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2010 - 2011 - 2012
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NATIVE TITLE AMENDMENT BILL 2012
EXPLANATORY MEMORANDUM
(Circulated by the authority of the Attorney-General,
the Honourable Nicola Roxon, MP)
NATIVE TITLE AMENDMENT BILL 2012
OUTLINE
This Bill introduces targeted amendments to the Native Title Act 1993 (the Act) which aim to
improve the operation of the native title system, with a focus on improving
agreement-making, encouraging flexibility in claim resolution and promoting sustainable
outcomes.
This Bill builds on the amendments contained in the Native Title Amendment Act 2009 which
resulted in a significant increase in the number of native title consent determinations. The
current reforms to the Federal Court and National Native Title Tribunal will further build on
these successes to allow for the effective and efficient resolution of claims.
Schedule 1 will create a new section 47C of the Act to allow historical extinguishment of
native title to be disregarded over areas set aside for the preservation of the natural
environment where the native title party and the relevant government party agree. These
areas include national, State and Territory parks and reserves. The schedule will also allow
parties to agree to disregard the historical extinguishment over public works within areas set
aside for the preservation of the natural environment.
Schedule 2 will clarify the meaning of good faith in the Act, and the conduct and effort
expected of parties in seeking to reach agreement. This schedule will create a new
section 31A which will clarify the conduct expected of parties in future act negotiations. It
also extends the time before a party may seek a determination from the arbitral body from six
to eight months. This schedule will also amend subsection 36(2) of the Act so that where a
negotiation party asserts that another negotiation party (the second negotiation party) has not
satisfied the good faith negotiation requirements, it is this second party that must then
establish that it has met the good faith negotiation requirements, before being able to seek a
future act determination from the arbitral body.
Schedule 3 will make amendments to streamline processes in relation to Indigenous Land
Use Agreements (ILUAs). This schedule will make amendments to section 24BC of the Act
to broaden the scope of body corporate agreements (Subdivision B ILUAs). This schedule
will also make amendments to streamline registration and authorisation processes for ILUAs.
The schedule will create a new section 24ED to allow parties to agree to certain amendments
to registered ILUAs while still preserving the binding nature of the ILUA against all native
title holders. This schedule will also create a new subsection 251A(2) to clarify the identity of
who must authorise an ILUA by clarifying that for the purposes of authorisation, a person or
persons who may hold native title means a person or persons who can establish a prima facie
case to hold native title.
Schedule 4 will amend section 47 of the Act to ensure that where a body corporate holds a
pastoral lease on behalf of, or for the benefit of, a native title group, the fact that the body
corporate has members, rather than shareholders, does not prevent historical extinguishment
of native title over the area from being disregarded under section 47.
Financial impact statement
There is no direct financial impact on Government revenue from this Bill.
2
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
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
The Native Title Amendment Bill 2012 contains a number of amendments to the Act which
aim to improve agreement-making, encourage flexibility in claim resolution and promote
sustainable outcomes. These amendments are part of a package of reforms announced by the
Australian Government to ensure a sustainable and fair native title system that creates
economic and social opportunities for Indigenous Australians. Specifically, the Bill contains
amendments to:
· clarify the meaning of good faith and make associated amendments to the right to
negotiate provisions
· enable parties to agree to disregard historical extinguishment of native title in areas
set aside, or where an interest is is granted or vested for the purpose of preserving the
natural environment such as parks and reserves, and,
· streamline processes for Indigenous Land Use Agreements (ILUAs).
The amendments to the good faith provisions under the right to negotiate regime set out good
faith negotiation requirements; extend the minimum timeframe for good faith negotiations
from six to eight months; ensure that where an application for arbitration has been made and
a party asserts that a second party did not negotiate in accordance with the good faith
negotiation requirements, the second party must establish to the arbitral body that it has met
the requirements; and allow the arbitral body to make orders regarding the time period before
another arbitrated outcome can be sought. These amendments encourage parties to focus on
negotiated rather than arbitrated outcomes, and promote positive relationship-building
through agreement-making.
The Bill contains amendments to enable parties to agree to disregard extinguishment of
native title in areas such as parks and reserves. These amendments include certain safeguards
such as notification requirements and the preservation of other valid interests in the area. The
parties can also agree to disregard the extinguishing effect of public works within the park
area. The amendments seek to provide parties with more flexibility in reaching agreements,
and may provide more opportunities for native title to be recognised and claims to be settled
by negotiation.
The Bill includes amendments to the Act to streamline processes for ILUAs. In particular, it
will broaden the scope of body corporate ILUAs; clarify the process for amendments to
ILUAs; and amend ILUA authorisation and registration requirements, including objection
and certification processes. These amendments to the ILUA provisions streamline processes
to ensure greater flexibility and also provide greater certainty for all parties.
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The Bill also includes a minor technical amendment to section 47 of the Act, which relates to
historical extinguishment over pastoral leases held by native title claimants, to clarify who
may claim the benefit of the section.
The Attorney-General's Department has consulted with a wide range of stakeholders on the
development of the Bill, including State and Territory governments, native title representative
bodies and native title service providers, the Australian Human Rights Commission,
Indigenous stakeholders and industry representatives.
Human rights implications
The Bill engages the following human rights:
· the right to enjoy and benefit from culture, and
· the right to self-determination.
The right to enjoy and benefit from culture
The right to enjoy and benefit from culture is contained in Article 27 of the International
Covenant on Civil and Political Rights (ICCPR) and Article 15 of the International Covenant
on Economic, Social and Cultural Rights (ICESCR). Article 27 of the ICCPR protects the
rights of individuals belonging to minorities within a country to enjoy their own culture.
Article 15 of the ICESCR protects the right of all persons to take part in cultural life.
