Chapter 1 - Introduction and background

[1]        Journals of the Senate, No. 30, 16 February 2017, p. 992.

[2]        Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title Amendment (Indigenous Land Use Agreement) Bill 2017 Interim Report, 17 March 2017.

[3]        Senate Selection of Bills Committee, Report No. 2 of 2017, 16 February 2017, Appendix 2.

[4]        Senate Selection of Bills Committee, Report No. 2 of 2017, 16 February 2017, Appendix 3.

[5]        McGlade v Native Title Registrar & Ors [2017] FCAFC 10.

[6]        QGC Pty Ltd v Bygrave (No 2) [189] FCR 412.

[7]        Section 24CD requires that all persons in the 'native title group' must be parties to an area agreement and, in relation to land subject to a registered native title claim, provides that the native title group consists of all registered native title claimants and all registered native title body corporates (if any).

[8]        Native Title Amendment (Indigenous Land Use Agreements) Bill 2017, Explanatory Memorandum (EM), p. 3.

[9]        EM, p. 3.

[10]      EM, p. 2.

[11]      National Native Title Tribunal, 'About Indigenous Land Use Agreements (ILUAs)' at www.nntt.gov.au/ILUAs/Pages/default.aspx (accessed 7 March 2017).

[12]      National Native Title Tribunal, About Indigenous Land Use Agreements (ILUAs), Fact sheet 1: A general guide to ILUAs, p. 2; www.nntt.gov.au/Information%20Publications/
1.About%20Indigenous%20Land%20Use%20Agreements.pdf (accessed 7 March 2017).

[13]      See figure 1.1 below. National Native Title Tribunal, Diagram of ILUA process, www.nntt.gov.au/Information%20Publications/Diagram%20of%20ILUA%20Process%20_July%202014.pdf (accessed 7 March 2017).

[14]      EM, p. 2.

[15]      EM, p. 3.

[16]      Ms Christina Raymond, Native Title Amendment (Indigenous Land Use Agreements) Bill 2017, Parliamentary Library Bills Digest No 70 (March 2017), p. 10.

[17]      Ms Christina Raymond, Native Title Amendment (Indigenous Land Use Agreements) Bill 2017, Parliamentary Library Bills Digest No 70 (March 2017), pp. 10-11.

[18]      Ms Christina Raymond, Native Title Amendment (Indigenous Land Use Agreements) Bill 2017, Parliamentary Library Bills Digest No 70 (March 2017), p. 11. 

[19]      EM, p. 6.

[20]      Note that these amendments are not strictly necessary to secure ILUAs following the McGlade decision.

[21]      Note, however, that the agreements at issue in McGlade (the South West Native Title Settlement Agreement) are dealt with separately by items 9(4) and 12 of the bill and would be deemed to be agreements from the commencement of the Act.

[22]      Explanatory Memorandum, p. 5.

[23]      Explanatory Memorandum, p. 6.

[24]      Explanatory Memorandum, pp. 6–8.

[25]      The committee's website can be found at www.aph.gov.au/Parliamentary_Business/
Committees/Senate/Legal_and_Constitutional_Affairs

Chapter 2 - Key issues and concerns raised

[1]        Dja Dja Wurrung Clans Aboriginal Corporation, Submission 13, p. 2; National Farmers Federation, Submission 16, p. 1; AMPLA, Submission 26, p. 2; Association of Mining and Exploration Companies, Submission 40, p. 1; Clayton Utz, Submission 29, p. 6; Minerals Council of Australia, Queensland Resources Council, and the Chamber of Minerals and Energy (WA), Submission 15, p. 2; Mr Franklin Gaffney, Submission 2, p. 1; Matthew Hansen, Submission 3, p. 1; Dr Stuart Bradfield, Submission 46, p. 1; and Central Desert Native Title Service, Submission 41, p. 1.

[2]        Proof Committee Hansard, 13 March 2017, p. 2.

