Thursday, 12 November 2020
Native Title Legislation Amendment Bill 2020; Second Reading
I table a revised explanatory memorandum relating to the bill and move:
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard.
The speech read as follows—
The speech read as follows—The Native Title Legislation Amendment Bill 2020 will amend the NativeTitle Act1993 and the Corporations(Aboriginal and Torres Strait Islander) Act 2006 – known as the CATSI Act – to better support the resolution of native title claims and agreement-making around the use of native title land, and to promote the autonomy of native title groups to make decisions about their land and to resolve internal disputes.
Developed through extensive consultation with key stakeholders, the Bill will implement practical and pragmatic improvements to ensure the ongoing effectiveness of the native title system.
The Bill will also build on the amendments made by the Native Title Amendment (Indigenous Land Use Agreements) Act 2017 toprovide certainty around the status of important mining and exploration-related native title agreements affected by the Full Federal Court of Australia's decision in the matter of McGlade v Native Title Registrar & Ors.
It has now been over 25 years since the High Court of Australia's historic decision in Mabo v Queensland (No 2)  HCA 23 and the passage of the Native Title Act 1993. The native title system has entered a period of maturity, with most legal issues relating to determination of native title claims settled and native title agreement-making now a recognised and normal part of "doing business on land" in Australia.
Through the collective efforts of all parties in the native title system, significant progress has been made in resolving claims for the recognition of native title. There are now more native title determinations than active claims on foot – as of June 2019, the National Native Title Tribunal's website reports there have been 465 determinations of native title compared to 268 claim applications on foot. The status of native title has been determined over approximately 42.3% of Australia's land mass, with another 22.3% subject to a native title claim.
As at June 2019, according to the Office of the Registrar of Indigenous Corporations, known as ORIC, there are 202 registered native title bodies corporate – or RNTBCs – being the Indigenous corporations that hold native title once it has been determined, operating across Australia.
While these statistics indicate the native title legislative framework is broadly operating well, there are a number of challenges this Bill seeks to address. In particular, the Bill seeks to ensure the ongoing effectiveness of native title claims resolution and agreement-making, and to support the sustainable management of native title land post-determination.
The Bill also supports other Australian Government objectives around native title, including the aspiration to resolve all native title claims existing at June 2015 by 2025 and initiatives to activate the economic potential of land rights under the 'Our North, Our Future: White Paper on Developing Northern Australia'.
The Bill will implement a number of recommendations from recent reviews of native title, including:
- Connection to CountryReview of the Native Title Act 1993'
- Investigation into Land Administration and Use
- CATSI Act,
The content of the Bill is also informed by feedback from stakeholders, following consultation on an options paper for native title reform released from November 2017 to February 2018. The Government received over 50 submissions on the options paper and conducted over 40 stakeholder meetings across the country. Exposure draft legislation, released for public comment on 29 October 2018, was carefully developed in consultation with stakeholders across the native title system. That draft legislation received a further 36 submissions from stakeholders.
An Expert Technical Advisory Group convened by the Government and comprised of nominees from the National Native Title Council, National Native Title Tribunal, Federal Court of Australia, government and industry has also provided valuable technical assistance throughout the process of developing this Bill.
The Bill will improve the native title system for all parties, including by:
The Bill will also as a matter of urgency confirm the validity of agreements made under section 31 of the Native Title Act in light of the Full Federal Court of Australia's decision in McGlade. Section 31 agreements are a particular kind of native title agreement which relate to the grant of mining and exploration rights over land which may be subject to native title, and the compulsory acquisition of native title.
While the Government took decisive action to ensure the validity of Indigenous Land Use Agreements through the amendments in 2017, there is a significant risk that the issue raised by the McGlade decision similarly affects section 31 agreements.
The validity of section 31 agreements was not confirmed as part of the 2017 amendments because stakeholders wanted more time to consider this issue and its potential impact. Following the process of extensive consultation on this Bill, there is widespread native title sector support for the validation of these agreements, and the proposed validation mechanism in this Bill.
