CHAPTER 3
KEY ISSUES
3.1
Submitters and witnesses were divided on the various proposals outlined
in Schedules 1 to 3 of the Bill. The arguments discussed in this chapter focus
on the proposals to:
- allow native title parties and relevant Commonwealth, state or
territory governments to agree to disregard historical extinguishment over the
whole, or part, of a park area (Schedule 1 of the Bill – Historical
extinguishment);
- clarify the meaning of 'good faith' and the conduct and effort
required of negotiation parties in seeking to reach agreement (Schedule 2 of
the Bill – Negotiation in good faith); and
- streamline Independent Land Use Agreements (ILUAs) processes, and
to ensure parties are able to negotiate flexible, pragmatic agreements to suit
their particular circumstances (Schedule 3 of the Bill – Indigenous Land Use
Agreements).
3.2
While some submitters and witnesses opposed a number of amendments
outright, others supported their intent but offered qualifications or suggested
changes regarding the scope of the amendments or their likely practical
operation.
Schedule 1 – Historical extinguishment
3.3
Many submitters expressed general support for the proposal to allow
native title parties and relevant governments to agree to disregard historical
extinguishment (proposed new paragraph 47C(1)(c); item 2 of Schedule 1).[1]
Some submitters nonetheless expressed concerns in relation to various aspects
of the proposal.
Requirement for consent
3.4
In particular, a large number of submitters questioned the consent requirement
in proposed new subparagraph 47C(1)(c)(ii) (item 2 of Schedule 1).[2]
In their view, the agreement of the relevant government should not be required.
3.5
Several submitters argued that the proposed process is not consistent
with current sections 47, 47A and 47B of the Native Title Act 1993 (Cth)
(Native Title Act).[3]
Native Title Services Victoria expressed the following view:
Sections 47 to 47B of the [Native Title Act] already allow
for the disregard of historical extinguishment in prescribed circumstances;
however, these provisions do not require [s]tate or Commonwealth consent for
historical extinguishment to be disregarded and there is no clear rationale as
to why the proposed [new] section 47C should be drafted any differently.[4]
3.6
In this context, some submitters pointed out that, due to proposed new
paragraph 47C(8)(a) (item 2 of Schedule 1), the disregard of historical
extinguishment of native title will not affect any current interests in the
agreement area.[5]
3.7
Native Title Services Victoria, Goldfields Land and Sea Council and the
National Congress of Australia's First Peoples argued that the proposed consent
requirement will lead to intra- and inter‑jurisdictional inconsistencies,
uncertainties and inequities.[6]
Carpentaria Land Council Aboriginal Corporation submitted:
The success of the amendment will simply depend on the
willingness of [g]overnment to agree to disregard prior extinguishment.
Interests on [the] part of the [g]overnment will vary depending on political
interests and the government of the day and are unlikely to be firmly set out
in government policy. This may lead to vastly different, uncertain and
inequitable native title outcomes for native title claimants within the same
jurisdiction, while also increasing the time and costs of mediation.[7]
3.8
Just Us Lawyers submitted similarly:
...Government [p]arties are free to exercise the discretion
granted to them under the [proposed] provision in a different manner from one "park
area" to the next...[A] provision which is intended to benefit a native
title party should not be made conditional upon the exercise of a discretion
granted to a [g]overnment [p]arty. Like [current sections 47 to 47B], there should
be a presumption that past extinguishment within "park areas" is
disregarded with such presumption being rebuttable.[8]
Two-month notification requirement
3.9
A few submitters commented on the proposed two-month notification requirement
for the making of an agreement to disregard historical extinguishment (proposed
new subsection 47C(5); item 2 of Schedule 1).[9]
In view of proposed new subparagraph 47C(8)(a)(ii) (item 2 of Schedule 1),
these submitters queried the purpose of the requirement, as well as the meaning
of 'interested persons' to whom notice must be given.
3.10
Native Title Services Victoria explained its view that the uncertain
meaning of 'interested persons' will complicate the operation of the beneficial
provision, by causing persons with insufficient interest to unnecessarily delay
the determination of applications with the lodgement of their own application.[10]
3.11
Central Desert Native Title Services agreed, describing the proposed
notification requirement as 'inappropriate and an unnecessary complication'. Fundamentally:
[T]he "interested person" process proposed in the
[Bill] varies from the usual native title determination processes which
[require] that once a native title determination application is made, any
person whose interest in relation to the area may be affected by the
determination has the right to become a party to the determination
proceedings[.][11]
Scope of the amendment
3.12
Several submitters expressed disappointment with the scope of proposed
new section 47C of the Native Title Act, and called for specific extensions of,
or exclusions from, the application of the provision.[12]
3.13
The Australian Institute of Aboriginal and Torres Strait Islander
Studies (AIATSIS), for example, stated that Schedule 1 of the Bill 'will miss
the opportunity to correct an aspect of the native title regime that is both
logically incoherent and unjust':
The proposed amendments appear to recognise that the current
law's treatment of historical extinguishment involves an arbitrary denial of
rights based on accidents of history. The Bill, however, does not follow
through with that recognition by proposing substantive change to the way
historical extinguishment is dealt with.
