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2010-2011
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
Native Title Amendment (Reform) Bill 2011
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator Siewert)
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NATIVE TITLE AMENDMENT (REFORM) BILL 2011
Outline
The Native Title Amendment (Reform) Bill 2011 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
interests 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.1
The Bill addresses this problem by adopting the suggestion of the now Chief Justice French
of a presumption of continuity which can be overturned by evidence of significant
disruption.2 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."3
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 now Chief Justice French to ease the burden on claimants
in having their native title rights and interests recognised.
In relation the procedural issues, the Bill provides clarification on the meaning of
"negotiating in good faith" and requires 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
1
Committee on the Elimination of Racial Discrimination, concluding Observations of the committee on the
Elimination of Racial Discrimination: Australia, UN Doc CERD/C/AUS/CO/14 (2005) para 17.
2
Chief Justice RS French, Lifting the burden of native title: Some modest proposals for improvement (Speech
delivered to the Federal Court Native Title User Group, Adelaide, 9 July 2008).
3
Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report (2009), p 81.
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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
regime for native title claimants by strengthening one of the few legal safeguards for
claimants under the future act provisions.
As well as specific reforms to improve the operation of the Act the Bill also inserts an
additional object into the Act to acknowledge the central principles in the United Nations
Declaration on the Rights of Indigenous Peoples (UNDRIP).
The UNDRIP was adopted by the General Assembly of the United Nations in 2007. At that
time 143 nations voted in support of the Declaration, while Australia was one of four
countries that voted against it. However, in 2009 the current Government gave its support to
the Declaration. Now, this Bill seeks to give that support meaning by requiring its principles
to be taken into account by decision-makers under the Native Title Act.
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 providing for the principles of
the United Nations Declaration on the Rights of Indigenous Peoples to be applied in
decision-making under the Native Title Act and implement 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 inserts a new additional object of the Act referencing the United Nations
Declaration on the Rights of Indigenous Peoples (UNDRIP). The intent behind this
provision is for governments in Australia to implement certain principles enunciated in
the UNDRIP. The key principles being:
· the right of all peoples including indigenous peoples to self-determination;
· full and direct consultation and participation of indigenous peoples concerned;
· free, prior and informed consent of indigenous peoples in matters affecting them;
· the right of indigenous peoples to their traditional lands, territories and natural
resources;
· demonstrated respect for indigenous cultural practices, traditions, laws and
institutions;
· reparation for injury to or loss of indigenous interests;
· non-discrimination against the interests of indigenous peoples.
6. Subsection (2) provides that the provisions of the Native Title Act 1993 are to be
interpreted and applied in manner consistent with the UNDRIP. Subsection (3) provides
that the principles of the UNDRIP outlined above must be applied by persons exercising a
power or performing a function under the Act.
Item 2
7. Item 2 substitutes paragraph 24MB(1)(c) with a new paragraph to strengthen the
reference to Aboriginal and Torres Strait Islander heritage legislation. The current
provisions refer to where a law of the Commonwealth, a State or a Territory makes
provision in relation to the preservation or protection of areas or sites of particular
significance to Aboriginal Peoples or Torres Strait Islanders in accordance with their
traditions. The amendment proposed by item 3 substitutes that provision with one that
refers to the a law of the Commonwealth, a State or a Territory that will provide effective
protection or preservation of areas or sites of particular significance to Aboriginal Peoples
or Torres Strait Islanders in accordance with their traditions. The provision in the Bill will
allow decision-makers and courts to consider the effectiveness of Aboriginal and Torres
Strait Islander heritage laws when considering if the elements of section 24MB have been
met.
Item 3
8. Item 3 substitutes a new paragraph 24MD(2)(c). The current 24MD(2)(c) provides that
compulsory acquisition extinguishes native title. The amendment in Item 3 provides that
the acquisition itself does not extinguish native title, only the act done in giving effect to
the purpose of the acquisition leads to extinguishment. The amendment re-states the
original wording found in section 23(3) of the Act prior to the current wording of section
24MD.
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Item 4
9. Item 4 repeals subsection 26(3). The repeal of this paragraph 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 exists in offshore areas and this
amendment means that the right to negotiate can also apply to offshore areas.
Items 5 to 9
10. Items 5 to 9 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 in 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 5 to 9 are concerned with improving fairness in the right to
negotiate processes and are intended to encourage better agreement-making.
11. Item 5 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.
12. Item 6 inserts a new subsection 31(1A) providing clarification on the requirement to use
all reasonable efforts when negotiating 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 6 strengthens the requirement to
negotiate in good faith by including explicit criteria.
13. 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 than confidential or commercially sensitive
information) in a timely manner;
c. making reasonable offers and counter-offers;
d. responding to proposals made by other negotiation parties in a 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
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14. Item 7 inserts a new subsection 31(2) providing that that in any proceedings the onus of
proving negotiation has been in good faith is on the party asserting good faith.
15. Item 9 inserts a new subclause 35(1A) providing that a person may not apply to the
arbitral body under subsection 31(1) until the party has complied with the provisions of
section 31(1) to 31(2A) relating to demonstrating good faith in negotiations.
16. Item 8 is a consequential amendment on Item 10.
Item 10
17. Item 10 substitutes a new subsection 38(2) providing that profit sharing conditions
including the payment of royalties may be determined by the arbitral body in relation to
future acts. Parties reaching agreements during good faith negotiations can include
provisions for royalty payments or profit sharing. This amendment provides that similar
conditions can be applied when a matter goes to arbitration.
Item 11
18. Item 11 inserts a new section 47C which 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 12
19. Item 12 inserts new sections 61AA and 61AB providing for presumptions of continuous
connection in relation to applications for a native title determinations. 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.
20. 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 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;
(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;
(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.
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21. Subsection (2) then provides that where the circumstances in (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.
22. The new section 61AB provides for when the presumption of connection under section
61AA may be set aside. Subsection (1) provides that the presumption may be set aside
only by evidence of substantial interruption in the acknowledgement of the traditional
laws or observation of the traditional customs. Subsection (2) provides for the matters the
court must treat as relevant in relation to the application of subsection (1) which include
whether the primary reason for any demonstrated interruption or demonstrated significant
change in the traditional laws and customs is the action of a State or Territory or person
who is not an Aboriginal person or Torres Strait Islander.
23. The drafting of these sections 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.
Item 13
24. Item 13 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.
25. Subsection (1C) provides that a connection with land or water need not be a physical
connection.
26. As the 2009 Native Title Report argues, given the current interpretation of "traditional",
the presumption of continuity contained in item 12 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
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.
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Item 14
27. Item 14 clarifies that native title rights and interest may be of a commercial nature.
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