The United Nations Human Rights Committee has stated that culture can manifest itself as a
particular way of life associated with the use of land resources, especially in the case of
Indigenous peoples, which may include such traditional activities as fishing or hunting and
the right to live on lands protected by law.1
The United Nations Committee on Economic, Social and Cultural Rights has stated that
Indigenous peoples' cultural values and rights associated with their ancestral lands and their
relationship with nature should be regarded with respect and protected.2
The Act as a whole promotes the rights to enjoy and benefit from culture by creating
processes through which native title can be recognised, and providing protection for native
title rights and interests. The amendments in this Bill continue to promote these rights by
strengthening the Act's focus on agreement-making and expanding the areas over which
native title could be determined to exist.
The amendments to the good faith provisions under the right to negotiate regime encourage
parties to focus on negotiated, rather than arbitrated outcomes, promote relationship-building
through agreement-making, and improve the balance of power between negotiating parties.
In doing so, the amendments will enhance the ability of native title holders to participate in
genuine negotiations about future activity on their traditional lands. By placing an emphasis
on interests-based negotiation and agreement-making, the amendments also promote
sustainable, long-term outcomes for Indigenous communities.
The historical extinguishment amendment seeks to provide parties with more flexibility to
disregard historical extinguishment of native title in areas such as parks and reserves, and
1
United Nations Human Rights Committee, General Comment No. 23 (1994).
2
The Committee on Economic, Social and Cultural Rights, General Comment No. 21 (2009).
4
could also provide for important recognition of traditional connection to land. This
amendment will provide more opportunities for native title to be recognised and claims to be
settled by negotiation and will provide incentives for parties to reach agreements, such as
opportunities for joint management of parks or reserves with native title holders.
The right to self-determination
The right to self-determination is a collective right applying to groups of `peoples'. This is in
contrast to the rights to culture which protect the rights of individuals within a group. The
right to self-determination, as set out in Article 1 of the ICCPR and Article 1 of the ICESCR,
entails the entitlement of peoples to have control over their destiny and to be treated
respectfully. This includes peoples being free to pursue their economic, social and cultural
development.
The principles contained in the United Nations Declaration on the Rights of Indigenous
Peoples (the Declaration) are also relevant to the amendments in this Bill. While the
Declaration is not included in the definition of `human rights' under the Human Rights
(Parliamentary Scrutiny) Act 2011, it provides some useful context on how human rights
standards under the international treaties apply to the particular situation of Indigenous
peoples. In particular, the following Articles are relevant to the amendments:
· Article 8(2)(a) provides that States shall provide effective mechanisms for prevention
of, and redress for any action which has the aim or effect of depriving Indigenous
peoples of their integrity as distinct peoples, or of their cultural values or ethnic
identities.
· Article 8(2)(b) provides that States shall provide effective mechanisms for prevention
of, and redress for any action which has the effect of dispossessing Indigenous
peoples of their lands, territories or resources.
· Article 26(3) provides that States shall give legal recognition and protection to these
lands, territories and resources.
· Article 27 provides that States shall establish and implement, in conjunction with
Indigenous peoples concerned, a fair, independent, impartial, open and transparent
process, giving due recognition to Indigenous peoples' laws, traditions, customs and
land tenure systems, to recognise and adjudicate the rights of Indigenous peoples
pertaining to their lands, territories and resources, including those which were
traditionally owned or otherwise occupied or used.
As mentioned above, the amendments to the good faith provisions will improve the balance
of power between parties in good faith negotiations and encourage parties to engage in
meaningful discussions about activities on traditional lands, and the related impacts on native
title rights and interests. The Bill also seeks to assist Indigenous Australians to access the
potential social and economic benefits of their native title rights.
The Australian Government believes that individuals and groups, particularly Indigenous
Australians, should be consulted about decisions likely to impact on them. To this end, the
Government has consulted extensively with stakeholders on the amendments in this Bill,
including native title representative bodies and service providers and the National Congress
of Australia's First Peoples.
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Conclusion
The Bill is compatible with human rights because it promotes the protection of human rights,
particularly the right to enjoy and benefit from culture and the right to self-determination.
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NOTES ON CLAUSES
Clause 1: Short title
1. Clause 1 provides for the Bill to be cited as the Native Title Amendment Act 2012.
Clause 2: Commencement
2. This Bill commences on the day it receives the Royal Assent.
Clause 3: Schedule(s)
3. This clause provides that Schedules 1, 2, 3 and 4 to the Bill will amend the Act in
accordance with the provisions set out in each Schedule.
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Schedule 1 - Amendments relating to disregarding historical
extinguishment of native title in areas set aside for the preservation of the
natural environment
Overview
Schedule 1 contains amendments which enable parties to agree to disregard the historical
extinguishment of native title over an area that has been set aside or vested to preserve the
natural environment such as national, State and Territory parks and reserves.
The amendment could assist to partly ameliorate the effect of the decision in Western
Australia v Ward (2002) 213 CLR 1. In that case, the High Court decided that the vesting of
Crown reserves under the Land Act 1933 (WA) extinguished native title in those reserve
areas. As a result, although subsection 23B(9A) of the Act excludes the vesting of the Crown
reserves from the previous exclusive possession act provisions, the Court found that they
were nonetheless extinguishing acts under common law. The result is that the vesting of
national, State and Territory parks and reserves under legislation similar to the Land Act 1933
(WA) extinguished native title, despite the exclusion provision in subsection 23B(9A) of the
Act.
The amendment in this schedule will ensure that native title can be recognised over parks and
reserves where there is agreement between parties, even where the creation or vesting of the
national, State or Territory park or reserve may otherwise extinguish native title.
Part 1--Amendments to disregard historical extinguishment
Native Title Act 1993
Item 1 - At the end of subsection 13(5)
1. This item inserts paragraph 13(5)(c) to clarify that an agreement under section 47C is
a valid ground for varying or revoking an approved determination of native title under
subsection 13(5).
2. Subsection 13(5) of the Act sets out the grounds under which an approved
determination of native title may be varied or revoked. An application of this kind is called a
`revised native title determination application.'
