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2016 - 2017
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
NATIVE TITLE AMENDMENT (INDIGENOUS LAND USE AGREEMENTS) BILL
2017
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the
Attorney-General, Senator the Honourable George Brandis QC)
AMENDMENTS TO THE NATIVE TITLE AMENDMENT (INDIGENOUS LAND
USE AGREEMENTS) BILL 2017
GENERAL OUTLINE
Purpose and Objective
1. The purpose of these amendments to the Native Title Amendment (Indigenous Land
Use Agreements) Bill 2017 (the Bill) is ensure, based on stakeholder feedback, that the
retrospective validation provisions of the Bill cover all ILUAs that could be affected by the
decision in McGlade v Native Title Registrar [2017] FCAFC 10 (McGlade).
2. The amendment to Schedule 1 of the Bill would amend item 9 of the Bill to include
an additional ground for application of the retrospective validation provisions, where an
agreement had been registered on or before 2 February 2017 but no members of the
registered native title claimant were party to the agreement.
Retrospective validation of ILUAs
3. One of the primary purposes of the Bill is to retrospectively validate indigenous land
use agreements (ILUAs) that could be invalidated by applying the decision in McGlade.
4. ILUAs are a mechanism allowing native title holders and claimants and third parties
to agree about the doing of things on land subject to native title. ILUAs can cover a range of
matters including:
agreement about the doing of acts that may affect native title
how native title and other rights in a given area will be exercised including
how parties will be notified and consulted
agreement on compensation and other benefits.
5. The effect of the decision has been to leave a number of ILUAs open to legal
challenge. This brings into doubt concluded agreements, the validity of acts done in reliance
on those agreements, and any benefits transferred or to be transferred in the future as a result
of the agreements.
6. Allowing affected ILUAs to remain open to challenge creates great uncertainty about
whether agreements struck can continue to be relied upon for both native title holders and
third parties. It also raises the prospect of significantly increased costs for the sector both in
the form of litigation about the status of affected agreements, which may divert resources
away from progressing claims for native title, and potentially the need to re-negotiate ILUAs
which may have already taken several years and significant resources to negotiate. It is
estimated that 126 ILUAs are affected by the McGlade decision.
7. In the event that the Bill results in the acquisition of property from a person, that
person is entitled to claim reasonable compensation from the Commonwealth in respect of
that acquisition.
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FINANCIAL IMPACT
8. This Bill will have a nil or insignificant financial impact on Commonwealth
Government departments and agencies.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Amendments to the Native Title Amendment (Indigenous Land Use Agreements) Bill
2017
1. The amendments are 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 amendments
2. The amendments to the Native Title Amendment (Indigenous Land Use Agreements)
Bill 2017 give effect to the recommendations of the Senate Legal and Constitutional Affairs
Legislation Committee report, tabled on 20 March 2017 and to ensure, based on stakeholder
feedback, that the retrospective validation provisions of the Bill cover all ILUAs affected by
the decision in McGlade v Native Title Registrar [2017] FCAFC 10.
Human rights implications
3. 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
4. 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.
5. 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
6. 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
7. The Native Title Act 1993 as a whole promotes the right to enjoy and benefit from
culture, by establishing processes through which native title can be recognised, and providing
protection for native title rights and interests. These amendments continue to promote these
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).
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rights, by providing certainty to native title claimants and holders, and third parties on the use
of native title land and waters through voluntary agreements.
8. Specifically, the amendments aim to preserve the control of native title holders over
decisions and agreements about their native title rights.
The right to self-determination
9. The right to self-determination is a collective right, in that it pertains to groups of
people, as opposed to 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.
10. 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 as to how human rights
standards under international law apply to the particular situation of Indigenous peoples.
11. These amendments aim to preserve the control of native title holders over decisions
and agreements about their native title rights.
Conclusion
12. The amendments are compatible with human rights because they promote the
protection of the right to enjoy and benefit from culture, and the right to self-determination.
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NOTES ON AMENDMENTS
Amendments to Schedule 1
Amendment 1 Item 9
1. This amendment inserts a new sub-item 9(1A) into the Bill. The new sub-item adds an
additional ground for the validation of an agreement where that agreement had been
registered on or before 2 February 2017 but to which none of the members of the relevant
registered native title claimant (RNTC) were a party.
2. This amendment has been developed to address concerns raised in relation to a small
number of agreements in the Cape York region.
3. The new paragraph expands the ambit of the validation provision to include ILUAs
which were not signed by the person or persons who comprised the RNTC, provided that
such ILUAs were valid in all other respects, and had already been registered prior to the
decision in McGlade. Currently item 9 will only validate agreements where at least one of the
persons who comprised the RNTC was a party to the agreement.
4. This measure is designed to address the specific circumstances of a small number of
registered agreements that have not been signed by any members of the relevant RNTC. This
has occurred where all members of the RNTC were deceased, or where the practice of
particular native title claim groups was for persons other than the RNTC to be party to
agreements concerning specific areas of land or water in the claim.
5. Unlike item 9(1) which applies to ILUAs yet to be registered as well as registered
ILUAs, this measure will only validate agreements that have been registered. Those
agreements will have already passed through the authorisation and objection processes set out
by the Act. The intention of the provision is to validate only that small subset of registered
ILUAs that were not signed by the appropriate RNTC. The amendment has no application to
existing, unregistered, ILUAs or ILUAs negotiated in the future.
6. This change has been made upon the request and with the support of native title
stakeholders who have identified ILUAs that have been made and registered where none of
the members of the RNTC were a party to the ILUA. For the avoidance of doubt, this
amendment is not intended to reflect how agreements may be made under the Act in future.
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