CHAPTER 2

OVERVIEW OF THE BILL

2.1        The Bill contains four schedules:

• Schedule 1 – Historical extinguishment
• Schedule 2 – Negotiation in good faith
• Schedule 3 – Indigenous Land Use Agreements (ILUAs)
• Schedule 4 – Minor technical amendments

Schedule 1 – Historical extinguishment

2.2        Part 2 of the Native Title Act 1993 (Cth) (Native Title Act) sets out provisions in relation to native title, and Part 3 of the Native Title Act sets out provisions in relation to applications to the Federal Court of Australia for native title determinations, revised native title determinations and compensation.

2.3        Schedule 1 of the Bill proposes to amend Parts 2 and 3 of 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 Commonwealth, and state and territory parks and reserves.[1]

2.4        The key amendment is proposed new section 47C of the Native Title Act (item 2 of Schedule 1). This provision will apply to the whole, or part of, a park area which is not covered by current sections 47, 47A and 47B.[2] Any agreement must be in writing and relate to an onshore place (agreement area). The written agreement may also include relevant public works.[3]

2.5        The operative provision is proposed new subsection 47C(7) of the Native Title Act, which requires any extinguishment of the native title rights and interests in the agreement area to be disregarded if caused by:

• the setting aside of, or the granting or vesting of an interest in, the park area;
• the creation of any other prior interest in the agreement area; or
• the construction or establishment of any relevant public works that are the subject of the written agreement.[4]

2.6        A positive native title determination will not affect the validity of the setting aside, or the granting or vesting of an interest in the park area, nor will it affect the validity of the creation of any other prior interest in the agreement area (proposed new paragraph 47C(8)(a) of the Native Title Act). Further, the non‑extinguishment principle will apply in relation to any other prior interests in the agreement area, meaning that any native title rights will be suppressed, rather than extinguished, to the extent of any inconsistency (proposed new paragraph 47C(8)(b)).[5]

2.7        The practical effect of these proposed provisions is explained in the Explanatory Memorandum (EM):

Where existing interests suppress native title rights, native title holders will not be able to exercise exclusive rights over the land. The native title rights and interests which could be exercised over the area will depend on the extent that these interests have been suppressed by other existing interests. If a prior interest ceases to operate then the native title rights and interests may revive to their full extent.

...

Any interests created after a determination that native title exists, which may include renewals, extensions or upgrades of an existing interest, may need to be negotiated through the future acts regime. This is because from the date of a positive native title determination, these interests could be seen to affect native title rights and interests.[6]

2.8        Crown ownership of natural resources will be specifically excluded from the operation of proposed new section 47C (proposed new subsection 47C(9)), as is the case with current section 47A, meaning that the creation of an interest that confers ownership of natural resources by the Crown is not to be disregarded.

2.9        The Statement of Compatibility with Human Rights in the EM (Statement of Compatibility) summarises the intent of Schedule 1 of the Bill:

The historical extinguishment amendment seeks to provide parties with more flexibility to disregard historical extinguishment of native title in areas such as parks and reserves, and could also provide for important recognition of traditional connection to land. This amendment will provide more opportunities for native title to be recognised and claims to be settled by negotiation and will provide incentives for parties to reach agreements, such as opportunities for joint management of parks or reserves with native title holders.[7]

Schedule 2 – Negotiation in good faith

2.10      Subdivision P of Division 3 of Part 2 of the Native Title Act sets out the 'right to negotiate' regime. This regime grants registered native title claimants and native title holders the right to negotiate with respect to certain developments and activities proposed by a government party which will affect native title ('future acts').[8]

2.11      The negotiation parties – meaning the government party, any grantee party and any native title party – are obliged to negotiate in good faith with a view to obtaining the agreement of each of the native title parties to the doing of the act, with or without conditions.[9]

2.12      Schedule 2 of the Bill will amend Parts 2, 7 and 13 of the Native Title Act, to clarify the meaning of 'good faith', and to clarify the conduct and effort required of negotiation parties in seeking to reach agreement.[10]

2.13      Item 2 of Schedule 2 will replace the requirement to negotiate in good faith with a requirement to negotiate in accordance with the good faith negotiation requirements (paragraph 31(1)(b) of the Native Title Act), which are subsequently set out in proposed new section 31A (item 6 of Schedule 2).