[3]        Proof Committee Hansard, 13 March 2017, pp. 2–3.

[4]        Ms Lauren Hewitt, General Manager, Policy, AgForce, Proof Committee Hansard, 13 March 2017, p. 10.

[5]        Proof Committee Hansard, 13 March 2017, p. 8.

[6]        Proof Committee Hansard, 13 March 2017, p. 36.

[7]        Submission 9, p. 10.

[8]        Submission 13, p. 2.

[9]        Law Council of Australia, Submission 19, p. 1; see also Maritime Union of Australia, Submission 50, p. 2.

[10]      Submission 19, p. 2.

[11]      Cape York Land Council, the Cape York Partnership and Balkanu, Submission 14, p. 3; see also Wangan and Jagalingou Family Council, Submission 17, p. 5.

[12]      Cape York Land Council, the Cape York Partnership and Balkanu, Submission 14, p. 2.

[13]      For example, see: Mr Albert Corunna, Submission 5, p. 1; Wangan and Jagalingou Family Council, Submission 17, p. 2 and p. 6; Oxfam Australia, Submission 43, p. 1; Seed Indigenous Climate Network/Australian Youth Climate Network, Submission 44, pp. 1–3; Maritime Union of Australia, Submission 50, p. 2; and Mr Paul O'Halloran, Submission 52, p. 1.

[14]      Submission 17, p. 2.

[15]      The Australian Law Reform Commission provided Submission 6 to this inquiry, containing these recommendations at appendix 1. These were drawn from their report Connection to Country: Review of the Native Title Act 1993 (Cth) (April 2015). For the observation that ALRC recommendations have not received enough attention from the Commonwealth, see Wangan and Jagalingou Family Council, Submission 17, p. 2; Dr Bryan Keon-Cohen AM QC, Submission 12, p. 1; and the Yawuru Native Title Holders Aboriginal Corporation, Submission 42, p. 2.

[16]      Refer campaign form letter received by committee and published on its website, p. 1.

[17]      See the National Native Title Council, Submission 9, p. 5, referring to the Australian Law Reform Commission, Connection to Country: Review of the Native Title Act 1993 (Cth) (April 2015); the Native Title Amendment Bill 2012; and the Senior Officers' Working Group, Investigation into Indigenous Land Administration and Use: Report to the Council of Australian Governments (December 2015).

[18]      Senator the Hon George Brandis, Attorney-General, Senate Legal and Constitutional Affairs Legislation Committee, Proof Committee Hansard, 28 February 2017, p. 70.

[19]      Submission 19, p. 2.

[20]      Mr Greg McIntyre SC, Submission 21, pp. 2–3; Arnold Bloch Leibler, Submission 34, p. 5; Carpentaria Land Council Aboriginal Corporation, Submission 20, p.3; and Kelsi Forrest, Submission 30, pp. 3–4.

[21]      Mr Greg McIntyre SC, Submission 21, p. 2.

[22]      Proof Committee Hansard, 13 March 2017, p. 31.

[23]      Submission 21, p. 3. See also his evidence at the public hearing, Proof Committee Hansard, 13 March 2017, pp. 31–32.

[24]      Submission 21, p. 2.

[25]      As potential models, Mr McIntyre pointed to processes of negotiation, conciliation, mediation and arbitration that can be found in corporate rule books, articles of association and agreements. He noted that the bill does not address the appropriateness of such processes being employed in relation to the dissenting views regarding the Noongar Settlement Agreements. Submission 21, pp. 2–3.

[26]      HWL Ebsworth Lawyers, Submission 23, p. 4; South Australian Native Title Services, Submission 53, p. 2; Native Title Services Victoria, Submission 49, p. 2; AMPLA, Submission 26, p. 3; National Native Title Council, Submission 9, p. 4; and Yamatji Marlpa Aboriginal Corporation, Submission 27, pp. 1–2.

