Senate

Replacement Revised Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Christian Porter MP)

GENERAL OUTLINE

Purpose

1. The Native Title Legislation Amendment Bill 2020 (the Bill) amends the Native Title Act 1993 (Native Title Act) and the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act) to improve native title claims resolution, agreement-making, Indigenous decision-making and dispute resolution processes, including to:

a.

give greater flexibility to native title claim groups to set their internal processes;

b.

streamline and improve native title claims resolution and agreement-making;

c.

allow historical extinguishment over areas of national and state park to be disregarded where the parties agree;

d.

increase the transparency and accountability of registered native title bodies corporate (RNTBCs); and

e.

create new pathways to address native title-related disputes arising following a native title determination.

2. The Bill will also confirm the validity of agreements made under Part 2, Division 3, Subdivision P of the Native Title Act (section 31 agreements) following the decision in McGlade v Native Title Registrar & Ors [2017] FCAFC 10 (McGlade).

3. The Bill is informed by feedback from stakeholders following consultation on an options paper for native title reform released in November 2017 and exposure draft legislation released in October 2018. The options for reform were drawn from a number of native title reviews, including:

a.

the Australian Law Reform Commission's report on 'Connection to Country: Review of the Native Title Act 1993 (Cth)', published June 2015 (ALRC Report);

b.

the report to the Council of Australian Governments on the 'Investigation into Indigenous Land Administration and Use', published December 2015 (COAG Investigation); and

c.

the Office of the Registrar of Indigenous Corporation's 2017 Technical Review of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act Review).

Outline of the Bill

Role of the applicant (Schedule 1)

4. 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.

5. The applicant is the person or group of people authorised by a native title claim group to make and manage a native title claim on their behalf. After a claim has been made, and the persons comprising the applicant appear on the Register of Native Title Claims, those persons also have a role representing the native title claim group in making agreements around access and use of areas where native title has been claimed or determined.

6. The ALRC Report and subsequent COAG Investigation recommended a number of reforms intended to support claim groups to develop their own internal decision-making structures, and to ensure the applicant is accountable to the broader claim group.

7. Consistent with these recommendations, the Bill amends the Native Title Act to:

a.

allow the claim group to impose conditions on the authority of the applicant, and to require public notification of any such conditions;

b.

clarify the duties of the applicant to the claim group;

c.

allow the applicant to act by majority as the default position;

d.

allow the composition of the applicant to be changed without a further authorisation process in certain circumstances, including where a member of the applicant is deceased; and

e.

allow the claim group to put in place succession-planning arrangements for individual members of the applicant as part of the authorisation process.

Indigenous land use agreements (Schedule 2)

8. 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).

9. ILUAs may allow for certain 'future acts' to be done on land or waters, such as mining or grazing, in exchange for compensation to native title groups.

10. The Bill makes amendments to the Native Title Act in relation to ILUAs to:

a.

allow body corporate ILUAs to cover areas where native title has been extinguished;

b.

remove the requirement for the Native Title Registrar to notify an area ILUA unless they are satisfied it meets the requirements to be an ILUA;

c.

allow minor amendments to be made to an ILUA without requiring a new registration process; and

d.

clarify that the removal of an ILUA from the Register of ILUAs does not affect the validity of future acts subject to that ILUA.

Historical extinguishment (Schedule 3)

11. Generally, once native title is extinguished it cannot be revived. However, in certain circumstances, sections 47, 47A and 47B of the Native Title Act operate to allow the courts to disregard extinguishment on reserves set aside for Aboriginal or Torres Strait Islander peoples, pastoral leases held by traditional owners and unallocated Crown land.

12. The Bill amends the Native Title Act to extend the circumstances in which historical extinguishment can be disregarded to:

a.

areas of national, state or territory parks where native title has been extinguished, with the agreement of the parties; and

b.

pastoral leases controlled or owned by native title corporations.

Allowing a registered native title body corporate to bring a compensation application (Schedule 4)

13. The Bill amends the Native Title Act to allow a RNTBC (the corporation established by traditional owners following a determination of native title) to bring a compensation application over an area where native title has been extinguished.

Intervention and consent determination (Schedule 5)

14. The Bill makes a number of technical amendments to clarify the role of the Commonwealth Minister as intervener in native title proceedings, and the procedural requirements for the Federal Court to make determinations with the consent of the parties.

Other procedural changes (including section 31 agreements) (Schedule 6)

15. The Bill makes a number of technical amendments in relation to the role of the government party in the negotiation of section 31 agreements, and to the objections procedures under the future acts regime. The Bill also requires the Native Title Registrar to create and maintain a public record of section 31 agreements.

16. In addition, the Bill requires an evaluation to be conducted within five years of the commencement of Schedule 6 to the Bill on the operation of the amendments made by the Bill. The purpose of the amendment is to provide a formal legislative mechanism to assess the impact of measures in the Bill on the operation of the native title system, including to ensure the Bill is achieving its objectives, and to provide an opportunity to consider whether there is a need for any adjustments to measures in the Bill.

National Native Title Tribunal (Schedule 7)

17. The Bill confers on the National Native Title Tribunal a new function to allow it to provide assistance to RNTBCs and common law holders of native title (i.e. the persons who hold native title rights and interests) to promote agreement about native title and the operation of the Native Title Act.

Registered native title bodies corporate (Schedule 8)

18. The Native Title Act requires common law holders to establish or nominate a corporation when a determination recognising native title is made. The Native Title (Prescribed Bodies Corporate) Regulations 1999 prescribe Aboriginal and Torres Strait Islander corporations for this purpose. Once registered on the National Native Title Register, these corporations are known as RNTBCs. The effective management of native title rights and interests relies on the sustainable operation of RNTBCs.

19. The Bill amends the CATSI Act to improve the accountability, transparency and governance of RNTBCs, with a particular focus on membership and improved dispute resolution pathways. In particular, the Bill:

a.

requires RNTBC constitutions to include dispute resolution pathways for persons who are or who claim to be common law holders;

b.

requires RNTBC constitutions to provide for all the common law holders to be directly or indirectly represented in the RNTBC;

c.

limits the grounds for cancelling the membership of a member of a RNTBC to those in the CATSI Act;

d.

removes the discretion of directors of RNTBCs to refuse membership when the applicant applies in the required manner and meets the eligibility requirements; and

e.

clarifies that the Registrar of Aboriginal and Torres Strait Islander Corporations may place a RNTBC under special administration where it has either seriously or repeatedly failed to comply with certain obligations imposed by the Native Title Act or any regulations made under that Act.

20. The Bill also amends the CATSI Act to ensure that proceedings in respect of a civil matter arising under the CATSI Act that relate to a RNTBC are to be instituted and determined exclusively in the Federal Court, unless the Federal Court transfers the matter to another court with jurisdiction.

Just terms compensation and validation (Schedule 9)

21. The Bill will confirm the validity of section 31 agreements potentially affected by the Full Federal Court's decision in McGlade. The Bill also includes a 'fail safe' provision 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.

FINANCIAL IMPACT

22. The Bill will have nil financial impact.