Native Title Legislation Amendment Bill 2019 - Commentary on Ministerial Responses [2019] AUSStaCSBSD 175 (5 December 2019)

• Native Title Legislation Amendment Bill 2019
• Retrospective application 23

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Native Title Legislation Amendment Bill 2019

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
Bill status	Before the House of Representatives

Retrospective application ^[23]

2.51 In Scrutiny Digest 8 of 2019 the committee requested the Attorney-General's more detailed advice as to the necessity and appropriateness of retrospectively validating section 31 agreements, including more detailed information regarding whether there will be a detrimental effect to any involved parties.^[24]

Attorney-General's response^[25]

2.52 The Attorney-General advised:

According to data held by the National Native Title Tribunal, as of October 2019 there are 3656 section 31 agreements across Australia. The majority of these agreements are located in Western Australia and Queensland. The advice of stakeholders across the sector – including native title holders and their representatives, industry and state governments – was that hundreds of section 31 agreements may require validation as a result of McGlade v Native Title Registrar [2017] FCAFC 10 (McGlade).
For example, in its February 2018 submission on the options paper for native title reform, the Western Australian Government advised it was aware of 307 mining leases, 11 land tenure grants and four petroleum titles which had section 31 agreements possibly affected by McGlade. This submission is available on my department's website.
There has been widespread consultation on the proposed approach to validation. Those consultations have indicated that it is well-supported by the native title and Indigenous representatives, states and territories and peak industry groups.
Section 31 agreements, reached between native title groups, project proponents and relevant governments, can underpin resources projects and can provide benefits for native title groups. The uncertainty created by the potential invalidity poses risks to both those projects and the related benefits flowing to native title groups. These benefits may include employment, monetary payments and other arrangements.
The amendment seeks to restore the situation as the relevant parties understood it to be prior to McGlade. I note that the if amendment results in an acquisition of property other than on just terms, provision has been made for compensation to be payable (under Schedule 9 of the Bill).

Committee comment

2.53 The committee thanks the Attorney-General for this response. The committee notes the Attorney-General's advice that according to data held by the National Native Title Tribunal, as of October 2019 there are 3656 section 31 agreements across Australia. The committee also notes the Attorney-General's advice that there has been widespread consultation on the proposed approach to validation and that those consultations have indicated that it is well-supported by the native title and Indigenous representatives, states and territories and peak industry groups.

2.54 The committee further notes the Attorney-General's advice that section 31 agreements, reached between native title groups, project proponents and relevant governments, can underpin resources projects and can provide benefits for native title groups. The committee also notes the Attorney-General's advice that the uncertainty created by the potential invalidity poses risks to both those projects and the related benefits flowing to native title groups and that these benefits may include employment, monetary payments and other arrangements.

2.55 The committee requests that the key information provided by the Attorney-General be included in the explanatory memorandum, noting the importance of this document as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.56 In light of the information provided, the committee makes no further comment on this matter.

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[23] Schedule 9, item 2. The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[24] Senate Scrutiny of Bills Committee, Scrutiny Digest 8 of 2019, pp. 25-26.

[25] The Attorney-General responded to the committee's comments in a letter dated 2 December 2019. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 10 of 2019 available at: www.aph.gov.au/senate_scrutiny_digest