Native Title Legislation Amendment Bill 2019 [2020] AUPJCHR 58 (9 April 2020)

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Purpose	This bill seeks to amend the Native Title Act 1993 and the Corporations (Aboriginal and Torres Strait Islander) Act 2006 to modify the native title claims resolution, agreement-making, Indigenous decision-making and dispute resolution processes
Portfolio	Attorney-General
Introduced	House of Representatives on 17 October 2019
Rights	Culture; self-determination; privacy
Status	Concluded

2.230 The committee requested a response from the Attorney-General in relation to the bill in Report 1 of 2020.^[2]

Majority default rule in applicant decision-making

2.231 The bill seeks, among other things, to amend the Native Title Act 1993 (NTA) to allow, as the default position, an applicant to a native title claim to act by majority for all things that the applicant is required or permitted to do under the NTA^[3] and to allow a claim group to place conditions on the authority of the applicant.^[4]

2.232 The 'applicant' to a native title claim is the person or group of people authorised by a native title claim group^[5] to make or manage a native title claim on their behalf.^[6] Once a claim has been made and has been accepted for registration by the National Native Title Tribunal, the names of the people who make up the applicant appear on the Register of Native Title Claims (Register). The person or persons whose names appear as the applicant on the Register are then also collectively known as the 'registered native title claimant'. The applicant is also the 'native title party' for the purpose of the process through which agreements are made under section 31 of the NTA.^[7]

2.233 Currently, the default rule under the NTA is that the applicant is required to act jointly or unanimously when carrying out duties or performing functions under the NTA.^[8] In McGlade v Native Title Registrar & Ors (McGlade),^[9] the Full Court of the Federal Court held that all members of the applicant—or the registered native title claimant for the purpose of Indigenous Land Use Agreements (ILUAs)^[10]—must be party to an area ILUA^[11] before the ILUA can be registered and come into effect.^[12]

2.234 The Native Title Amendment (Indigenous Land Use Agreements) Act 2017 (2017 Act) reversed the effect of McGlade by changing the default position for future area ILUAs so that a majority of members of the registered native title claimant may be party to the agreement unless otherwise determined by the group.^[13] That Act also retrospectively validated area ILUAs that were invalidated by McGlade.^[14]

2.235 Schedule 1 of the bill seeks to expand the effect of the 2017 Act so that the applicant may act by majority as the default position for all things that the applicant is required or permitted to do under the NTA.^[15]

2.236 Schedule 9 of the bill also seeks to confirm the validity of section 31 agreements that may potentially be affected by McGlade. The effect of this is that agreements made under section 31, which relate to the grant of mining and exploration rights over land that may be subject to native title, are retrospectively validated, where at least one member of the registered native title claimant was party to the agreement.

2.237 The bill provides that the default rule may be displaced by conditions imposed on the authority of the applicant under proposed section 251BA,^[16] such that where there is a process of decision-making that must be complied with under the traditional laws and customs of the persons who authorise the applicant,^[17] it must be in accordance with that process.^[18] Where there is no such decision-making process, the persons can agree to and adopt a process of decision-making.^[19] A similar safeguard applies in relation to section 31 agreements.^[20]

2.238 The bill also provides that the applicant's power to deal with all matters to do with an application is subject to conditions on the authority of the applicant under proposed section 251BA,^[21] and further that the Registrar must be satisfied not only that the applicant is authorised by the claim group but also that any conditions on the authority of the applicant have been satisfied when registering a claim on the Register.^[22]

Summary of initial assessment

Preliminary international human rights legal advice

Rights to culture and self-determination

2.239 The statement of compatibility acknowledges that by introducing a majority default rule for applicant decision-making, and by retrospectively validating section 31 agreements, the bill engages and may limit the right to culture.^[23] This is because there may be a conflict between an individual's or a sub-group's right to culture, and the interests of the majority or of the group as a whole.

2.240 All individuals have a right to culture under article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR); article 27 of the International Covenant on Civil and Political Rights (ICCPR) and related provisions provide individuals belonging to minority groups, including Indigenous peoples, with additional protections to enjoy their own culture, religion and language.