In particular, Schedule 9 of the Bill will seek to confirm the validity of section 31 agreements where not all members of the native title party (also known as the 'applicant') have entered into the agreement. McGlade held that it is necessary for all members of this group to enter into an agreement, even if a single member was unwilling or unable to sign the agreement (including because the person was deceased).
Under the proposed amendments, section 31 agreements entered into prior to the commencement of this amending Bill will be validated, provided that at least one member of each relevant native title party is a party to the agreement. These amendments will provide certainty to Indigenous and non-Indigenous parties who have already concluded these agreements, including by protecting any resulting benefits and interests agreed to by the parties.
Response to the Senate Legal and Constitutional Affairs Legislation Committee Report on the Native Title Legislation Amendment Bill 2019
The Senate Legal and Constitutional Affairs Legislation Committeeundertook a comprehensive inquiry into the provisions of the Bill, commencing its inquiry on 17 October 2019 and tabling its report on 19 August 2020. The Committee's Report recommended that the Senate pass the Bill.
The Committee's Report included a Minority Report from Labor Senators which, while supporting the objective of the Bill, made five recommendations.
Recommendations 1, 3, and 4 of the Minority Report are directed to the Government commissioning or undertaking further review and reform to the Native Title Act.
In response to Recommendation 1 of the Minority Report, the Government will request the Aboriginal and Torres Strait Islander Social Justice Commissioner conduct a review of the operation of the Native Title Act and its impact on native title holders, following the completion of stage two of the Wiyi Yani U Thangani (Women's Voices) report and any associated work.
In response to Recommendation 4 of the Minority Report, the Bill inserts new section 209A, which will require an evaluation of the amendments progressed through the Bill to be conducted within five years of the commencement of key measures in the Bill.
Further overhaul of the native title system, including so that native title holders can better leverage their land and sea assets as recommended by Recommendation 3 of the Minority Report, would need to be considered in light of the Aboriginal and Torres Strait Islander Social Justice Commissioner's review and the results of the formal evaluation mechanism included in the Bill.
Recommendation 2 of the Minority Report calls on the Government to provide a comprehensive response to the 30 recommendations for reform in the Australian Law Reform Commission's 2015 report on Connection to Country: Review of the Native Title Act. This Bill represents the Government's response to the ALRC's report.
The Bill implements a number of recommendations made by the ALRC which received broad stakeholder support through consultation on the development of the Bill, in particular measures relating to the role of the applicant in Schedule 1 of the Bill. In deciding which recommendations of the ALRC to progress, the Government also took into account the ongoing development of native title case law and the broader native title system. A number of ALRC recommendations were also not progressed as a result of stakeholder feedback during consultation on the options paper for native title reform.
The Senate Committee's Report into the Bill also included a Dissenting Report from Australian Greens' Senators. This Dissenting Report recommended that the Bill not proceed until a number of matters are addressed. These matters include the potential retrospective application of certain provisions, ILUAs that are affected by fraud, the interaction between the proposed section 47C and the NSW Aboriginal Land Rights Act 1983, the Commonwealth's role as intervener, and the expansion of the powers of ORIC.
The Government has provided further explanatory material in the form of addenda to the Explanatory Memorandum to the Bill that responds to issues raised in the Dissenting Report. This further explanatory material clarifies:
The amendments will not enable retrospective application of certain provisions of the Bill, as is suggested in the Dissenting Report. The amendments to sections 24CD, 24CL, 24DE and 251A of the Native Title Act 1993 will only apply to ILUAs where the application for registration is made after commencement of the relevant provisions in the amending Act, and section 31 agreements which are made after commencement of the relevant provisions in the amending Act. The amendments to sections 87 and 87A will only apply in relation to any proposed determination filed after commencement of the provisions in the amending Act. New section 62C will apply in relation to anything done after commencement of the amending Act.
Schedule 3 of the Bill will enable native title parties and the relevant government party to agree to disregard the historical extinguishment of native title over an area that has been set aside or vested to preserve the natural environment, such as national, state and territory parks.