3. The table in section 61 of the Act provides that this type of application can only be
made by the registered native title body corporate for the area, the Commonwealth Minister,
the State or Territory Minister (if the area is within the jurisdictional limits of the State or
Territory concerned) or the Native Title Registrar.
4. The reference in subparagraph 47C(1)(c)(i) to `any registered native title bodies
corporate concerned' ensures that a registered native title body corporate could make an
application under section 61 of the Act to vary or revoke an approved determination of native
title even where native title has been found to be extinguished in the park area, if the
registered native title body corporate would have held native title in the agreement area had
native title not been extinguished.
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5. This provision does not allow parties to revise an approved determination of native
title to include an area that was excluded from the approved determination area. In this
situation, parties can make a new application over the excluded area.
Item 2 - At the end of Division 4 of Part 2
When section applies
6. This item inserts section 47C to allow parties to agree to disregard historical
extinguishment of native title over areas set aside for the purpose of, or purposes including,
preserving the natural environment of the area, which can include areas such as parks and
reserves (hereinafter referred to as `park areas').
7. Under this item, parties can agree that the extinguishment of native title rights and
interests is to be disregarded where that extinguishment has been caused by the setting aside,
granting or vesting of the park area or by the creation of any other prior interest in relation to
the area.
8. For the provision to operate, paragraph 47C(1)(a) will require a claimant application
or a revised native title determination application to be made in relation to an area that falls
within the definition of a `park area' under subsection 47C(2).
9. A revised native title determination application can be made by the relevant registered
native title body corporate under section 61 of the Act. The reference in
subparagraph 47C(1)(c)(i) to `any registered native title bodies corporate concerned' ensures
that a registered native title body corporate can make an application under section 61 of the
Act to vary or revoke an approved determination of native title even where native title has
been found to be extinguished in the park area. This is particularly the case where the
registered native title body corporate would have held native title in the agreement area had
native title not been extinguished.
10. The relevant government party entering into the agreement with the native title party
can make an application under subsection 13(5) to vary or revoke a determination. However,
if the relevant area was excluded from a determination, parties must make a new application
over the excluded area.
11. Paragraph 47C(1)(b) ensures that section 47C will only apply where sections 47, 47A
and 47B do not apply.
12. Subsection 47C(1) allows the agreement to be reached over the whole park area, or
part of the park area. This provides flexibility for parties to agree which parts of the park
area will be subject to an agreement to disregard extinguishment of native title.
13. Paragraph 47C(1)(c) requires that an agreement under paragraph 47C(1)(c) can only
be made over `onshore' areas that fall within the definition of park area in subsection 47C(2).
The term `onshore place' is defined in section 253 of the Act. This excludes the operation of
the provision in relation to offshore areas.
14. Subparagraph 47C(1)(c)(i) provides that agreement must be given by the relevant
registered native title body corporate or the applicant for the claim group. If there is no
registered native title body corporate (for example if there has not been an approved
determination of native title over the area), then the applicant for the claim group should enter
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into the agreement with the relevant government party. However, if there is no applicant for
a claim group (for example if there is no current claim) then the relevant Aboriginal or Torres
Strait Islander body (or bodies if the area overlaps representative body areas) could enter into
the agreement with the relevant government party.
15. If there has been an approved determination of native title over the area, and native
title is found to be extinguished, a registered native title body corporate can still enter into the
agreement with the relevant government party if the registered native title body corporate
would have held native title in the agreement area had native title not been extinguished.
16. However, where there has not been an approved determination of native title over the
area (for example, if the area was excluded from the determination) the agreement with the
government party should be entered into by the applicant for the claim group or relevant
Aboriginal or Torres Strait Islander body or bodies.
17. Subparagraph 47C(1)(c)(ii) provides that only the government by or under whose law
the park area was set aside or vested can agree to disregard historical extinguishment over
that area. This ensures that only the government party responsible for the park area can enter
into an agreement over the area.
18. Paragraph 47C(1)(c) provides that the native title party and relevant government need
to agree in writing. Although the agreement is not required to be in the form of an ILUA, it is
envisaged that, in practice, the ILUA mechanisms may be appropriate to detail the practical
operation of native title rights and interests recognised because of the effect of section 47C.
An ILUA could address a range of issues, including:
· an agreement over extinguishment caused by public works in the area
· any areas which are to be excluded from having extinguishment disregarded, and
· co-management agreements.
Meaning of park area
19. Subsection 47C(2) provides for the types of onshore areas over which parties can
agree to disregard extinguishment of native title. The area must have been set aside or vested
by or under a law of the Commonwealth, State or Territory for the purpose of preserving the
natural environment of the area as this defines the scope of a park area. This could occur in a
range of ways, such as through a grant or vesting resulting from a dedication, reservation,
proclamation, condition, declaration, vesting in trustees, or in some other way.
20. Written agreements between the registered native title body corporate or the applicant,
and the relevant government party, could cover a broad range of areas, provided the area falls
within the definition. Subsection 47C(2) will not apply to land which has been set aside for
purposes that do not specifically include the preservation of the natural environment of the
area (for example, distinct purposes such as agriculture or grazing).
Public works
21. Subsection 47C(3) enables a government party entering into an agreement under
paragraph 47C(1)(c) to disregard extinguishment over a park area, to include a statement that
it agrees to disregard extinguishment of native title over public works within the agreement
area, if the public works were established or constructed by or on behalf of the relevant
10
government party. Under this provision, the government party entering into the agreement to
disregard extinguishment over an area under paragraph 47C(1)(c) must be the same
government party entering into an agreement to disregard extinguishment of native title over
public works within that agreement area.
22. Subsection 47C(4) is available in circumstances where the government party that
constructed or established the public works (the second government party) is a different
government party to the party entering into the paragraph 47C(1)(c) agreement. The second
government party can enter into a separate agreement with the native title party to disregard
the extinguishing effect of those public works.