2.241 The rights conferred under article 27 of the ICCPR have both an individual and a group dimension: while the right is conferred on individuals, it must be exercised within the group. In the context of indigenous peoples, the right to culture includes the right for indigenous people to use land resources, including through traditional activities such as hunting and fishing, and to live on their traditional lands.^[24]

2.242 Where there is a conflict between the wishes of individual members of the group and the group as a whole, international jurisprudence indicates that 'a restriction on the right of an individual member of a minority must be shown to have a reasonable and objective justification and to be necessary for the continued viability and welfare of the minority as a whole'.^[25] In other words, a limitation on the right to culture will be permissible where it pursues a legitimate objective, including that it is necessary for the continued viability and welfare of the minority as a whole, is rationally connected to this objective and is a proportionate means of achieving this objective.

2.243 Relevant international jurisprudence also indicates that individual rights to culture can generally be restricted when to do so is in the interests of the minority group as a whole. Requiring unanimity for all applicant decision-making may undermine the process of agreement-making under the NTA and to that extent may impact on the enjoyment of the right to culture for the majority of the group.^[26] In this respect, the measures may be a proportionate limitation on the right to culture.^[27]

2.244 However, processes such as native title claims, ILUAs and section 31 agreements may cover a range of serious matters. For example, matters that may be covered by ILUAs include the extinguishment of native title rights and interests. Accordingly, where the terms of an agreement are a matter of dispute within the claim group, majority decision-making may profoundly affect the interests of certain individuals or sub-groups in relation to the right to culture. It is relevant here that the law allows for decision-making in accordance with traditional laws and customs or (where there is no such process) in accordance with a process agreed to and adopted by the group,^[28] which would appear to allow scope to be afforded to minority views. However, in cases where there is no established traditional or customary decision-making process, it remains unclear how an alternative decision-making process will be established by minority members in circumstances where the majority prefers a majority decision-making process. As such, ongoing monitoring and evaluation, including ongoing consultation with affected groups, may be an appropriate safeguard to ensure that these measures do not unduly limit the right to culture.

2.245 The right to self-determination is protected by articles 1 of both the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR). The right to

self-determination, which is a right of 'peoples' rather than individuals, includes the right of peoples to freely determine their political status and to freely pursue their economic, social and cultural development.^[29] The proposed amendments also appear to engage and seem likely to promote the collective right to self-determination, as a minority of members would not be able to prevent decisions being made unless the authorisation process allowed for this.

2.246 It would also appear that validation of agreements already entered into may promote the right to self-determination insofar as it respects a group's decision to collectively pursue aspects of their native title rights and their economic, social and cultural development. It also ensures that those parties to section 31 agreements are able to access benefits flowing from the agreement.

self-determination, Australia has an obligation under customary international law to consult with Indigenous peoples in relation to actions which may affect them.^[30] The UN Human Rights Council has recently provided guidance on the right to be consulted, stating that the right to be consulted should be understood as a right of Indigenous peoples to 'influence the outcome of decision-making processes affecting them, not a mere right to be involved in such processes or merely to have their views heard'.^[31]

2.248 The statement of compatibility identifies safeguards in the bill that were introduced in response to consultation and concerns being raised around the risk 'that allowing majority decision-making promotes outcomes at the expense of collective decision-making.'^[32] These safeguards, in particular the safeguard requiring decision-making to accord with traditional laws and customs (where such a process exists), or for members of the applicant to determine an authorisation process that differs from the majority-default position, are important and assist the proportionality of the measures (although it should be noted that they cannot apply to the retrospective validation of section 31 agreements).

2.249 The concept of 'free, prior and informed consent' also includes the principle that Indigenous peoples should have the freedom to be represented as traditionally required under their own laws, customs and protocols.^[33] In this regard, the safeguards in the bill that allow for traditional decision-making processes to prevail over the default position are important.

2.250 The initial analysis stated that it would assist with compatibility of the bill if the bill required an evaluation to be conducted within an appropriate timeframe to assess the impact of these measures on the rights to culture and self-determination (for example, whether the safeguards are operating effectively to protect the capacity of sub-groups to influence decisions made by the majority of the native title claim group).

