Senate

Replacement Revised Explanatory Memorandum

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

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Native Title Legislation Amendment Bill 2020

1. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

2. 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).

3. The Bill will deliver improvements to native title claims resolution, agreement-making, Indigenous decision-making and dispute resolution processes, including to:

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

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

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

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

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

4. The Bill will also confirm the validity of important mining and exploration-related native title agreements ('section 31 agreements') after the decision in McGlade v Native Title Registrar & Ors [2017] FCAFC 10 (McGlade).

5. By making the above changes to the native title system, the Bill will give effect to a number of recommendations from the following reviews of native title:

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

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

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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).

6. The Bill also requires an evaluation to be conducted within five years of the commencement of Schedule 6 of the Native Title Legislation Amendment Bill 2020 (the Native Title Legislation Amendment Act 2020 if passed by Parliament), to assess the operation of the measures in the Bill.

7. The evaluation mechanism will give effect to a number of recommendations from the following reviews of the Bill:

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the Parliamentary Joint Committee on Human Rights (PJCHR)'s Report 1 of 2020 on the Native Title Legislation Amendment Bill 2019, published February 2020 (PJCHR Initial Report);

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the PJCHR's Report 4 of 2020 on the Native Title Legislation Amendment Bill 2019, published April 2020 (PJCHR Report 4 of 2020); and

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the Minority Report by Labor Senators of the Senate Legal and Constitutional Affairs Legislation Committee on the Native Title Legislation Amendment Bill 2019 [Provisions ], published August 2020 (Labor Senators' Report).

Consultation

8. Extensive consultation has been undertaken on the development of the Bill. This includes public consultation on an options paper (open from 29 November 2017 to 28 February 2018) and an exposure draft bill (open from 29 October 2018 to 10 December 2018). During both stages of consultation, the Government received submissions from, and conducted meetings with, a wide range of stakeholders in the native title system, including native title representative bodies, registered native title bodies corporate (the Indigenous corporations established following a determination of native title) and other Indigenous stakeholders.

9. An Expert Technical Advisory Group - comprised of nominated representatives from the National Native Title Council, states and territories, industry peaks, the National Native Title Tribunal (NNTT) and the Federal Court of Australia - was also convened to provide advice to the Government on the development of the Bill throughout this process of consultation.

Human rights implications

10. The Bill engages the following human rights:

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the right to enjoy and benefit from culture;

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the right to self-determination;

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the right to an effective remedy;

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the rights of equality and non-discrimination;

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the right to equality before courts and tribunals; and

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the right to a fair and public hearing by a competent, independent and impartial tribunal.

The right to enjoy and benefit from culture

11. The right to enjoy and benefit from culture is contained in Article 27 of the International Covenant on Civil and Political Rights (ICCPR) and Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 27 of the ICCPR protects the rights of individuals belonging to minorities within a country to enjoy their own culture. Article 15 of the ICESCR protects the right of all persons to take part in cultural life.

12. The United Nations Human Rights Committee (UNHRC) has stated that culture can manifest itself as a particular way of life associated with the use of land resources, especially in the case of Indigenous peoples, which may include such traditional activities as fishing or hunting and the right to live on lands protected by law. ^[1]

13. The United Nations Committee on Economic, Social and Cultural Rights (UNESCR) specifically refers to Indigenous peoples' cultural values and rights associated with their ancestral lands and states that their relationship with nature should be regarded with respect and protected. ^[2]

14. UNESCR has also provided guidance on the communal and individual aspects of the right to culture, in particular that the reference to 'everyone' in Article 15 of the ICESCR may denote either individual or collective rights to culture. ^[3] UNESCR has noted, in particular, that Indigenous peoples have the right to act collectively to protect their cultural heritage, traditional knowledge and cultural expressions. ^[4]

15. The Native Title Act as a whole promotes the right to enjoy and benefit from culture by establishing processes through which native title can be recognised, and providing protection for native title rights and interests. Native title rights and interests are by their nature communal, held collectively by all individual holders of native title (known as 'common law holders') who are included in the determination of native title.

16. The Native Title Act provides processes for native title holders to act collectively to promote cultural rights, for example processes through which a native title claim group authorises members of the 'applicant' to represent its interests during a claim, and through the establishment of registered native title bodies corporate (RNTBCs) to manage native title rights and interests once native title has been determined. These provisions provide balance between promoting the rights of individuals to be consulted in relation to their cultural rights, but not to frustrate decision-making processes in a way that would deny these rights to other individuals, or to prevent the collective enjoyment of the right to culture.

17. The amendments in this Bill continue to promote and balance these rights, by giving native title claims groups greater flexibility around setting their internal processes and streamlining agreement-making in the Native Title Act and other legislation.

18. Extensive consultation processes have been undertaken to support the development of this Bill. Where limitations on individual rights to culture are necessary, this has assisted to ensure such limitations are justified, reasonable and proportionate, including where necessary to promote the rights of the broader group.