[27]      HWL Ebsworth Lawyers, Submission 23, p. 4; South Australian Native Title Services, Submission 53, p. 2; and Native Title Services Victoria, Submission 49¸ p. 2.

[28]      National Native Title Council, Submission 9, p. 2.

[29]      For example see Ms Suzanne Kelly, Submission 10 and Mr David Collard, Submission 11.

[30]      Submission 10, p. 3.

[31]      Proof Committee Hansard, 28 February 2017, p. 32.

[32]      Proof Committee Hansard, 28 February 2017, p. 44.

[33]      Submission 9, p. 9.

[34]      McGlade v Native Title Registrar & Ors [2017] FCAFC 10 [265].

[35]      For example, see: National Native Title Council, Submission 9, p. 9; HWL Ebsworth Lawyers, Submission 23¸ p. 4; and Michael Owens, Submission 25, p. 5.

[36]      Submission 49, p. 2.

[37]      Submission 38, p. 3.

[38]      See the campaign form letter received by the committee, p. 1.

[39]      EM, p. 2.

[40]      Proof Committee Hansard, 13 March 2017, p. 33.

[41]      Submission 19, p. 3.

[42]      Submission 34¸ p. 3.

[43]      Submission 34¸ p. 4.

[44]      See in particular, Arnold Bloch Leibler, Submission 34¸ p. 3. See also: Cape York Land Council Aboriginal Corporation, Cape York Partnership, and Balkanu Cape York Development Corporation, Submission 14, p. 3; and Mr Greg McIntyre SC, Submission 21, pp. 7–9.

[45]      AMPLA, Submission 26, p. 2; Clayton Utz, Submission 29, p. 5; Minerals Council of Australia, Queensland Resources Council, and the Chamber of Minerals and Energy (WA), Submission 15, p. 2; South Australian Native Title Services, Submission 53¸ p. 2; Native Title Services Victoria, Submission 49¸ p. 2;and Western Australian Bar Association, Submission 51, p. 1.

[46]      Submission 29¸ p. 5.

[47]      Submission 26¸ p. 2.

[48]      Submission 26, p. 3.

[49]      Mr Iain Anderson, Deputy Secretary, Civil Justice and Corporate Group, Attorney-General's Department, Proof Committee Hansard, 13 March 2017, p. 64.

[50]      These agreements are: (a) the Wagyl Kaip and Southern Noongar ILUA; (b) the Ballardong People ILUA; (c) the South West Boojarah #2 ILUA; and (d) the Whadjuk People ILUA.

[51]      Submission 22, p. 2.

[52]      Submission 22, p. 4.

[53]      Mervyn Eades, Margaret Culbong, Mingli McGlade and Naomi Smith, Submission 24, p. 1.

[54]      Ms Christina Raymond, Native Title Amendment (Indigenous Land Use Agreements) Bill 2017, Parliamentary Library Bills Digest No 70 (March 2017), p. 23.

[55]      Ms Christina Raymond, Native Title Amendment (Indigenous Land Use Agreements) Bill 2017, Parliamentary Library Bills Digest No 70 (March 2017), p. 23.

[56]      Ms Christina Raymond, Native Title Amendment (Indigenous Land Use Agreements) Bill 2017, Parliamentary Library Bills Digest No 70 (March 2017), p. 23.

[57]      Mr Iain Anderson, AGD, Senate Legal and Constitutional Affairs Legislation Committee, Proof Committee Hansard, 28 February 2017, p. 69. Note these rules are outlined in the EM, p. 12.

[58]      Proof Committee Hansard, 13 March 2017, p. 36.

[59]      Proof Committee Hansard, 13 March 2017, p. 66.

[60]      Proof Committee Hansard, 13 March 2017, p. 64.

[61]      Proof Committee Hansard, 13 March 2017, p. 66.

[62]      See, for example, BHP Billiton, Submission 8¸ p. 1; Association of Mining and Exploration Companies, Submission 40¸ pp. 1-2; AMPLA, Submission 26, p. 2; Minerals Council of Australia, Queensland Resources Council, and the Chamber of Minerals and Energy (WA), Submission 15, p. 4; and Queensland Law Society, Submission 32, p. 2.