2.14      In addition, item 3 of Schedule 2 will insert an additional requirement into the normal negotiation procedure set out in section 31 of the Native Title Act for the negotiation parties:

(c) the negotiations must include consideration of the effect of the doing of the act on the registered native title rights and interests of the native title parties.

2.15      Proposed new subsection 31A(1) of the Native Title Act will require the negotiation parties to use 'all reasonable efforts' to reach agreement about the doing of the act (good faith negotiation requirements). Proposed new subsection 31A(2) then sets out a non-exhaustive list of criteria to which regard must be had, where relevant, in determining whether a negotiation party has negotiated in accordance with the good faith negotiation requirements, that is:

(a) whether the negotiation party has done the following:

(i) attended, and participated in, meetings at reasonable times;

(ii) disclosed relevant information (other than confidential or commercially sensitive information) in a timely manner;

(iii) made reasonable proposals and counter proposals;

(iv) responded to proposals made by other negotiation parties for the agreement in a timely manner;

(v) given genuine consideration to the proposals of other negotiation parties;

(vi) refrained from capricious or unfair conduct that undermined negotiation;

(vii) recognised and negotiated with the other negotiation parties or their representatives;

(viii) refrained from acting for an improper purpose in relation to the negotiations; and

(b) any other matter the arbitral body considers relevant.

2.16      Proposed paragraph 31A(2)(a) will replace the 18 Njamal Indicia, which are the current guidance formulated by Member Sumner in the case of Western Australia v Taylor[11] for consideration of the conduct of parties in good faith negotiations. These indicia include, for example: (vii) failure to take reasonable steps to facilitate and engage in discussions between the parties; and (xiv) adopting a rigid non-negotiable position.

2.17      The EM explains that the Native Title Act does not contain a definition of 'good faith' and there is a lack of clarity regarding what constitutes good faith negotiations, making it difficult for native title parties, in particular, to prove a lack of good faith.[12]

2.18      The EM states that proposed new subsection 31A(2) will provide the criteria that the National Native Title Tribunal (NNTT) will have regard to in considering whether a party has satisfied the good faith negotiation requirements. Further, these provisions are similar to those in the Fair Work Act 2009 (Cth) and are broadly consistent with the Njamal Indicia. For example:

[S]ubparagraph 31A(2)(a)(i) is similar to the seventh Njamal Indicia in respect of taking reasonable steps to facilitate and engage in discussion with the parties. The same applies to subparagraphs 31A(2)(a)(ii) and (iii). Disclosure of relevant information and the making of reasonable proposals and counter proposals go directly towards establishing a functional and interests based negotiation platform. It follows then that these proposals are made in a timely manner, and this is provided for by subparagraph 31A(2)(a)(iv).

The requirement to give genuine consideration to proposals in subparagraph 31A(2)(a)(v) is again analogous to the fourteenth Njamal Indicia. Subparagraphs 31A(2)(a)(vi) and (vii) in respect of capricious or unfair conduct, and the recognition of negotiation parties and their representatives incorporate Njamal Indicia concepts such as shifting position when agreement is in sight or unilateral conduct that will harm the process. However, the provisions will also cover situations to discourage parties from dealing with individuals within groups or refusing to deal with their appointed representative.