19. The right to enjoy and benefit from culture, will be engaged by amendments to:

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allow the applicant to act by majority as the default position (Schedule 1);

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allow the claim group to place conditions on the authority of the applicant, put in place succession-planning arrangements and to clarify the duties of the applicant (Schedule 1);

•

allow body corporate ILUAs to include areas where native title has been extinguished (Schedule 2);

•

extend the circumstances where historical extinguishment can be disregarded, including areas of national, state and territory parks (Schedule 3);

•

clarify the parties to an inquiry into an expedited procedure objection application (Schedule 6)

•

require an evaluation to be conducted within five years of the commencement of Schedule 6 of the Native Title Legislation Amendment Bill 2020 to assess the operation of the measures in the Bill (Schedule 6)

•

provide a new function to the NNTT to provide assistance to RNTBCs and common law holders to promote agreement around native title (Schedule 7);

•

create new requirements for RNTBCs relating to eligibility for membership and limit the grounds for cancelling membership of an RNTBC (Schedule 8);

•

clarify that the Registrar of the Office of Indigenous Corporations (ORIC Registrar) may place an RNTBC under special administration where it has seriously or repeatedly failed to comply with its obligations under the Native Title Act or any regulations made under that Act (Schedule 8);

•

provide for a process whereby disputes related to membership and the RNTBC's performance of its functions under native title legislation can be addressed (Schedule 8); and

•

confirm the validity of section 31 agreements that may be affected by McGlade (Schedule 9).

Allowing the applicant to act by majority (Schedule 1)

20. As noted above, the applicant is the person or group of people authorised by a native title claim or compensation group ('claim group') to make and manage a native title or compensation claim ('claim') on their behalf. Once an applicant makes a native title determination or compensation application ('claimant application'), and that claim is accepted for registration by the NNTT, the names of the people who make up the applicant appear on the Register of Native Title Claims. The members of the applicant are then also collectively known as the registered native title claimant (RNTC).

21. Changes to allow the applicant to act by majority as the default will promote the right to enjoy and benefit from culture by promoting efficient determinations of native title and native title agreement making, to assist Indigenous Australians to realise the social and economic benefits of native title. While this change may impact on the cultural rights of minorities within the group, this is reasonable, necessary and proportionate to promote a balance between the rights of individuals and the rights of the broader claim group to enjoy and benefit from culture.

22. The ALRC Report made a number of recommendations around the role of the applicant, including in relation to the process through which the claim group 'authorises' members of the applicant to act on their behalf (this process is known as 'authorisation'). ^[5] One of the objectives of these recommendations was to support claim groups - before a determination of native title is made - to formalise their decision-making procedures and develop their governance structures and skills. ^[6] It noted that establishing such structures and skills during the pre-determination stage should leave groups better placed to manage their rights and interests post-determination. ^[7]

23. With these objectives in mind, the amendments in Part 2 of Schedule 1 of the Bill give effect to the ALRC Report's recommendation that the applicant should act by majority as a default position, unless the claim group requires otherwise. ^[8] This reverses the current position that the applicant is required to act jointly or in unanimity.

24. These amendments also aim to address concerns that agreements that have been validly authorised by the broader native title claim group can be frustrated in circumstances when members of an applicant disagree. Disputes between applicant members and the broader claim group can lead to delays and burdensome costs.

25. These amendments also extend the changes to the process for entering into Indigenous Land Use Agreements (ILUAs) made by the Native Title Amendment (Indigenous Land Use Agreement) Act 2017 (the 2017 Amendments) to all things the applicant can do under the Act. ^[9]

26. While this amendment may limit the influence of individual members of the applicant and any sub-groups of native title holders that they represent, this limitation is necessary and proportionate to achieving the broader group's right to enjoy and benefit culture. The measure also received support from native title representative groups, including the National Native Title Council, although some Indigenous stakeholders expressed concerns that allowing majority decision-making promotes outcomes at the expense of collective decision-making.

27. To address this concern, the amendment will also operate in conjunction with the amendment to allow the claim group to impose conditions on the authority of the applicant (discussed below). This will allow the default rule to be displaced, and for a condition to be placed on the authority of the applicant requiring unanimous action, or any other threshold.

28. Commencement of this provision will be delayed by six months to allow the native title claim group an opportunity to place any conditions on the authority of the applicant and to change the composition of the applicant if they so wish. This is an appropriate response that will give the claim group control over how the applicant should act on their behalf.

Conditions, duties and succession planning for the applicant (Schedule 1)

29. Schedule 1 of the Bill also makes a number of other changes to implement other ALRC Report recommendations around the role of the applicant, including to:

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allow the claim group to impose conditions on the authority of the applicant;

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clarify the duties of the applicant to the claim group; and

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allow the claim group to put in place succession-planning arrangements for members of the applicant.

