02 November 2018

Draft Legislation for Native Title Act Reforms

This article was written by Nick Testro.

Exposure drafts of the Native Title Legislation Amendment Bill 2018 and the Registered Native Title Bodies Corporate Legislation Amendment Regulations 2018 have been released for public comment. The reforms proposed relate primarily to the Native Title Act 1993 (Cth) (NTA) and the Corporations (Aboriginal and Torres Strait Islander) Act 2006.

The exposure drafts were developed following consultations in relation to the Options Paper – Proposed Reforms to the Native Title Act 1993 (Cth), released on 29 November 2017.

The proposed reforms were drawn from a number of reviews, including:

  • the Australian Law Reform Commission’s report ‘Connection to Country: Review of the Native Title Act 1993 (Cth)’, from June 2015;
  • the Council of Australian Governments report, ‘Investigation into Indigenous Land Administration and Use’, from December 2015; and
  • the Office of the Registrar of Indigenous Corporation’s Technical Review of the Corporations (Aboriginal and Torres Strait Islander) Act 2006, from 2017.

The proposed amendments cover a broad range of topics throughout the NTA, including: the role and powers of the native title applicant; validation of potentially invalid section 31 agreements; application of body corporate ILUAs to areas where native title is extinguished; disregarding of extinguishment in national parks and reserves; application of the future acts regime over areas where extinguishment of native title may be disregarded; and minor changes to the objections procedure under section 24MD(6B).

The deadline for submissions on the exposure drafts is 10 December 2018.

Following is a summary of the key amendments proposed.

Proposed amendment

Description of amendment

Role of the Applicant

Claim groups are proposed to be permitted to place conditions on their authorisation of the native title applicant. Details of any such conditions would be recorded on the Register of Native Title Claims or the Schedule of claims.

The nature of the fiduciary duties owed by the applicant to the claim group are proposed to be clarified so that any obligation of the applicant under the NTA would not detract from any other common law or equitable duty to the native title claim group.

The native title representative body is proposed to be restricted to certifying a native title claim or ILUA only where it is of the opinion that any conditions on the applicant’s authority that relate to the making of the application or ILUA have been met.

Applicant to act by majority as the default position

The applicant is proposed to be able to act by majority as the default position when exercising a power or performing a function under the NTA. However, the native title claim group would retain the ability to impose conditions on the applicant, including to require unanimity.

It is proposed that a majority of the applicant be permitted to be a party to native title agreements.

A six month period after commencement of the amendments will be provided for claim groups to decide whether to place conditions on their applicant’s authority.

Section 31 Agreements
To address the potential invalidity of section 31 agreements as a result of the Full Federal Court’s decision in McGlade v Native Title Registrar, the amendments are proposed to confirm the validity of existing section 31 agreements that may otherwise potentially be invalid. Section 31 agreements entered into prior to the commencement of the amendments would be validated, as long as at least one of the native title claimants is a party. 
The proposed amendments would also require the National Native Title Tribunal to be notified of the existence of ancillary agreements to Indigenous land use agreements (ILUAs) and section 31 agreements. The existence of ancillary agreements would be noted on the Register of ILUAs.
A public record of section 31 agreements is proposed to be established, which would contain similar information to the detail for ILUAs on the Register of ILUAs.  The agreements themselves would not be publicly available. 
Indigenous Land Use Agreements 
Body corporate ILUAs are proposed to be able to include areas where native title has been extinguished.  Areas where native title has been determined not to exist and areas that are excluded from a determination due to extinguishment by previous exclusive possession act could be included in a body corporate ILUA under this proposal.
Parties would be able to make minor amendments to ILUAs by agreement without requiring a further application of the registration test to the ILUA. Amendments would be restricted to the following: new property descriptions (but not new areas of land or waters); new descriptions of parties to the ILUA, including where the ILUA has been assigned; updating administrative processes; or as permitted under a legislative instrument prescribed by the Minister.
The amendments also propose to clarify that removal of an ILUA from the Register of ILUAs would not affect any future acts done in accordance with the ILUA or the continued validity of any validated future acts.
Historical Extinguishment The proposed amendments would allow native title to be recognised over national parks and reserves where native title has been extinguished, by allowing States and Territories to agree to disregard extinguishment of native title. 
The proposed amendments would allow States and Territories to agree to disregard the extinguishing effect of public works within park areas. The validity of the act creating a park, the interest of any person in public works, access to public works, and public access to the park area would be preserved irrespective of the extinguishment being disregarded.

Future acts where prior extinguishment to be disregarded

The proposed amendments would expand the definition of ‘future act’ by applying to areas where native title has been extinguished but which may be revived under any of sections 47, 47A, 47B or (proposed new) 47C.  As it cannot be known whether native title will be revived or not until a determination is made, States and Territories would presumably require compliance with the future acts regime in any areas that may be subject to any of those provisions (i.e. prior to a determination).
RNTBCs as applicant to compensation claims
The proposed amendments include allowing registered native title bodies corporate (RNTBC) to make compensation claims over areas within the external boundary of the relevant native title determination area where native title has been fully extinguished.  This would address the current deficiency where areas where native title is extinguished are excluded from native title determinations (and so are areas for which there is technically no RNTBC).
Clarify the section 24MD(6B) objections process Under section 24MD(6B), if a native title party is not satisfied with the consultation process but does not refer the matter to an independent person or body, there may be no way for the objection to be finally resolved, as there is no provision for the State/ Territory or proponent to refer the matter to the independent person or body. The proposed amendments would allow any of the parties to an objections process under section 24MD(6B) to refer the matter to an independent person or body for determination.

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