23. These provisions will only operate where the public works fall within an area covered
by an agreement under paragraph 47C(1)(c).
24. The agreement over the area under paragraph 47C(1)(c) must be in place before
parties can enter into an agreement in relation to public works under subsection 47C(4) with a
government party that is not a party to the agreement under paragraph 47C(1)(c).
Meaning of relevant public works
25. As set out in subsection 47C(10), the term relevant public work includes any public
works constructed by, or on behalf of, the Commonwealth, State or Territory. The term
public work is defined in section 253 of the Act.
26. Under subsection 47C(1) the agreement can be reached over the whole park area, or
part of the park area if preferred. This amendment will provide flexibility for parties to agree
which parts of the relevant area can be subject to an agreement to disregard extinguishment
of native title, including consideration of whether public works in the agreement area should
be included.
Notice and time for comment
27. Subsection 47C(5) requires that before entering an agreement under
paragraph 47C(1)(c) or subsection 47C(4) to disregard the extinguishment of native title, the
relevant government must give at least two months public notice that it is considering an
agreement to disregard the extinguishment in the area and give interested persons an
opportunity to comment on proposed agreements. This ensures that the government party
entering into the agreement can consider the existing interests in the area.
28. Subsection 47C(6) requires that the agreement under paragraph 47C(1)(c) cannot be
made before the end of the period for comment. This subsection will ensure that no legally
binding agreement can be entered into before interested persons have had the opportunity to
advise the relevant government of their interests in the proposed agreement area.
29. These amendments recognise that there are a number of people who may have an
interest, whether legal or otherwise, in park areas and public works, and may wish to make
their interests known to the relevant government party prior to parties reaching an agreement
over the area. This ensures the relevant government party entering into the
paragraph 47C(1)(c) agreement or the subsection 47C(4) agreement takes these other
interests into account, including management or ownership interests where applicable.
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Prior extinguishment to be disregarded
30. Subsection 47C(7) states the extinguishment of native title rights and interests must be
disregarded where that extinguishment has been caused by the setting aside or vesting of the
park or reserve or by the creation of any other prior interest in relation to the area. This
allows for the recognition of native title rights and interests in a park area provided the
elements of the claim can be established.
31. In this context, a prior interest refers to any interest created up until an approved
determination of native title.
32. This provision also allows prior extinguishment to be disregarded over public works
where the agreement under paragraph 47C(1)(c) includes a statement as mentioned in
subsection 47C(3) or where there is an agreement made under subsection 47C(4).
33. The claimants will still need to establish the positive elements of their claim, that is,
that the land is their traditional land and they have maintained their traditional connection.
Effect of the determination
34. Subsection 47C(8) sets out the effect of a determination pursuant to an agreement
under paragraph 47C(1)(c).
35. Paragraph 47C(8)(a) ensures that a determination that native title, including exclusive
native title, exists in an area in reliance on an agreement under paragraph 47C(1)(c) does not
have any effect on:
· The validity of the setting aside or vesting of the park area
(subparagraph 47C(8)(a)(i)), (so the act of establishing the park, and the interests
thereby created, will remain valid)
· The validity of the creation of any other prior interest in relation to the area, including
for example interests arising under licences, leases, or easements created in the area
prior to a native title determination over the area (subparagraph 47C(8)(a)(ii))
· Any interest in public works in the area or public access to such works in the area
(subparagraph 47C(8)(a)(iii)), or
· Existing access by members of the public to the area (subparagraph 47C(8)(a)(iv)).
36. Paragraph 47C(8)(b) provides that the non-extinguishment principle, as defined in
section 238, applies to any prior interests created before a native title determination over the
area, and the vesting, granting or setting aside of the park area. Potential prior interests could
include interests under licences, leases and easements issued in relation to the area.
37. The effect of subsection 47C(8) is that any existing interests created prior to an
approved native title determination will continue to operate to their full effect, but will
suppress, rather than extinguish, any native title rights to the extent of any inconsistency.
38. Where existing interests suppress native title rights, native title holders will not be
able to exercise exclusive rights over the land. The native title rights and interests which
could be exercised over the area will depend on the extent that these interests have been
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suppressed by other existing interests. If a prior interest ceases to operate then the native title
rights and interests may revive to their full extent.
39. Native title rights and interests will only apply from the date of the determination that
native title exists.
40. Any interests created after a determination that native title exists, which may include
renewals, extensions or upgrades of an existing interest, may need to be negotiated through
the future acts regime. This is because from the date of a positive native title determination,
these interests could be seen to affect native title rights and interests.
Exclusion of Crown ownership of natural resources
41. Subsection 47C(9) replicates existing subsection 47A(4) to exclude Crown ownership
of natural resources from the operation of the section.
42. The creation of an interest that confers ownership of natural resources on the Crown
or confirms ownership of natural resources by the Crown is not to be disregarded for the
purposes of subsection 47C(9).
Item 3 and 4 - Subsection 61A(4) (heading) and paragraphs 61A(4)(a) and 61A(4)(b)
43. Item 3 and 4 amend existing paragraphs 61A(4)(a) and (b) to include references to
section 47C. This enables section 47C to operate in relation to extinguishment caused by a
previous exclusive possession act or previous non-exclusive possession act despite
subsections 61A(2) and (3).
44. Subsections 61A(2) and (3) of the Act prohibit claimant applications from covering
previous exclusive possession act areas and certain rights and interests in previous non-
exclusive possession act areas respectively.
Item 5 - at the end of subsection 62(1) (before the note)
45. Paragraph 62(1)(d) ensures that if a claimant application is made which includes an
area subject to an agreement under paragraph 47C(1)(c), the claimant application must be
accompanied by a copy of the agreement and any agreement made under subsection 47C(4).
46. This amendment ensures that the relevant government must enter into the agreement
under paragraph 47C(1)(c) before a claimant application can be made over the park area.