30. Part 1 of Schedule 1 makes amendments to allow the claim group to impose conditions on the authority of the applicant. This will provide the claim group with flexibility around how it wants the applicant to operate and to ensure the applicant acts in accordance with its wishes, promoting the claim group members' right to culture. ^[10] Examples of conditions that the claim or compensation group would be able to place on the applicant include requiring the applicant bring key decisions back to the group for consideration or specific authorisation, such as agreeing to a consent determination, or discontinuing or amending an application. The conditions would need to be imposed in accordance with traditional decision-making processes, or if no such processes exist, by a process agreed to by the claim group.

31. Schedule 1 also inserts a new provision into the Native Title Act to confirm that any obligation of the applicant under the Act does not affect, relieve or detract from the operation of any other duty the applicant has in common law or in equity to persons in the claim group. This amendment is included in light of the ALRC Report's recommendation that the relationship between the applicant and claim group should be clarified, ^[11] and follows a subsequent decision of the Federal Court in Gebadi v Woosup [2017] FCA 1467 which confirmed that the applicant owes fiduciary duties to the claim group. This provision is intended to further protect the rights of members of the claim group to enjoy and benefit from culture by making clear the applicant's obligations to the group.

32. Finally, the amendments in Part 3 of Schedule 1 will simplify the process for a claim group to replace individual members of the applicant in circumstances where a member either passes away, or is no longer able to perform their duties, including through preagreed succession-planning arrangements. ^[12] Currently an authorisation process under section 251B of the Native Title Act, and a further application to the Federal Court under section 66B, is the only way to change the composition of the applicant. This process can be costly and time consuming for native title claim groups, and may not be necessary in circumstances where the claim group allows for changes to be made without reauthorisation.

33. These amendments will allow members of the applicant to be replaced in circumstances where a member has died or is unable to perform the duties of the applicant due to mental or physical incapacity through an application to the Federal Court. These changes will also allow the claim groups to put in place pre-agreed arrangements to replace members of the applicant. For many communities the composition of the applicant is important because individual members will represent family groups or particular areas within the claim group. This amendment will promote individual rights to culture by allowing the claim group to specify specific persons to represent their family or community in advance of a member of the applicant passing away.

Extending the use of body corporate Indigenous Land Use Agreements (Schedule 2)

34. A body corporate Indigenous Land Use Agreement (ILUA) is an agreement between a RNTBC and other parties (such as a government party) over an area where native title has been determined. Body corporate ILUAs may address a range of matters relevant to the right to enjoy and benefit from culture, including compensation for providing access or activities to occur over native title land.

35. The Native Title Act presently does not allow for body corporate ILUAs to be made over areas where native title has been extinguished, which limits the circumstances in which these ILUAs can be utilised. This means only 'area ILUAs' - another kind of agreement-making mechanism under the Act - can be used in these circumstances, which involve a range of procedures (that are not needed for body corporate ILUAs) to be followed.

36. Amendments in Schedule 2 will allow body corporate ILUAs to include areas where native title has been extinguished. These amendments will promote the right to culture by enabling the wider use of body corporate ILUAs, and reduce transaction costs and registration timeframes in relation to native title claims. This simpler process recognises the role of RNTBCs as the entities responsible for managing native title rights and interests following a determination native title, and for negotiating agreements around activities which may affect native title on behalf of those who hold native title rights.

Disregarding historical extinguishment of native title (Schedule 3)

37. Amendments in Schedule 3 of the Bill will extend the circumstances in which the past extinguishment of native title may be disregarded and subsequently recognised, thereby promoting the right to enjoy and benefit from culture. These circumstances are:

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in relation to areas of national, state and territory parks (new section 47C); and

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where a body corporate with members who are common law holders, for example an RNTBC, holds a pastoral lease over the relevant area (amended section 47).

38. Native title is often extinguished over areas of state, territory and national parks. This means that native title may be unable to be recognised, even where traditional owners maintain strong connections to traditional lands and waters.

39. The insertion of new section 47C recognises the cultural significance that national parks and reserves hold for many native title holders and is strongly supported by Indigenous stakeholders. Many native title holders maintain traditional connections to areas covered by national, state and territory parks, and the exercise of native title rights would generally not interfere or be inconsistent with the protection of these areas - for example, rights to carry out ceremonies or to be buried on country.

40. The amendment may create opportunities for native title parties and governments to agree to joint or co-management arrangements for parks and reserves. This would further promote the right to enjoy and benefit from culture, including by providing greater opportunities for traditional owners to play a role in the management of parks and to live and work on traditional lands.

41. Section 47 of the Native Title Act allows past extinguishment of native title to be disregarded in a native title determination over pastoral leases held by the common law holders in certain circumstances. Schedule 3 will amend the Act to clarify that section 47 can also apply to pastoral leases held by native title corporations, which have members rather than shareholders. This is a beneficial amendment which ensures that the provision operates as intended, with application to all types of corporate structures that may hold a pastoral lease.

