NATIVE TITLE AMENDMENT (REFORM) BILL 2011

i Native Title Amendment (Reform) Bill 2011 No. , 2011

Contents

1 Short

title

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2 Commencement

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3 Schedule(s)

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4 Objects

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Schedule 1--Amendment of the Native Title Act 1993

Native Title Amendment (Reform) Bill 2011 No. , 2011 1

A Bill for an Act to amend the Native Title Act 1993

to further the interests of Aboriginal and Torres

Strait Islander Australians, and for related

purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Native Title Amendment (Reform) Act

2011.

2 Commencement

This Act commences on the day after this Act receives Royal

Assent.

2 Native Title Amendment (Reform) Bill 2011 No. , 2011

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

4 Objects

The objects of this Act are:

(a) to refer to the United Nations Declaration on the Rights of

Indigenous Peoples and provide for principles of the

Declaration to be applied in decision-making under the

Native Title Act 1993; and

(b) to implement reforms to the Native Title Act 1993 to improve

the effectiveness of the native title system for Aboriginal

peoples and Torres Strait Islanders.

Amendment of the Native Title Act 1993 Schedule 1

Native Title Amendment (Reform) Bill 2011 No. , 2011 3

Schedule 1--Amendment of the Native Title

Act 1993

1 After section 3

Insert:

3A United Nations Declaration on the Rights of Indigenous Peoples

(1) It is an additional object of this Act that governments in Australia

take all necessary steps to implement the following principles set

out in the United Nations Declaration on the Rights of Indigenous

Peoples:

(a) the rights of all peoples including Indigenous peoples to

self-determination;

(b) full and direct consultation and participation of the

Indigenous peoples concerned;

matters affecting them;

(d) the right of Indigenous peoples to their traditional lands,

territories and natural resources;

(e) demonstrated respect for Indigenous cultural practices,

traditions, laws and institutions;

(f) reparation for injury to or loss of Indigenous interests;

(g) non-discrimination against the interests of Indigenous

peoples.

(2) The provisions of this Act are to be interpreted and applied in a

manner that is consistent with the Declaration.

(3) The principles in subsection (1) must, in every relevant case, be

applied by each person exercising a power or performing a

function under this Act.

2 Paragraph 24MB(1)(c)

Repeal the paragraph, substitute:

(i) applies to the area to which the act relates; and

(ii) provides effective protection or preservation of areas, or

sites, that may be of particular significance to

Schedule 1 Amendment of the Native Title Act 1993

4 Native Title Amendment (Reform) Bill 2011 No. , 2011

Aboriginal peoples or Torres Strait Islanders in

accordance with their traditions.

3 Paragraph 24MD(2)(c)

Repeal the paragraph, substitute:

(bb) the non-extinguishment principle applies to the acquisition;

and

effect to the purpose of the acquisition from extinguishing the

native title rights and interests; and

4 Subsection 26(3)

Repeal the subsection (including the heading).

5 Paragraph 31(1)(b)

Repeal the paragraph, substitute:

(b) the negotiation parties must, for a period of at least 6 months,

negotiate in good faith using all reasonable efforts to come to

an agreement about:

(i) the doing of the act; or

(ii) the conditions under which each of the native title

parties might agree to the doing of the act.

6 After subsection 31(1)

Insert:

(1A) For the purposes of paragraph (1)(b), negotiate in good faith using

all reasonable efforts includes but is not limited to:

(a) attending, and actively participating in, meetings at

reasonable times including, where reasonably practicable, at

a location where most of the members of the native title

parties reside, if so requested by them;

(b) disclosing relevant information (other than confidential or

commercially sensitive information) in a timely manner;

(d) demonstrably giving genuine consideration to proposals

made by other negotiation parties;

Amendment of the Native Title Act 1993 Schedule 1

Native Title Amendment (Reform) Bill 2011 No. , 2011 5

(e) responding to proposals made by other negotiation parties in

a timely and detailed manner, including providing reasons for

the relevant response;

(f) refraining from capricious or unfair conduct that undermines

the beneficial nature of the right to negotiate.

7 After subsection 31(2)

Insert:

(2A) In any proceeding in which the application of paragraph (1)(b) is

raised, the party asserting good faith has the onus of proving that it

negotiated in good faith.

8 Subsection 35(1)

Omit "Any", substitute "Subject to subsection (1A), any".

9 After subsection 35(1)

Insert:

(1A) A negotiation party may not apply to the arbitral body under

subsection (1) unless the negotiation party has complied with

subsections 31(1), (1A) and (2A).

10 Subsection 38(2)

Repeal the subsection (including the heading), substitute:

Profit-sharing conditions may be determined

(2) Without limiting the nature of conditions that may be imposed

under paragraph (1)(c), they may, if relevant, include a condition

that has the effect that native title parties are to be entitled to

payments worked out by reference to:

(a) the amount of profits made; or

(b) any income derived; or

by any grantee party as a result of doing anything in relation to the

land or waters concerned after the act is done.