To restate the issue: native title is the recognition of the
rights and interests of [T]raditional [O]wners under their own laws and
customs, but this recognition is subject to a compromise whereby the rights
that have been already granted to other people (and the laws already passed by
state and Commonwealth parliaments) will not be diminished. So extinguishment is
part of a trade-off designed to protect public and private interests that
already existed at the time that native title was recognised in Australian law.
Where, however, an extinguishing interest has come to an end, there is no
reason in policy or in the jurisprudential logic of native title to withhold
recognition of the rights and interests held under traditional laws and customs
(subject to any other ongoing inconsistent rights and interests).[13]
3.14
The Agreements, Treaties and Negotiated Settlements Project expressed a
similar view:
Much Crown land could appropriately be the subject of
disregard of extinguishment such as forest reserves and other Crown Reserves
and unallocated Crown land. Especially where the non-extinguishment principle
applies and existing interests are protected, as a matter of consistency and
principle, there appears to be no reason not to permit parties to agree to
disregard extinguishment in all areas of Crown land.[14]
3.15
Other submitters concurred with the argument that native title parties
and government parties should be allowed to agree to disregard any historical
extinguishment in respect of Crown land[15]
or in relation to any national park or reserve where the only other interest
holder is the Crown.[16]
Opposition to Schedule 1 of the
Bill
3.16
Some submitters opposed the proposed amendments in Schedule 1 of the
Bill because the amendments have the potential to significantly impact on state
or mining and exploration interests,[17]
and will cause delays in the claims settlement process as native title parties
seek agreement to disregard prior extinguishment.[18]
3.17
The Queensland Government, for example, highlighted that Queensland
legislation which sets aside, or dedicates, land for park purposes provides for
non‑exclusive native title in park areas. The Queensland Government
argued that the proposed amendments:
...will mean that claimants and determined native title holders
in Queensland will now expect that exclusive native title will be recognised
over areas where previously only non-exclusive native title was recognised,
despite any previous extinguishing acts. This will cause considerable
uncertainty and raised expectations of native title parties that may well not
be met, as well as [being] a considerable drain on monetary and human resources
as applicants seek agreement that [proposed new] section 47C applies.[19]
3.18
The Western Australian Government and the Association of Mining and
Exploration Companies (AMEC) warned that the proposed reform could lead to an
expectation of native title compensation, and called on the Commonwealth for an
indemnity in this regard.[20]
Ms Melanie Stutsel from the Minerals Council of Australia (MCA) called on the
Australian Government to clarify that the revival of native title will not
incur a right to compensation:
There could be an additional clarifying statement made in the
[EM to the Bill] that the decisions by the parties to overturn a historical
extinguishment in no way creates an opportunity for retrospective compensation.[21]
Departmental response
3.19
At the public hearing, an officer from the Attorney-General's Department
(Department) responded to various matters raised by submitters and witnesses.
3.20
In relation to compensation for the revival of native title, pursuant to
proposed new section 47C, the officer noted that existing interests are
protected by virtue of proposed new paragraph 47C(8)(a), and the proposed
section is enlivened only with the agreement of the relevant government:
The effect of [proposed new] section 47C is that from the
date of [a] determination that recognises native title, native title rights and
interests will apply. From that point on, like any other area where native
title is recognised, any new interests and some renewals—upgrades in existing
interests—may be subject to the future acts regime. So any compensation would
depend on the agreement between the parties originally making it, so if there
was an issue around compensation we would expect that issue to be dealt with in
terms of the agreement between the government and the native title parties at
the time...It may be a state government that may be liable for [compensation].[22]
3.21
The departmental representative commented also on the argument that
proposed new section 47C should be extended to areas of Crown land other than
park areas, advising that, although considered, no consensus could be reached
among stakeholders: therefore, the 'government [was] not able to reach a
consensus, and you now see the provision that is before you'.[23]
3.22
On the issue of whether agreement from the relevant government should be
a requirement for the disregard of historical extinguishments of native title
when agreement might not be practically achievable, the departmental
representative explained:
The government takes the view that the provisions in the [B]ill
are a compromise between a situation in which all third parties possibly have
an interest and would need to be a party to the agreement, and a situation in
which there is no agreement. So, the government believes that, by introducing a
provision that requires the agreement of their relevant state or territory
government, that is a reasonable balance between what the various positions
might have been. The government believes that that is a very significant check,
if you like, in relation to this provision.[24]
Schedule 2 – Negotiation in good faith
3.23
Many submitters supported the stated intent of the amendments proposed
in Schedule 2 of the Bill, but voiced concerns in relation to several aspects
of the reform.[25]
'Use all reasonable efforts'
3.24
Some submitters expressed concern that the requirement for the
negotiation parties to 'use all reasonable efforts' to reach agreement about
the doing of an act (proposed new subsection 31A(1); item 6 of Schedule 2) predicts
a particular outcome[26]
and uses an ambiguous standard – the word 'reasonable'.
