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2010-2011-2012
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
Native Title Amendment (Reform) Bill (No. 1) 2012
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator Siewert)
NATIVE TITLE AMENDMENT (REFORM) BILL (NO. 1) 2012
Outline
The Native Title Amendment (Reform) Bill (No.1) 2012 implements important reforms to the
Native Title Act 1993 to enhance the effectiveness of the native title system for Aboriginal
and Torres Strait Islander peoples. The measures in the Bill are reforms that have been
promoted for a number of years by relevant stakeholders, most notably in submissions to the
Senate Standing Committee on Legal and Constitutional Affairs Inquiry into the Native Title
Amendment Bill 2009 and the 2009 Native Title Report from the Aboriginal and Torres Strait
Islander Social Justice Commissioner.
The reforms in the Bill are clear and specific measures that address two key areas in the
interest of native title claimants:
· the barriers claimants face in making the case for a determination of native title rights
and interests; and
· procedural issues relating to the future act regime.
It is widely recognised that the evidential burden of proving native title is significant and
indeed so significant as to arguably undermine the purpose and intent of the Native Title Act.
The United Nations Committee on the Elimination of Racial Discrimination has noted this
issue, recognising that the high standard of proof required has the consequence that many
indigenous peoples are unable to obtain recognition of their relationship with their traditional
lands.
The Bill addresses this problem by adopting the suggestion of the now Chief Justice French
for a presumption of continuity which can be overturned by evidence of significant
disruption. The burden of proof is shifted from the claimants to the respondents to prove
disruption. As the 2009 Native Title Report argues, this approach is not inconsistent with the
Act and indeed would recognise and give respect to the acknowledgement in the preamble to
the Act that the common law "recognises a form of native title that reflects the entitlement of
the indigenous inhabitants of Australia, in accordance with their laws and customs, to their
traditional lands".
The Bill strengthens this presumption by re-defining "traditional" to ensure that laws and
customs can be considered traditional if they remain identifiable through time, rather than the
current legal position that to be considered traditional, laws and customs must remain largely
unchanged.
The Bill also provides for prior extinguishment to be disregarded by agreement. This again
implements a suggestion made by Chief Justice French which goes to easing the burden on
claimants in having their native title rights and interests recognised. It also provides that
where land is part of a National, State or Territory park, prior extinguishment is disregarded
automatically.
In relation to the procedural issues, the Bill provides clarification on the meaning of
"negotiating in good faith" and provides that the party asserting good faith has the onus of
proving they negotiated in good faith. Further, the Bill requires that before a party applies to
the arbitral body under section 35 it must have complied with the requirements to negotiate in
good faith. These provisions are designed to increase the fairness of the right to negotiate
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regime for native title claimants by strengthening one of the few legal safeguards for
claimants under the future act provisions.
NOTES ON CLAUSES
Clause 1 - Short Title
1. This is a formal provision specifying the short title.
Clause 2 - Commencement
2. The Bill's provisions are to commence the day after it receives Royal Assent.
Clause 3 - Schedules
3. This clause provides that an Act that is specified in a Schedule in amended or repealed as
set out in that Schedule, and any other item in a Schedule operates according to its terms.
Clause 4 - Objects
4. This clause outlines the objects of the Bill which include implementing reforms to
improve the effectiveness of the native title system for Aboriginal people and Torres
Strait Islanders.
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Schedule 1 - Amendments to the Native Title Act 1993
Item 1
5. Item 1 is an amendment consequential on item 13.
Item 2
6. Item 2 repeals subsection 26(3). The repeal of this subsection will allow certain
procedural rights to be available in relation to acts occurring over the sea. Subsection
26(3) currently limits the right to negotiate to acts that relate to a place that is on the
landward side of the mean high-water mark of the sea. Native title rights can exist in
offshore areas and this amendment means that the right to negotiate can also apply to
offshore areas.
Items 3 to 12
7. Items 3 to 12 expand on the current requirements in the Act for parties to negotiate in
good faith in relation to future acts. The current provisions in the Act do not provide
guidance on the meaning of "negotiating in good faith". Currently the burden of proof for
establishing the absence of good faith is on the native title party, rather than on the party
asserting it has negotiated in good faith, before being able to apply for arbitration. The
amendments in items 3 to 12 are concerned with improving fairness in the right to
negotiate processes and are intended to encourage better agreement-making.
8. Item 3 substitutes a new paragraph 31(1)(b) requiring parties to negotiate in good faith for
a period of at least six months and to use all reasonable efforts to come to an agreement
about the conditions under which each of the native title parties might agree to the doing
of the act.
9. Item 4 inserts new subsections 31(1A)-(1C) providing clarification on the requirement to
use all reasonable efforts when negotiating in good faith; that deceptive or unsatisfactory
conduct is not a perquisite for demonstrating failure to negotiate in good faith and placing
a requirement on the arbitral body to consider the financial resources, and in the case of
the native title party, the demands of cultural and religious practices, when considering
whether a party has negotiated in good faith. As indicated by the Social Justice
Commissioner in his Native Title Report 2009, the good faith negotiation requirement is
one of the few legal safeguards that native title parties have under the future act regime.
