Introduction
2.1
This chapter begins with an overview of the evidence provided to the committee and then details the key issues raised throughout the inquiry, with a particular focus on comments on the provisions in the bill.
Overview of evidence on the bill
2.2
The committee received evidence canvassing a range of views on the bill and there was much variation in the level of detail provided in the submissions. Some schedules, for example, schedule 1–role of the applicant and schedule 3–historical extinguishment, were the subject of discussion in many submissions whereas detailed comments on other schedules, for example, schedule 4–allowing a registered native title body corporate to bring a compensation application and schedule 5–intervention and consent determination, were addressed in a small number of submissions.
2.3
Some submissions indicated their overall support for the bill. For example, the Northern Territory Government submitted:
The Northern Territory Government supports the proposed reforms, noting they have been the subject of extensive consultations by the Commonwealth Government and will implement the recommendations of a number of high-level independent reviews, including by the Australian Law Reform Commission, and will improve the native title system for all parties.
2.4
The Minerals Council of Australia (MCA) 'generally' supported the bill, stating that it 'includes measures to provide greater certainty and improve operations of the Act'. The MCA acknowledged that while the bill does not include all recommendations made by the organisation, it contains 'important reforms to support a more practical native title framework by addressing many long-standing technical and administrative matters'.
2.5
The Queensland South Native Title Services (QSNTS) welcomed and supported the amendments in the bill and argued 'that further revision of the Act would increase its fitness for purpose and better achieve the ideals laid down in the Preamble to the Act'.
2.6
Other submissions indicated support for most of the proposed amendments but raised concerns about some provisions. The Central Desert Native Title Services (CDNTS) supported the bill with the exception of provisions relating to the Commonwealth intervening in native title proceedings (part 1 of Schedule 5) and the creation of a public register of section 31 agreements (part 2 of Schedule 6). The National Native Title Council (NNTC) welcomed most of the proposed amendments but did not support current drafting of provisions relating to de-registration of certain agreements, provisions relating to the Commonwealth intervening in native title proceedings, increased powers of the ORIC Registrar and the two year transition period for RNTBCs to update their constitutions.
2.7
Others argued that the bill includes urgent amendments (for example, schedule 3) and should not be delayed. Representatives from Yamatji Marlpa Aboriginal Corporation (YMAC) argued that delaying the bill to address all matters that could be addressed would be 'counterproductive'.
2.8
In contrast, the Law Council of Australia (Law Council) identified a number of areas of concern which, it argued, should be addressed by a number of amendments. The Indigenous Peoples' Organisation argued that the bill is inconsistent with international law and the government’s obligations under article 1 the International Covenant on Civil and Political Rights (ICCPR) and article 1 of the International Covenant on Economic, Social and Cultural Rights (ICESR). Emeritus Professor Jon Altman submitted:
While some structural and systemic shortcomings might be ameliorated by this Bill, others might be exacerbated. This is not a very productive way to ensure that native title assists holders and claimants deploy their rights and interests to improve their circumstances in contemporary Australia.
2.9
Furthermore, Professor Altman opined that the 'reforms, like earlier amendments of the [Native Title Act], fail to address the first order issue of free prior and informed consent that would empower native title groups to determine what happens on lands and seas where native title rights and interests are legally recognised'.
2.10
Mr Ross Mackay, a solicitor and legal consultant, stated that the bill fails to 'engage with some of the key problems which have become apparent over the 26 years of operation' of the Act. Mr Mackay stated that certain provisions of the bill 'touch upon practical issues' facing native title holders but 'taken as a whole' the bill is a missed opportunity to address broader issues such as the onerous burden of proof requirements and 'lack of parameters around the requirement to negotiate in good [faith]'.
2.11
Original Power described the bill as proposing a range of 'disparate amendments', some of which 'seem to be beneficial to native title holders', some encompass legislative 'housekeeping' and some amendments 'appear to be in the interests of mining companies and other developers, and not in the interests of native title holders'.
2.12
Several submitters focused their comments exclusively on schedule 3 relating to historical extinguishment. According to the NFF, schedule 3 'amounts to a vehicle that will undermine certainty and needs to be examined far more rigorously from a policy perspective'. The New South Wales Aboriginal Land Council (NSWALC) supported 'in principle' the intent to disregard historical extinguishment but argued the bill as drafted would have unintended consequences for Aboriginal communities in NSW. The Australian Maritime Safety Authority raised concerns about how the extinguishment provisions would affect their management of lighthouses and other infrastructure.
2.13
While the Australian Lawyers Alliance (ALA) welcomed some amendments in the bill, including the historical extinguishment provisions, provisions which would give greater flexibility to native title claimants to set limits on the conditions of the applicant's authority, and the creation of new pathways to address native title related disputes following a native title determination, it was concerned that the amendments are limited in reach and 'several much needed proposals for reform have remained unaddressed in the bill'.
2.14
Dr Anne Poelina did not support the bill, submitting that if the amendments 'proceed in their current form there will be a great injustice to Australia's original peoples, our land and living waters, lifeways and livelihoods'.
Background and context when considering native title reform
2.15
Inquiry participants highlighted a number of broader issues to provide background and context to their consideration of native title reform.
2.16
Australians for Native Title and Reconciliation (ANTaR) emphasised that any reforms to the Native Title Act should be consistent with the intentions and principles outlined in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and:
…must fundamentally be favourable to Aboriginal and Torres Strait Islander peoples, recognising the historical trauma of colonisation and the impact of successive State and Federal government policies that have disadvantaged or ignored the First Peoples of this continent.
2.17
The Kimberley Land Council (KLC) explained that when 'amendments to bills come through…they never really are from a traditional owner perspective'; the amendments are 'generally driven from a third-party proponent', such as the resource sector or government. Moreover:
When we're trying to push through to make changes, when it's coming from the sector or from the traditional Aboriginal or Torres Strait Islander people, it tends to fall on deaf ears. In regard to saying, 'Hey, we've got concerns with the Native Title Act. We need to make some amendments,' we get pushed aside. However when it's big industry or government itself—I use the McGlade case as an example of this—we can see amendments getting turned around within six to 12 months. So we feel that we're always at the tail end of putting our requests for changes to the bill.
2.18
Emeritus Professor Altman submitted that native title law should 'not be treated as a tradeable commodity' as it is 'a special generis form of property that needs to be treated in a special way'. In his view, a 'native title interests test' should always be applied and any 'reform that has the potential to weaken native title rights and interests, that are already severely limited in Australia law, should not be countenanced'.
2.19
When discussing their experiences of native title claims processes, witnesses at the public hearing in Perth explained some of the challenges of engaging with a system to seek access to land which they have not ceded to any other party. Ms Margaret Culbong stated:
I've been fighting and I've walked these streets for law and justice for my people for many years. We're still fighting the law and justice…But native title was never a part of my future for myself and for my grandchildren and everyone else. I have not ceded my rights to my country.
