Tuesday, 2 February 2021
Native Title Legislation Amendment Bill 2020; In Committee
I rise to make clear that Labor does not support the amendments put forward by the Greens, and I seek to make a few comments in relation to that. This bill was introduced on 17 October 2019, some 15 months ago. Since that time Labor has been consulting with affected communities and other stakeholders, including through a detailed Senate inquiry. It is unhelpful for significant amendments to be moved now, at the last minute on the very day the bill is debated here. While we do have concerns about certain provisions in this bill, as to how they may operate in practice, there is general agreement from Indigenous stakeholders that this bill improves many aspects of the native title system and should now become law. We in Labor respect the wishes of those Indigenous and other Australians who have made it clear to us in numerous consultations that they want this bill to now become law.
However, recognising the concerns raised by some stakeholders about certain measures in the bill, and in order to address any potential unintended consequences of these measures as well as to address broader concerns about the operation of the native title system, Labor has obtained an agreement from the government that before the end of five years, following commencement of the measures in schedule 6 of this bill, an evaluation of the amendments introduced by this bill will be conducted by the government and a report of that evaluation will be provided to the parliament. The Aboriginal and Torres Strait Islander Social Justice Commissioner, June Oscar AO, will undertake a review of the Native Title Act, and the government has advised us that that review is expected to commence within 12 months. I appeal to the government and the parliament to respond positively to the social justice commissioner's report when her review is completed. The aim should be that that review be a comprehensive review of the operation of the act and the impact on the rights of native title holders, and to achieve amendments to the act in the future that protect the native title rights of First Nations people and ensure that the balance struck between competing interests is transparent and fair. The improvement of our native title system along these lines is an opportunity to bring justice and honour to our nation. It is an opportunity that we urge the government to seize.
Thank you very much for the question. Extensive consultation has been undertaken on the development of this bill, with a focus on traditional owners, including native title representation bodies, registered native title bodies and other Indigenous stakeholders. The principles of free, prior and informed consent have been implemented in this bill by engaging in good faith consultation with Aboriginal and Torres Strait Islander peoples in relation to the decisions that affect them, consistent with the principles of international law under the United Nations Declaration on the Rights of Indigenous Peoples.
The Native Title Act contains safeguards and rights to ensure that native title claimants and holders are notified, consulted and, in certain circumstances, have the opportunity to negotiate or enter into agreements before activities can occur on native title land. The primary source of these processes is the future acts regime in the act. That sets out requirements that must be met before development and other activities on native title land can be validly done. In most instances, the activities will trigger notification rights, but more substantive procedure rights are available in circumstances such as mining and exploration—for instance, tenure upgrades and compulsory acquisition. In the case of mining and exploration, which I'm going to assume for the moment is something you might be interested in, the relevant native title holders or claimants have the right to negotiate with the proponent, including negotiating for compensation for the impairment of native title rights. Agreements concluded in this way are, as you know, referred to as section 31 agreements.
Alternatively, the native title act allows traditional owners to enter into an ILUA, which are flexible agreements that can provide native title groups with a range of economic, social and cultural benefits that they negotiate. There are a range of measures seeking to improve outcomes for traditional owners, including improving the autonomy and control that native titled holders have to make decisions around the use of their land. An example I can give you, for instance, is the measures which allow claim groups to impose conditions on the authority of their authorised representative. The measures which enable parties to disregard historical extinguishment of native title claims over certain areas like national parks are another example. The ability to impose a condition on the authority of an authorised representative is, of course, particularly important, because it allows the native title group to make rules according to their own custom about whether or not unanimous or majority or some other kind of decision-making threshold must be reached before a matter can go forward.
Minister, the Law Council has concerns this maybe contrary to the right of First Nations people to self-determination and to the exercise of free, prior and informed consent. Why is the government proceeding with this when you have the Law Council in disagreement? Also, as a native title holder for two areas of country in Victoria, I certainly can say that there was no free, prior and informed consent there. I have another question in relation to that. Could you explain what 'good-faith consultations' means?
I note what Senator Thorpe has to say about the submissions of the Law Council. They've been taken into account, but the government has reached a view that is different to that which has been reached by the Law Council and has determined that there are sufficient mechanisms available for ensuring that native title holders are able to consider and exercise free, prior and informed consent provided by the bill. The matter in the second part of your question is what 'good faith' means. Good faith has its ordinary meaning at law.
The pursuit of profit has led corporations to seek energy sources and resources, impinging on Indigenous lands and water. Why is this government seeking to impose majority decision-making structures which are not—I repeat, are not—in line with our traditional practices with regard to what happens on country?