Committee's initial view

2.252 The committee noted the legal advice that allowing native title applicants to act by majority as the default rule, and retrospectively validating section 31 agreements, may engage and limit the right to culture.

2.253 However, the committee noted that the effect of the measures on certain individuals' enjoyment of their right to culture must be balanced against the fact that such measures also promote the right to culture for the group as a whole. In light of this, and that members of the applicant group may determine an authorisation process that differs from the majority-default position, the committee noted the advice that these measures may be a proportionate limit on the right to culture, depending on how these safeguards are implemented in practice.

2.254 The committee also noted the advice that the measures may promote the right to self-determination. However, while the statement of compatibility acknowledges that the right to self-determination is engaged by this amendment, it does not provide an analysis as to how this right is promoted.

2.255 Noting the importance of the obligation to consult with Indigenous peoples in relation to actions which may affect them, and the principles outlined in the United Nations Declaration on the Rights of Indigenous Peoples, the committee considered that ultimately much will depend on how the proposed amendments operate in practice.

2.256 As such, the committee sought the Attorney-General's advice as to whether it would be appropriate for the bill to be amended to require an evaluation to be conducted within an appropriate timeframe to assess the impact of these measures on the rights to culture and self-determination (for example, whether the safeguards are operating effectively to protect the capacity of sub-groups to influence decisions made by the majority of the native title claim group).

Attorney-General's response^[34]

Concluding comments

International human rights legal advice

2.258 Allowing native title applicants to act by majority as the default rule, and retrospectively validating section 31 agreements, engages and may limit the right to culture. However, the effect of the measures on certain individuals' enjoyment of their right to culture must be balanced against the fact that such measures also promote the right to culture for the group as a whole. In light of this, and the fact that members of the applicant group may determine an authorisation process that differs from the majority-default position, the measure may be a proportionate limit on the right to culture, depending on how these safeguards are implemented in practice.

2.259 The Attorney-General has advised that the bill will facilitate native title groups' ability to collectively pursue the determination of their native title rights and their economic, social and cultural development, given the ability of the native title claim group to exercise greater control and flexibility in defining the scope of the authority of the applicant. These amendments appear likely to promote the right to self-determination, as a minority of members would not be able to prevent decisions being made unless the authorisation process allowed for this.

2.260 Noting the importance of the obligation to consult with indigenous peoples in relation to actions which may affect them, and the principles outlined in the United Nations Declaration on the Rights of Indigenous Peoples, ultimately much will depend on how the proposed amendments operate in practice. It would therefore assist with compatibility of the bill if the bill required an evaluation to be conducted within an appropriate timeframe to assess the impact of these measures on these rights (for example, whether the safeguards are operating effectively to protect the capacity of sub-groups to influence decisions made by the majority of the native title claim group).

2.261 The Attorney-General has advised that he does not consider it necessary to amend the bill to include a formal evaluation mechanism, as the bill followed an extensive period of consultation, with a specific focus of engagement with Indigenous people, and the government remains committed to ongoing engagement. The Attorney-General has advised that existing formal and informal consultation mechanisms will provide ample opportunity for feedback to be received on the operation of the provisions of the bill once enacted and if, following this consultation, legitimate issues with the operation of the bill are identified, further amendments will be considered.

2.262 From the perspective of international human rights law, it would be preferable for an evaluation of the impact of these measures on the rights to culture and self-determination to be required as a matter of law, by including such a requirement in the bill itself. However, the Attorney-General’s commitment to conduct further consultation and to amend the legislation if there is evidence of a negative impact on the rights to culture and self-determination goes some way to assist with the human rights compatibility of the bill.

Committee view

2.263 The committee thanks the Attorney-General for this response. The committee notes that this bill seeks to modify the native title claims resolution, agreement-making, Indigenous decision-making and dispute resolution processes.

2.264 The committee welcomes the Attorney-General's commitment to ongoing engagement with stakeholders, in particular Indigenous people and their representatives, on native title issues, and that if consultation indicates legitimate issues with the operation of the bill, further amendments will be considered.