3.25
For example, the MCA highlighted that the meaning of the word 'reasonable'
is not defined in the Bill:
[T]his new obligation will undoubtedly generate litigation to
clarify what 'reasonable' means as the new provisions do not provide sufficient
clarity or certainty. This was the experience with the original drafting of the
provisions, which resulted in major 'test cases' over a period of years.[27]
3.26
The Western Australian Government presented a similar view:
[T]he meaning of "all reasonable efforts" is
ambiguous and will lead to further litigation to establish new case law on the
application of the [negotiation in good faith provisions]. Such litigation will
in turn introduce further delays to the [right to negotiate regime]. To promote
further test cases by amending this section of the [Native Title Act] is a
wasteful and costly exercise. The current wording of the section is well
understood and working effectively.[28]
Support for inclusion of indicative
criteria
3.27
Several submitters supported the proposed good faith criteria, which are
intended to establish the conduct expected of negotiation parties (proposed new
subsection 31A(2); item 6 in Schedule 2).[29]
Yamatji Marlpa Aboriginal Corporation (YMAC), for example, stated:
YMAC has long advocated for the introduction of some form of
threshold guidance as to what constitutes good faith under the [Native Title]
Act and suggested the [Fair Work Act 2009 (Cth)] provides a suitable
model. We consider that the requirements at [section] 31A of the [Bill] are
well suited to the native title environment and are highly compatible with the
Njamal Indicia currently considered by the [National Native Title Tribunal (NNTT)]
in arbitration.[30]
3.28
At the public hearing, Mr Matthew Storey from Native Title Services
Victoria (and also representing the National Native Title Council) agreed that
there is not a great deal of difference between the criteria proposed in new
paragraph 31A(2)(a) and the Njamal Indicia:
[I]f I go through both the 18 Njamal criteria and what is in
the [Bill], the main difference I could find went to a requirement relating to
release of information. Other than that I think the good faith [criteria] set
out in the [B]ill are better drafted.[31]
Concerns expressed in submissions
3.29
Some submitters suggested ways in which the criteria set out in proposed
new paragraph 31A(2)(a) could, in their view, be improved.[32]
For example, some inquiry participants – such as Goldfields Land and Sea
Council and Australians for Native Title and Reconciliation – contended that
the proposed criteria should include a requirement for active participation by
the negotiation parties, and/or a requirement for negotiation parties to
respond in detail to proposals.[33]
3.30
Other submitters raised the issue of interpretation, arguing that the
words 'reasonable' and 'genuine' in proposed new subparagraphs 31A(2)(a)(i),
(iii) and (v) are both subjective and contextual.[34]
3.31
A few submitters also focussed on proposed criteria which relate to
certain behaviours – that is, refraining from capricious or unfair conduct that
undermined negotiations (proposed new subparagraph 31A(2)(a)(vi)), and
refraining from acting for an improper purpose in relation to the negotiations
(proposed new subparagraph 31A(2)(a)(viii)).
3.32
The NNTT, for example, submitted that it is difficult to see how
the NNTT could have regard to whether a negotiation party has engaged in those
two behaviours:
How could the [NNTT] know whether a party has 'done'
something by refraining from doing it? What evidence could the party who bears
the onus of proof bring to show that it refrained from acting in a particular
way? Therefore, the [NNTT] suggests that it would be preferable to recast these
paragraphs to require the arbitral body to have regard to whether the relevant
negotiation party has 'done' something that can be more easily proven by, such as:
- engaged in capricious or unfair
conduct that undermined the negotiations;
- acted for an improper purpose in
relation to the negotiations.[35]
Opposition to codification of indicative
criteria
3.33
Some submitters and witnesses did not support the Bill's proposed good
faith criteria. They argued that, in the first place, there should be no
codification of criteria.[36]
3.34
The Western Australian Government submitted that codifying the good
faith criteria will increase the scope for disputes and delays:
Broadly, individual elements of a party's negotiation
behaviour may not indicate whether a party has failed to negotiate in good
faith. However, when the overall conduct of the party is examined it may be
apparent as to whether the party has, or has not. The relative weight of any
individual element of the conduct of the parties needs to be viewed in the
overall context of the negotiations. Codification is likely to limit the adaptability
of negotiation processes, encourage compliance with a minimum standard and lead
to an assumption that failure to comply with individual criterion is automatic evidence
of a failure to negotiate in good faith.[37]
3.35
The MCA contended that codification will endow the proposed criteria
with 'considerable weighting and raise expectations that the [indicative
criteria] will need to be addressed'. The council set out its preferred
approach:
- the legislation should refer to the Njamal Indicia Principles as
guidance in constructing good faith negotiation strategies, without
specifically listing the criteria; and
- tools and resources should be provided to enable practitioners to