Clarifying the parties to an inquiry into an expedited procedure objection application (Schedule 6)

42. New subsection 141(2A) seeks to clarify that a registered native title claimant who lodges an objection to the use of the expedited procedure and is later succeeded - in relation to any of the land or waters that will be affected by the act - by an RNTBC because of an approved determination of native title, that RNTBC becomes a party to the inquiry in place of the registered claimant.

43. Both the registered native title claimant (before a native title determination is made) and RNTBCs (established following a determination of native title) are the representatives or vehicles for common law holders to advance their economic, social and cultural development through the management and use of native title rights.

44. The right to benefit from culture will be supported by this amendment by ensuring there is continuity between a registered claimant and the relevant RNTBC, particularly to ensure an RNTBC can progress an objection lodged by the relevant claimant following a determination of native title.

Evaluation mechanism (Schedule 6)

45. New section 209A in Schedule 6 seeks to enhance existing safeguards in the Bill by requiring an evaluation to be conducted on the operation of amendments made by the Bill within five years of the commencement of Schedule 6 of the Bill.

46. The timeframe allows the effects of the Bill's reforms to be meaningfully evaluated, noting native title determinations and agreements generally take several years to be finalised.

47. The evaluation mechanism will complement existing ongoing consultation mechanisms between the Australian Government and the native title sector, which provide opportunity for ongoing dialogue on the operation of the Native Title Act and native title system more broadly.

New function for the National Native Title Tribunal to provide assistance to RNTBCs and common law holders (Schedule 7)

48. Schedule 7 confers on the NNTT - an independent statutory agency established by the Native Title Act - a new function to provide assistance to RNTBCs and common law holders to promote agreement about native title and the operation of the Act. This amendment will support the right to enjoy and benefit from culture by allowing the NNTT to provide assistance in relation to the management of native title rights and interests, include assisting in the management or prevention of disputes following a determination of native title. This would support the enjoyment of both individual and collective rights to culture.

49. Both RNTBCs and common law holders would be able to approach the NNTT for this assistance. The function is drafted broadly to provide flexibility in how it is used, but is intended to cover the NNTT providing assistance to RNTBCs/common law holders to:

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establish governance processes that are consistent with the Native Title Act and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (e.g. agreed processes that are consistent with traditional decision making);

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support resolution of disputes between common law holders and RNTBCs, which may include mediation; and

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facilitate collaboration and resolve disputes between RNTBCs.

50. Giving RNTBCs the option to access the NNTT's native title expertise to assist with promoting agreement about matters relating to native title or the operation of the Native Title Act will support the management of native title rights and interests for the benefit of common law holders, and in turn, the right to enjoy and benefit from culture.

Membership of RNTBCs (Schedule 8)

51. Schedule 8 of the Bill makes a number of amendments to the CATSI Act to improve the accountability, transparency and governance of RNTBCs. These amendments collectively seek to ensure that common law holders enjoy and have control over their native title rights and interests, in particular, following a determination of native title.

52. RNTBCs are the primary bodies that perform functions in relation to native title rights and interests. Accordingly, membership of an RNTBC allows common law holders to exercise important rights in relation to their native title rights and interests.

53. The UNHRC has stated that "the enjoyment of [those rights protected by Article 27] may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them." ^[13]

54. The Bill will advance the rights of the common law holders by creating new requirements for RNTBCs relating to eligibility for membership and limiting the grounds for cancelling membership of an RNTBC. These measures will assist to prevent RNTBCs from arbitrarily acting to exclude common law holders from membership and to ensure that all common law holders may be represented in an RNTBC, directly or indirectly. This will allow common law holders to be involved in decision-making that may affect their native title rights and interests.

ORIC Registrar oversight (Schedule 8)

55. Furthermore, Part 3 of Schedule 8 to the Bill clarifies that the ORIC Registrar may determine that an RNTBC is to be under special administration where it has seriously or repeatedly failed to comply with its obligations under the Native Title Act and regulations made for the purposes of that Act. Examples of this conduct are a failure to: (i) consult with and obtain the consent of common law holders for certain decisions; or (ii) act in accordance with the directions of common law holders where there is a significant consequence for common law holders.

56. These amendments will advance the right to enjoy and benefit from culture as they ensure that an RNTBC is held accountable for how it involves common law holders in decision making on actions that may impact native title rights and interests.

Requirements for RNTBC constitutions (Schedule 8)

57. The Bill also contains amendments to the CATSI Act that require RNTBCs' constitutions to provide for the resolution of certain disputes between the corporation and persons who are or who claim to be common law holders. Where there is a dispute about who is a common law holder or the RNTBC's performance of its functions under native title legislation, these amendments will ensure there is a process whereby the dispute can be addressed.

58. The right to enjoy and benefit from culture is furthered by the resolution of disputes as common law holders will have unfettered enjoyment of their native title.

Validation of section 31 agreements (Schedule 9)

59. Schedule 9 will confirm the validity of section 31 agreements. This will promote the right to enjoy and benefit from culture by providing certainty around the benefits that flow to native title holders from these agreements, which can include compensation in return for the grant of mining or exploration tenements over native title land. Although there may be some limitations on the right to culture for individuals who wish to challenge the validity of these agreements, this limitation is reasonable, necessary and proportionate to provide certainty for all parties to the agreements.