Item 6 - at the end of section 62
47. The amendment contained in subsection 62(4) ensures that where parties submit a
revised determination application in relation to an area subject to an agreement under
paragraph 47C(1)(c), the application must be accompanied by a copy of the agreement, and if
there is a subsection 47C(4) agreement, that agreement as well.
48. This amendment ensures that the parties must reach an agreement under
paragraph 47C(1)(c) and subsections 47C(3) and (4) if necessary, prior to submitting any
application over the area.
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Item 7 - After paragraph 63(b)
49. Paragraph 63(ba) ensures that if an application is filed under section 61 of the Act
with the Federal Court, the Registrar of the Federal Court must provide the Native Title
Registrar with a copy of the agreement entered into under paragraph 47C(1)(c). This item
ensures section 63 of the Act is consistent with the requirements in paragraph 62(1)(d) and
subsection 62(4).
Item 8 and 9 - Subsection 64(2)(heading) and after subsection 64(2)
50. The amendment to the heading of subsection 64(2) and inclusion of
subsection 64(2A) provides that the Registrar must accept an amended claimant application
where the application is amended to include any area of land or waters that was not covered
by the original application pursuant to an agreement under paragraph 47C(1)(c). This
provision operates as an exception to subsection 64(1) which prevents the inclusion of any
area of land or waters that was not covered by the original application.
Item 10 and 11- At the end of section 66A(1) and subsection 66A(1B)
51. This provision inserts paragraph 66A(1)(f) to ensure that where an amended
application includes an area that was not covered by the original application, the Native Title
Registrar must provide notice to those parties to whom the Native Title Registrar would
normally provide notice to under subsections 66(3) and (5). However, the Native Title
Registrar is not required to give notice to anyone who has already been provided notice of the
amended application under paragraphs 66A(1)(d) or (e).
52. These amendments enusre that subsection 66A(1C) will apply to both notices,
requiring that a person who wants to be a party in relation to the amended application must
notify the Federal Court, in writing, within three months from the notification day.
Item 12 - At the end of paragraph 190A(6A)(d)
53. Subparagraph 190A(6A)(d)(vi) provides that where a claim is made under subsection
64(2A) and parties wish to amend that claim to include an area subject to an agreement under
paragraph 47C(1)(c), the Registrar must accept the claim.
Item 13 - Paragraph 190B(9)(c)
54. This item amends paragraph 190B(9)(c) to clarify that the limitations on registering
applications where native title rights have otherwise been extinguished do not apply in
relation to claims where extinguishment is to be disregarded in accordance with
subsection 47C(7).
Item 14 - Application
55. This item provides that where a current claimant application or revised native title
determination application has not been determined before this Act commences, the
application may be amended so that section 47C applies to the application.
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Item 15 - Entitlement to `just terms' compensation
Compensation for acquisition of property
56. This item will only apply to the Native Title Amendment Act 2012. This item
provides that to the extent the Bill, once enacted, may result in an acquisition of property for
the purposes of subsection 51(xxxi) of the Constitution, `just terms' compensation is payable.
57. This amendment also makes clear the entitlement operates for all relevant future acts,
not just Commonwealth future acts. If the future act is attributable to a State or Territory, the
State or Territory must pay the required compensation.
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Schedule 2 - Amendments clarifying good faith requirements in the right
to negotiate provisions
Overview
Schedule 2 contains amendments to clarify the meaning of good faith under the right to
negotiate regime, and the conduct and effort required of parties in seeking to reach
agreement. Under the right to negotiate regime, the government party proposing to do the
act, the grantee party, and any registered native title claimants or holders must negotiate in
good faith about whether the act should be done and, if so, whether any conditions should be
attached. The term grantee party is defined in paragraph 29(2)(c) of the Act.
Schedule 2 inserts section 31A which creates the good faith criteria that establishes the
conduct expected of negotiating parties. It also extends the time before a party may seek a
future act determination from the arbitral body from six to eight months. The schedule also
specifies that where a negotiation party asserts that another negotiation party (the second
negotiation party) has not satisfied the good faith negotiation requirements, the onus is on the
second negotiation party to establish that it has met the good faith negotiation requirements.
The Government recognises that many in the resource sector are already working to establish
positive relationships with native title parties and achieve sustainable outcomes for
Indigenous communities through negotiated agreements. These amendments will encourage
parties across the whole sector to focus on negotiated, rather than arbitrated, outcomes and
will promote positive relationship-building through agreement-making. The requirements
apply to all negotiating parties.
Part 1--Amendments to clarify good faith requirements
Native Title Act 1993
Item 1 - Subsection 24MD(2)(Note 1)
58. This item provides that where the right to negotiate applies in respect of acquisitions,
all parties must adhere to the good faith negotiation requirements established by section 31A.
Item 2 - Paragraph 31(1)(b)
59. This item replaces the term `good faith', with the term, `accordance with the good
faith negotiation requirements'. This clarifies that the new good faith requirements apply and
enable the amending provisions to define and clarify the nature of good faith in the context of
the right to negotiate.
Item 3 - At the end of subsection 31(1)
60. Paragraph 31(1)(c) provides that the scope of the negotiations must include
consideration of the effect of what is proposed by the doing of the future act, on the registered
rights and interests of the native title party or parties. This additional requirement addresses
one of the outcomes of the decision of the full Federal Court in FMG Pilbara Pty Ltd v Cox
[2009] FCAFC 49 (FMG v Cox), where a party could be found to have negotiated in good
faith even where there may have been no substantial negotiations about the doing of the
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actual act in question. This amendment will ensure parties negotiate in a productive manner
and discuss the substantive matters at issue.
Item 4 - Subsection 31(2)
61. This item replaces the term `good faith' with the term `good faith negotiation
requirements'. Subsection 31(2) clarifies that a party can still be found to have negotiated in
accordance with the good faith negotiation requirements in circumstances where that party
refused or failed to negotiate about matters unrelated to the effect of the future act on the
rights and interests of the native title parties.