However, the decision of the Full Federal Court in FMG Pilbara Pty Ltd v Cox (2009)
175 FCR 141 has substantially watered down the right to negotiate to the extent that any
negotiation may be considered to meet the requirements of the current provisions as long
as there is no bad faith. In light of this decision, item 4 strengthens the requirement to
negotiate in good faith by including explicit criteria.
10. The criteria include but are 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 party reside if so requested by them;
b. disclosing relevant information (other then confidential or commercially sensitive
information) in a timely manner;
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c. making reasonable offers and counter-offers;
d. responding to proposals made by other negotiation parties in a reasonable timely
and detailed manner;
e. giving genuine consideration to the proposals of other negotiation parties and
giving reasons for responses to those proposals; and
f. refraining from capricious or unfair conduct that undermines the beneficial nature
of the right to negotiate.
11. Item 7 inserts a new subsection 31(2A) providing that that in any proceedings the onus of
proving negotiation has been in good faith is on the party asserting good faith.
12. Item 10 inserts a new subsection 35(1A) providing that a person may not apply to the
arbitral body under subsection 31(1) until the party has demonstrated good faith in
negotiations in accordance with section 31.
13. Items 5, 6, 8, 9, 11 and 12 are consequential amendments.
Item 13
14. Item 13 inserts new sections 47C and 47D. Section 47C provides that where land is part
of a National, State or Territory park, prior extinguishment is disregarded automatically.
Section 47D provides that at any time prior to a determination the applicant and a
government party may make an agreement that the extinguishment of native title rights
and interests are to be disregarded. The Social Justice Commissioner has commented that
the breadth and permanency of the extinguishment of native title rights and interests
under the Act is contrary to Australia's international human rights obligations. The
proposal to allow for extinguishment to be disregarded by agreement was suggested by
the now Chief Justice French.
Item 14
15. Item 14 inserts new sections 61AA and 61AB providing for presumptions of connection
in relation to applications for a native title determination. A legislative presumption has
the effect of shifting the onus to the respondents to rebut the presumptions. The new
sections implement suggestions made by the now Chief Justice French to lighten the
burden of making a case for a native title determination.
16. Subsection 61AA(1) provides that the section applies to applications for native title
determination in the following circumstances:
(a) the native title claim applies for a determination of native title rights and
interests where the rights and interests are found 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;
(c) the members of the native title claim group, by the laws acknowledged
and the customs observed, have a connection with the land or waters the
subject of the application;
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(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.
17. Subsection (2) then provides that where the circumstances in subsection (1) exist, it must
be presumed that:
(a) the laws acknowledged and customs observed by the native title claim
group are traditional laws acknowledged and traditional customs
observed at sovereignty;
(b) the native title claim group has a connection with the land or waters by
those traditional laws and traditional customs;
(c) if the native title rights and interests asserted are capable of recognition
by the common law--the facts necessary for the recognition of those
rights and interests by the common law are established.
These matters are to be presumed in the absence of proof to the contrary.
18. The drafting of this section relies on the example provided by the new Chief Justice
French in his speech "Lifting the burden of native title - some modest proposals for
improvement" given in 2008. The presumptions are intended to be sufficiently robust to
overcome the significant barriers native title claimants currently face in demonstrating
on-going connection but still able to be challenged by a respondent with proof to the
contrary.
19. The new section 61AB provides that a court, in determining whether the requirements of
section 223 have been satisfied, may disregard a finding of substantial interruption or
significant change in the acknowledgement of the traditional laws or observation of the
traditional customs, if the primary reason for the change or interruption is the action of a
State or Territory or a person or other party who is not an Aboriginal person or Torres
Strait Islander.
Items 15 to 17
20. . Items 15 to 17 are amendments consequential on item 13.
Item 18
21. Item 18 inserts new subsections 223(1A), (1B), (1C) and (1D) providing clarification of
the definition of "traditional" to ensure that laws and customs can be considered
traditional if they remain identifiable through time. The current interpretation by the
courts means that a law or custom is considered traditional only if it remains largely
unchanged.
22. Subsection (1C) provides that a connection with land or water need not be a physical
connection.
23. As the 2009 Native Title Report argues, given the current interpretation of "traditional",
the presumption of continuity contained in item 14 will be undermined if a respondent
merely needs to prove that a law or custom is not practised today as it was at the time of
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sovereignty. The amendment moderates the test of traditional so that laws and customs
can remain traditional if they are identifiable over time rather than the stricter test of
remaining largely unchanged.
Item 19
24. Item 19 provides that native title rights and interest may be of a commercial nature.
Item 20
25. Item 20 provides for transitional provisions to ensure the provisions of the Bill apply to
current undetermined applications for native title determinations.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Native Title Native Title Amendment (Reform) Bill (No. 1) 2012
This Bill is compatible with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill/Legislative Instrument
The object of this Bill is to implement reforms to the Native Title Act 1993 to improve
the effectiveness of the native title system for Aboriginal and Torres Strait Islander
Peoples.