60. The Full Federal Court's decision in McGlade held that a particular kind of native title agreement under the Native Title Act - area Indigenous Land Use Agreements - are invalid where not all members of the applicant were party to the agreement. The reasoning in McGlade could similarly affect section 31 agreements, which primarily relate to the grant of mining and exploration rights over land which may be subject to native title, and the compulsory acquisition of native title rights. The Bill confirms the validity of section 31 agreements potentially affected by the flaw identified in McGlade.

61. Information obtained from the NNTT indicates that several thousand section 31 agreements have been made across the country. As with area ILUAs, stakeholders have indicated that a practice often used for making section 31 agreements prior to McGlade was to rely on the decision in QGC Pty Ltd v Bygrave and Others (No 2) (2010) 189 FCR 412 (Bygrave). Bygrave provided that if at least one member of the native title party (as the 'applicant' or 'registered native title claimant' is referred to in the context of section 31 agreements) was a party to the agreement, then the agreement was validly made.

62. This means there are likely a significant number of section 31 agreements where not all members of the native title party have signed or entered into the agreement, and subsequently potentially affected by McGlade. The State of Western Australia, for example, in its submission to the options paper for native title reform indicated it was aware of 306 mining leases, 11 land tenure grants, and 4 petroleum titles which had section 31 agreements potentially affected by McGlade. ^[14]

63. Section 31 agreements underpin commercial operations and provide benefits for affected native title groups. The uncertainty created by their potential invalidity poses a significant risk to both those commercial operations and the benefits flowing to native title groups. Potential challenges to section 31 agreements may also to divert resources away from finalising native title claims to litigate affected agreements and re-negotiate agreements that are already significantly resource-intensive.

64. There is strong stakeholder support for the retrospective validation of section 31 agreements. The proposal to retrospectively validate section 31 agreements affected by the McGlade decision was consulted on as part of the options paper and exposure draft consultation processes. Those processes received 52 and 37 submissions respectively, and the vast majority of those (from native title representative bodies, Indigenous groups, governments and industry) favoured the retrospective validation of agreements.

65. The Expert Technical Advisory Group also extensively considered this proposal, and agreed that section 31 agreements should be retrospectively validated, and that the validation should apply to all agreements made up to the commencement of the Bill.

66. The validation provision in Schedule 9 substantially replicated the provision passed on 14 June 2017 by the Australian Parliament in the Native Title Amendment (Indigenous Land Use Agreements) Act 2017 (2017 Amendments) to confirm the validity of area ILUAs affected by McGlade.

67. A key difference between the provision in this Bill from the 2017 Amendments is that they only validate section 31 agreements where at least one member of the relevant native title party is a party to the agreement (the 2017 Amendments did not include this requirement). Unlike ILUAs, there is no formal authorisation or registration process for section 31 agreements. As such, it would be inappropriate to extend validation to an agreement not signed by any of the members of the RNTC given the significant and binding effect of these agreements once they are made.

68. While this amendment may limit the rights to culture of RNTC members who may wish to challenge section 31 agreements, this limitation is a necessary and proportionate response to the objective of providing certainty for all parties. Should this amendment result in an acquisition of property (being the right to challenge the operation of a potentially flawed section 31 agreement) other than on just terms, provision has been made for compensation to be payable (under Schedule 9).

69. This provision is also complemented by amendments in Schedule 6 of the Bill to require the Native Title Registrar to create and maintain a public record of section 31 agreements. The public record would contain key details (such as the name of the parties and a description of land over which the agreement applies) to increase the visibility and transparency of these agreements, including by ensuring there is a central record of future section 31 agreements.

The right to self-determination

70. The right to self-determination is a collective right, in that it pertains to groups of people, as opposed to individuals within a group. The right to self-determination, as set out in Article 1 of the ICCPR and Article 1 of the ICESCR, entails the entitlement of peoples to have control over their destiny and to be treated respectfully. This includes peoples being free to collectively pursue their economic, social and cultural development without outside interference.

71. The Native Title Act as a whole promotes the right to self-determination by recognising native title rights and interests, thereby restoring native title holders' ability to speak for, manage and utilise their traditional lands. The Native Title Act also upholds the collective nature of native title rights and interests, consistently with the right to self-determination.

72. Also consistently with the right to self-determination, the Native Title Act prioritises the use of traditional decision making or other processes determined by the group for the purpose of making decisions about native title.

73. Although the right to self-determination is a collective right, it is important that individuals are heard with regard to contributing to the direction of the group. This may include adequately consulting and giving appropriate consideration to minority views to ensure that genuine agreement is reached. ^[15]

74. The amendments to the Native Title Act and the CATSI Act will promote the right to self-determination by creating pathways to assist common law holders to participate in decision-making that affects their native title rights and interests. Both the applicant (before a native title determination is made) and RNTBCs (established following a determination of native title) are the representatives or vehicles for common law holders to advance their economic, social and cultural development through the management and use of native title rights.

