 (WA), could not be included in an indigenous land use agreement.[22]

Parties

15. Each type of indigenous land use agreement has special requirements as to who must be a party. Beyond the minimum requirements, any person may be a party to an indigenous land use agreement. Representative bodies for the area covered are entitled to be informed about proposed agreements, but there is generally no requirement that they be parties.

 Differences 



16. The differences between the different types of agreement concern the nature of the area covered by the agreement (specifically, whether there has been an approved determination of native title over the whole of the area), who the parties are, what the agreement can effectively do, and registration requirements and procedures.

 Body corporate agreements - Subdivision B

Area covered by the agreement

17. There must be one or more registered native title bodies corporate in relation to the whole of the area covered by the agreement.[23] An agreement may cover all or part of the area in respect of which a body corporate is registered, and 2 or more bodies corporate may join in an agreement in respect of all or part of their respective areas. However, an agreement will not satisfy the area coverage criteria of Subdivision B if any part of the area is not the subject of an approved determination that native title exists.[24]

Parties

18. There is no upper or outer limit on who may be a party to a body corporate agreement, but there are certain minimum requirements. All of the registered bodies corporate in relation to the area must be parties to the agreement.[25]
    
    
19. If the agreement provides for the surrender of native title to the Crown, then the Commonwealth, a State or a Territory must be a party.
    
    
20. Beyond those minimum requirements, any person may be a party to the agreement. Representative bodies for the area covered are entitled to be informed about proposed agreements, but there is no requirement that they be parties.

Subject matter

21. An indigenous land use agreement under Subdivision B must be about one or more of the matters listed in section 24BB. The matters include, in addition to matters common to all indigenous land use agreements, the following:

 changing the effects of intermediate period acts - for example, providing for total, partial or non extinguishment in a way inconsistent with s.22B; the surrender of native title rights to the Crown.

Registration

22. A body corporate agreement can not be registered unless all of the parties agree.26 Any party may apply to the Registrar for the agreement to be registered. The application must be in writing, and must be accompanied by a copy of the agreement.
    
    
23.  The Registrar must give notice of the agreement to Commonwealth and State/Territory ministers, relevant representative bodies, local government bodies, and the general public.[27] There is then a waiting period of 1 month, during which:

 any party can advise the Registrar that the party does not wish the agreement to be registered; and

 any representative body for the area covered by the agreement can notify the Registrar that it was not informed of the registered body corporate's intention to enter into the agreement. 



24.  If a party opposes registration, or if the Registrar is satisfied that a relevant representative body was not informed, the Registrar must not Registrar the agreement.[28] In any other case, the Registrar must register the agreement. There is no provision whereby any other person can object to registration.

Area agreements - Subdivision C

Area covered by the agreement

25. Area agreements are possible where there has not been an approved determination of native title in respect of the whole of the area covered by the agreement.

Parties

26. There is no upper or outer limit on who may be a party to an area agreement, but there are certain minimum requirements. All persons in the native title group in relation to the area must be parties to the agreement.[29] The native title group consists of all registered native title claimants, and all registered native title bodies corporate, for the area covered by the agreement. If for any part of the area there is neither, the native title group also includes an unregistered claimant or a representative body, or both.[30]
    
    
27.  If the agreement provides for the surrender of native title to the Crown, then the Commonwealth, a State or a Territory must be a party.

Subject matter

28. An indigenous land use agreement under Subdivision C must be about one or more of the matters listed in section 24CB. The matters include, in addition to matters common to all indigenous land use agreements and those listed above in relation to body corporate agreements, any matter concerning access rights conferred by Subdivision Q over pastoral leases.

 Registration 



29. As with body corporate agreements, an area agreement can not be registered unless all of the parties agree.[31] Any party may apply to the Registrar for the agreement to be registered. The application must be in writing, and must be accompanied by a copy of the agreement. In addition, the application must either:

 have been certified by all representative bodies for the area,[32] or

 include a statement to the effect that all reasonable efforts have been made to identify the native title holders, and those identified have authorised the agreement.

 The Registrar has extensive notice obligations.

If the agreement has been certified, any person claiming to hold native title may object to registration. If the agreement has not been certified, there is no provision for objection. However, in either case, the Registrar must not register an area agreement unless certain conditions are satisfied.[33]

Alternative procedure agreements - Subdivision D

Area covered by the agreement

30. Alternative procedure agreements are possible where there has not been an approved determination of native title in respect of the whole of the area covered by the agreement. In addition, there must be at least one registered native title body corporate in relation to part of the area, or a representative body for the whole area.[34]

Parties

31. All registered native title bodies corporate and all representative bodies for the area must be parties, and there must be at least one government party. If any of the area covered is within the jurisdictional limits of a State or Territory, that State or Territory must be a party. If any of the area covered is outside the jurisdictional limits of a State or Territory, the Commonwealth must be a party.[35]

Subject matter

32. The subject matter of an alternative procedures agreement is similar to that of an area agreement, but it must not provide for the extinguishment of any native title rights or interests.[36] In addition, it may provide a framework for the making of other agreements about matters relating to native title rights and interests.[37]

Registration

33. As with body corporate agreements and area agreements, an alternative procedures agreement can not be registered unless all of the parties agree.[38] Any party may apply to the Registrar for the agreement to be registered. The application must be in writing, and must be accompanied by a copy of the agreement.
    
    
34. The Registrar has extensive notice obligations.
    
    
35. Any person claiming to hold native title may object to registration. The Registrar must not register an area agreement unless at least one of the conditions listed in section 24DL is satisfied.