develop appropriate strategies.[38]
3.36
Further:
This approach is more likely to promote flexibility as the
system evolves and achieve the interest‑based style of negotiation that
the [g]overnment is seeking to enable. If however there is to be codification
then it is recommended that Njamal Indicia be adopted to define when [negotiation
in good faith] has not occurred.[39]
Preference for use of Njamal
Indicia
3.37
Some evidence suggested that, if codification of indicative criteria is
to occur, the criteria should be based on the Njamal Indicia set out in in the
case of Western Australia v Taylor[40]
and not criteria contained in the Fair Work Act 2009 (Cth)
(Fair Work Act).[41]
3.38
For example, the Chamber of Minerals and Energy of Western Australia (CME)
considered that it would be logical to proceed with the Njamal Indicia in these
circumstances:
The Njamal Indicia, developed from consideration of the
specific issues facing parties in native title negotiations, are directly
relevant to native title and have been the subject of extensive arbitral and
judicial consideration. To introduce criteria from the Fair Work Act 2009 (Cth),
which add little by way of guidance to the NNTT in considering whether a party
has negotiated in good faith but which introduce new terminology into the
native title system, will lead to uncertainty and consequently, litigation.[42]
3.39
At the public hearing, Dr Debra Fletcher from the CME elaborated on this
point:
Our advice is that the terminology is such that it would
require legal testing. Terms like 'reasonable' require legal testing. The
Njamal indicia [do] not require legal testing; it has already been tested and
proven and adopted through the process. So that is our main concern, that new
indicia in any form that is not the Njamal indicia, the currently utilised
indicia, would actually create a slowdown.[43]
3.40
The MCA expressed a similar view:
Some of the proposed indicia in the Bill are similar to the
Njamal Indicia but are also different in a number of respects. The majority
have been taken from the [Fair Work Act] and are expected to take effect in a new
statutory context. Importantly, there has been no material provided to 'define'
or 'interpret' the criteria and how they are to be applied in the [negotiation
in good faith] context which may help to avoid necessary uncertainty.[44]
3.41
The NNTT also supported inclusion of the Njamal Indicia in the
Native Title Act, in the event that codification is to take place.[45]
Eight-month negotiation period
3.42
A large number of submitters expressed support for the proposed
amendment to paragraph 35(1)(a) of the Native Title Act, which would extend the
minimum negotiation period from six to eight months;[46]
however, some of these submitters also questioned whether the amendment would
result in any real or substantial change to negotiation outcomes for native
title parties.[47]
3.43
Australian Lawyers for Human Rights, for example, argued that the
proposed extension will not remedy the underlying problem of incomplete or
insubstantial negotiations:
The most obvious solution is to require the [NNTT] to assess
whether the substantive negotiations have in fact stalled before considering an
arbitral determination (perhaps assessed through a mediation process that could
become a mandatory step prior to arbitration being considered). Such an
assessment would not fall outside the expertise and knowledge of the [NNTT], and
would not impose an onerous burden on the negotiation parties[.][48]
3.44
Carpentaria Land Council Aboriginal Corporation stated that the Bill
should allow sufficient time for full negotiations, and recommended that a
negotiation party should be enabled to apply for an extension in certain
circumstances.[49]
3.45
Native Title Services Victoria submitted that there should also be scope
in the legislation to negotiate for less than the period of eight months:
[T]here should also be a statutory requirement to negotiate
for a period of less than eight months where circumstances support a shorter
negotiation period.[50]
3.46
In relation to this matter, the Department advised:
The provisions...do not preclude parties from reaching
agreement before the eight month minimum time period ends.[51]
Technical drafting issues
3.47
Many submitters supported requiring a negotiation party, which is
alleged not to have fulfilled the good faith negotiation requirements, to
demonstrate that the party has fulfilled its obligation, before the NNTT can
make a determination (proposed new subsection 36(2); item 8 of Schedule 2).[52]
Three submitters – the Australian Human Rights Commission (AHRC), the NNTT and
the Western Australian Government – commented more substantively on the
proposed provision, referring to technical drafting issues.
3.48
The AHRC submitted that the drafting in proposed new subsection 36(2) is
'unnecessarily complex', and deferred to the NNTT for its expert opinion on the
application and operation of the provision.[53]
3.49
For its part, the NNTT cautioned that the drafting of proposed new
subsection 36(2) might inadvertently create a veto for native title
parties:
This is because, if the grantee or the government party submits
(i.e. 'asserts') that the native title party did not negotiate in accordance
with the good faith requirement as justification for doing less than might be
otherwise expected, and it is clear that this was the case, then it seems the
arbitral body will be barred from exercising its power to make a future act
determination.