75. The right to self-determination will be engaged by amendments to:

•

to allow the claim group to place conditions on the applicant's authority, allow the applicant to act by majority and to clarify the duties of the applicant to the claim group (Schedule 1);

•

clarify the parties to an inquiry into an expedited procedure objection application (Schedule 6)

•

require an evaluation to be conducted within five years of the commencement of Schedule 6 of the Native Title Legislation Amendment Bill 2020 to assess the operation of the measures in the Bill (Schedule 6)

•

provide a new function to the NNTT to provide assistance to RNTBCs and common law holders to promote agreement around native title (Schedule 7);

•

create new requirements for RNTBCs relating to eligibility for membership, limit the discretion of directors regarding membership applications, and limit the grounds for cancelling membership (Schedule 8);

•

clarify that the ORIC Registrar may place a RNTBC under special administration where it has seriously or repeatedly failed to comply with its native title legislation obligations (Schedule 8);

•

provide for a process whereby disputes related to membership and the RNTBC's performance of its functions under native title legislation can be addressed (Schedule 8); and

•

validate section 31 agreements that may be affected by the decision in McGlade (Schedule 9).

Role of the applicant (Schedule 1)

76. As with the right to enjoy and benefit from culture, the right to self-determination will be promoted by changes to allow the applicant to act by majority as the default. This change will facilitate native title groups' ability to collectively pursue the determination of their native title rights and their economic, social and cultural development. It will also promote the efficient negotiation and settlement of native title determinations, to assist traditional owners to access the potential social and economic benefits of native title.

77. Although this measure will reduce the influence of members of the applicant who are in the minority, and any sub-groups of native title holders they represent, this limitation is necessary and proportionate to meeting the objective. As discussed in the context of the right to culture, the nature of the authorisation process (emphasises traditional decision making), the new ability of the claim group to place limitations on the applicant's authority and the delayed commencement of the provision will allow claim groups to ameliorate the effect of the limitation. The reform is also broadly supported by stakeholders.

78. The right to self-determination will be promoted by changes to give the native title claim group greater control and flexibility to define the scope of the authority of the applicant and to make arrangements for succession planning for members of the applicant.

79. Consistent with the ALRC Report's recommendations, the governance structures established by the claim group as part of the native title claims process may also be used post-determination. The structures these reforms will allow claim groups to put in place, and the experience of claim groups in managing these processes, are intended to support the ability of common law holders to realise rights of self-determination through the effective management of native title rights and interests following a native title determination.

Clarifying the parties to an inquiry into an expedited procedure objection application (Schedule 6)

80. Section 141(2A) seeks to clarify that a registered native title claimant who lodges an objection to the use of the expedited procedure and is later succeeded - in relation to any of the land or waters that will be affected by the act - by an RNTBC because of an approved determination of native title, that RNTBC becomes a party to the inquiry in place of the registered claimant.

81. Both the registered native title claimant (before a native title determination is made) and RNTBCs (established following a determination of native title) are the representatives or vehicles for common law holders to advance their economic, social and cultural development through the management and use of native title rights.

82. The right to self-determination will be supported by this amendment by ensuring there is continuity between a registered claimant and the relevant RNTBC, particularly to ensure an RNTBC can progress an objection lodged by the relevant claimant following a determination of native title.

Evaluation mechanism (Schedule 6)

83. Section 209A in Schedule 6 seeks to enhance existing safeguards in the Bill by requiring an evaluation to be conducted on the operation of amendments made by the Bill within five years of the commencement of Schedule 6 of the Bill.

84. The timeframe allows the effects of the Bill's reforms to be meaningfully evaluated, noting native title determinations and agreements generally take several years to be finalised.

85. The evaluation mechanism will complement existing ongoing consultation mechanisms between the Australian Government and the native title sector, which provide opportunity for ongoing dialogue on the operation of the Native Title Act and native title system more broadly.

New function for the National Native Title Tribunal to provide assistance to RNTBCs and common law holders (Schedule 7)

86. Giving RNTBCs and common law holders the option to access the NNTT's native title expertise to assist with promoting agreement about matters relating to native title or the operation of the Act will also further promote the right to self-determination.

87. This may include supporting dispute resolution and establishing governance arrangements that support agreement about the collective exercise of native title rights.

Membership of RNTBCs (Schedule 8)

88. The measures that relate to membership will improve the accountability and transparency of RNTBCs. In particular, the measures include: requiring RNTBCs to have in their constitution eligibility requirements that provide for all the common law holders to be represented, directly or indirectly; removing the discretion of directors of RNTBCs to refuse membership when the applicant applies in the required manner and meets the eligibility requirements; and limiting the grounds for cancelling the membership of a member of a RNTBC to those in the CATSI Act.