Subparagraph 31A(2)(a)(viii) in respect of refraining from acting for an improper purpose covers the rare but possible scenarios where parties resort to threats or intimidation to and/or of people, negotiating parties or their representatives or otherwise act illegally.[13]

2.19      Schedule 2 of the Bill proposes a number of other amendments to the 'right to negotiate' regime, including:

• extending the minimum time before which a negotiation party cannot apply for a determination from the NNTT from six to eight months (paragraph 35(1)(a) of the Native Title Act; item 7 of Schedule 2); and
• where a negotiation party has asserted that another negotiation party (the second negotiation party) has not satisfied the good faith negotiation requirements, the second negotiation party must satisfy the NNTT that it has met those requirements before being able to seek a determination from the NNTT (proposed new subsection 36(2) of the Native Title Act; item 8 of Schedule 2).

2.20      According to the EM, the government recognises that many in the resource sector are already establishing positive relationships with native title parties, and achieving sustainable outcomes for Indigenous communities through negotiated agreements.[14] The Statement of Compatibility elaborates:

The amendments to the good faith provisions under the right to negotiate regime encourage parties to focus on negotiated, rather than arbitrated outcomes, promote relationship-building through agreement-making, and improve the balance of power between negotiating parties. In doing so, the amendments will enhance the ability of native title holders to participate in genuine negotiations about future activity on their traditional lands. By placing an emphasis on interests-based negotiation and agreement-making, the amendments also promote sustainable, long-term outcomes for Indigenous communities.[15]

Schedule 3 – Indigenous Land Use Agreements

2.21      Subdivisions B-D of Division 3 of Part 2 of the Native Title Act set out provisions in relation to the types of Indigenous Land Use Agreements (ILUAs) recognised under the Native Title Act: body corporate agreements; area agreements; and alternative procedure agreements.

2.22      Schedule 3 of the Bill proposes amendments to streamline ILUA processes, and to ensure parties are able to negotiate flexible, pragmatic agreements to suit their particular circumstances.[16] There are four broad categories of proposed amendments, the key features of which are highlighted below.

Body corporate agreements

2.23      Item 2 of Schedule 3 inserts new subsections 24BC(2)-(3) into the Native Title Act, to broaden the scope of body corporate agreements (Subdivision B ILUAs).[17] The proposed provisions allow for Subdivision B ILUAs to be made:

• where an approved determination of native title has been made in relation to an area, and states that native title has been extinguished in relation to the whole or part of the area; or
• where an approved determination of native title has not been made in relation to an area, but if it had, would state that native title has been extinguished in relation to the area,

without the need for there to be a registered native title body corporate for the extinguished area.

2.24      The EM explains that item 2 addresses limitations in the scope of existing section 24BC, which provides that a Subdivision B ILUA can only be made where there is a registered native title body corporate for all of the agreement area:

This means that:

• if the agreement area is entirely covered by a determination of native title (for which there is a registered native title body corporate) that includes both areas where native title has been found to exist and areas where native title has been found to be extinguished, and
• the parties want the agreement to meet the requirements for a Subdivision B ILUA[,]

then the description of the agreement area needs to specifically exclude those areas where native title has been found to be extinguished, even though those areas are within the outer boundary of the agreement area.

In these circumstances, parties are in practice more likely to negotiate a Subdivision C ILUA, the registration of which currently involves a three month notice period. This item ensures that Subdivision B ILUAs can be made in these situations. This ensures greater flexibility and simplifies the registration process for Subdivision B ILUAs.[18]

Area agreements

2.25      Section 24CH of the Native Title Act sets out the notification requirements which must be given by the Registrar of Native Title Claims (Registrar) upon lodgement of an area agreement (Subdivision C ILUA). Items 5 and 6 of Schedule 3 will replace the current statutory statements[19] with proposed new subsection 24CH(5):

Statement

(5) If the application contained a statement as mentioned in paragraph 24CG(3)(b) (in summary, relating to identifying native title holders and ensuring that they have authorised the making of the agreement), and was not certified by representative Aboriginal/Torres Strait Islander bodies for the area (see paragraph 24CG(3)(a)), the notice must include a statement that:

(a) any person claiming to hold native title in relation to any of the land or waters in the area covered by the agreement may wish to object against registration of the agreement on the ground that the requirements of subparagraphs 24CG(3)(b)(i) and (ii) were not met in relation to the agreement; and

(b) any such objection must be made in writing to the Registrar within the period (the notice period) of one month beginning on the notification day and must be in accordance with any requirements determined as mentioned in subsection 24CI(1A).