If the [g]overnment does not intend to confer on native title
parties a potential right of veto, it would be preferable to remove all doubt
by specifying, consistently with current [subsection] 36(2), that a failure by
the native title party to negotiate in accordance with the good faith
requirement does not affect the arbitral body's power to make a determination.[54]
3.50
The Western Australian Government similarly argued:
[T]he proposed subsection 36(2) appears to operate as a "lock
out" provision, where there is a finding by the NNTT that a negotiation
party has not negotiated in accordance with the good faith negotiation
requirements in section 31A. [The Western Australian Government] submits that
the absence of any legislative guidance as to the appropriate length of this
"lock out" period may result in absurd and unjust results, with the
result that the current six month negotiation period is extended well beyond
eight months. The scope for a de facto veto to emerge, making some projects
unsustainable, cannot be overlooked.[55]
Native title parties' inability to
comply with the good faith negotiation requirements
3.51
In the context of discussing the consequences of a negotiation party's
inability to comply with the good faith negotiation requirements, some
submitters referred to the lack of funding provided to Indigenous Australians,
to enable them to fully and effectively participate in negotiations.[56]
3.52
In particular, the NNTT submitted:
One issue that has arisen in past 'good faith' hearings
before the [NNTT] is whether or not the grantee party should be required to pay
the costs of organising meetings with the native title parties or other matters
relating to the native title parties' costs...This has occasionally proven to be
such a stumbling block that no substantive negotiations are possible. In some
cases, this eventually leads to an application for a future act determination.[57]
3.53
The NNTT questioned how the Bill proposes to respond to this situation, stating
that proposed new paragraph 31(1)(c) and proposed new section 31A presume that
substantive negotiations will occur. While the NNTT acknowledged that it might be
able to address these issues in assessing the reasonableness of the parties'
behaviour:
...that may be of little assistance to the non-native title
parties if the occurrence of substantive negotiations is a necessary component
of meeting the new good faith requirement.
Accordingly, it would be helpful, in the light of the
apparently mandatory nature of proposed [new paragraph] 31(1)(c), to address
what the other negotiation parties are required to do if the native title party
is not negotiating in good faith[.][58]
Departmental response
3.54
At the public hearing, an officer representing the Department gave an
overview of the reasons for the proposed reforms to the good faith
negotiations:
The evidence provided to [the committee] today by the native
title representative bodies...suggests that what has happened is that...[those
bodies] and others regard the standard or the threshold as being so low now in
relation to the right the negotiate that there is very little point in
negotiating. To some extent...that has guided [the] government's hand in this
regard...Secondly, ...[the] government is concerned that the right to negotiate was
such a key part of the legislation that its operation needs to be protected.[59]
3.55
The departmental officer confirmed the government's view that more
clarity is required in relation to good faith negotiations, however:
Whether that is in the legislation or not is another question....[T]here
has been much support for the Njamal indicia...If this committee were to suggest
to government that in fact the Njamal indicia should be part of the
legislation, as opposed to the Fair Work Act,...the government would take that on
board significantly. But the government believes that the requirement to
negotiate in good faith requires greater clarity by a definition as set out in
the provisions that are currently in the legislation—the draft amendment bill.[60]
3.56
On the issue of whether criteria for native title negotiations based on provisions
in the Fair Work Act would result in increased litigation, the departmental
representative stated:
The government's view is clearly not that that would happen.
The government's view is that there has been significant litigation in relation
to defining what the terms mean in relation to the Fair Work Act. It is a
reason why those provisions have been adopted here...[T]here are significant
parts of the Njamal indicia which are reflected in the provisions in the [B]ill
as currently drafted...The Njamal indicia can be used to inform understanding of
the meaning of [the new] provisions...With any new amendment, there is the risk
of some testing but, with the common ground between the categories, including
the amendment and the Njamal indicia, the risk is considered by government to
be minimal.[61]
3.57
The officer noted that the principles incorporated in proposed new
paragraph 31A(2)(a) have, to some extent, already been tested in the
context of the native title regime (so far as they are analogous to, or reflective
of, the Njamal Indicia) and, where they have not been tested, there is
extensive judicial interpretation regarding the meaning of those provisions in
other contexts.[62]
3.58
The departmental officer also noted that the criteria in the Fair Work
Act may be preferable as a model from a legislative drafting perspective, coupled
with the fact that those criteria set a higher threshold for negotiation
standards:
The Njamal indicia are not in a form, in the government's
view, which would easily translate into legislation. So there is a technical
issue. The [B]ill also sets a higher standard for disclosure and conduct than
the Njamal indicia, which the government believes is appropriate. The Fair Work
Act provides a structure which has proven effective in establishing negotiation
standards, in the government's view.[63]
Schedule 3 – Indigenous Land Use Agreements
3.59
Several submitters expressed general support for the proposed amendments
in Schedule 3 of the Bill, which aim to streamline Indigenous Land Use
Agreements (ILUAs) processes, and to ensure parties are able to negotiate
flexible, pragmatic agreements to suit their particular circumstances.[64]
However, some submitters raised concerns in relation to proposals about area
agreements and who may authorise an ILUA.
