CHAPTER 2

Overview of the Bill

2.1        This chapter describes the main provisions of the Bill.

United Nations Declaration on the Rights of Indigenous Peoples

2.2        Proposed new section 3A (item 1 of Schedule 1) inserts as an additional object of the Act a requirement for Australian governments to take all necessary steps to implement the following principles set out in the Declaration:

(a) the rights of all peoples including Indigenous peoples to self‑determination;

(b) full and direct consultation and participation of the Indigenous peoples concerned;

(c) free, prior and informed consent of Indigenous peoples in matters affecting them;

(d) the right of Indigenous peoples to their traditional lands, territories and natural resources;

(e) demonstrated respect for Indigenous cultural practices, traditions, laws and institutions;

(f) reparation for injury to or loss of Indigenous interests;

(g) non-discrimination against the interests of Indigenous peoples.[1]

2.3        Proposed new subsections 3A(2) and 3A(3) (item 1 of Schedule 1) provide that the provisions of the Act are to be interpreted and applied in a manner that is consistent with the Declaration, including by each person exercising a power or performing a function under the Act.

2.4        Senator Siewert noted in her Second Reading Speech:

The Objects of the [Act] serve to provide some direction to the Courts as to the intentions of the Parliament as to how the Act as a whole should be interpreted.[2]

Proposals aimed at enhancing the effectiveness of the native title system

2.5        Part 2 of the Act sets out the provisions relating to native title. Division 3 of Part 2 deals specifically with future acts (the future acts regime).

Future acts passing the freehold test

2.6        Subdivision M of Division 3 of the Act concerns future acts which pass the freehold test.[3] The Bill proposes to amend two key provisions in Subdivision M – current paragraphs 24MB(1)(c) and 24MD(2)(c).

Heritage protection or preservation

2.7        Current subsection 24MB(1) applies Subdivision M to non-legislative future acts which pass the freehold test, providing:

(c) a law of the Commonwealth, a State or Territory makes provision in relation to the preservation or protection of areas, or sites, that may be:

(i) in the area to which the act relates; and

(ii) of particular significance to Aboriginal peoples or Torres Strait Islanders in accordance with their traditions.

2.8        The Bill proposes to repeal and replace paragraph 24MB(1)(c) (item 2 of Schedule 1) to read:

(c) a law of the Commonwealth, a State or a Territory:

(i) applies to the area to which the act relates; and

(ii) provides effective protection or preservation of areas, or sites, that may be of particular significance to Aboriginal peoples or Torres Strait Islanders in accordance with their traditions.

2.9        The stated purpose of this amendment is to address a problem with the interaction between the Act, and Commonwealth, state and territory heritage protection laws:

[T]he intent of section 24M[B] is to ensure that, before a future act is permitted on native title land, the heritage values of any areas of particular cultural significance are protected. However, as it stands, the way this provision is worded means that the mere existence of applicable state heritage legislation would satisfy these criteria and permit the future act – irrespective of whether the application of those state heritage laws will actually provide effective protection of those sites of cultural significance.[4]

Compulsory acquisition and the non-extinguishment principle

2.10      Current section 24MD sets out how future acts which pass the freehold test are to be treated. For example, subsection 24MD(1) provides for validation of an act, subject to Subdivision P of Division 3. Subsection 24MD(2) provides, in paragraph (c), for the extinguishment of native title rights and interests by compulsory acquisition.

2.11      The Bill proposes to repeal and replace paragraph 24MD(2)(c) (item 3 of Schedule 1) with the following two new paragraphs:

(bb) the non-extinguishment principle applies to the acquisition;[5] and

(c) nothing in this Act prevents any act that is done in giving effect to the purpose of the acquisition from extinguishing the native title rights and interests[.]