2.265 The committee notes the legal advice and considers that while the bill may limit individual enjoyment of the right to culture, this must be balanced against the fact that the measures also promote the right to culture for the group as a whole, and noting additional safeguards in the bill, these measures may be a proportionate limit on the right to culture. The committee also considers the measures may promote the right to self-determination.

2.266 However, noting the importance of the obligation to consult with Indigenous people in relation to action that may affect them, and the principles outlined in the United Nations Declaration on the Rights of Indigenous Peoples, the committee considers that ultimately much will depend on how the proposed amendments and safeguards operate in practice.

2.267 The committee commends the Attorney-General's commitment to ongoing consultation and to amend the legislation if there is any evidence of a negative impact on the rights to culture and self-determination.

[2] Parliamentary Joint Committee on Human Rights, Report 1 of 2020 (5 February 2020),

[3] See, particularly, proposed section 62C(2), and proposed Schedule 1 more broadly.

[5] A native title claim group is defined in section 253 of the Native Title Act 1993 (NTA). See Parliamentary Joint Committee on Human Rights, Report 2 of 2019 (2 April 2019) p. 68 for further discussion.

[6] See explanatory memorandum p. 28; section 61(2) of the NTA. The definition of 'applicant' also covers applications for compensation made by a person or persons authorised to make the application by a compensation claim group: section 61(2)(b).

[7] See explanatory memorandum, p. 27 and section 253 of the NTA. Section 31 of the NTA provides an agreement-making mechanism in the form of a right to negotiate in good faith with a view to obtaining the agreement with native title parties relating to the grant of mining and exploration rights over land which may be subject to native title. These agreements are not publicly registered.

[10] ILUAs are voluntary agreements in relation to the use of land and waters which may cover a number of matters including how native title rights coexist with the rights of other people, who may have access to an area, native title holders agreeing to a future development or future acts, extinguishment of native title, compensation for any past or future act, employment and economic opportunities for native title groups, issues of cultural heritage, and mining: see NTA section 24CB.

[11] 'Area ILUAs' are made in relation to land or waters for which no registered native title body corporate exists.

[14] The committee previously considered the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 and considered the measures were likely to promote the right to self-determination and represented a proportionate limitation the right to culture for any minority members of a native title claimant: Parliamentary Joint Committee on Human Rights, Report 2 of 2017 (21 March 2017) pp. 18-25; Parliamentary Joint Committee on Human Rights, Report 4 of 2017 (9 May 2017) pp. 112-124.

[15] This includes making ILUAs, making applications for native title determinations or compensation applications, and section 31 agreements. See the general rule in proposed section 62C(2). The bill also includes a number of specific amendments to give effect to this general rule as it applies to specific types of agreement-making by the applicant. In so doing, it repeals and replaces aspects of the NTA as amended by the 2017 Act: see EM pp. 37-38.

[17] Section 251A of the NTA sets out the authorisation process for the making of indigenous land use agreements, and section 251B sets out the process for authorising the making of applications for a native title determination or compensation application.

[20] Schedule 1, item 43, proposed section 31(1C), explanatory memorandum, p. 35.

[24] See, UN Human Rights Committee, General Comment No. 23: The rights of minorities (1994).

[25] Kitok v Sweden, UN Human Rights Committee Communication No.197/1985 (1988) [9.8].

[26] See Parliamentary Joint Committee on Human Rights, Report 4 of 2017 (9 May 2017)

[27] Apirana Mahuika v New Zealand, UN Human Rights Committee Communication No. 547/1993 (2000); Kitok v Sweden, UN Human Rights Committee Communication No. 197/1985 (1988) [9.8].

[29] See, UN Committee on the Elimination of Racial Discrimination, General Recommendation 21 on the right to self-determination (1996).

[30] See Parliamentary Joint Committee on Human Rights, Report 4 of 2017 (9 May 2017)

[31] UN Human Rights Council, Free, prior and informed consent: a human rights-based approach - Study of the Expert Mechanism on the Rights of Indigenous Peoples, A/HRC/39/62 (2018)

[33] UN Human Rights Council, Free, prior and informed consent: a human rights-based approach. Study of the Expert Mechanism on the Rights of Indigenous Peoples, A/HRC/39/62 (2018) [20].

Australian Parliamentary Joint Committee on Human Rights