89. The amendments to the CATSI Act that intend to prevent common law holders from being arbitrarily excluded from membership seek to maximise the opportunities for common law holders to be involved in the management of their native title through RNTBCs. Such involvement enables common law holders to be able to contribute to decisions that affect them.

ORIC Registrar oversight (Schedule 8)

90. The amendments to the CATSI Act to provide the ORIC Registrar with oversight of RNTBCs' compliance with their obligations under the Native Title Act and related regulations will increase transparency and accountability of RNTBCs to common law holders. Where an RNTBC has seriously or repeatedly failed to comply with their obligations under the Native Title Act or any regulations made under that Act, the ORIC Registrar may determine that the corporation is to be under special administration. This intervention will increase transparency and accountability for common law holders and thus provide them with greater capacity to understand and influence how RNTBCs' perform their functions in relation to native title.

Requirements for RNTBC constitutions (Schedule 8)

91. The amendments to the CATSI Act that require RNTBCs' constitutions to provide for the resolution of certain disputes between the corporation and persons who are or who claim to be common law holders will increase the level of involvement of common law holders in relation to how their native title is managed. The amendments ensure that where there is a dispute about who is a common law holder or a common law holder has concerns with how the RNTBC is performing its functions in relation to their native title, the RNTBC will have procedures to address this dispute. Consequently, through improved dispute resolution pathways, common law holders will have greater opportunity to influence how an RNTBC performs its functions in relation to their native title. The right to an effective remedy

92. The right to an effective remedy is contained in Article 2(3) of the ICCPR. Article 6 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) also provides a right to an effective remedy for acts of discrimination contrary to that Convention.

93. The right to an effective remedy provides a right to appropriate reparation where rights have been breached. This may include compensation, restitution and changes to laws and practices to protect against repetition of breaches of rights.

94. The Native Title Act as a whole supports the right to an effective remedy by recognising native title rights and interests under Australian law, including by allow the extinguishment of native title to be disregarded in certain circumstances. The Act also establishes a statutory scheme for compensation for the extinguishment or impairment of native title for certain categories of acts.

95. The Bill will further the right to an effective remedy by amendments to:

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allow historical extinguishment of native title to be disregarded in additional circumstances (Schedule 3);

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allow RNTBCs to make claims for compensation over areas where native title has been extinguished (Schedule 4); and

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clarify the parties to an inquiry into an expedited procedure objection application (Schedule 6)

Disregarding historical extinguishment of native title (Schedule 3)

96. As discussed above, the Bill makes amendments to increase the circumstances in which historical extinguishment of native title may be disregarded. This will increase the circumstances in which native title rights and interests can be recognised. These circumstances are:

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over areas of national, state and territory parks (new section 47C); and

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where a body corporate with members who are common law holders, for example an RNTBC, and holds a pastoral lease over the relevant area (amended section 47).

RNTBC compensation applications (Schedule 4)

97. The Bill will promote the right to an effective remedy by making it easier for certain types of compensation claims to be brought.

98. Currently, RNTBCs can only bring compensation applications over areas where native title has been partially extinguished or impaired. Schedule 4 contains amendments that allow an RNTBC to make a compensation claim over areas within the external boundary of its determination area where native title has been fully extinguished.

99. These amendments would allow a simpler process for this type of compensation claim. In particular, it would avoid the complexities of authorising an applicant in circumstances where there is already a recognised body that has the authority of relevant common law holders to represent their interests.

Clarifying the parties to an inquiry into an expedited procedure objection application (Schedule 6)

100. The Bill will also further the right to an effective remedy by amendments to clarify the parties to an inquiry into an expedited procedure objection application (Schedule 6). This will promote the right to an effective remedy by ensuring that the concerns of a party who originates an objection application can be considered during the relevant arbitral bodies' inquiry into the objection application, and that the party is not excluded from proceedings following an approved determination of native title and their transition from a native title claimant to an RNTBC.

Rights of equality and non-discrimination

101. The rights of equality and non-discrimination are contained in Articles 2, 3, 16 and 26 of the ICCPR, Article 2 of the ICESCR and Article 5 of the CERD. These rights recognise that all human beings have the right to be treated equally and not to be discriminated against.

102. Of particular relevance in the context of the Bill, the CERD establishes a general prohibition on racial discrimination. The Racial Discrimination Act 1975 implements this prohibition in Australian domestic law.

103. Subsection 8(1) of the Racial Discrimination Act 1975, in accordance with Article 1(4) of CERD, allows 'special measures' which are designed to ensure advancement of certain groups. 'Special measures' are an exception to the general prohibition on racial discrimination, and are designed to "secure to disadvantaged groups the full and equal enjoyment of human rights and fundamental freedoms." For a measure to be characterised as a 'special measure' it must:

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be for a particular group or individuals;

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be taken for the sole purpose of securing the adequate advancement of that group or those individuals;

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be 'necessary'; and

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not continue after its objective have been achieved.

