Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2008-2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NATIVE TITLE AMENDMENT BILL (No. 2) 2009
EXPLANATORY MEMORANDUM
(Circulated by authority of the Attorney-General,
the Honourable Robert McClelland MP)
Abbreviations used in the Explanatory Memorandum
Action body the Crown, a local government body or other statutory authority
of the Crown, in any of its capacities
Bill Native Title Amendment Bill (No.2) 2009
ILUA Indigenous Land Use Agreement
Native Title Act Native Title Act 1993
Native Title Amendment Bill (No. 2) 2009
Outline
The Bill establishes a new subdivision within the future acts regime of the
Native Title Act.
The new subdivision in Schedule 1 provides a process to assist the
timely construction of public housing and a limited class of public
facilities by or on behalf of the Crown, a local government body or other
statutory authority of the Crown in any of its capacities, for Aboriginal
people and Torres Strait Islanders in communities on Indigenous held land.
The new process ensures that the representative Aboriginal or Torres Strait
Islander body and any registered native title claimants and registered
native title bodies corporate in relation to the area of land or waters are
notified and afforded an opportunity to comment on acts which could affect
native title ('future acts'). In addition, a registered native title
claimant or registered native title body corporate may request to be
consulted regarding the doing of the proposed future act so far as it
affects their registered native title rights and interests.
Where a future act is covered by the new subdivision and certain procedural
requirements are met the future act will validly affect native title. The
non-extinguishment principle applies to acts covered by the new process,
ensuring native title can revive if the act ceases to have effect. The
subdivision also provides for compensation for any impact on native title
rights and interests.
The new subdivision would operate for 10 years, following which action
bodies would need to utilise other subdivisions in the future acts regime.
This 10 year period is designed to match the 10 year funding period under
current National Partnership Agreements between the Commonwealth and the
States and Territories on remote Indigenous housing and remote service
delivery.
Financial impact statement
There is no direct financial impact on Government revenue from this Bill.
Regulation impact statement
The regulatory impact of the amendment is low.
NOTES ON CLAUSES
Clause 1: Short title
Clause 1 provides for the Act to be cited as the Native Title Amendment Act
(No. 2) 2009.
Clause 2: Commencement
Clause 2 provides that this Act commences on the day after it receives the
Royal Assent.
Clause 3: Schedule(s)
This clause provides that Schedule 1 to the Bill will amend the Native
Title Act in accordance with the provisions set out in Schedule 1.
Schedule 1 - Amendments
Overview
Schedule 1 of the Bill inserts new Subdivision JA into the 'future acts
regime' in Division 3, Part 2 of the Act. The future acts regime sets out
how acts that will affect native title (called 'future acts') can be
undertaken. If an act will not affect native title, it is not subject to
the Native Title Act and the future act regime. If an act will affect
native title, it will be valid to the extent of any effect on native title
only where it is covered by one of the Subdivisions of the future act
regime.
The main features of Schedule 1 are as follows:
. Items 1 and 2 define how subdivision JA interacts with the existing
subdivisions of the future acts regime. This is needed because a
single future act may be potentially covered by more than one
subdivision. The procedural rights for native title parties and the
consequences of an act on native title differ as between subdivisions,
so it is important to know which one prevails in cases of overlap.
. Item 3, subsection 24JAA(1) - (3), define the future acts which are
covered by the new subdivision. In short, it covers future acts for
the construction of public housing and specified types of public
infrastructure on Indigenous held land for Indigenous communities.
. Item 3, subsection 24JAA (10) - (18), set out the procedural rights of
native title parties in relation to future acts covered by the new
subdivision, and subsections 24JAA(4) - (6) address the effect on
validity of a failure to comply with the procedural requirements.
. Item 3, subsections 24JAA(4) - (9), set out other consequences of a
future act covered by the new subdivision.
Native Title Act 1993
Item 1 - After paragraph 24AA(4)(f)
Item 1 inserts paragraph 24AA(4)(fa) in the list of paragraphs 24AA(4)(a)
to (k) of the Native Title Act. This includes the new process among the
list of future act processes which can validate a future act.
Item 2 - At the end of section 24AB
Item 2 adds a new subsection 24AB(3) in section 24AB of the Native Title
Act to deal with the situation where a future act potentially falls within
the coverage of both Subdivision JA and Subdivision K. It provides
coverage by Subdivision JA where the act is notified under that subdivision
and covered by Subdivision KA when it is not. It gives flexibility for
certain future acts to be dealt with in a single process under Subdivision
JA instead of Subdivision K. For example, this allows a single
consultation process under Subdivision JA to deal with both a housing
development covered by Subdivision JA, and the necessary supporting
facilities such as streets and power, water and sewage facilities which
might otherwise be covered by Subdivision K.