2.26      Item 7 of Schedule 3 repeals and replaces current subsection 24CI(1) of the Native Title Act, to enable an objection to be made to the Registrar against registration of an uncertified application to register an area agreement. Any such objections must be taken into account by the Registrar in determining whether the registration requirements for an uncertified application – as set out in current section 24CL – have been met (proposed new paragraph 24CL(4)(c) of the Native Title Act; item 11 of Schedule 3).

2.27        Section 24CK of the Native Title Act sets out provisions in relation to the registration of Subdivision C ILUAs where applications for registration have been certified by representative bodies. Item 9 of Schedule 3 will repeal and replace the current section, to require the Registrar to register an agreement in those circumstances, subject to proposed new subsection 24CK(2):

(2) If there is a registered native title body corporate in relation to any land or waters in the area covered by the agreement, the Registrar must not register the agreement unless that body corporate is a party to the agreement.

Effect of registering an ILUA

2.28      Subdivision E of Division 3 of Part 2 of the Native Title Act contains provisions regarding the effect of registering an ILUA. Item 12 of Schedule 3 inserts proposed new section 24ED into the Native Title Act, to provide for the making of certain amendments to registered ILUAs without affecting their binding nature – that is, amendments which:

• update property descriptions, but not so as to result in the inclusion of any area of land or waters not previously covered by the agreement;
• update a description identifying a party to the agreement, including where a party has assigned or otherwise transferred rights and liabilities under the agreement;
• update administrative processes relating to the agreement; or
• do a thing specified by the Minister by legislative instrument for the purposes of the paragraph.[20]

2.29      The EM explains that proposed new section 24ED establishes a threshold that will determine whether a new registration process will be required:

The [Native Title] Act currently makes no provision for amendments to ILUAs, nor does the [Native Title] Act provide any guidance on the circumstances in which parties to an ILUA may need to go back to the Registrar for any amendments to the ILUA to have effect pursuant to section 24EA. Consequently, parties wishing to make certain amendments to an ILUA, while preserving its binding effect on native title holders who are not parties to the ILUA, may need to make a new application for registration of the amended ILUA. Requiring a new registration process in these circumstances might be considered unnecessary and a poor use of time and resources. These reforms will enable parties to operate with a degree of flexibility in terms of amending ILUAs without requiring a new process.[21]

Who may authorise an ILUA

2.30      Items 14 and 16 of Schedule 3 amend current section 251A, to clarify the identity of those who may authorise an ILUA. In particular, the section will be extended to include persons who 'may hold native title' in relation to land or waters the subject of an ILUA. Proposed new subsection 251A(2) of the Native Title Act will specify that a reference to a person who 'may hold native title' is a reference to persons who can establish a prima facie case that they may hold native title (item 16).

2.31      The EM notes that the proposed amendments, together with the removal of the reference to 'the common or group rights comprising' native title (item 15 of Schedule 3), address current uncertainty in the law about who may authorise an ILUA:

In QGC v Bygrave [2011] FCA 1457, Reeves J found that if there is more than one native title group for an ILUA area, where the ILUA area overlaps the area of a registered native title claim, the only people who are entitled to authorise the ILUA are the native title claim group for the registered claim. In Kemp v Native Title Registrar [2006] FCA 939, Branson J held that where the native title parties comprised more than one distinct group, all persons would have to authorise the ILUA, and would have to do so separately, provided their assertion of native title was more than 'merely colourable'.[22]

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