Tuesday, 2 February 2021
Native Title Legislation Amendment Bill 2020; Second Reading
Before the debate on the Native Title Legislation Amendment Bill 2020 was interrupted, I was about to take on some of the matters that had been raised by those opposite in relation to their concerns about this bill. I will go through them one by one. First, let me deal with the amendment moved by Senator Thorpe on behalf of the Australian Greens. The proposed amendment seeks to do two things—to expand the scope of proposed section 47C in schedule 3 to the bill and to omit or delete the remaining eight schedules of it, effectively gutting it of most of its volume.
The Australian government recognises the importance of engaging in good-faith consultations with Aboriginal and Torres Strait Islander peoples in relation to the decisions that affect them. So, consistent with the principles under the United Nations Declaration on the Rights of Indigenous Peoples, we have endeavoured to make sure that can be given effect. The bill has been developed through careful, extensive consultation, including with native title representative bodies, registered native title bodies corporate and other Indigenous stakeholders. It represents a balanced package of focused reforms supported by a broad range of stakeholders in the native title sector.
The bill is about delivering practical solutions that will ensure the native title system continues to meet the evolving needs of all stakeholders and, in particular—always in particular—traditional owners. The bill seeks to improve outcomes for native titleholders by supporting the capacity of native titleholders to control their rights and land through greater flexibility in internal decision-making, so that native titleholders are able to make their own decisions about how they do that in a way that works for them and their cultural practices. It seeks to improve outcomes for native titleholders by improving claims resolution and agreement-making processes and also by improving pathways for resolving disputes following the determination of native title. The government considers that the form of this bill operates effectively to provide practical improvements to the native title system for all people involved in it and shouldn't be amended or delayed from being passed.
I thought I might say some things about section 47C. Schedule 3 will amend the Native Title Act to enable parties to agree to disregard the historical extinguishment of native title over an area that has been set aside or vested to preserve a natural environment, such as a national, state or territory park. Many native titleholders have traditional and cultural connections to areas that are covered by national, state and territory parks, and we recognise that. We recognise its importance. This is therefore a focused and positive measure that is specifically seeking to enable native title rights to be recognised in those areas.
The proposed amendment on sheet 1185, however, seeks to expand the operation of this provision to include other Crown land beyond park areas. You might say: what's wrong with that? It operates in isolation from understanding the rest of the act around it. For instance, the Native Title Act already contains provisions which allow prior extinguishment of native title to be disregarded in certain circumstances. Section 47 deals with it in relation to pastoral leases, section 47A deals with it in relation to beneficial Aboriginal reserves and 47B deals with it in relation to vacant Crown land. So, in many ways, that is a change in search of a problem.
The current drafting of proposed section 47C that's contained in schedule 3 of the bill has been subject to extensive consultation with a wide range of stakeholders and it is strongly supported by native titleholders. It wouldn't be desirable to expand the operation of that provision in the way this amendment suggests it should without further consulting with all of those relevant stakeholders, without giving them their say, because it's important that that all relevant stakeholders in the native title system—including, of course, native titleholders but also state and territory governments—get their chance to contribute. That's particularly important given state and territory governments will be the primary government party to agreements required under proposed section 47C. This bill is a package of reforms responding to different interests of different stakeholders in the native title system. It wouldn't be a good idea and it wouldn't be desirable or in the interests of those who participate in the system to split it from the reform package.
In the time remaining, I might deal with a concern raised by Senator Dodson about the potential for continuing validity of ILUAs affected by fraud. The bill makes it clear that the validity of a future act done in accordance with a registered Indigenous land use agreement is not affected by the subsequent removal of that ILUA from the register of ILUAs. That amendment doesn't reflect the present position at all; it only clarifies it. Additional material has been included in the replacement revised explanatory memorandum to make sure it is indeed crystal clear. These measures would implement recommendations made by the 2015 COAG Investigation into Indigenous Land Administration and Use to clarify that the removal of details of ILUAs from the ILUA register does not reflect the validity of future acts done under it.
While that measure wasn't supported by the Expert Indigenous Working Group advising the COAG investigation, further consultation with states, territories and relevant stakeholders was recommended, and then that consultation occurred during the development of this bill. So, in a sense, the position moved on from the point of the 2015 report. The objective of the amendment is to ensure that there is certainty to all parties around the validity of any acts that are done pursuant to an ILUA which has been removed from the register, including, for example, in circumstances where the ILUA has come to an end. It would be perverse if an ILUA that's come to an end faced the invalidity of the acts done under it from that point onwards.
To date there have been very few applications to the Federal Court to remove an ILUA from the register on the basis of fraud and duress, and none of those have been successful. There are several reasons why it wouldn't be desirable to retrospectively invalidate future acts under an ILUA that's been obtained as a result of fraud or duress. Firstly, the implications of such retrospective invalidation may be very complex and would raise difficult questions, such as, for example, whether benefits already received by the native title groups under the ILUA should be recouped. Surely that wouldn't be a good thing for native title holders. Secondly, there may be parties who enter the ILUA in good faith and have done nothing wrong but who would nevertheless suffer as a result of the retrospective invalidation of that future act. Thirdly, it may not be appropriate for all future acts covered by an ILUA removed from the register to be invalidated.
It's worth saying that these measures don't affect a court's power under section 199C of the Native Title Act to remove the details of an agreement from the register. These measures do not affect the court's ability to deal with the effect of any fraud, any undue influence or any duress. I hope that assists those opposite to see the government's position on this matter. If there are any further concerns about it, I'm happy to take those during the period for questions.
In the time remaining, I might conclude with this. The government considers that, despite significant progress, there is scope for improving the native title system to improve the recognition and management of native title rights and traditional lands. This bill demonstrates our commitment to the native title system. I thank all senators for their contributions to the debate and commend the bill to the Senate.