Item 3 - After Subdivision I of Division 3 of Part 2
Item 3 inserts a new Subdivision JA into Division 3, Part 2 of the Native
Title Act and sets out when a future act will be covered by it (subsections
24JAA(1) - (3)), then sets out the consequences of coverage (subsections
24JAA(4) - (18)).
A future act is covered by Subdivision JA if all of the following
requirements are met:
. The future act relates, to any extent, to an onshore place (paragraph
24JAA(1)(a)). This means an act can be covered if it relates to both
an onshore place and an offshore place. Acts relating solely to
offshore places are covered by Subdivision N.
. The future act must relate to an area of Aboriginal or Torres Strait
Islander held land (subparagraph 24JAA(1)(b)(i)) or land held for the
benefit of Aboriginal or Torres Strait Islander people (subparagraph
24JAA(1)(b)(ii)). This is because the discrete Indigenous communities
intended to benefit from facilities provided under the new process are
situated on such lands.
. The future act must be done (in the case of a legal act such as the
grant of leases, subleases, licences, permits, authorities or
approvals outlined in paragraph 24JAA(1)(c)(i)) or commenced (in the
case of an activity such as construction outlined in 24JAA(1)(c)(ii))
within 10 years of the commencement of Subdivision JA (paragraph
24JAA(1)(d)).
. The future act must facilitate or consist of the establishment of
specific types of facilities (set out in subsection 24JAA(3)) by or on
behalf of the Crown or a local government body or other statutory
authority of the Crown in any of its capacities. Essentially, this is
intended to cover the public provision of those types of facilities.
The provision of funding to a person by an action body will not of
itself mean that the person will be acting 'on behalf of' the Crown.
. There must be a Commonwealth, State or Territory law that makes
provision for the preservation or protection of areas or sites in the
area where the act is done that may be of particular significance to
Aboriginal people and Torres Strait Islanders in accordance with their
traditions (paragraph 24JAA(1)(e)). This would include state heritage
legislation.
Subsection 24JAA(2) would make it clear that Subdivision JA does not apply
to a future act that is the compulsory acquisition of the whole or part of
any native title rights and interest.
6. The types of facilities that may be provided under Subdivision JA are:
. Public housing for Aboriginal people and Torres Strait Islanders
living in, or in the vicinity of, the area. This is intended not to
cover housing for community service staff or for private ownership
(paragraph 24JAA(3)(a)).
. Public education and health facilities, and police and emergency
facilities that principally or primarily benefit Aboriginal people and
Torres Strait Islanders living in the area (paragraph 24JAA(3)(b)).
It is intended that a facility could be covered by Subdivision JA even
if it provides some incidental benefit to other persons. For example,
a public health clinic established primarily for the local Indigenous
community but which also provided services to non-Indigenous community
staff would be covered by Subdivision JA. A further example is the
establishment of a fire department which may service the surrounding
region as well. However, it is not intended that Subdivision JA be
used to establish facilities intended primarily to service, say, a
nearby mainstream community.
. Certain facilities provided in connection with housing or other
facilities covered by paragraphs 24AA(3)(a) and (b) (paragraph
24JAA(3)(c)). These include the facilities covered by Subdivision K,
sewage treatment facilities, and things prescribed by regulation, if
any.
The remaining paragraphs set out the consequences of a future act being
covered by Subdivision JA.
Subsections 24JAA(4)-(6) provide that the validity of a future act to which
Subdivision JA applies is dependent on the action body giving notice of the
act and an opportunity to comment; the action body providing a consultation
report to the Commonwealth Minister; and the act not being done (in the
case of a legal act such as the grant of leases, subleases, licences,
permits, authorities or approvals outlined in paragraph 24JAA(1)(c)(i)) or
commenced (in the case of an activity such as construction outlined in
24JAA(1)(c)(ii)) before the end of the consultation period.
Subsection 24JAA(7) provides that the non-extinguishment principle applies
to an act, which is validly done under Subdivision JA.
Subsection 24JAA(8) provides for compensation in accordance with Division 5
where native title holders would be entitled to compensation under
subsection 17(2) if the act were assumed to be a past act referred to in
that section.
Subsection 24JAA(9) deals with who pays compensation in relation to future
acts done under Subdivision JA. Essentially, liability for compensation
rests with the government responsible for the future act unless legislation
provides otherwise.