2.20
Mr Mervyn Eades told the committee:
I'm a Mirnang Wilman Noongar from the south-west of WA—Noongar country. I have not ceded my sovereign rights. I'm a sovereign First Nations person of his land. Native title—where it's come from and where it is today—serves our people no purpose. Native title has turned into the interest of mining companies and the states. They've taken all rights away from us.
Schedule 1–Role of the applicant
2.21
Under the Native Title Act, a native title determination or compensation claim is made by a person or group of people who seek recognition of rights and interests in an area of land and/or waters according to their traditional laws and customs.
2.22
The 'applicant' is the person or group of people authorised by a native title claim group to make and manage a claim on their behalf. The 'applicant' can also enter into native title agreements (such as Indigenous Land Use Agreements (ILUAs)) on behalf of the group where authorised to do so.
2.23
Schedule 1 proposes amendments in three key areas:
allowing the claim group to impose conditions on the authority of the applicant to make and manage a native title or compensation claim on its behalf (part 1);
allowing a majority of the applicant to make decisions or sign native title agreements, rather than requiring all members of the applicant to act together (part 2); and
streamlining the process for the claim group to replace individual members of the applicant if the member is unable to perform their duties, or has passed away, including through pre-agreed succession planning arrangements (part 3).
2.24
Much of the evidence received on this schedule focused on the amendments in parts 1 and 2.
Part 1–Authorisation
2.25
Proposed section 251BA would allow a claim group to impose conditions on the authority of the applicant to make and manage a native title or compensation claim on its behalf. Examples of conditions that the claim group could place on the authority of the applicant include requiring the applicant to seek specific authorisation from the claim group before agreeing to a consent determination, or before discontinuing or amending an application. The group may also impose a condition that the applicant is required to act unanimously. The explanatory memorandum states that these amendments implement Recommendation 10-5 of the ALRC Report.
2.26
The bill would amend section 62A of the Act to require the details of any conditions on the authority of the applicant to be included in an originating claimant or compensation application and supported by affidavits. These provisions would assist relevant parties, when dealing with the applicant, to be aware of any conditions imposed on the applicant's authority.
2.27
While the authorisation provisions were broadly supported, a number of amendments were suggested to provide further clarity.
2.28
The WA Government outlined concerns regarding the practicality of ensuring that the conditions are imposed properly. To ensure transparency about the form of the conditions and the way they are utilised, it was suggested that the amendments set out requirements for the form of conditions imposed and how they are to be documented.
2.29
YMAC explained that when changes are made to a claim's Form 1 document, this would ordinarily trigger the registration test under section 190A of the Native Title Act. YMAC contended that this could discourage claim groups from updating the conditions placed on their applicant and proposed that 'changes to the conditions on the applicant be added to the list of amendments to a claim's Form 1 that effectively do not trigger the registration test (s190A(6A)(d))'. This suggested amendment was supported by CDNTS and the Law Council.
2.30
CDNTS proposed an amendment to the application and transition provisions related to conditions on authority:
(3) The amendments of sections 62A and 186 of the Native Title Act 1993 made by this Part apply in relation to any authority given after the commencement of this item but does not apply to any claims currently on the Register of Native Title Claims.
(4) Section 251BA of the Native Title Act 1993, as inserted by this Part applies in relation to any authority given after twelve months of the commencement of this item.
2.31
The Law Council supported the objectives of proposed section 251BA but expressed concern that it 'reproduces the dichotomy between ''traditional'' processes of decision-making and ''agreed to and adopted'' processes of decision-making imposed throughout the Native Title Act'. Moreover:
The Law Council submits that the use of a traditional decision-making process, where such a process exists, should be optional rather than mandated. It would be preferable to enable a native title claim group to pursue a decision-making process of its choice, based on its needs and resources. This is consistent with previous recommendations of the Australian Law Reform Commission.
2.32
The Law Council also repeated its concern about the lack of clarity on how the amendments affect the validity of existing conditions on applicants. To rectify this it was suggested that the word 'only' should be inserted into proposed subsection 24(4) as follows:
Section 125BA of the Native Title Act 1993, as inserted by this Part, applies only in relation to any authority given after the commencement of this item.
Part 2–Applicant decision making
2.33
The bill would amend the Native Title Act to allow, as the default position, an applicant to a native title claim to act by majority for all things that the applicant is required or permitted to do under the Act, unless the claim group has determined otherwise (consistent with the amendments in part 1 of Schedule 1). The provisions to allow the applicant to act by majority will commence six months after proclamation.
2.34
This part extends the amendments made in 2017, which changed the default position for making future area ILUAs, to make clear that the majority default position applies to other agreements including area ILUAs, alternative procedure ILUAs and section 31 agreements.
2.35
CDNTS supported the proposal for a majority of the claim group being able to sign off on agreements provided there has been compliance with processes and conditions agreed to by the claim group. The CDNTS did not support the proposed six month commencement timeframe for the majority default position because six months is an insufficient length of time for claim groups to finalise any conditions on the authority of applicants, due to factors such as geographic locations, length of time required to get people together and resolve issues, and other cultural issues.
2.36
The Law Council raised two issues of concern in relation to proposed sections 24CD, 24CL, 62C and 87:
[F]irst that the wording in relation to the application of these sections is vague enough to warrant concern that the default rule by majority inserted in these sections could apply in relation to claim groups or applicants determined prior to the commencement of these sections; and second, that these sections do not require the majority of the claim group or applicant to give notice to the other persons of the claim group or applicant prior to entering an agreement or making a decision.
2.37
The Law Council suggested:
…clarification of the retrospective scope of proposed sections 24CD, 24CL, 62C and 87. The Law Council recommends that the amendments proposed should only apply in relation to authority undertaken after the amendments. The Law Council further recommends that at minimum there should be a requirement to provide seven days’ notice in writing to all persons comprising the registered native title claimant, prior to the majority executing an agreement.
2.38
Mr John Bowler, Mayor of Kalgoorlie-Boulder recounted a situation brought to his attention whereby two sisters were unable to access benefits from a native title determination to which they were part of the claim group. Mayor Bowler elaborated to illustrate some of the issues that should be considered with majority decision making and ensuring there are safeguards in place when imposing conditions on authorisations:
In that case there were three brothers another sister, so there were four and two—60 per cent, 66 per cent, 33 per cent. But let's say you had 10 brothers and sisters and six wanted it and had the majority, and the other four—like those two sisters—were being excluded and wanted something different. So, yes, I think anything that's going to expedite things and move it along is better but I think you want some good safeguards.