2.12      Senator Siewert described the proposed amendment as an improvement to the future act regime[6] and a reinstatement of the language used in paragraphs 23(3)(a) and 23(3)(b) of the original Act,[7] as recommended in 2010 by the (then) Aboriginal and Torres Strait Islander Social Justice Commissioner, Mr Tom Calma.[8]

Right to negotiate

2.13      Subdivision P of Division 3 sets out provisions relating to the right to negotiate. The Bill proposes to amend current subsection 26(3), current paragraph 31(1)(b), current section 35, and current subsection 38(2), and to insert proposed new subsections 31(1A) and 31(2A).

Offshore areas

2.14      Current section 26 provides for the application of Subdivision P, with subsection 26(3) specifically excluding sea and inter-tidal zones.

2.15      The Bill proposes to repeal subsection 26(3) (item 4 of Schedule 1), with an amendment aiming to improve procedural rights over offshore areas for native title holders.[9]

Normal (non-expedited) negotiation procedure

2.16      In her Second Reading Speech, Senator Siewert referred to 'sustained criticism of the manner in which the future acts regime has led to protracted and uncertain outcomes', as well as:

calls for the [Act] to be amended to create stronger incentives for beneficial agreements and [to] achieve greater procedural fairness by striking a better balance between native title and non-native title interests.[10]

2.17      Senator Siewert explained that, to address these concerns, the Bill proposes to expand and strengthen the requirements for the normal negotiation procedure set out in current section 31.[11] For example, paragraph 31(1)(b) requires the negotiation parties to negotiate in good faith with a view to obtaining the agreement of each of the native title parties.

2.18      The Bill proposes to repeal and replace this provision (item 5 of Schedule 1) as follows:

(b) the negotiation parties must, for a period of at least 6 months, negotiate in good faith using all reasonable efforts to come to an agreement about:

(i) the doing of the act; or

(ii) the conditions under which each of the native title parties might agree to the doing of the act.

2.19      The meaning of the term 'negotiate in good faith using all reasonable efforts' is defined in proposed new subsection 31(1A) (item 6 of Schedule 1) to mean:

(1A) For the purposes of paragraph (1)(b), negotiate in good faith using all reasonable efforts includes but is not limited to:

(a) attending, and actively participating in, meetings at reasonable times including, where reasonably practicable, at a location where most of the members of the native title parties reside, if so requested by them;

(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;

(c) making reasonable offers and counter-offers;

(d) demonstrably giving genuine consideration to proposals made by other negotiation parties;

(e) responding to proposals made by other negotiation parties in a timely and detailed manner, including providing reasons for the relevant response;

(f) refraining from capricious or unfair conduct that undermines the beneficial nature of the right to negotiate.

2.20      In her Second Reading Speech, Senator Siewert noted that the burden of proof for proving the absence of good faith negotiations currently rests with the native title party, rather than the proponent of a future act:

This appears procedurally unfair as it is in effect the proponent who is effectively asserting that they have negotiated in good faith for the required period when they apply for a matter to be taken to arbitration.[12]

2.21      To address this concern, the Bill inserts the following new subsection 31(2A) (item 7 of Schedule 1) into the Act:

(2A) In any proceeding in which the application of paragraph (1)(b) is  raised, the party asserting good faith has the onus of proving that it negotiated in good faith.

2.22      In addition, the Bill amends current section 35 (item 9 of Schedule 1) to require a negotiation party to demonstrate compliance with subsection 31(1) and proposed new subsections 31(1A) and 31(2A) before the negotiation party is able to apply to the arbitral body under subsection 35(1).[13]

Profit-sharing and royalties

2.23      Current section 38 provides for the kinds of determination that may be made by the arbitral body. Subsection 38(2) specifically prohibits the making of a determination that a future act may be done, subject to a condition entitling the native title parties to subsequent payment calculated with reference to: the amount of profits made; any income derived; or any things produced.