Subsections 24JAA(10) to 24JAA(18) detail the procedural rights of native
title parties under Subdivision JA. The main elements are as follows:
. Action bodies are required to notify any registered native title
claimant, any registered native title body corporate and any
representative Aboriginal or Torres Strait Islander body in
relation to the relevant area of land or waters (paragraph
24JAA(10)(a)). The Commonwealth Minister will determine, by
legislative instrument, what information must be included in the
notice. It may, for example, include information about the nature
of the act and the areas that may be affected.
. All notified parties are afforded a two month opportunity to
comment on the act (paragraphs 24JAA(10)(b) and (11)(b)(i)). The
two month period begins on the date specified (the notification
date) by the action body in the notification (subsection
24JAA(11)). The notification day must be set on a day by which it
is reasonable to assume that all notices will have been received
by, or will otherwise have come to the attention of, the relevant
native title parties (subsection 24JAA(12)). This gives native
title parties the option to provide feedback to the action body
about a proposal while allowing it to proceed quickly should they
consider further consultation is unnecessary.
. Any registered native title claimant or body corporate may, within
two months of notification, request to be consulted. If they do,
the action body must consult about ways of minimising the impact of
the act on native title and, if relevant, any access to the land or
waters or the way in which anything authorised by the act may be
done (subsections 24JAA(13) and (14)).
Subsection 24JAA(18) provides that notification under subsection 24JAA(10)
of two or more acts to which Subdivision JA applies can be given in the
same notice. This allows action bodies to deal with a range of future acts
relating to a project in a single process and minimises the burden on
native title parties by reducing the number of notices they receive about
related acts and allowing related acts to be considered together.
Subsection 24JAA(15) provides that in consulting with a native title
claimant or registered native title body corporate, the action body must
comply with any requirements determined by the Commonwealth Minister by
legislative instrument. The legislative instrument may specify
requirements as to the manner of consultation and matters to be dealt with
through consultation. It may, for example, require the action body to hold
one or more face-to-face meeting with native title claimants or body
corporate who have requested consultation, provide translators during
consultation, or address issues of the design, location and nature of the
proposed act. The Commonwealth Minister will be able to refine these
requirements in light of the experiences of action bodies and native title
parties over time and having regard to differing projects and community
circumstances.
The procedural rights of native title parties are reinforced by subsection
24JAA(16), which requires an action body to report to the Commonwealth
Minister on the operation of the notice, opportunity to comment, and
consultation requirements in each case. The report must be in writing and
comply with specific requirements which may be determined by the
Commonwealth Minister by legislative instrument. The instrument may, for
example, require the report to cover information as to whether or not a
claimant or body corporate requested to be consulted, and whether or not
comments were received by the action body in relation to the act. It may
also outline the steps taken by the action body to consult with native
title parties about the proposed act, for example whether a meeting was
held with claimants and bodies corporate. To promote transparency, the
report may be published by the Commonwealth Minister.
There may be circumstances where there is more than one action body for a
future act covered by Subdivision JA. This may arise where a number of
Crown bodies are jointly responsible for a particular project. In these
instances subsection 24JAA(17) provides that if one action body for a
future act meets a requirement of subsections 24JAA(10), (11), (12), (14),
(15) and (16) in relation to an act, then any other action body in relation
to the act is taken also to have met that requirement. The intention is to
avoid duplication of those requirements in subsections 24JAA(10), (11),
(12), (14), (15) and (16).
Subsection 24JAA(19) would insert the definition of consultation period,
and registered native title rights and interests as it applies to proposed
section 24JAA.
Item 4 - Section 222 (after table item dealing with Registrar)
This item would insert public education facilities, public health
facilities and public housing in the list of definitions in section 222 of
the Native Title Act.
Item 5 - Section 253
This item would insert the definition of public education facilities in
section 253 of the Native Title Act.
Item 6 - Section 253
This item would insert the definition of public health facilities in
section 253 of the Native Title Act.
Item 7 - Section 253
This item would insert the definition of public housing in section 253 of
the Native Title Act.
Item 8 - Compensation for acquisition of property
This item would provide for just terms compensation for any acquisition of
property that may result under these amendments. Subitem (1) provides if
the operation of the Act would result in an acquisition of property from a
person within the meaning of section 51(xxxi) of the Constitution,
otherwise than on just terms, the Commonwealth is liable to pay reasonable
compensation to the person. Subitem (2) provides that if the amount of
compensation cannot be agreed between the Commonwealth and the person, the
person may take proceedings in a court of competent jurisdiction for a
determination of reasonable compensation.
Subitem (3) defines acquisition of property and just terms for the
purposes. These terms are defined as having the same meanings as in
section 51(xxxi) of the Constitution.