Area agreements
3.60
In relation to area agreements, submitters primarily commented on two
particular proposals: the creation of a new statutory statement to be given by
the Registrar of Native Title Claims (Registrar), advising a one month
objection period to the registration of an ILUA (proposed new subsection
24CH(5); item 6 of Schedule 3); and the repeal of current section 24CK,
which contains an objections process (item 9 of Schedule 3).
Statutory statement with a one-month
objection period
3.61
A number of submitters expressed concern with the reduction of the
objection period, from three months to one month (proposed new paragraph
24CH(5)(b)).[65]
3.62
Jumbunna Indigenous House of Learning described the 'tension that can
exist between native title representative bodies, land councils and individual
community members over who has the cultural responsibility for, and authority
to speak in relation to, the area the subject of a claim (and associated
ILUA)':[66]
The reality is that there is often disagreement as to the
legitimacy and/or authority, and the extent of the power, of some native title
representative bodies to negotiate in relation to an area, and/or concerns over
whether the position adopted by a native title representative body or [l]and [c]ouncil
is in fact in the best interests of all community members....[T]he capacity of
other parties to raise objections to the registration of ILUAs provides a check
and balance to the significant powers of the native title representative bodies
in this area.[67]
3.63
Australian Lawyers for Human Rights (ALHR) argued that the reduction in
the objection period 'severely and unnecessarily limits the window of time in
which affected third party Indigenous persons can lodge an objection':
[ALHR does] not think that a three month notification period
causes undue delay for proponents given average project timelines and other
compliance requirements (such as the need to obtain environmental authorities
at the [s]tate level), but a one month notification period for Indigenous
persons wishing to lodge an objection is particularly disadvantageous. This is
because of the time it may take for resource deprived Aboriginal and Torres
Strait Islander peoples to effectively mobilise and lodge an objection,
particularly, given the asymmetries in information that they often experience.[68]
3.64
AIATSIS contended:
If the notification procedure is to be anything other than an
empty formality, it must be assumed that in at least some cases the objectors will
not have learned of the ILUA previously and that receiving the notification
marks their first opportunity to take action. On that assumption, one month
will in most cases be insufficient. Preparing an objection capable of
demonstrating a 'prima facie case' that the objectors may hold native title
involves a potentially significant research and drafting task...A three month
notice period represents a more appropriate timeframe.[69]
3.65
In this context, the Cape York Land Council Aboriginal Corporation
submitted that it is not clear what will be required for a group or individual
opposing registration to establish a prima facie case that he/she/they may hold
native title,[70]
the pre-requisite to the right to be involved in the authorisation of an ILUA.
3.66
AIATSIS and the Law Society of New South Wales commented also on the
length of time required to lodge and register a native title claim, with the
Law Society of New South Wales submitting, for example:
[T]he lodging of a native title claim and having a registered
claim will be the only certain means by which a person can ensure that their
interests are not adversely affected by an [a]rea [a]greement to which they are
not a party. The lodging of a native title claim is not possible in a one month
time frame.[71]
3.67
In addition to these arguments, the NNTT noted:
It is not clear what purpose would be served by continuing to
give notice of an application to register a certified area agreement if there
is no opportunity for an objection to be made (as proposed by [i]tem 9), other
than to provide an opportunity to those who may be adversely affected by a
decision to register the agreement to take steps to protect or preserve their interests.[72]
Repeal of the current objections
process
3.68
Some submitters stated that the repeal of current section 24CK of the
Native Title Act removes the existing objection process, leaving persons
who wish to object to the registration of an ILUA certified by a native title
representative body with no option but to seek judicial review of the
Registrar's decision (item 9 of Schedule 3). These submitters condemned the
proposal, arguing that the objection process is an important safeguard.
3.69
The AHRC submitted:
Removing the process of independent assessment and
registration by the Registrar...may lead to expensive and unnecessary litigation
in the courts – most likely by Aboriginal and Torres Strait Islander peoples
who do not believe their native title representative body or service provider
represents their native title interests. While the [AHRC] supports amendments
that simplify the registration process, this should not occur at the expense of
people being able to seek an inexpensive and independent review of the
registration process.[73]
3.70
In this context, the NNTT noted:
[O]bjections to certified agreements are relatively uncommon
and, due to the onus placed in the objector, only likely to succeed in limited
cases. Further, the objection process is relatively timely and very informal.