Effect of registration - Subdivision E

The Register of Indigenous Land Use Agreements

36. The Register of Indigenous Land Use Agreements is established under Part 8A.[39] Although parts of the register may be kept confidential,[40] it is generally available for public inspection.[41] It is maintained by the Native Title Registrar, although that function may be delegated to a State body or office holder,[42] such as the Registrar of Titles.
    
    
37. The register must contain the following details of registered indigenous land use agreements:

 a description of the area covered; the name and contact address of each party; any period of operation of the agreement; any statements in the agreement concerning the doing of particular acts or classes of acts, validation of acts, and the surrender of native title. 



38.  Details of agreements may be removed from the register in certain circumstances, such as expiry of the agreement.[43] The Federal Court may order removal if satisfied that a party would not have entered into the agreement but for fraud, undue influence or duress.[44]

Contractual effect of registration

39. As a matter of common law, an agreement is only legally enforceable if it meets the requirements of a contract, and only binds the parties, that is, those who have entered into the agreement either directly or through their authorised agents.
    
    
40. In addition to its effect at common law, an indigenous land use agreement which has been registered has effect, while it remains registered, as if:

 it were a contract among the parties, even if it doesn't satisfy the common law requirements of a contract, and

 all holders of native title in the area covered by the agreement, who are not parties, were bound in the same way as native title group or the registered native title bodies corporate.[45]

Effect of registration on proposed acts 



41. Section 24EB provides for the validation of certain future acts which affect native title in an area covered by a registered agreement, if the agreement includes a statement to the effect that the parties consent to the doing of the act, or a class of acts including the act. There are further formal requirements if the agreement is intended to take the act outside the right to negotiate procedures, or if the future act is the surrender of native title to the Crown.
    
    
42.  Generally, an act covered by a registered agreement is valid.[46] The non-extinguishment principle applies unless the agreement contains a statement to the effect that the surrender of native title to the Crown is intended to extinguish the native title rights and interests.[47] The implication is that native title can not be extinguished under an indigenous land use agreement except by surrender to the Crown.
    
    
43. There are restrictions on compensation claims under the Amended Native Title Act in relation to future acts covered by registered agreements. The restrictions vary depending on the type of agreement concerned.[48]

Effect of registration on acts which have previously been done 



44. Registered indigenous land use agreements can provide for the validation of future acts, and can vary the effects of statutory validation of intermediate period acts, if certain formal requirements are met,[49] and if the government responsible for the act is a party.[50] If the act covered by the agreement is attributable[51] to the Commonwealth, it is valid, and is taken always to have been valid.[52] If the act covered by the agreement is attributable to a State or Territory, the registered agreement will not validate the act unless the State or Territory passes a law to that effect. The State/Territory law may provide that the act is valid, and is taken always to have been valid.[53]
    
    
45.  Validation of a future act pursuant to a registered agreement will generally attract the non-extinguishment principle. The sole exception is surrender to the Crown, which will result in extinguishment if there is a statement in the agreement to that effect.[54]

Notes

[2] s.233.

[3] s.235.

[4] s.23(2).

[5] s.28.

[6] s.236.

[7] s.22.

[8] ss.24 and 25.

[9] s.235(8)(c).

[10] s.13(3).

[11]Probably because it does not address the other difficulties, which could only be satisfactorily addressed by legislation.

[12] ss.26 and 28.pp

[13]By definition, all future acts affect native title - see ss.233, 227.

[14] s.24OA. This section provides for partial invalidity. Compare s.24AA(2), which appears to provide for total invalidity. Section 24AA(2) appears to be intended as an overview of the future act provisions, and will probably not be interpreted as "providing otherwise" as an exception to s.24OA.

[15]For example, s.24HA, covering future acts relating to the management of water and airspace.

[16]For example, s.24LA, covering low impact future acts.

[17]For example, s.28, covering future acts which satisfy the right to negotiate procedures.

[18] s.24AB(2).

[19] s.24AB(1).

[20] ss.24BB, 24CB and 24DB.

[21] ss.24BE, 24CE and 24 DF.

[22]Compare s.33, which expressly permits future act agreements under the right to negotiate procedures to include royalty based payments.

[23] s.24BC.

[24]Where there is an approved determination that native title exists, there must be an entry to that effect on the National Native Title Register under s.193, and a registered native title body corporate which either holds the native title on trust under s.56, or performs certain functions in relation to it under s.57.

[25] s.24BD(1).

[26] ss.24BG(1), 24BI(2)

[27] s.24BH(1).

[28] s.24BI(2) and (3)

[29] s.24BD(1).

[30] s.24CD(2) and (3).

[31] ss.24CG(1).

[32]A representative body must not certify an area agreement unless it is of the opinion that all reasonable efforts have been made to identify the native title holders, and those identified have authorised the agreement - see s.202(8).

[33] ss.24CK and 24CL.

[34] s.24DD.

[35] s.24DE(1) and (3).

[36] s.24DC.

[37] s.24DB(e).

[38] ss.24DH(1).

[39] ss.199A to 199F.

[40] s.199E. Details required to be entered on the register under s.199B(1) must be available to the public.

[41] s.199D.

[42] s.199F.

[43] s.199C.

[44] s.199C(2).

[45] s.24EA.

[46] s.24EB(2).

[47] s.24EB(3).

[48] ss.24EB(4)-(7).

[49] s.24EBA(1)(a).

[50] s.24EBA(1)(b). In some cases, where a non-government person is liable to pay compensation, that person must also be a party to the agreement - s.24EBA(1)(c).

[51] s.239.

[52] s.24EBA(2).

[53] s.24EBA(3).

[54] s.24EBA(5).