11 After section 47B

Insert:

Schedule 1 Amendment of the Native Title Act 1993

6 Native Title Amendment (Reform) Bill 2011 No. , 2011

47C Agreements to disregard prior extinguishment

When section applies

(1) This section applies if:

(a) an application under section 61 is made in relation to an area;

and

(b) any time prior to a determination, there is an agreement

between the applicant and the Government party that the

extinguishment of native title rights or interests by a prior act

affecting native title in relation to the area, or any part of the

area, covered by the application be disregarded.

Prior extinguishment to be disregarded

(2) For all purposes under this Act in relation to the application, any

extinguishment of the native title rights and interests by any of the

following acts must be disregarded:

(a) the prior act itself;

(b) the creation of any other interest in relation to the area as a

result of the prior act;

Effect of determination

(3) If the determination on the application is that the native title claim

group holds the native title rights and interests claimed:

(a) the determination does not affect:

(i) the validity of the creation of any prior interest in

relation to the area; or

(ii) any interest of the Crown in any capacity, or of any

statutory authority, in any public works on the land or

waters concerned; and

(b) the non-extinguishment principle applies to the creation of

any prior interest in relation to the area.

12 After section 61

Insert:

Amendment of the Native Title Act 1993 Schedule 1

Native Title Amendment (Reform) Bill 2011 No. , 2011 7

61AA Presumptions relating to applications

(1) This section applies to an application for a native title

determination brought under section 61 if the following

circumstances exist:

(a) the native title claim group defined in the application applies

for a determination of native title rights and interests where

the rights and interests are asserted to be possessed under

laws acknowledged and customs observed by the native title

claim group;

(b) the members of the native title claim group reasonably

believe the laws so acknowledged and the customs so

observed to be traditional;

acknowledged and the customs observed, have a connection

with the land or waters the subject of the application;

(d) the members of the native title claim group reasonably

believe that persons, from whom one or more of them is

descended, acknowledged traditional laws and observed

traditional customs at sovereignty by which those persons

had a connection with the land or waters the subject of the

application.

(2) If this section applies to an application, it must be presumed, in the

absence of proof to the contrary:

(a) that the laws acknowledged and customs observed by the

native title claim group are traditional laws acknowledged

and traditional customs observed at sovereignty;

(b) that the native title claim group has a connection with the

land or waters by those traditional laws and traditional

customs;

recognition by the common law--that the facts necessary for

the recognition of those rights and interests by the common

law are established.

61AB Continuing connection

(1) A presumption under section 61AA that a native title claim group

has a connection with land or waters by traditional laws and

traditional customs, or a finding to that effect, may be set aside

Schedule 1 Amendment of the Native Title Act 1993

8 Native Title Amendment (Reform) Bill 2011 No. , 2011

only by evidence of a substantial interruption in the

acknowledgment of those traditional laws or the observation of

those traditional customs.

(2) In any proceeding relating to the application of subsection (1), the

court must treat as relevant:

(a) whether the primary reason for any demonstrated interruption

in the acknowledgment of traditional laws or the observance

of traditional customs is the action of a State or a Territory or

a person who is not an Aboriginal person or a Torres Strait

Islander; or

(b) whether the primary reason for any demonstrated significant

change to the traditional laws acknowledged or the traditional

customs observed by the Aboriginal peoples or Torres Strait

Islanders is the action of a State or a Territory or a person

who is not an Aboriginal person or a Torres Strait Islander.

13 After subsection 223(1)

Insert:

Traditional laws and customs

(1A) Without limiting subsection (1), traditional laws acknowledged in

that subsection includes such laws as remain identifiable through

time, regardless of whether there is a change in those laws or in the

manner in which they are acknowledged.

(1B) Without limiting subsection (1), traditional customs observed in

that subsection includes such customs as remain identifiable

through time, regardless of whether there is a change in those

customs or in the manner in which they are observed.

Connection

(1C) To avoid doubt, and without limiting subsection (1), it is not

necessary for a connection with the land or waters referred to in

paragraph (1)(c) to be a physical connection.

(1D) Nothing in subsection (1) is to be interpreted as requiring:

(a) in the case of traditional laws--the laws to be acknowledged

continuously;

Amendment of the Native Title Act 1993 Schedule 1

Native Title Amendment (Reform) Bill 2011 No. , 2011 9

(b) in the case of traditional customs--the customs to be

observed continuously;

connection to be maintained continuously.

14 Subsection 223(2)

Repeal the subsection, substitute:

(2) Without limiting subsection (1), rights and interests in that

subsection includes:

(a) hunting, gathering, or fishing, rights and interests; and

(b) the right to trade and other rights and interests of a

commercial nature.

Commonwealth of Australia Bills

NATIVE TITLE AMENDMENT (REFORM) BILL 2011