2.39
Several inquiry participants expressed reservations that majority decision making and the imposition of defined timeframes is inconsistent with Indigenous decision making processes. The Indigenous Peoples' Organisation (IPO) submitted:
The IPO recognises and affirms that the exercise of the authority of each and every member of the claim group, and the exercise of their decision-making power, whether traditional or revitalised, in the course of discussion, consensus, abstention or dissent, represents the ontological concept of Indigenous decision-making and affirms the right to self determination. The proposed amendments undermine the cultural fabric of Indigenous claim groups and such amendments seek to impose western concepts of majority and minority membership within Indigenous groups.
2.40
Emeritus Professor Altman explained that his preferred option for determining native title interests is based on consent being determined 'by land interest group consensus in accord with their own internal decision-making processes (as occurs in the NT under land rights law)'. Professor Altman was concerned that the requirement to act by 'majority as the default position is fraught with potential dangers particularly when a larger regional group might be negotiating over a proposed development, like a mine, in a distinct locality'. Furthermore:
Majority decision making is a very western liberal democratic institution that might not sit comfortably with Indigenous decision-making processes, bearing in mind that continuity of customs and traditions need to be demonstrated in legal native title claim processes.
In other words, the rights and interests of those who matter in accord with tradition might be usurped by the wishes of a wider polity. This in turn could generate political conflict in the native title domain that should be avoided.
2.41
Mr Mervyn Eades stated that processes which enable a few to make a decision for all 'has never been right in traditional decision making in our mob':
Our mob would turn their backs and walk away or sit with their back onto something if they didn't think it was right. To give authorisations, you've got to be consent of all. It can never be of a few.
2.42
Ms Averil Williams expressed her view:
You are applying a Westminster system, where you need an answer within a time frame. That has been mentioned throughout this meeting, when you were talking to the previous two—time frames. Time frames have never been a part of me as an Aboriginal person—though I work and there are things that I must do within that time frame. But we're talking about cultural people. We're talking about people who have history and connection to land. Yet you want us to give these old fellas a time frame in which to make a decision. I don't believe that's right. I believe that we need to work in line with what the old people are saying and what is appropriate for those areas. That has not happened.
2.43
The Chamber of Minerals and Energy of Western Australia (CMEWA) spoke favourably about the majority default rule, describing it as a necessary inclusion in the legislation. According to CMEWA, the provision of a default majority rule would assist to facilitate a level of certainty and security for agreements at the same time as empowering individual groups to impose conditions on their claim group of acting by majority was not what that group wanted.
2.44
The Australian Human Rights Commission (AHRC) did not oppose amendments to applicant decision making and the majority default rule as applied to ILUAs, 'on the grounds that an authorisation process agreed by the native title group should be respected'. However, the AHRC maintained its view that the majority default rule should not be extended to section 31 agreements until the authorisation requirements in the Native Title Act are the same for ILUAs and section 31 agreements.
2.45
The Attorney-General's Department advised:
The amendment to allow the applicant to act by majority as default, and the streamlined provisions for replacing the applicant, will commence six-months after Proclamation of the Bill. The provisions allowing the native title claim group to place conditions on the applicant's authority will commence on Proclamation.
The six-month delay is to allow claim groups time to consider whether they want the applicant to be able to act by majority, and to organise authorisation meetings to impose any conditions on the applicant’s authority, including conditions requiring the applicant to act unanimously.
The department identified six-months as an appropriate timeframe through consultation with stakeholders, including native title representative bodies and the ETAG (the membership of which included representatives from the National Native Title Council).
Schedule 2–Indigenous Land Use Agreements
2.46
The Native Title Act sets out processes by which native title groups can negotiate with other parties to form voluntary agreements in relation to the use of land and waters. A key agreement making mechanism under the Act is an agreement known as an Indigenous Land Use Agreement (ILUA). There are three types of ILUAs: body corporate agreements, area agreements, and alternative procedure agreements.
2.47
The scope of these agreements can be wide and can include access to land, the relationship between native title rights and the rights of other land users, activities such as mining or exploration, or be part of the resolution of a native title claim. ILUAs may allow for certain 'future acts' to be done on land and waters, in exchange for compensation to native title groups.
2.48
Part 1 of Schedule 2 would amend the Native Title Act to:
allow body corporate ILUAs to cover areas where native title has been extinguished; and
require the Native Title Registrar to register an area ILUA only when satisfied it meets the requirements to be an ILUA.
2.49
Part 2 of Schedule 2 includes provisions which seek to streamline the process to be undertaken when minor amendments are made to an ILUA. Two new subsections would be inserted to clarify that when an ILUA is removed from the ILUA Register, future acts done in accordance with the ILUA, or any future acts already invalidly done which were purportedly validated by an ILUA, are valid.
2.50
Concerns raised about this schedule predominately focused on the amendments in part 2, to amend sections 24EB and 24EBA, which seek to clarify the validity of future acts by the insertion.
2.51
Several submissions expressed concern that these amendments would validate any future act authorised by the ILUA, including circumstances when an agreement was affected by fraud, undue influence or duress. In addition, the Law Council stated that there may be situations when an agreement was registered in circumstances of 'jurisdictional error or other administrative law error' which may be a 'valid reason as to why the validity of a future act ought to be set aside'.
2.52
To remedy the issue, Mr Mackay suggested the provision be amended to explicitly state that the validation does not apply to ILUAs 'deregistered on the basis they were induced by fraud, duress or undue influence'. In particular, 'the proposed new ss 24EB(2A) and 24EBA(7) of the NTA should be amended by including the words 'other than an agreement removed pursuant to s 199C(1)(c)(iii)'.
2.53
The National Native Title Council and ANTaR argued that the amendment could only be supported if an exception was included:
As with the recognised exceptions to indefeasibility of registered title under the Torrens system in Australia there should be similar exceptions in relation to future acts authorised pursuant to a de-registered ILUA.
2.54
The WA Government supported the proposed amendment as drafted and suggested that 'the amendments should also clarify that payment of compensation pursuant to an ILUA would also be similarly valid, and not affected by the removal of that ILUA from the Register'.
2.55
The Attorney-General's Department confirmed that the existing remedy for parties affected by a future act done under an ILUA made under fraud or duress is to take action at common law (even where the ILUA has been removed from the Register under section 199C). The proposed amendment would not change this position, and affected parties would continue to be able to seek remedies at common law.
Schedule 3–Historical Extinguishment
2.56
Generally, once native title has been extinguished it cannot be revived. Existing sections 47, 47A and 47B of the Native Title Act operate to allow the courts to disregard extinguishment in certain circumstances, including reserves set aside for Aboriginal and Torres Strait Islander peoples, pastoral leases held by traditional owners and unallocated Crown land.