It is likely that judicial review will be beyond the means of most of those who
have, in the past, objected against registration of a certified area agreement.[74]
3.71
AIATSIS argued that removing the objection process for certified ILUAs
renders registration 'essentially automatic – in effect giving [native title
representative bodies] the final decision about registration':
AIATSIS has reservations about this change to the scheme of
checks and balances in [native title representative bodies] functions. [Native
title representative bodies] already combine a wide range of functions,
involving elements of advocacy, mediation, and decision-making. These elements
may in some circumstances be in actual or perceived tension. [Native title
representative bodies'] exercise of advocacy and assistance functions in
relation to their claim-group clients may raise concerns among other stakeholders
about [native title representative bodies'] perceived ability to exercise
impartial objective judgment in relation to certification of ILUAs. To take
away the Tribunal's ability to respond to objections would be to remove an important
aspect of procedural fairness.[75]
3.72
The Law Society of New South Wales submitted that the Bill should retain
an entitlement for potential native title holders to object to certified area
agreements on legitimate grounds:
Native title representative bodes are not infallible. It is
appropriate that the existing safety net remain in place in relation to
certified agreements, particularly as there does not appear to be any existing
deficiency in the current scheme.[76]
Who may authorise an ILUA
3.73
The Law Society of South Australia and the Law Society of New South
Wales supported clarification of the identity of those who may authorise an
ILUA (amended section 251A of the Native Title Act; items 14 to 16 of
Schedule 3).[77]
However, a large number of submitters expressed concerns in relation to the
proposed definition of a person 'who may hold native title' and who can
therefore authorise an ILUA (items 14 and 16).
3.74
Proposed new subsection 251A(2) provides:
...a reference to persons who may hold native title is a reference
to persons who can establish a prima facie case that they may hold native
title.[78]
3.75
Central Desert Native Title Services questioned whether proposed new
subsection 251A(2) would achieve greater clarity:
It is not entirely clear what establishing a "prima
facie case" requires and whether it equates to having a registered
native title claim...[I]n order for a native title claim to be registered, one of
the conditions that must be met is that a "prima facie case" can be
made out.[79]
3.76
The Law Society of New South Wales suggested that the provision should
be amended to add 'regardless of whether they are registered native title
claimants' to the end of proposed new subsection 251A(2).[80]
3.77
Alternatively, Native Title Services Victoria considered that the
provision should ensure:
...that the requirement for the establishment of a prima
facie case is not automatically equated with a requirement that
those authorising the ILUA have a registered determination application in
circumstances where the ILUA has been certified pursuant to section 24CK.[81]
Who determines the establishment of
a prima facie case?
3.78
In addition to arguments concerning the threshold for a prima facie
case, the issues was raised of who is required to determine whether a person
can establish a prima facie case that they may hold native title.[82]
3.79
The Queensland Government argued that it is not clear how proposed new
section 251A(2) interacts with subparagraph 24CG(3)(b)(i), under which all
reasonable efforts must be undertaken to identify all persons who hold or may
hold native title in the agreement area:
That identification process is undertaken by the parties to
or proponent of an ILUA prior to the authorisation of the agreement. At the
time of deciding whether to register the agreement, the Registrar must be
satisfied that the requirement of [subparagraph] 24CG(3)(b)(i) was met...Even if
the Registrar were satisfied that all reasonable efforts had been undertaken
in accordance with [subparagraph] 24CG(3)(b)(i), it is not inconceivable that a
person may assert, and establish, a prima facie claim to hold native title. It
that were done within the notification period, or even when the Registrar
proceeds to consider whether to register the agreement, the operation of
section 251A(2) may prevent registration of the agreement.[83]
3.80
The NNTT concurred that further clarity is required in the Bill. In the
NNTT's view, the Bill should specify – by way of a note – that it is the
proponent of the ILUA 'who must be satisfied that a person who claims that they
may hold native title can, prima facie, support that claim':[84]
[T]he Registrar's focus should be on the adequacy of the identification
and authorisation processes at the time they were conducted, not on the strength
or weakness of any claim to hold native title to the ILUA area made after the
event direct to the Registrar.[85]
3.81
Just Us Lawyers, the Queensland Government and the Law Society of New
South Wales suggested also that proposed new subsection 251A(3) (item 16 in
Schedule 3) should be further clarified.[86]
Committee view
3.82
The committee notes that the Bill seeks to introduce targeted amendments
to the Native Title Act to improve the operation of the native title system.
Over the course of many years, relevant stakeholders have called for native
title reform and, in January 2010, the Australian Government commenced
extensive consultations in relation to the reforms proposed in the Bill. The
committee commends the government for its actions in that regard.
3.83
The committee acknowledges that there is broad support for many of the
Bill's proposed amendments, which were described by a departmental officer
during the inquiry as a 'modest set of proposals'.[87]
While the committee is cognisant of the fact that stakeholders have divergent
views on some aspects of the proposed reforms, the committee considers that all
views have been carefully considered in the development of the Bill and the resulting
proposals generally represent a sensible balance of all competing interests.
3.84
Despite taking the view that the Bill's reforms will assist in
contributing to more effective and efficient resolutions of native title
claims, the committee has reached the conclusion that certain amendments should
be made to further enhance the Bill's stated objectives and to assist in its
practical implementation.