2.24      Senator Siewert told the Parliament:

[Subsection 38(2) places native title interests] at an unfair disadvantage in negotiations, as the proponent knows that if they are not inclined to share profits or pay royalties at the level they propose, they can simply force the issue to arbitration.[14]

2.25      The Bill proposes to repeal and replace subsection 38(2) (item 10 of Schedule 1) as follows:

Profit-sharing conditions may be determined

(2) Without limiting the nature of conditions that may be imposed under paragraph (1)(c), they may, if relevant, include a condition that has the effect that native title parties are to be entitled to payments worked out by reference to:

(a) the amount of profits made; or

(b) any income derived; or

(c) any things produced;

by any grantee party as a result of doing anything in relation to the land or waters concerned after the act is done.

Coexistence and agreement to disallow extinguishment

2.26      Division 4 of Part 2 of the Act sets out miscellaneous provisions relating to native title. The Bill proposes to insert new section 47C (item 11 of Schedule 1) into the Act.

2.27      Proposed new subsection 47C reads:

47C Agreements to disregard prior extinguishment

When section applies

(1) This section applies if:

(a) an application under section 61 is made in relation to an area; and

(b) any time prior to a determination, there is an agreement between the applicant and the Government party that the extinguishment of native title rights or interests by a prior act affecting native title in relation to the area, or any part of the area, covered by the application be disregarded.

2.28      In her Second Reading Speech, Senator Siewert described the 'low' bar on extinguishment of native title rights and interests as a failure of the Act, which results, in practice, in 'the principle of 'coexistence' of native title rights, which is clearly envisaged within the [Act as being] too often brushed aside or ignored':

[Proposed new section 47C is] consistent with the current application of the [Act], and merely allow[s] the existing coexistence provisions to be extended to allow extinguishment to be disregarded with an agreement in a wider range of circumstances.[15]

Burden of proof

2.29      Part 3 of the Act contains the provisions relating to applications, including, in Division 1, applications to the Federal Court of Australia for native title determinations, revised native title determinations and compensation. The Bill proposes to insert new sections 61AA and 61AB (item 12 of Schedule 1) into Division 1 of the Act.

Rebuttable presumption

2.30      Proposed new section 61AA introduces a rebuttable presumption of continuity for applications for a native title determination:

61AA Presumptions relating to applications

(1) This section applies to an application for a native title determination brought under section 61 if the following circumstances exist:

(a) the native title claim group defined in the application applies for a determination of native title rights and interests where the rights and interests are asserted to be possessed under laws acknowledged and customs observed by the native title claim group;

(b) the members of the native title claim group reasonably believe the laws so acknowledged and the customs so observed to be traditional;

(c) the members of the native title claim group, by the laws acknowledged and the customs observed, have a connection with the land or waters the subject of the application;

(d) the members of the native title claim group reasonably believe that persons, from whom one or more of them is descended, acknowledged traditional laws and observed traditional customs at sovereignty by which those persons had a connection with the land or waters the subject of the application.

(2) If this section applies to an application, it must be presumed, in the absence of proof to the contrary:

(a) that the laws acknowledged and customs observed by the native title claim group are traditional laws acknowledged and traditional customs observed at sovereignty;

(b) that the native title claim group has a connection with the land or waters by those traditional laws and traditional customs;

(c) if the native title rights and interests asserted are capable of recognition by the common law – that the facts necessary for the recognition of those rights and interests by the common law are established.

Continuing connection

2.31      Proposed new section 61AB stipulates what is required to set aside the presumption:

61AB Continuing connection

(1) A presumption under section 61AA that a native title claim group has a connection with land or waters by traditional laws and traditional customs, or a finding to that effect, may be set aside only by evidence of a substantial interruption in the acknowledgment of those traditional laws or the observation of those traditional customs.

(2) In any proceeding relating to the application of subsection (1), the court must treat as relevant:

(a) whether the primary reason for any demonstrated interruption in the acknowledgment of traditional laws or the observance of traditional customs is the action of a State or a Territory or a person who is not an Aboriginal person or a Torres Strait Islander; or

(b) whether the primary reason for any demonstrated significant change to the traditional laws acknowledged or the traditional customs observed by the Aboriginal peoples or Torres Strait Islanders is the action of a State or a Territory or a person who is not an Aboriginal person or a Torres Strait Islander.