In summary the Bill:
· Provides for the right to negotiate provisions of the Act to apply to offshore
areas;
· Strengthens and clarifies the meaning of negotiations in good faith in relation
to the right to negotiate provisions in the Act;
· Provides for extinguishment over nature reserves including national parks to
be disregarded, and for extinguishment to be disregarded by agreement ;
· Inserts a presumption of continuity in relation to the observance of traditional
laws and customs; and
· Specifically provides that native title rights and interests may be of a
commercial nature.
Human rights implications
This Bill advances the humans rights of Aboriginal and Torres Strait Islander People.
Aside from promoting the land related rights outlined in the Declaration of the
Rights of Indigenous Peoples (articles 25-29), it protects both cultural rights (ICCPR
article 27 and ICESCR article 15.2) and the right to non-discrimination.
Cultural Rights
Article 27 of the International Covenant on Civil and Political Rights (ICCPR)
Article 27 asserts:
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to
such minorities shall not be denied the right, in community with the other members of their
group, to enjoy their own culture, to profess and practise their own religion, or to use their
own language
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The Human Rights Committee, in General Comment 23, has interpreted this right to
include "a particular way of life associated with the use of land resources, especially
in the case of indigenous peoples" and that "the enjoyment of those rights may
require positive legal measures of protection and measures to ensure the effective
participation of members of minority communities in decisions which affect them".
As such, protecting Aboriginal and Torres Strait Islander Peoples' land rights is also
realising their right to their culture and religion.
Article 15.1a of the International Convention on Economic Social and Cultural Rights
(ICESCR)
Cultural Rights are also protected in Article 15.1a of ICESCR, which recognises the
right of everyone to "take part in cultural life". The Committee on Economic Social
and Cultural Rights, in General Comment 21, has interpreted this to include a right
to traditional land, as it relates to Indigenous Peoples:
The strong communal dimension of indigenous peoples' cultural life is indispensable to their
existence, well-being and full development, and includes the right to the lands, territories and
resources which they have traditionally owned, occupied or otherwise used or acquired.1
Indigenous peoples' cultural values and rights associated with their ancestral lands and their
relationship with nature should be regarded with respect and protected, in order to prevent
the degradation of their particular way of life, including their means of subsistence, the loss of
their natural resources and, ultimately, their cultural identity.1 States parties must therefore
take measures to recognize and protect the rights of indigenous peoples to own, develop,
control and use their communal lands, territories and resources, and, where they have been
otherwise inhabited or used without their free and informed consent, take steps to return
these lands and territories
This Bill promotes the cultural rights of Aboriginal and Torres Strait Islander
Peoples, as outlined in the above articles, through enhancing the effectiveness of the
native title system and by removing barriers which have prevented them from
obtaining recognition of their relationship with their traditional lands.
The Right to Non-Discrimination
Non-discrimination, together with equality before the law and equal protection of
the law without any discrimination, constitute a basic principle of human rights law.
Article 2.1 of the ICCPR and Article 2.2 of the ICESCR obligate each State party to
respect and ensure to all persons the rights recognized in the Covenants without
distinction of any kind, such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status. The right to
enjoyment of human rights without such distinction is also elaborated throughout
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the International Convention on the Elimination of All Forms of Racial
Discrimination (ICERD).
The Committee on the Elimination of Racial Discrimination draws particular
attention to the need to protect the land related rights of Indigenous Peoples, in
General Recommendation 23:
The Committee especially calls upon States parties to recognize and protect the rights of
indigenous peoples to own, develop, control and use their communal lands, territories and
resources and, where they have been deprived of their lands and territories traditionally
owned or otherwise inhabited or used without their free and informed consent, to take steps to
return those lands and territories. Only when this is for factual reasons not possible, the right
to restitution should be substituted by the right to just, fair and prompt compensation. Such
compensation should as far as possible take the form of lands and territories.
The obligation of the Australian Government in relation to the right to non-
discrimination goes beyond simply prohibiting certain actions. As General Comment
18 of the Human Rights Committee explains:
... equality sometimes requires States parties to take affirmative action in order to diminish or
eliminate conditions which cause or help to perpetuate discrimination prohibited by the
Covenant ... However, as long as such action is needed to correct discrimination in fact, it is
a case of legitimate differentiation under the Covenant.
Certain "special measures" must be taken to ensure the "adequate advancement of
certain racial or ethnic groups or individuals requiring such protection as may be
necessary in order to ensure such groups or individuals equal enjoyment or exercise
of human rights and fundamental freedoms". This obligation is spelled out in article
1.4 of ICERD.
The Native Title Act 1993 was designed to be such a special measure, promoting the
right of Aboriginal and Torres Strait Islander Peoples, but has proven deeply
ineffective in reaching this aim. This Bill advances human rights by creating an
effective Native Title System, supporting Aboriginal and Torres Strait Islander
Peoples' exercise of their rights.
Conclusion
This Bill is compatible with human rights because it advances the cultural rights and
right to non-discrimination of Aboriginal and Torres Strait Islander Peoples by
improving the effectiveness of the native title system.
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