In their Dissenting report, the Greens' Senators raised concerns in relation to this provision and its interaction with statutory land rights in New South Wales under the NSW Aboriginal Land Rights Act 1983. The drafting of this provision includes a number of safeguards to ensure the recognition and protection of third party interests – including NSW Aboriginal Land Councils. These safeguards include:
Importantly, this measure will only operate where native title and government parties agree, and will be subject to any conditions required by the government party. This measure has been designed to allow the relevant government and native title parties to work together to ensure the use of this provision complements existing rights and interests, including those of NSW Aboriginal Land Councils.
Measures in the Bill
Supporting the capacity of native title holders through greater flexibility around internal decision -making
Under the Native Title Act, the applicant is the person or group of people authorised by a native title claim group to make and manage a claim on their behalf. The applicant can also enter into native title agreements on behalf of the group where authorised to do so. The process of authorisation recognises the communal character of traditional law and custom which grounds native title, and ensures that claims are not lodged without the consent of the broader native title claim group.
The amendments in Schedule 1 to the Bill will implement recommendations made by the Australian Law Reform Commission report and COAG Investigation to give native title holders the option of greater flexibility around setting their internal decision -making processes, to support robust decision-making structures, and to ensure the applicant is accountable to the broader claim group.
The amendments will allow the claim group to impose conditions on the authority of the applicant, if they wish to, which might include, for example, a condition to require the applicant to get approval from the claim group before agreeing to a consent determination or discontinuing a claim. This will allow the claim group to retain control over the management of their claim, and increase the applicant ' s accountability as the group ' s appointed representative.
The amendments will allow a majority of the applicant to make decisions in relation to the management of a native title claim or entering into native title agreements, rather than requiring all members of the applicant to act together, unless the claim group requires unanimity. These amendments extend the changes to the process for entering into Indigenous Land Use Agreements made by the 2017 amendments to all things the applicant can do under the Native Title Act, consistent with recommendations made by the Law Reform Commission's report.
Finally, the amendments will make it simpler for the claim group to replace individual members of the applicant if the member becomes too ill to perform their duties, or has passed away, including through pre -agreed succession-planning arrangements. This is intended to both streamline the process of replacing members of the applicant, while also supporting native title claim groups to develop their own governance structures early on in the life of a native title claim.
Streamlining claims resolution and agreement-making processes
As more native title claims are determined, the focus of the system will shift to the ways in which native title holders can make agreements with other parties about the use of land and waters subject to native title. The efficient and effective operation of the Native Title Act's agreement-making processes is also critical to native title claimants and holders obtaining economic benefit from native title. The amendments in Schedules 2 and 4 to the Bill will implement a number of technical recommendations by the COAG Investigation to improve the claims resolution and agreement-making processes under the Act.
This includes amendments to expand the scope of the agreement-making and claims resolution provisions for native title corporations. 'Body Corporate Indigenous Land Use Agreements' will now be able to include areas where native title has not been recognised that are within a larger determination of native title – until now, these circumstances have required parties to use an 'area Indigenous Land Use Agreement', which can be more costly and time-consuming for all parties to enter into. Enabling a wider and more flexible use of 'Body Corporate Indigenous Land Use Agreements' will accordingly reduce transaction costs and timeframes for all parties.
The circumstances under which a native title corporation can bring a claim for compensation for extinguishment of native title will also be expanded. This will provide native title compensation claim groups with a wider range of options for bringing those proceedings.
Schedules 5 and 6 of the Bill will make further minor procedural amendments to clarify processes around claims resolution, including around the power of the Federal Court to make consent determinations, as well as objections to activities which affect native title, also known as 'future acts'.
Schedule 6 also includes an amendment to require the Native Title Registrar to keep a public record of section 31 agreements. This measure responds to stakeholder feedback received through consultation on the Bill for there to be greater transparency around the making of these agreements. Currently, parties to a section 31 agreement are required to give a copy of the agreement to the National Native Title Tribunal, but the Tribunal has no power to do anything with it.