2.57
Schedule 3 would amend the Act to extend the circumstances in which historical extinguishment can be disregarded to:
areas of national, state or territory parks where native title has been extinguished, with the agreement of the parties (part 1); and
pastoral leases controlled or owned by native title corporations (part 2).
2.58
The amendments in schedule 3 were the subject of much discussion during the inquiry.
Part 1–Park areas
2.59
Proposed section 47C would allow historical extinguishment of native title to be disregarded over areas set aside for the preservation of the natural environment (national, state and territory parks), where the native title party and the relevant government (Commonwealth, state or territory) agree. This means those areas can be included in claims for native title (including an application for revised native title determination), provided that the relevant conditions are met, and that any previous acts which may have extinguished native title can be set aside for the purpose of determining the claim.
2.60
New section 47C would differ from existing sections allowing historical extinguishment to be set aside, in that the relevant government responsible for the park would need to agree that extinguishment can be disregarded. Once this agreement is reached, it would be open to the court to determine that native title exists in the area, provided it is established in the usual way (including by demonstrating connection with the land or waters concerned).
Support for section 47C
2.61
Several submitters and witnesses supported the historical extinguishment provisions. QSNTS welcomed the extension of 'circumstances in which historical extinguishment can be disregarded in relation to national park areas and pastoral leases controlled or owned by native title corporations'.
2.62
CDNTS emphasised that while section 47C 'could be improved', these provisions are 'most urgent and important'. In particular:
[W]e believe the urgency of getting it in place is the priority, so improvements are matters that could be sought later. The reason is that often the most significant areas for First Nations peoples are in the national parks and they're the most pristine et cetera. The impact of extinguishment of native title is quite traumatic for the people of those areas.
2.63
Warnpurru Aboriginal Corporation (Warnpurru), the corporation representing the traditional owners of the Gibson Desert Nature Reserve, urged that the amendments to section 47C 'proceed without delay'. Directors from Warnpurru explained the importance and value of the land to the traditional owners and their families:
Can you please change the rule, change the law, because my people want to live out there, want to hunt and gather, want to do our ways of life as we've lived and the way our ancestors lived.
…
We've been fighting for the country, but we want the native title. If we change it then we can get funding for [Indigenous Protected Areas] and the jobs would come. We'd be able to learn and grow, for Warnpurru to stand on our own feet, if we get that native title. But we need native title, because after 10 years we need to be able to get our own IPA money in the future, when that agreement's finished. That is bit of a hard one for us. We just want to know what we are going to do about that and see if you can help us.
2.64
Mr David Reger, a lawyer working with Warnpurru, stated that these amendments 'will have a real and direct impact on people's lives' and:
The proposed amendments will go a long way in healing that hurt and shame and restoring a sense of pride for this group and allowing them to move forward towards a future where they can hold their heads up high and proud, along with other groups in the desert who have held their native title for decades.
2.65
Emeritus Professor Altman argued that allowing 'historical extinguishment over areas of national and state park to be disregarded where the parties agree to allow native title claim is a welcome way to deliver more land justice and help reduce massive inequalities in the national distribution of native titled lands'. However, he also cautioned:
But if at some future date native title holders and claimants are to sole or joint manage national and state parks it is imperative that they are adequately resourced for such purposes.
This is especially the case where lands are returned to Indigenous landowners in either degraded condition or facing significant environmental threat.
Concerns raised about section 47C
2.66
Other evidence highlighted concerns with the historical extinguishment provisions.
2.67
The WA Government supported proposed section 47C but considered there are a number of matters that require further attention:
While the proposed new section 47C of the NTA is supported, WA considers there are a number of matters that require further attention including, but not limited to, the form and content of an agreement, the application of the future act regime of the NTA to the agreement area, the clarity of the process used to reach agreement and the proposed definition of a 'park area'.
2.68
At the public hearing, the WA Government elaborated:
I think WA is all for flexibility in the application of this section, and the written submission that we've made notes a couple of live matters. We're looking at a form of park area where according to the law native title has been extinguished, but we're looking for outcomes for the native title party involved and looking ahead as to whether or not section 47C will go into law, into the Native Title Act. I think also there's a technical question around how public works are dealt with in such areas. I note that proposed 47C does reference, specifically, public works in the area and the fact that if 47C is enlivened and a positive determination of native title is made any existing interest, including a public work, will be valid.
One of the issues we sometimes find is that whilst there are public works that can be the subject of agreement on that basis, within 47C, sometimes the public works are excluded from the park area. So you get that situation where you can't formally say you're dealing with it. You might want to have an agreement about a particular public work but, because it's within the outer boundaries of the park area but not actually part of the park area, you may have an issue with whether or not proposed 47C covers it. I know that's a fairly technical issue but, I suppose, it's just part of an overview of a section that WA is very supportive of and we've got live examples we're dealing with that would benefit from it being enacted.
2.69
The National Farmers' Federation (NFF) argued that should proposed section 47C become operational 'it will open a door to native title claims that currently [doesn't] exist'. Of particular concern to the NFF was the proposed definition of 'park area' which is, according to the NFF, 'too broad from a drafting perspective', making it difficult to understand how this 'section will operate considering the substantial uncertainty it creates'.
2.70
While supporting the intent of the historical extinguishment provisions, the Minerals Council reiterated its concerns about 'significant unintended consequences':
…including a potential compensation liability for parties that hold an interest or have held a prior interest in the land relating to the agreement, if this is not addressed in the relevant agreement. This is associated with grants where there was no prior requirement for a future acts process.
2.71
The Australian Maritime Safety Authority (AMSA) was concerned about the historical extinguishment provisions as they may apply to management of its network of approximately 385 aids to navigation (AtoN). AMSA explained that many AtoNs are located in remote areas (marking hazardous features of coastlines) and situated on land that is now managed as national or state parks or reserves, 'and which may also be subject to native title claims or determinations, or on land subject to Aboriginal land claims'.
2.72
AtoNs are considered 'public works' for section 253 of the Native Title Act and the establishment of historic public works extinguishes native title. As the proposed amendments at subsections 47C(4) would allow for extinguishment of native title by public works to be disregarded if agreement is reached between the relevant government and traditional owners, it was unclear to AMSA if its agreement 'would be required in such circumstances and including where the public work was constructed prior to federation'. To address this concern, AMSA recommended that 'if extinguishment in cases of public works are to be disregarded a mechanism is required to ensure at least consultation, but preferably consent, from the agency responsible for the public work'.