Item 5 - Paragraph 31(4)(b)
62. This consequential amendment replaces the term `good faith', with the term,
`accordance with the good faith negotiation requirements'. This clarifies that the new good
faith requirements apply, and enable the amending provisions to define and clarify the nature
of good faith in the context of the right to negotiate.
Item 6 - After section 31
63. Section 31A creates the good faith criteria that establishes the conduct expected of
negotiating parties. Section 31A ensures that all parties act in an appropriate and productive
manner when working towards an agreement. The requirements also facilitate improved
communication between parties, which is expected to reduce the likelihood of parties seeking
future act determinations.
64. The Act does not contain a definition of good faith. Despite numerous decisions of
courts and the National Native Title Tribunal, there remains a lack of clarity about what
constitutes good faith negotiations. This lack of clarity means it is difficult for Indigenous
parties in particular to prove a lack of good faith. This was illustrated in FMG v Cox where
the court held that parties could satisfy the good faith requirements, notwithstanding that the
parties did not substantially discuss the actual doing of the future act in question.
65. Subsection 31A(1) provides that parties must use all reasonable efforts to reach
agreement about the doing of the act.
66. This item does not identify what may, or may not, comprise `all reasonable efforts'.
Rather, this is to be assessed in the circumstances of the negotiation in question.
Reasonableness may depend, for example, on the size of the project, the amount of land
involved, the extent and nature of the native title rights and interests and the length of time
that the tenement is sought for. This provision supports the Government's aspiration that
native title negotiating parties will establish productive, responsive and communicative
relationships.
67. Subsection 31A(2) specifies the criteria that the arbitral body will have regard to in
considering whether a party has satisfied the good faith negotiation requirements. Under the
new provisions, the emphasis is on interest based negotiation rather than positional or
adversarial bargaining.
68. Subsection 31A(2) provides that the criteria are to be considered `where relevant'.
This clarifies that the arbitral body should consider the criteria in the context of the particular
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circumstances of the negotiation in question and avoid a `one size fits all' approach to the
criteria in conjunction with paragraph 31A(2)(b). The criteria is not an exhaustive list.
69. Paragraph 31A(2)(b) contains similar provisions to those in the Fair Work Act 2009
(Cth), and they are also broadly consistent with what are known as the Njamal Indicia (set out
in Western Australia v Taylor (1996) 134 FLR 211). The Njamal Indicia are currently used
as a guide to consider the conduct of parties in the right to negotiate.
70. For example, subparagraph 31A(2)(a)(i) is similar to the seventh Njamal Indicia in
respect of taking reasonable steps to facilitate and engage in discussion with the parties. The
same applies to subparagraphs 31A(2)(a)(ii) and (iii). Disclosure of relevant information and
the making of reasonable proposals and counter proposals go directly towards establishing a
functional and interests based negotiation platform. It follows then that these proposals are
made in a timely manner, and this is provided for by subparagraph 31A(2)(a)(iv).
71. The requirement to give genuine consideration to proposals in
subparagraph 31A(2)(a)(v) is again analogous to the fourteenth Njamal Indicia.
Subparagraphs 31A(2)(a)(vi) and (vii) in respect of capricious or unfair conduct, and the
recognition of negotiation parties and their representatives incorporate Njamal Indicia
concepts such as shifting position when agreement is in sight or unilateral conduct that will
harm the process. However, the provisions will also cover situations to discourage parties
from dealing with individuals within groups or refusing to deal with their appointed
representative.
72. Subparagraph 31A(2)(a)(viii) in respect of refraining from acting for an improper
purpose covers the rare but possible scenarios where parties resort to threats or intimidation
to and/or of people, negotiating parties or their representatives or otherwise act illegally.
Paragraph 31A(2)(b) gives the arbitral body an additional capacity to consider matters that
may be relevant to the consideration of the conduct of the parties during negotiation. This
will include an examination of the conduct of parties, beyond the minimum eight month
negotiation period.
73. The provisions do not preclude a native title party seeking a future act determination
that an act cannot be done or can only be done with conditions (such as was the case in
Western Desert Lands Aboriginal Corporation (Jamukurnu - Yapalikunu)/Western
Australia/Holocene Pty Ltd [2009] NNTTA 49 (27 May 2009)).
Item 7- Paragraph 35(1)(a)
74. This amendment increases the minimum time period for which a negotiation party can
seek a determination from the arbitral body from six to eight months. This amendment will
encourage parties to engage in meaningful discussion about future acts under the right to
negotiate provisions.
Item 8- Subsection 36(2)
75. This item replaces existing subsection 36(2) and provides that where a negotiation
party asserts that another negotiation party, the second negotiation party, has not satisfied the
good faith negotiation requirements, it is this second negotiation party that must then
establish that it has met the good faith negotiation requirements, before being able to seek a
determination from the arbitral body.
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76. This item replaces the previous provision in respect of establishing the jurisdiction of
the arbitral body on the basis that the arbitral body is satisfied that the obligation of parties to
negotiate in good faith has been satisfied. The amendments clarify that a party against whom
the complaint is made must rebut it. The amendments requires a party to positively show
good faith will improve the quality of offers made by negotiating parties, discourage
opportunistic conduct and encourage agreement-making.
77. An example of how this operates is when a section 29 notice is issued in respect of the
grant of a particular mining lease. However, during the eight month minimum negotiation
period, the grantee party seeks to broaden the scope of negotiations to cover a wider area, and
does not conduct substantive negotiations about the grant of the specific mining lease the
subject of the notice. After the eight month minimum negotiation period is over, the grantee
party makes an application to the arbitral body for a future act determination to be made.
Under this provision, the native title party may assert that the grantee party did not comply
with the good faith negotiation requirements as they did not use all reasonable efforts to reach
agreement about doing of the act (which in this example is the grant of the mining lease) and
the grantee party will be required to show that it has complied with the good faith negotiation
requirements.