2.32      When explaining proposed new sections 61AA and 61AB in her Second Reading Speech, Senator Siewert stated:

The issue of prior occupation and hence the pre-existence of native title rights is not being questioned (as the preamble to the [Act] readily acknowledges) and so under these circumstances it seems to be 'fundamentally discriminatory' and a gross injustice to place the burden of proof upon the dispossessed. This is particularly true when we consider that it is State and Commonwealth Governments that have granted the rights that have lead to the possible extinguishment of native title, and that it is those governments who hold many of the historic records needed to establish connection.

The intent of providing for a rebuttable presumption of continuity is to shift the burden of proof in a way that encourages government parties (who must now take on the role of adducing evidence in their archives to rebut presumptions) to be more inclined to settle claims with a strong prospect of success.[16]

Key concepts in the Act

2.33      Division 2 of Part 15 defines key concepts in the Act, including, in current section 223, the meaning of 'native title'.

Common law meaning of 'native title' and 'native title rights and interests'

2.34      Current subsection 223(1) sets out the common law meaning of 'native title' and 'native title rights and interests':

Common law rights and interests

(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c) the rights and interests are recognised by the common law of Australia.

2.35      The Bill proposes to define the meaning of the terms 'traditional laws acknowledged' and 'traditional customs observed' in paragraph 223(1)(a), by inserting two new subsections into the Act – proposed new subsections 223(1A) and 223(1B) (item 13 of Schedule 1). The proposed provisions would read as follows:

Traditional laws and customs

(1A) Without limiting subsection (1), traditional laws acknowledged in that subsection includes such laws as remain identifiable through time, regardless of whether there is a change in those laws or in the manner in which they are acknowledged.

(1B) Without limiting subsection (1), traditional customs observed in that subsection includes such customs as remain identifiable through time, regardless of whether there is a change in those customs or in the manner in which they are observed.

2.36      In presenting the Bill to the Senate, Senator Siewert stated:

[T]he manner in which 'traditional' culture is defined by [current] section 223 of the Act fails to recognise the dynamic and living nature of Indigenous Australian cultures. Instead it seeks to freeze culture in some pre-colonial past, which defines traditional culture based on a snapshot of cultural practices at the time of European settlement and an expectation that they should continue unchanged.[17]

2.37      The Bill also proposes to insert new subsections 223(1C) and 223(1D) (item 13 of Schedule 1) into the Act. The proposed provisions would read as follows:

Connection

(1C) To avoid doubt, and without limiting subsection (1), it is not necessary for a connection with the land or waters referred to in paragraph (1)[b] to be a physical connection.

(1D) Nothing in subsection (1) is to be interpreted as requiring:

(a) in the case of traditional laws–the laws to be acknowledged continuously;

(b) in the case of traditional customs–the customs to be observed continuously;

(c) in the case of connection with the land or waters–the connection to be maintained continuously.

2.38      Senator Siewert explained:

[T]he interpretation of what counts as an ongoing Indigenous culture and law is based on a more realistic understanding of the maintenance and continuity of traditional practices and cultural values over time. This should help ensure that communities who have maintained a strong connection to their lands, laws, cultural practices and values will not have their recognition discounted based on changes which do not fundamentally alter the core of their cultural identity as traditional custodians of their land and sea country.[18]

Trade and other commercial rights

2.39      Current subsection 223(2) provides that the 'rights and interests' referred to in subsection 223(1) include, but are not limited to, hunting, gathering and fishing rights and interests.

2.40      The Bill proposes to repeal and replace subsection 223(2) (item 14 of Schedule 1), with the proposed new subsection to read:

(2) Without limiting subsection (1), rights and interests in that subsection includes:

(a) hunting, gathering, or fishing, rights and interests; and

(b) the right to trade and other rights and interests of a commercial nature.

2.41      In her Second Reading Speech, Senator Siewert remarked that the recognition of commercial rights would enable Aboriginal and Torres Strait Islander peoples to enter into commercial agreements to advance their social and economic development, as promoted in the Preamble to the Act.[19]

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