Notice and time for comment
2.73
The bill provides that prior to making an agreement in relation to a park area or an area containing relevant public works, the relevant government must facilitate a public notification process with a public comment period of at least three months. The Minerals Council supported the public notification period and suggested an additional measure to provide certainty for industry:
Such a measure should require any party who holds (who has held) an interest in an area (who may be affected by section 47 agreement) be a party to the agreement, or as a minimum, consulted in regards to the agreement. This addition would complement the required reasonable notification and three month public comment period. The MCA considers this a balanced and enabling approach that does not affect the provision’s purpose of providing opportunities for Aboriginal and Torres Strait Islander peoples that may arise from areas of national, state or territory parks.
2.74
According to the NFF, the proposed notification and comment process provides 'no security…for affected parties [as] notification isn’t consultation'. In the absence of 'any other mechanism the potential impact on the concession renewal process' was of concern to the NFF.
2.75
The Attorney-General's Department informed the committee:
Government and industry stakeholders expressed in-principle support for proposed section 47C during consultations on exposure draft legislation, subject to concerns that the provision may apply to privately held land, and the protection of third party interests.
The provision was amended in the final Bill in response to stakeholder feedback to restrict the areas over which the provision applies to clearly exclude freehold title. There are also a number of safeguards built into the proposed amendment for third party or industry interests, including:
a requirement that there is public notification of a proposed agreement by the government party, and an opportunity for interested persons to provide comment, which must be for at least three months (proposed subsections 47C(6) and (7); and
a provision protecting existing interests, including third party interests, by requiring such interests to prevail over any native title rights while it operates (proposed subsection 47C(9).
Finally, the new section 47C will also only operate where native title and government parties agree, and subject to any conditions required by the government party (which could include conditions in relation to the protection of third party interests).
Aboriginal Land Claims in New South Wales
2.76
The New South Wales Aboriginal Land Council (NSWALC) and the Law Council supported proposed section 47C in principle but raised concerns about how it will interact with Aboriginal Land Claims made under the Aboriginal Land Rights Act 1983 (NSW).
2.77
The NSWALC argued that the bill as currently drafted would 'have the unintended consequences of reducing the existing rights and interests of Aboriginal people' under the Aboriginal Land Rights Act 1983 and increase 'legal uncertainty and costs for Aboriginal communities in NSW'.
2.78
The Law Council explained:
[The] meaning of 'park area' [in proposed subsection 47C(3)] is broad enough to pick up land beyond national parks or state forests, such as land reserved under legislation for purposes that 'include preserving the natural environment', which is land that might also be claimable under the NSW Act, meaning the two legislative regimes in theory overlap.
2.79
It was explained that in NSW, Aboriginal Land Claims under the Aboriginal Land Rights Act 1983 (NSW) can deliver freehold title where the claimed crown land is effectively unused and unneeded at the date of claim. Although land granted in this way 'is subject to, and does not affect any native title rights and interests existing in the lands immediately prior to transfer', Aboriginal Land Claims can be 'adversely impacted by a native title claim that has been registered or successfully determined prior to the land claim'.
2.80
The NSWALC submitted:
The proposed provisions to disregard historical extinguishment will mean that Aboriginal Land Claims that may currently succeed over ''park areas'' will now fail where they are preceded by a s47C native title application.
2.81
It was stated that this would effectively exclude from claim lands that may otherwise be claimable in freehold under the Aboriginal Land Rights Act 1983. Currently Aboriginal Land Claims lodged after a native title claim can still succeed in circumstances where native title has been extinguished.
2.82
The NSWALC expressed concern that 'proposed s47C provisions will have the effect of converting Crown land that is currently claimable under the ALRA to land that is un-claimable by virtue of the proposed s47C'. In order to remedy this, it was recommended that s47C not operate 'to diminish the rights and interests of Aboriginal Land Councils or defeat Aboriginal Land Claims that would otherwise have been successful' under the Aboriginal Land Rights Act 1983.
2.83
To mitigate possible unintended consequences, the NSWALC requested a number of amendments 'in the spirit of advancing the collective rights and interests of Aboriginal people'.
(a)
Aboriginal Land Claims made under the ALRA should be explicitly recognised as 'interests' in s47C(9)(a)(ii).
(b)
The agreement of Aboriginal Land Councils, with an interest in the agreement area, should be required under s47C(1).
(c)
Clarify that s47C does not operate to diminish the rights and interests of Aboriginal Land Councils or defeat Aboriginal Land Claims that would otherwise have been successful under the ALRA.
2.84
The Law Council recommended the 'development of a more refined mechanism, which would have regard to the complex interaction between native title rights and land rights and ensure that the two regimes operate in harmony to maximise outcomes for Aboriginal people'.
Schedule 4–Allowing a registered native title body corporate to bring a compensation application.
2.85
It is generally understood that the present terms of the Native Title Act do not allow an RNTBC to bring a compensation application over areas where native title has been fully extinguished. Currently, RNTBCs can only bring compensation applications over areas where native title has been partially extinguished or impaired. The provisions in schedule 4 would allow an RNTBC to also be able to make a compensation claim over areas within the external boundary of its determination area where native title has been fully extinguished.
2.86
Several submissions expressed support for these provisions. The QSNTS submitted that these amendments will mean that 'there will no longer be the existing cumbersome (and potentially expensive) process of compensation claims for contiguous lots being brought by both a compensation claim group and a RNTBC'.
Schedule 5–Intervention and consent determinations
2.87
Part 1 proposes amendments to clarify the role of the Commonwealth in its capacity, among other things, as an intervenor in native title proceedings. Part 2 of Schedule 5 seeks to clarify the procedural requirements for the Federal Court to make determinations with the consent of the parties. The explanatory memorandum describes these provisions as 'technical amendments'.
2.88
CDNTS did not support the amendments in part 1 which, in its view:
…will have the effect of requiring the consent of the intervenor in various procedural and substantive matters. This is particularly the case where the Commonwealth, as intervenor, has no rights or interests in the land under claim and therefore has only an academic interest in the proceedings. While it is important for the views of the intervenor to be heard in any claim, agreements which determine the rights and interests of parties should not be prevented as a result.
We have expressed concern about expanding section 87 and the provision to require the Commonwealth, when it intervenes, to be a party to any consent determination. Our experience has been that the Commonwealth has sometimes intervened quite late in the piece when negotiations are well advanced, and, therefore, it delays matters to suddenly have to satisfy the Commonwealth as well after you've gone through and got agreement from most of the other parties. We see no need for the Commonwealth to be required to be a party to any consent determination. An area of concern we have noted in our submission is that section 31 agreements are basically private agreements. Our position is that that should remain the case.
2.90
The NNTC and ANTaR did not support provisions in Schedule 5 on the basis that these provisions 'would theoretically allow the Commonwealth to oppose an agreement even where all the other parties are in agreement'. These concerns were echoed by the AHRC.
Schedule 6–Other procedural changes
2.91
The evidence received on schedule 2 was predominately focused on part 2 related to amendments to the operation of section 31 agreements and the proposed register of section 31 agreements.