This measure would require the Registrar to keep a public record with certain details about section 31 agreements – including who the parties are and what area the agreement covers – but an agreement does not need to appear on the record for it have legally binding effect. The content of section 31 agreements themselves will also remain confidential, respecting the commercial-in-confidence nature of such agreements.
Disregarding historical extinguishment of areas of national, state or territory parks
Schedule 3 to the Bill 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 the natural environment, such as areas of national, state and territory parks.
The proposed measure will only operate by agreement between the parties and will ensure that any existing third party interests are appropriately recognised.
The purpose of this amendment is to provide parties with more flexibility to disregard historical extinguishment, and will allow for more opportunities for native title to be recognised over areas where important connection to country exists for traditional owners.
Increasing the transparency and accountability of prescribed bodies corporate to the native title holders
Native title corporations manage native title rights on behalf of the native title holders. This role is an important one for the community and for land management generally. Unlike other corporations, these bodies have obligations to the native title holders, who may or may not be members of the corporation.
The amendments in Schedule 8 to the Bill include measures to improve the transparency, accountability and governance around the decisions that native title corporations make, with a particular focus on membership.
The amendments will remove the discretion of directors to refuse membership where an applicant meets the eligibility requirements and has applied for membership in the required manner, and will require native title corporations to align their membership criteria with the native title determination. The reforms also limit the grounds for cancelling membership to those provided for under the CATSI Act. These measures will assist to prevent the corporations from arbitrarily acting to exclude native title holders from membership and to ensure that all native title holders may be represented in a corporation, directly or indirectly.
Improving pathways for dispute resolution following a determination of native title
According to statistics held by ORIC, native title corporations are subject to a relatively large number of disputes about how the corporation is managing the native title. This is not surprising given the early stage of development of many of the corporations, and the responsibilities of PBCs under both Australian and traditional law.
Native title disputes, in particular between native title corporations and native title holders, impact on corporation governance and the ability of the corporations to fulfil their obligations. Disputes also impact the ability of native title holders to exercise their native title rights. This package of reforms aims to improve the way disputes are handled in future.
The amendments in Schedule 8 to the Bill require native title corporations to include a process in their rule books for resolving disputes with native title holders. Currently rule books are only required to include a dispute resolution clause relating to the internal operation of the corporation. This reform ensures corporations have procedures to address disputes with native title holders, whether or not they are members of the corporation, and aims to resolve disputes early and internally, before the corporation needs to obtain costly legal advice or the dispute escalates. The process would be designed by the corporation to meet their needs and circumstances.
The amendments clarify that the Registrar of Indigenous Corporations may place a native title corporation under special administration where it has seriously or repeatedly failed to comply with its obligations under native title legislation. Examples of this conduct may include failing to consult with and obtain the consent of native title holders for certain decisions, or failing to act in accordance with the directions of native title holders where there is a significant consequence for native title holders.
To further support dispute resolution pathways, the Bill introduces a new requirement that certain matters arising under the CATSI Act that relate to native title corporations must be instituted in the Federal Court. This reform recognises the specialist expertise of the Federal Court to resolve disputes relating to native title.
In addition, Schedule 7 to the Bill will provide the National Native Title Tribunal with a new function to provide direct assistance to native title corporations and native title holders to promote agreement about native title-related issues. Under the current law, the Tribunal can only provide assistance in relation to intra-Indigenous disputes when invited by a native title representative body or service provider to do so. The function is designed to provide the Tribunal with flexibility in how it is performed, but is broad enough to allow the Tribunal to provide assistance to native title corporations and holders around the establishment of governance processes, the mediation of disputes and to facilitate collaboration between native title corporations.
Stakeholders across the native title system agree that, despite significant progress, there is scope for reforming the native title system to improve the recognition and management of native title rights and traditional lands.
These amendments demonstrate the Australian Government ' s commitment to ensuring that the native title system meets the current needs of all native title stakeholders. Taken together, these amendments will improve the native title system for all parties, promoting effective native title claims resolution and agreement -making, and the management of native title land post -determination.