Good faith negotiation criteria
3.85
In particular, the committee notes the arguments concerning the
indicative good faith criteria set out in proposed new paragraph 31A(2)(a). Throughout
the inquiry, it remained unclear to the committee as to the precise reasons why
the government has chosen to import criteria from the Fair Work Act 2009 (Cth)
(Fair Work Act), which have never been used or tested in the context of
native title. Evidence to the committee indicates that the Njamal Indicia are widely
understood by all interested parties, are working well, and have been
extensively tested in the NNTT and the courts.
3.86
The committee accepts that greater clarity is required in relation to
the good faith negotiation requirements and that this would be best achieved
through codification in the Native Title Act. Notwithstanding some clear positive
features of proposed new paragraph 31A(2)(a) as currently drafted – particularly
as a possible higher benchmark standard for negotiation conduct – the committee
is of the view that the government's broader objectives might be better
achieved with the inclusion of the Njamal Indicia in the Native Title Act. The
committee agrees that incorporation of a set of criteria that have been
completely untested in the unique context of the native title regime could
invite litigation, which would clearly undermine the stated objectives of the
Bill to effect more expeditious resolution of claims.
3.87
The committee does not resile from this view, despite the late
submission from the Department which sought to provide a further explanation
about the rationale for the government's decision to utilise the Fair Work Act
criteria, including the fact that the Njamal Indicia are drawn from
industrial relations law.[88]
The Department maintains the position that the Fair Work Act's ''interest-based'
approach to negotiations is an appropriate model for establishing good faith
negotiation standards in 'relationship-oriented' contexts like native title'.[89]
Further, the Department considers that the Fair Work Act model 'provides a
refined legislative structure [with] a proven effect of establishing
negotiation standards' and 'what is included in the amendment is not a major
deviation from existing indicia'.[90]
3.88
The fact remains, however, that the two sets of criteria are not identical
and the Fair Work Act criteria have not been applied or tested in the
particular context of native title. Put simply, what may be reasonable or appropriate
in the context of an industrial relations negotiation may be entirely unreasonable
or inappropriate in the context of a native title negotiation. Accordingly, the
committee remains unconvinced that the Bill has adopted the correct approach.
3.89
As a final note on this matter, the committee would like to specifically
comment on the Department's reluctance to proactively provide the
committee with information that could have assisted the committee's examination
of this legislation in a more efficient and timely way. In December 2012,
in accordance with usual practice, the Chair of the committee wrote to the
Department requesting a written submission to this inquiry. The Department was
explicitly asked to comprehensively address matters it considered may be
of assistance to the committee, as well as issues or concerns raised in other
submissions published on the committee's website – in advance of any
public hearings. The Department declined this request, but provided a short
submission on the correlation between the Njamal Indicia and the criteria in
the Fair Work Act a mere three working days before the committee was due
to table its report.
3.90
The committee considers that the Department's reluctance
to provide relevant information in a timely fashion has hampered the
committee's processes and deliberations in this inquiry. The Department
should have made a submission in the early stages of the inquiry, addressing
the issues raised in other submissions. This would have greatly assisted
the committee to finalise the content of its report at an earlier stage.
Recommendation 1
3.91
The committee recommends that the Australian Government reconsider proposed
new paragraph 31A(2)(a) in item 6 of Schedule 2 of the Bill, with a view to
incorporating the Njamal Indicia set out in Western Australia v Taylor (1996)
134 FLR 211 as the good faith negotiation criteria to be included in the Native Title
Act 1993 (Cth).
Indigenous Land Use Agreements (ILUAs)
3.92
In relation to ILUAs, the committee particularly notes evidence concerning
the one-month objection period in proposed new paragraph 24CH(5)(b) (and by
implication proposed new subsection 24CI(1)). The committee acknowledges
that the intention of this reform is to streamline the ILUA process, but has
reached the view that the provision may be rendered meaningless and of no
benefit to legitimate objectors if compliance is patently impracticable, as argued
by several submitters and witnesses to the inquiry. The committee considers
that it would be preferable to retain the three-month objection period
currently provided for in the Native Title Act.
Recommendation 2
3.93
The committee recommends that proposed new paragraph 24CH(5)(b) in item
6 of Schedule 3 of the Bill be amended to refer to an objection period of three
months.
Other issues
3.94
The committee notes that some submitters to the inquiry have commented
on specific technical aspects of the Bill and, in some cases, have made
suggestions for amendments – such as in relation to proposed new subsection
47C(5) (the meaning of 'interested person'), proposed new subsection 36(2) (the
potential creation of a veto against the NNTT's ability to make a
determination), and changes to section 251A (continued ambiguity in the
definition of a person 'who may hold native title'). The committee expects
that, in addition to considering the specific recommendations set out above,
the Department will thoroughly examine and address such comments and
suggestions.
Recommendation 3
3.95
Subject to Recommendations 1 and 2, the committee recommends that the
Bill be passed.
Senator
Trish Crossin
Chair
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