Operation of section 31 agreements
2.92
The proposed amendments to section 31(1) would allow government parties to withdraw from negotiations where the parties consent, while maintaining that government parties must remain parties to the agreements. CDNTS supported this amendment as 'accurately [reflecting] the manner in which these types of agreements are currently being negotiated in practice'. The National Native Title Council shared this position, and stated that this amendment would 'operate to simplify the…procedure'.
2.93
The WA Government was concerned about ambiguity that may arise in the operation of this provision if passed. It submitted that it:
…has concerns about the practicality of the proposal that the government party would not be able to 'opt out' of negotiations about matters which does not affect it without the other parties' written consent, and what happens in circumstances in which it may wish to 'opt back in'.
2.94
The WA Government also questioned whether the requirement for government parties to remain parties to the section 31 agreement, irrespective of involvement in the negotiation process, may still result in unnecessary costs and delays for all parties.
2.95
While the Native Title Act currently requires parties to provide a copy of their section 31 agreement to the National Native Title Tribunal, proposed subsection 41A(1)(a) would require parties to also advise the relevant arbitral body about the existence of any other ancillary agreements. The WA Government supported this amendment, but suggested that it clearly state that it is the responsibility of the grantee and native title parties to provide the National Native Title Tribunal these agreements. It stated that such information is not provided to nor held by the WA Government, and it 'would want to avoid any expectation that it was otherwise responsible for compliance with the requirements of this proposed amendment'.
Proposed register of section 31 agreements
2.96
The inclusion of proposed sections 41(4) and 41B would have the effect of requiring the Registrar to keep a record of all section 31 agreements, which would identify (to the extent known to the Registrar):
a description of the area of land or waters to which the agreement relates;
the name of each party to the agreement and the address at which the party can be contacted;
if the agreement specifies the period during which it will operate, that period; and
whether or not there is any other written agreement made between some or all of the parties to the agreement in connection with the doing of the act to which the agreement relates.
2.97
That information could be made available to a person on request, unless a party to the agreement requests that some or all of the information not be disclosed.
2.98
The Attorney-General's Department explained that this amendment arose in reaction to concerns raised during the consultation process about the lack of transparency around section 31 agreements, in the absence of any pre-existing public register or record. The NNTC expressed support for the provision, stating:
[T]he proposed amendment is seen as promoting transparency in relation to the conclusion of [section] 31 agreements while still protecting the essential commercial in confidence nature of many such agreements. As such the proposed amendment achieves a sound balance between these potentially competing priorities.
2.99
The MCA supported the creation of a public record of section 31 agreements, stating that it would 'support meaningful transparency while ensuring that agreement parties can jointly determine how information relating to the contents of these agreements is shared'.
2.100
CDNTS argued that agreements reached between contracting parties should be kept confidential as a matter of public policy. It submitted that the ability for a party to object to the request for such information to be made public did not alleviate its concerns because 'it is the exception rather than the rule'. This position was shared by the Wintawari Guruma Aboriginal Corporation.
2.101
The Law Council recommended that the bill be amended to expand the register of section 31 agreements to include ancillary agreements to assist members of native title claim groups. The Law Council explained that ancillary agreements often provide for payment of signing fees and compensation to accounts. The Law Council explained that currently a proponent may enter into a section 31 agreement affecting native title rights and interests with only the people comprising the named applicant. This may result in the rest of the native title claim group being unaware of the negotiations, or that a section 31 agreement has been signed, and may be unable to obtain copies of the agreement. It was argued that an expanded register, which included both section 31 and ancillary agreements, with suitable information restrictions to prevent access by persons other than the parties to the agreement and the members of the relevant native title claim group, would assist affected individuals to become aware of what agreements have been made and how their positions might be affected.
2.102
Mr Ross Mackay, a legal practitioner in native title, stated that 'such a register is sorely needed' to assist native title holders to be aware of their rights and obligations, particularly where native title has been inherited. Mr Mackay submitted that the content of section 31 agreements and ancillary agreements 'is a significant source of tension within and between native tile claim groups'. He argued that the content of agreements should be included on the register to address both issues, while confidential information could be redacted if concerns were raised.
2.103
The Attorney-General's Department advised that the public record would 'contain certain details about section 31 agreements consistent with the details currently publicly available on ILUAs on the Register of ILUAs'. This information would include the parties and the area the agreement covers. A further detail to be recorded is whether there are any ancillary agreements to the section 31 agreement. It is also intended for a similar amendment to be made to the Native Title (Indigenous Land Use Agreements) Regulations to require the Register of ILUAs to similarly note whether there are ancillary agreements to ILUAs.
Schedule 7–National Native Title Tribunal
2.104
Schedule 7 confers a new function on the National Native Title Tribunal (NNTT) to allow it to provide assistance to RNTBCs and common law holders of native title to promote agreement about native title and the operation of the Native Title Act. This function is intended to assist in the prevention and management of post-determination native title disputes.
2.105
The Attorney-General's Department explained the background to the proposed new function:
As part of consultation on the development of the Bill, stakeholder views were sought on how the Tribunal could better assist in the management and resolution of RNTBC/PBC disputes. The outcome was new section 60AAA, which confers a new function on the Tribunal to allow it to provide direct assistance to RNTBC/PBCs and common law holders to support the management and resolution of disputes about native title and the Native Title Act.
2.106
It was emphasised that the new function is 'designed to provide the Tribunal with flexibility in how it is performed' but is intended to:
establish governance processes that are consistent with the Native Title Act and PBC Regulations, for example, agreed processes that are consistent with traditional decision making;
support resolution of disputes between common law holders and RNTBCs, which may include mediation; and
facilitate collaboration between RNTBCs.
2.107
While the new function would enable the NNTT to provide support in the event of conflicts, it is expected that RNTBCs would follow their own internal dispute resolution processes prior to seeking the assistance of the NNTT, as complemented by provisions in schedule 8, part 1 requiring RNTBCs to establish dispute resolution processes with non-member common law holders.
2.108
The NNTT strongly supported the proposed amendments in schedule 7 and suggested 'that consideration be given to conferring upon it an arbitral power to complement the mediation function.
2.109
According to the NNTT, proposed section 60AAA would 'allow the Tribunal to offer assistance to a wider range of native title stakeholder', however:
where there has been an unsuccessful mediation, or where the parties do not agree to mediation, the only present alternative, if the dispute is to be resolved, is litigation, probably in the Federal Court. The Tribunal suggests that at least in some cases, it may be more efficient, and less expensive to provide, in the NTA, for some form of non-judicial arbitration. The Tribunal already has a mediation role in connection with expedited procedure matters and future act applications. In each case, the Tribunal also has an arbitral role. Of course, the Tribunal keeps the two processes separate. The Tribunal suggests that any arbitral role relate at least to:
(a) disputes as to any failure by the Board of an RNTBC to admit a traditional owner to membership; and
(b) disputes between members of an RNTBC and/or relevant traditional owners, on the one hand, and the Board of the RNTBC on the other, concerning the validity of any decision, or proposed decision, by the Board, which decision has had, or is likely to have any effect upon land or waters, subject to a relevant native title determination.