[63]      Submission 8¸ p. 2. See also the perspective voiced by Mr Ian Macfarlane, Chief Executive, Queensland Resources Council, Proof Committee Hansard, 13 March 2017, p. 3.

[64]      Proof Committee Hansard, 13 March 2017, p. 55.

Australian Greens—Dissenting Report

[1] National Congress of Australia's First Peoples, Submission 57, pp 11-12; Law Council of Australia, Submission 19, pp 1-2; Professor Jon Altman, Submission 45, p. 2; Oxfam Australia, Submission 43, p. 1; Seed Indigenous Youth Climate Network, Submission 44, p. 2;
Dr Stuart Bradfield, Submission 46, p. 3; Wangan and Jagalingou Family Council, Submission 17, pp 1-2.

[2] National Congress of Australia's First Peoples, Submission 57, pp 6-11.

[3] McGlade v Native Title Registrar & Ors [2017] FCAFC 10.

[4] QGC v Bygrave (No 2) (2010) 189 FCR 412.

[5] Submission 57, p. 12.

[6] Submission 21, p. 3.

[7] Submission 11, p. 2.

[8] Submission 11, p. 2.

[9] Submission 48, p. 2.

[10] Submission 48, p.2.

[11] Proof Committee Hansard, 13 March 2017, p. 44.

[12] Submission 19, p. 3.

[13] National Native Title Council, Submission 9, p. 2; Dr Stuart Bradfield, Submission 46, p. 3; South Australian Native Title Services, Submission 53, p. 2.

[14] Submission 9, p. 2.

[15] Mr Pearson, Proof Committee Hansard, 13 March 2017, p. 19; National Native Title Council, Submission 9, p. 9; South Australian Native Title Services, Submission 53, p. 2.

[16] Proof Committee Hansard, 13 March 2017, p. 21.

[17] Proof Committee Hansard, 13 March 2017, p. 21.

[18] Proof Committee Hansard, 13 March 2017, p. 21.

[19] Proof Committee Hansard, 13 March 2017, p. 22.

[20] Submission 9, p. 10.

[21] National Native Title Council, Submission 9, p. 10.

[22] Seed Indigenous Youth Climate Network, Submission 44, p. 2.

[23] Submission 19, p. 3.

[24] Submission 21, p. 3.

[25] Submission 57, p. 5.

[26] Submission 57, p. 6.

[27] Professor Jon Altman, Submission 45, p. 5; Mr Michael Dillon, Submission 58, p. 3.

[28] Professor Jon Altman, Submission 45, p. 5; Mr Michael Dillon, Submission 58, p. 3.

[29] Mr Michael Dillon, Submission 58, p. 3.

[30] Submission 19, p. 4.

[31] Submission 19, p. 4.

[32] Submission 48, p. 2.

[33] Submission 48, p. 2.

[34] Submission 48, p. 3.

[35] Explanatory Memorandum, p. 6.

[36] Mr Anderson, Proof Committee Hansard, 13 March 2017, p. 66.

[37] National Native Title Council, Submission 9, p. 3.

[38] Submission 9, p. 3

[39] Proof Committee Hansard, p. 29.

[40] Submission 57, p. 3.

[41] Proof Committee Hansard, p. 70.

[42] Ms Cooley, Proof Committee Hansard, 13 March 2017, p. 5.

[43] 20170316 a QoNs AGD Native title, p. 1.

[44] Submission 14, p. 5.

[45] Submission 14, p. 4.

[46] Submission 19, p. 3.

[47] Submission 19, p. 3.

[48] Submission 21, p. 9.          

[49] Ms Christina Raymond, Native Title Amendment (Indigenous Land Use Agreements) Bill 2017, Parliamentary Library Bills Digest No 70 (March 2017), p. 23.