This goes to the matter I raised just a moment ago, and that is that at all times there remains the opportunity for a native title group to impose whatever conditions they like upon the exercise of the process for their group. That means that if the native titleholders wish, for instance, to place a condition that says unanimous agreement is required, that is entirely within their power to do so and their right to impose that condition always remains. The majority default rule that is established by this amendment is one that is displaceable at any time upon the placement of a condition by the very same native title group. I trust that resolves your concern about that. It allows the decision-making about the threshold that needs to be reached to always remain in the hands of the group that will be affected by the decision.
Yes, I think that's fair to say. The McGlade decision did put into doubt the validity of section 31 agreements and provided, in effect, that one needed unanimous agreement. That created some impracticalities because there were circumstance where, for instance, one or more of the native titleholders had passed away and it wasn't possible to get the consent of that native titleholder to a particular determination. This is an arrangement that allows for a default of majority decision-making that is displaceable at all times upon the decision of the people affected by the determination to impose a condition that some other, or higher, threshold be imposed for their particular matter. While the short answer is, yes, it's about providing certainty in light of the McGlade decision, it is certainty provided with the opportunity for native titleholders to maintain control at all times about the thresholds that apply to them.
I will take the detail of that on notice. But I can tell you that the consultation process undertaken has not been one-sided. It has involved all the different groups that have an interest in the native title system. There has been public consultation on an options paper for native title reform that went from November 2017 through to February 2018. There was a second stage of public consultation—again, open to anybody—on exposure draft legislation from October to December of 2018. Then meetings were held with key stakeholders across the country and over 80 submissions were received on both the options paper and the exposure draft legislation. Then an expert technical advisory group was convened by the government and it comprised nominees from the National Native Title Council, the National Native Title Tribunal and the Federal Court of Australia. Government and industry have also provided some technical assistance through the process of developing the bill, although, as I understand it, they weren't a part of the expert technical advisory group.
In March 2018, the government also held a round table with members of the National Native Title Council and other native title corporations and representative bodies to discuss the reforms. So, to the extent that you, Senator Thorpe, are concerned about the quality of the consultation process with all of those groups that are interested in the native title system, it has been multi-staged, it has been public so that anybody can participate and it has been supplemented by the expertise of people who know the technical effect of the matters that were the subject of those submissions. As to the detail of precise names, I'll take that on notice.
Your question goes to retrospectivity, but before I go to that, if it's okay, I'll just clarify a matter I took on notice a moment ago. The National Native Title Council does support, based on the advice I've been given, the bill. I hope that's of use to you.
As to the question of retrospectivity, the only measure in the bill that applies retrospectively is the validation of section 31 agreements, and that goes to the matter raised in the decision of McGlade v Native Title Registrar and others, of which, Senator Thorpe, I know you are familiar. For those listening at home, under that measure, section 31 agreements that were entered into prior to the commencement of schedule 9 will be validated provided that at least one member of each relevant native title party is a party to the agreement. Schedule 9 commences on the day after the act receives royal assent. This means that the validation of section 31 agreements extends to the day after royal assent, if that makes sense. This time frame was agreed with stakeholders during the consultation process on the basis that the effect of the McGlade decision on section 31 agreements hadn't yet been tested, so its impact and its effect was uncertain. All parties who were part of that stakeholder consultation process acknowledged that the uncertainty was not a desirable quality to continue.
If you have further questions about retrospectivity, I can come back to that. Importantly, the amendments which allow the applicant to act by majority do not apply retrospectively. The bill clearly provides that the ability for the applicant to act by majority applies only after the provisions commence—that's at item 55(2) in schedule 1 of the bill, if that reference helps—being six months after other provisions in the bill commence, and that's on a date to be fixed by proclamation.
The advice I can give you is that stakeholders across the sector indicated that there are hundreds of section 31 agreements that might require validation as a result of the McGlade decision. I don't have a precise number, but the state governments, in particular, who were providing feedback through the consultation process indicated that it was a number in the hundreds.
Thanks, very much, for the question. The question of funding for PBCs or RNTBCs is one that is relevant. The Australian government, of course, as you know, provides support to native title corporations to meet their statutory obligations, to be continually improving their compliance with good governance principles and to be always building their organisational capacity and their ever-increasing ability to deal with government arrangements.
The National Indigenous Australians Agency provides funding to a wide-reaching number of projects to support PBCs, including native title operations and management training delivered by the National Native Title Council, and tailored governance training through a specialist training provider known as Shane Carroll & Associates. PBCs can also access training, including accredited training for a certificate IV in business governance, through the Office of the Registrar of Indigenous Corporations.
Ordered that the committee have leave to sit again on the next day of sitting.