78. In situations where parties have reached agreement on the doing of the future act and
have made an application to obtain a future act determination by consent, pursuant to section
35 of the Act, the parties will not need to satisfy the arbitral body that the good faith
requirements are met. In these circumstances, where the parties have reached consent on the
conditions that will apply to the future act, it is assumed that negotiations proceeded in
accordance with the good faith negotiation requirements.
79. Subsection 36(2A) allows the arbitral body to make orders in respect of a time period
within which a negotiation party, who has been found not to have satisfied the good faith
negotiation requirements is prohibited from seeking a future act determination pursuant to
section 35 of the Act.
Item 9 - Subsection 190B(6) (note)
80. This item replaces the term `good faith' with the term `accordance with the good faith
negotiation requirements' in subsection 190B(6) of the Act. This clarifies that the new good
faith requirements apply, and enable the amending provisions to define and clarify the nature
of good faith in the context of the right to negotiate.
Item 10 - Paragraph 213A(3)(a)
81. This item replaces the term `good faith' with the term `accordance with the good faith
negotiation requirements' in paragraph 213A(3)(a) of the Act. This clarifies that the new
good faith requirements apply, and enable the amending provisions to define and clarify the
nature of good faith in the context of the right to negotiate.
Item 11 - Application
82. This item provides that the good faith negotiation requirements will apply upon
commencement of the amendment to negotiations that commence on or after 1 January 2013
and are still on foot on the day the Act receives the Royal Assent.
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Schedule 3 - Amendments to Indigenous Land Use Agreement processes
Overview
Schedule 3 contains amendments to streamline processes for ILUAs, which are agreements
between a native title group and others about the use and management of land and waters. In
particular, the amendments broaden the scope of body corporate agreements (Subdivision B
ILUAs), improve authorisation and registration processes for ILUAs and simplify the process
for amendments to ILUAs. These amendments will ensure parties are able to negotiate
flexible, pragmatic agreements to suit their particular circumstances.
Part 1--Amendments to Indigenous Land Use Agreement processes
Native Title Act 1993
Item 1 - Section 24BC
83. This item provides for the insertion of item 3 by causing existing section 24BC to
become section 24BC(1).
Item 2 - At the end of section 24BC
84. This item inserts subsection 24BC(2) to broadens the scope of body corporate
agreements (Subdivision B ILUAs). It makes an amendment to section 24BC to ensure that
Subdivision B ILUAs can be made over areas which are wholly determined, but include areas
where native title has been extinguished. It also provides that Subdivision B ILUAs can be
made in the situation where an area has been excluded from a determination, and native title
would have been held by the relevant native title group had native title not been extinguished
over that particular area.
85. This item addresses limitations in the scope of the existing section 24BC, which
provides that a Subdivision B ILUA can only be made where there are registered native title
bodies corporate for all of the agreement area. This means that:
· if the agreement area is entirely covered by a determination of native title (for which
there is a registered native title body corporate) that includes both areas where native
title has been found to exist and areas where native title has been found to be
extinguished, and
· the parties want the agreement to meet the requirements for a Subdivision B ILUA
then the description of the agreement area needs to specifically exclude those areas where
native title has been found to be extinguished, even though those areas are within the outer
boundary of the agreement area.
86. In these circumstances, parties are in practice more likely to negotiate a Subdivision C
ILUA, the registration of which currently involves a three month notice period. This item
ensures that Subdivision B ILUAs can be made in these situations. This ensures greater
flexibility and simplifies the registration process for Subdivision B ILUAs.
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Item 3 - After subsection 24CD(4)
87. This item provides that a native title representative body has to agree if it is to be
party to an ILUA, and links to the agreement making function of representative bodies in
section 203BH.
Item 4 - Subsection 24CH(1)
88. This item provides that only where the Registrar is satisfied that an agreement meets
the requirements of sections 24CB to 24CE the Registrar must proceed to give notice of the
agreement. This item resolves the contrasting decisions of QGC Pty Ltd v Bygrave (No 2)
(2010) 189 FCR 412 and Fesl v Delegate of Native Title Registrar [2008] FCA 939, about
giving notice of area agreements, and the subsequent uncertainty that has existed in respect of
notification. It makes clear that there is no need to give notice of an ILUA unless the
mandatory requirements are satisfied.
Item 5 - Paragraph 24CH(2)(d)
89. This item repeals paragraph 24CH(2)(d), which set out the statements that a notice
made by the Registrar must include, and replaces it with a requirement that the notice include
a statement of the kind set out in subsection 24CH(5). The item provides for the insertion of
the amended notice requirements at subsection 24CH(5) as created by item 6.
Item 6 - At the end of section 24CH
90. This item creates an amended process for the registration of ILUAs to replace the
previously enacted paragraph 24CH(2)(d).
91. It specifies the statements that the Registrar must include when giving notice of an
area agreement. In particular, the notice must include a statement about the one month notice
period, during which a person may object against registration of the agreement.
Item 7 - After subsection 24CI(1)
92. This item enables an objection to be made to the Registrar against registration of an
uncertified application to register an area agreement, as opposed to the requirement to lodge
and have registered a new claim.
93. Subsection 24CI(1A) provides that an objection may be made to the Registrar on the
grounds that the requirements of subparagraphs 24CG(3)(b)(i) and (ii).
Subparagraphs 24CG(3)(b)(i) and (ii) require that an application for registration of area
agreements must include a statement to the effect that all reasonable efforts have been made
to ensure that all persons who hold or may hold native title in relation to land or waters in the
area covered by the agreement have been identified and have authorised the making of the
agreement.
94. Additionally, subsection 24CI(1B) provides a power for the Minister to set out, by
legislative instrument, requirements for an objection.
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95. The provision of an objection process for opposing registration of Subdivision C
ILUAs complements amendments directed at streamlining the registration of Subdivision C
ILUAs.