2.110
The NNTC similarly supported the new function proposed to be conferred on the NNTT. While also supporting the proposed new function 'as another avenue of redress for grievances', CDNTS suggested that this be viewed as a last resort on the basis that other avenues of dispute resolution are 'often more culturally appropriate and cost effective ways of dealing with internal disputes'.
2.111
The Attorney-General's Department, in consultation with the NIAA, informed the committee that:
NIAA (supported by the Attorney-General's Department) will consult on further possible measures to support RNTBC/PBC dispute resolution, including whether new section 60AAA (if passed) could be complemented by other functions such as an arbitral power, as part of the current Review of the CATSI Act.
Schedule 8–Registered native title bodies corporate
2.112
Schedule 8 proposes amendments to the CATSI Act which seek to improve the accountability, transparency and governance of RNTBCs, with a particular focus on membership and improved dispute resolution pathways.
2.113
Schedule 8 comprises four parts:
part 1 would introduce new requirements for RNTBC constitutions relating to establishing dispute resolution pathways with common law holders, create eligibility requirements for membership to RNTBCs, and limit the grounds for cancelling membership of a RNTBC;
part 2 would amend the CATSI Act so that directors of RNTBCs are unable to exercise discretion to refuse to accept a membership application;
part 3 seeks to clarify that the Registrar of Aboriginal and Torres Strait Islander Corporations may place a RNTBC under special administration where the Registrar is satisfied that there has been a serious failure, or a number of failures, by the corporation to comply with its native title legislation obligations; and
part 4 would create a requirement that civil proceedings arising under the CATSI Act must be instituted in the Federal Court, unless that court refers the matter to another court with jurisdiction.
Requirements for constitutions and membership
2.114
CDNTS supported the amendments to introduce requirements for RNTBCs' constitutions stating that the 'proposed amendments are largely in keeping with current practice' and that RNTBCs within its region already have similar clauses in their Rule Books of Constitutions:
Our view is that there is an important balance between ensuring that native title holders’ rights and interests are being properly protected by the RNTBC and the ability of an RNTBC to be able to expel disruptive members from its lists.
2.115
With reference to proposed subsection 150-22 (4), which states that a member has 14 days to object to the cancellation of their membership and the objection needs to be made in writing and given to the corporation within 14 days from the day the notice is given, Councillor Dominic WY Kanak recommended that further consideration be given to provisions in the bill that specify timeframes for the consideration of matters and time for responding. Councillor Kanak advanced that provisions which determine response time based on the delivery of a notice and not receipt by the affected party 'may have unintended consequences' given that 'real time and remote circumstances may reasonably require extended notice time'.
2.116
The bill provides that RNTBCs would be given a two year period from proclamation to update their constitutions to reflect the new requirements. Some submissions supported the two year transition as a 'sufficient period of time' for RNTBCs to amend their constitutions. Others, such as ANTaR, suggested a 'longer transition period' was necessary because 'PBCs are often working with limited existing resources to manage any changes and amend processes'. The NNTC recommended a five year transition period which would take 'into account the resource constraints on the native title sector to achieve these changes'. Mr Mackay argued that 'specific funding and resources should be provided to RNTBCs, within the 2 year transition period, to allow them to make the necessary constitutional amendments'.
2.117
The Attorney-General's Department explained that the proposed two year timeframe would 'allow a corporation two separate opportunities to bring a special resolution forward at a scheduled general meeting, enabling rule book changes with no additional costs'. Moreover:
In considering an appropriate timeframe, NIAA balanced the burden placed on corporations and their capacity to revise their rule book with the interests of individuals whose access to a remedy may be delayed. In NIAA's view the addition of the dispute resolution process is an immediate need; it ought to be met as soon as possible to ensure the effective governance of RNTBCs/PBCs. Extending the timeframe to five years increases the sector's risk for reputational damage on social and governance practices.
2.118
The Attorney-General's Department outlined how RNTBCs will be supported to implement these proposals:
The Office of the Registrar of Indigenous Corporations (ORIC) can provide information, guidance and support around the process to update rule books to RNTBC/PBCs. The Registrar of Indigenous Corporations (the Registrar) has agreed to work with stakeholders including NIAA and the Tribunal to develop a generic rule template that corporations could insert, or amend and insert, into their rule books to meet the new requirements of the Act.
2.119
The bill would amend section 114–10 of the CATSI Act to remove the discretion of RNTBCs directors to refuse to accept a membership application. Under current subsection 144-10(3), directors may refuse to accept a membership application even if the applicant applies for membership in the required manner and the applicant meets the membership requirements of the corporation.
2.120
Mr Mackay expressed support for this amendment, stating that directors of RNTBCs should not be able to withhold membership to individuals who meet membership criteria. In contrast, the Wintawari Gurumu Aboriginal Corporation did not support the proposed removal of directors' discretion and suggested that requiring directors to give reasons for cancelling memberships and for these to then be challenged through the proposed dispute resolution mechanisms would be a better way to improve transparency and accountability.
Registrar oversight
2.121
ANTaR, NNTC and QSNTS opposed the provisions in part 3, which would clarify that the Registrar may place a RNTBC under special administration in the event of serious non-compliance with its native title legislation obligations, due to concerns about how they may impact the right of self-determination of native title holders. NNTC submitted:
Any increase in powers for the Registrar that may intervene in the rights of self-determination of native title holders and their corporation is of concern. As the proposed amendments seek to increase the powers of the ORIC Registrar in relation to RNTBCs, in the NNTC’s opinion any new powers should be considered in the light of a more holistic review of the [CATSI] Act and the provisions affecting RNTBCs and the NTA.
2.122
Subsequently, the NNTC advised that the Minister for Indigenous Australians, the Hon Ken Wyatt MP, announced a 'comprehensive review of the CATSI Act to consider if it is serving its intended purpose, including its effectiveness as a special measure under the Racial Discrimination Act 1976'.
2.123
The NIAA is leading the review which will build on the findings of the Technical Review of the CATSI Act conducted in 2017. Phase 1 of the review received 60 responses to a survey published on the NIAA website and a further eight submissions via email. Governance was identified as the area that was important to most respondents, closely followed by the purpose of the CATSI Act. Survey responses and other submissions will inform discussion papers that will be published on the NIAA's website. The second phase of the review is now open and will close in September 2020.
