08 December 2017

Options for native title reform in Australia

This article was written by Sally Audeyev, Scott Singleton, Nick Testro and Matt Clark.

The Commonwealth Attorney-General’s Department has released the much anticipated Options Paper “Reforms to the Native Title Act 1993 (Cth)” (Options Paper).  The Options Paper draws on proposals for amendment from a number of previous reviews and focuses on making the Native Title Act 1993 (Cth) (NTA) more efficient while increasing transparency.  A draft bill is foreshadowed for early 2018, and the Government has asked the ‘Expert Technical Advisory Group’ to advise on how to implement certain amendments.  The Options Paper is open for comment until 25 January 2018.

Options for change

Recognising that the native title regime is moving into a ‘post-determination’ era, the options identified are aimed at ensuring efficient decision making and internal dispute resolution by native title parties as well as facilitating effective agreement making.  The (largely anticipated) proposed amendments have been drawn from the Australian Law Reform Commission Report (2015), the COAG Investigation (2015) and the Office of the Registrar of Indigenous Corporation’s Technical Review of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth). They include the following:

Section 31 agreements

  • Confirming the validity of existing section 31 deeds (following the Full Federal Court’s decision in McGlade v Native Title Registrar [2017] FCAFC 10).
  • Clarifying how the native title applicant can execute section 31 deeds, including by allowing execution by a majority.
  • Increasing transparency of agreements by requiring section 31 deeds to be registered (without objection processes or the same binding effect as for ILUAs under section 24EA) and making both section 31 agreements and ILUAs publicly accessible.

Decision making and agreement making

  • Introducing new ‘alternative’ agreement making processes to facilitate agreement making; for example, allowing PBCs to enter agreements without full community authorisation on some future act processes and to contract about future acts and compensation.
  • Streamlining existing agreement making processes; for example, allowing body corporate ILUAs to cover land where native title is extinguished, allowing minor changes to ILUAs without re-registration, and reducing the State’s role in the right to negotiate.
  • Allowing PBCs to select their own decision making process, whether traditional or otherwise, rather than mandating a traditional process where one exists.
  • Introducing a statutory duty to prohibit members of the native title applicant from obtaining an advantage or benefit at the expense of the claim group by making it clear there is a duty between the applicant and the claim group.

Future acts

  • Allowing ‘low impact future acts’ on determined native title land (which are currently permitted only up until a positive determination is handed down).
  • Where section 24MD(6B) applies to a compulsory acquisition of native title or the creation or variation of a right to mine for the purpose of constructing an infrastructure facility, allowing the grant to proceed at the end of the objection period where a native title party has objected to the grant but does not request the objection be heard by an independent body.
  • Clarifying that future act processes apply to areas where extinguishment is disregarded under s47B.

Claim resolution

  • Giving the Federal Court and NNTT improved powers to facilitate claim outcomes.
  • Clarifying ILUA authorisation requirements and the ability of unregistered claimants to participate.
  • Allowing historical extinguishment to be disregarded in national and state/territory parks by consent and over pastoral leases held by native title claimants.

Post-determination dispute management

  • Requiring PBCs to keep a record of all native title decisions.
  • Improving transparency and accountability of PBCs in relation to membership and funds management, with additional support from ORIC, NNTT and the Federal Court.

What is not included

The proposals do not include amendments to the requirements for connection, the content of native title rights and interests, what it means to negotiate in good faith, or proof and evidence in native title claims. 

However, the Options Paper notes that “the Government has taken into account the ongoing development of the case law and the broader native title system, with a view to ensuring that any legislative change meets the current needs of the system…[and] this paper [therefore] focuses on improvements to claims resolution, agreement-making and dispute resolution processes, rather than proposing significant changes to the key concepts of the law…”  However, it is also noted that stakeholder views on the merits of other measures not canvassed in the Options Paper would be welcomed.

How this will affect you

Reforms to the NTA present an opportunity for ensuring effective engagement and agreement making with native title parties and to improve efficiencies within the native title regime generally.  Areas that proponents and other stakeholders may wish to consider further and make submissions on include:

  • How authorisation is undertaken to effectively facilitate native title party decisions; for example, by enabling ‘one off’ authorisation to cover a broad range of decisions.
  • Improving transparency as to native title party governance; in particular, as it relates to agreement-making and agreement implementation.
  • Ensuring agreements can be made efficiently and at reasonable cost.
  • Ensuring effective changes to section 31 agreement processes; in particular, any additional requirements that will add to the administrative burden and cost of NTA compliance with limited or no benefit.
  • Transparency of agreements while ensuring confidentiality over commercial information (bearing in mind that the commercial terms of negotiated outcomes are usually contained in ancillary agreements).
  • Whether and how native title can be revived over national and State parks.

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