Item 8 - Section 24CJ
96. This item makes a consequential amendment, removing the prohibition on the
Registrar deciding to register an ILUA before all native title determinations lodged in the
notification period have undergone the registration test. This is no longer necessary because
of the process introduced in items 6 and 7.
Item 9 - Section 24CK
97. This item repeals the existing section 24CK and replaces it with a provision that
removes the objection process for ILUAs certified by a native title representative body. This
further streamlines the authorisation and registration process. A person wishing to make an
objection against an ILUA certified by a native title representative body will have recourse to
judicial review.
Item 10 - Subsection 24CL(2)
98. This item makes a consequential amendment to repeal existing subsection 24CL(2) as
required by items 6 and 7, and replaces it with a condition that any person who is a registered
native title claimant or registered native title body corporate in relation to the areas covered
by the agreement must be a party to the agreement.
Item 11 - After paragraph 24CL(4)(b)
99. This item provides that, in addition to the matters already listed in paragraph
24CL(4), the Registrar must take into account any objections made in relation to the
application under section 24CI in deciding whether the requirements for registration of an
uncertified agreement have been met.
Item 12 - At the end of Subdivision E of Division 3 of Part 2
100. This item inserts section 24ED which makes provision that certain amendments can
be made to an ILUA (whether body corporate, area agreement or alternative procedure) and
the binding nature of the ILUA against all native holders will be preserved. The amendments
establish a threshold which will determine whether or not a new registration process is
required.
101. The Act currently makes no provision for amendments to ILUAs, nor does the Act
provide any guidance on the circumstances in which parties to an ILUA may need to go back
to the Registrar for any amendments to the ILUA to have effect pursuant to section 24EA.
Consequently, parties wishing to make certain amendments to an ILUA, while preserving its
binding effect on native title holders who are not parties to the ILUA, may need to make a
new application for registration of the amended ILUA.
102. Requiring a new registration process in these circumstances might be considered
unnecessary and a poor use of time and resources. These reforms will enable parties to
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operate with a degree of flexibility in terms of amending ILUAs without requiring a new
process.
103. This item provides that amendments to an ILUA can only be made where certain
conditions are met:
· the parties to the agreement have agreed to the amendment, and
· the amendments have been notified to the Registrar in writing.
104. A list of amendments that can be made to an ILUA is specified in the new subsection
24ED(1). In particular, amendments can be made to an ILUA that:
· update property descriptions, but not so as to result in the inclusion of any area of land
or waters not previously covered by the agreement,
· update a description identifying a party to the agreement, including where a party has
assigned or otherwise transferred rights and liabilities under the agreement,
· update administrative processes relating to the agreement, or
· do a thing specified by the Minister by legislative instrument.
105. Subsection 24ED(2) will enable parties to amend ILUAs without requiring re-
registration in appropriate circumstances as necessary to meet changing circumstances. This
will include situations where properties or tenements are assigned, or entities change names
and addresses. The provisions allow for the Minister to make further determinations, by
legislative instrument, on amendments to ILUAs that will not require re-registration.
Item 13 - Section 251A
106. This item makes an amendment to change existing section 251A to provide for the
insertion of item 15.
Item 14 - Section 251A
107. This item makes an amendment to existing section 251A to clarify that the provision
also applies to persons who may hold native title.
Item 15- Paragraphs 251A(a) and (b)
108. This item removes the reference to `the common or group rights comprising' the
native title.
Item 16 - At the end of section 251A
109. This item clarifies who may authorise the making of an ILUA.
110. This item inserts subsections 251A(2) and (3) to clarify that a reference to persons
who may hold native title is a reference to persons who can establish a prima facie case that
they may hold native title.
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111. The amendments address current uncertainty in the law about who may authorise an
ILUA. In QGC v Bygrave [2011] FCA 1457, Reeves J found that if there is more than one
native title group for an ILUA area, where the ILUA area overlaps the area of a registered
native title claim, the only people who are entitled to authorise the ILUA are the native title
claim group for the registered claim. In Kemp v Native Title Registrar [2006] FCA 939,
Branson J held that where the native title parties comprised more than one distinct group, all
persons would have to authorise the ILUA, and would have to do so separately, provided
their assertion of native title was more than `merely colourable'.
Item 17- Application
112. This item provides that the amendment made by item 11 of Schedule 3 (in summary,
providing for amendments to ILUAs) applies to agreements on the Register of Indigenous
Land Use Agreements on or after the day of the Royal Assent.
113. Additionally, the amendments made by items 12 to 15 of Schedule 2 (in summary,
relating to authorisation of ILUAs) apply to the authorisation of agreements on or after the
day of the Royal Assent.
114. The amendments made by the remaining items apply to ILUAs where an application
for registration on the Register of Indigenous Land Use Agreements is made on or after the
day of the Royal Assent.
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Schedule 4 - Minor technical amendment
Overview
Schedule 4 contains an amendment to clarify who may claim the benefit of section 47 of the
Act , which relates to historical extinguishment over pastoral leases held by native title
claimants.
The current paragraph 47(1)(b) allows a native title claim over pastoral leases,
notwithstanding past extinguishment, where the pastoral lease is held by any of the persons
who made the application (subparagraph 47(1)(a)(i)), a trustee, on trust for any of the persons
who made the application (subparagraph 47(1)(a)(ii)), or a company whose only shareholders
are any of the persons who made the application (subparagraph 47(1)(a)(iii)).
However, subparagraph 47(1)(b)(iii) may prevent bodies corporate, set up under the
Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) with members rather
than shareholders from making a native title claim over pastoral leases under section 47.
The amendment will clarify that section 47 can also apply to pastoral leases held by bodies
corporate, with members rather than shareholders.
Item 1 - Subparagraph 47(1)(b)(iii)
115. This item amends subparagraph 47(1)(b)(iii) to provide that the section will apply to a
body corporate that has members rather than shareholders, and holds a pastoral lease over an
area subject to an application under section 61.
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