Proceedings in the Federal Court
2.124
Submissions, including those from the CDNTS and the NNTC, supported the amendments in part 4 of Schedule 8 that would require civil proceedings arising from the CATSI Act to be heard in the Federal Court and emphasised that the Federal Court has a particular understanding of native title related matters that other jurisdictions do not. The QSNTS agreed that the Federal Court is the appropriate forum for dealing with these matters but emphasised that the NNTT 'has skills and sector knowledge to provide a proper forum for the resolution of 'lower level' disputes'.
Funding and support for RNTBCs
2.125
When discussing the proposed amendments to the CATSI Act several inquiry participants highlighted challenges for RNTBCs with particular reference to funding and resourcing. The NNTC emphasised it has 'consistently advocated for increased funding to RNTBCs' and the new requirements proposed in the bill 'are a further example of the need'. The ALA argued that:
[A]ny reforms that seek to enhance the management capabilities of PBCs' must be accompanied by long term and concrete funding for PBCs to enable them to build their technical, governance and financial capacity to effectively represent common law holders of native title.
2.126
The KLC explained that the PBC support funding it receives from the Commonwealth government is 'minimal' which exacerbates challenges managing governance requirements of PBCs, such as holding board meetings and an annual general meeting which often involves coordinating hundreds of people.
2.127
The AHRC identified 'limited financial resources and governance capacity' as barriers to RNTBCs being able to 'effectively discharge their statutory obligations and fulfil the cultural, social and economic aspirations of native title holders'. The AHRC reiterated its view that 'the capacity of RNTBCs to comply with their native title legislation obligations would be enhanced through an increase in the Government provision of technical and financial resources to RNTBCs'.
2.128
Mr Mackay argued that the government should review the funding and resources available to RNTBCs 'including the effectiveness of funding provided under the Indigenous Advancement Strategy'. Mr Mackay also stated that if RNTBCs are 'not adequately funded to carry out their functions, then native title holders will be unable to properly realise the potential benefits' of the Native Title Act.
2.129
Mr Peter Yu, Chief Executive Officer, Nyamba Buru Yawuru discussed the importance of RNTBCs having the capacity to engage and 'adequately represent their constituents' as well as 'the broader community and economy to ensure that there is the required level of investment being attracted'. Mr Yu drew the committee's attention to the legislative framework in Canada:
It provides an opportunity for First Nation communities to opt out of the Indian affairs act to operate under this act. It has a process for the financial management board that's set up under that act to work to provide support for the development of capability in governance and management so that the First Nation corporation can comply with the nature of being able to attract government investments in developing economic projects.
2.130
The Attorney-General's Department, in consultation with the NIAA, detailed the funding available to RNTBCs:
To assist with the fair and equitable access to the native title system, the Australian Government funds a network of 15 Native Title Representative Bodies/Service Providers (NTRB/SPs) across Australia to assist Traditional Owners with native title claims and to provide advice and other native title services to RNTBCs/PBCs such as administrative support.
RNTBC/PBCs have access to two specific funding streams, in addition to funding available under the Indigenous Advancement Strategy:
PBC Basic Support which assists RNTBCs to meet their basic operational and corporate requirements. This funding is provided through the relevant NTRB/SP. In 2019-2020, NIAA provided approximately $9.5 million to assist more than 100 RNTBCs.
PBC Capacity Building funding which aims to assist RNTBCs to generate economic benefits through the effective and sustainable management of their land, including by engaging with potential investors and proponents. Funding can be provided directly to RNTBCs. As at 30 April 2020, NIAA has provided $23.93 million to 59 capacity building projects across Australia. Approximately $6.5 million is available each year under this funding stream.
PBC Capacity Building funding can also be provided to organisations offering services to RNTBCs. For example, NIAA has granted funding to the National Native Title Council to run PBC Regional Forums which include providing information on available funding, as well as developing and delivering a training curriculum to RNTBCs/PBCs.
Schedule 9–Just terms compensation and validation
2.131
Item 1 of the schedule is a 'fail safe' provision (often referred to as a shipwrecks clause) to ensure that if the bill effects the acquisition of property of a person other than on just terms (within the meaning of paragraph 51(xxxi) of the Constitution), that person would be entitled to compensation.
2.132
Item 2 of Schedule 9 proposes to validate all section 31 agreements that may have been affected by the McGlade decision where not all members of the registered native title claimant were parties to the agreement. This item would apply retrospectively.
2.133
The Attorney-General's Department submitted that the uncertainty about the validity or otherwise of section 31 agreements that might be captured by the McGlade decision affects both projects the subject of agreements and the benefits that flow from them to native title holders, including employment and monetary payments.
2.134
Mr Wayne Bergmann, a member of the Walalakoo Aboriginal Corporation, indicated he was not in favour of validating all section 31 agreements. When asked about the consequences of the bill not being implemented, Mr Bergmann responded:
I think it puts pressure back on those proponents to have their agreements validated. It puts pressure back on them to knock back on the traditional owner's door to try and get a deal so they aren't exposed to future liability or compensation.
2.135
On the issue of whether this would mean that opportunities and benefits are being taken away from Indigenous people, the KLC stated:
You've got to weigh up that process. We talked about the impacts around the future act process, and then if you get the right to negotiate, there are something like 3,906-odd cases throughout Australia likely to negotiate. There are only three that have ever ruled in favour of the TO [Traditional Owner]. So, we're wound into a process where we have no rights and we really know what the outcome is at the beginning of the negotiation process. So, you're right in regard to it being a balancing act. Do you take on what's currently in play? Or is there a real opportunity to go back and negotiate, knowing that you don't have any footing to really negotiate?
2.136
Representatives from the resources sector expressed strong support for the validation of section 31 agreements. The MCA submitted that these agreements are:
…widely used across exploration and minerals activities to establish terms of land access, including cultural heritage management and environmental commitments, as well as financial and non-financial benefits between minerals proponents and Traditional Owners.
2.137
The MCA stated that section 31 agreements can be critical in the granting of mining leases and other interests. Therefore, 'any uncertainty surrounding their validity is a substantial risk for industry and other parties to these agreements'. This view was shared by the Chamber of Minerals and Energy of Western Australia, which emphasised the critical nature of security of title in the resources sector 'because other things can flow from that, such as grant of tenure…a whole range of water licences, [and] environmental approvals'.
2.138
The CMEWA stated that section 31 agreements provide outcomes for Indigenous peoples, including 'secure local…employment traineeships and other financial and nonfinancial benefits'. It noted that cultural heritage management plans are included in the 'wider package that is part of that agreement'.
2.139
This sentiment was echoed by representatives from the native title sector. CDNTS stated that the retrospective application of it 'will provide certainty'. The NNTC noted that these agreements 'provide significant benefits' to native title holders.