104. The measures in the Bill that amend the CATSI Act modify or complement existing measures in the CATSI Act. Accordingly, they may be characterised as components of a broader 'special measure', being the CATSI Act in its entirety. The objective of the amendments to the CATSI Act is to promote transparency, accountability and good governance in RNTBCs for the benefit of the common law holders.

105. The proposed measures are appropriate, adapted and proportionate and promote the development of self-management and autonomy among Aboriginal and Torres Strait Islander people by increasing the transparency and accountability of RNTBCs to common law holders.

The right to equality before courts and tribunals

106. Article 14(1) of ICCPR enshrines the right of a person to have a fair and public hearing by a competent, independent and impartial tribunal established by law. This article also sets out a general guarantee of equality before courts and tribunals that applies regardless of the nature of proceedings before such bodies. ^[16] Therefore, this right applies to civil matters.

107. As noted in the UNHRC General Comment no. 32: "[e]quality before courts and tribunals also requires that similar cases are dealt with in similar proceedings. If, for example, exceptional criminal procedures or specially constituted courts or tribunals apply in the determination of certain categories of cases, objective and reasonable grounds must be provided to justify the distinction." ^[17]

108. Under the Native Title Act, the Federal Court has exclusive jurisdiction to hear and determine applications relating to native title in Australia. The Native Title National Practice Area of the Federal Court has developed case management strategies that include allocating the native title proceeding to a Native Title National Practice Area Judge in the relevant registry, allocating a specialist Federal Court Native Title Registrar to assist in the case management of the proceeding and determining a list of priority native title cases so that cases are properly resourced and efficiently progressed to trial for agreed outcomes. Currently, state and federal courts have jurisdiction for civil matters under the CATSI Act.

109. The Bill will further the right to equality before courts and tribunals by amendments to provide that all civil matters under the CATSI Act that relate to RNTBCs are to be instituted and determined exclusively in the Federal Court, unless the Federal Court transfers the matter to another court with jurisdiction (Schedule 8).

110. This measure advances the right to equality before courts and tribunals because it ensures that similar native title matters are consolidated into one court with specialised expertise and procedures. In this manner, the Federal Court will continue to develop appropriate case management strategies and specialised expertise that will increase the coherency for native title-related matters.

111. The Bill will also further the right to equality before courts and tribunals by amendments to clarify the parties to an inquiry into an expedited procedure objection application (Schedule 6). This will promote the right to equality before courts and tribunals by ensuring that the concerns of a party who originates an objection application can be considered during the relevant arbitral bodies' inquiry into the objection application, and that the party is not excluded from proceedings following an approved determination of native title and their transition from a native title claimant to an RNTBC.

The right to a fair and public hearing by a competent, independent and impartial tribunal

112. The right to a fair and public hearing is contained in Article 14(1) of the ICCPR: "In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law."

113. As noted by the Parliamentary Joint Committee on Human Rights, the right to a fair hearing applies in both criminal and civil proceedings, including whenever rights and obligations are to be determined, such as private law rights, for example property, contract, negligence and other civil law proceedings. ^[18]

114. The Bill will further the right to a fair and public hearing by amendments to clarify the parties to an inquiry into an expedited procedure objection application (Schedule 6). This will promote the right to a fair and public hearing by ensuring that the concerns of a party who originates an objection application can be considered during the relevant arbitral bodies' inquiry into the objection application, and that the party is not excluded from proceedings following an approved determination of native title and their transition from a native title claimant to an RNTBC.

115. The Bill will also further this right by amendments to institute all RNTBC civil-related matters in the Federal Court (Schedule 8).

116. The Bill indirectly engages the right to a fair and public hearing by amendments that contain a strict liability offence for directors of RNTBCs where they do not notify a member that their membership has been cancelled on the grounds of ineligibility or failure to pay fees (Schedule 8). However, the strict liability offence is considered reasonable, necessary and proportionate in the circumstances.

Improved dispute resolution pathways (Schedule 8)

117. An important aspect of the fairness of a hearing is its expeditiousness and the UNHRC has noted that "delays in civil proceedings that cannot be justified by the complexity of the case or the behaviour of the parties detract from the principle of a fair hearing". ^[19]

118. Providing that all matters are instituted in the Federal Court allows the court to better allocate resources and apply its native title expertise to civil disputes brought by litigants under the CATSI Act. The amendments promote the right to a fair hearing under Article 14 of the ICCPR by ensuring that case management techniques can be applied as appropriate.

Cancellation of membership of RNTBCs (Schedule 8)

119. The Bill contains a strict liability offence that applies to directors of RNTBCs where the membership of a member has been cancelled on the grounds of ineligibility or failure to pay fees. Under this measure, directors must give the affected member a copy of the resolution cancelling the member's membership (being either a resolution of the directors or a resolution of the general meeting) as soon as practicable after the resolution has been passed.

120. Whilst strict liability offences engage and limit the presumption of innocence, Article 14(2) of the ICCPR applies to criminal offences. The strict liability offence in Schedule 8 to the Bill is a civil penalty provision, and, therefore, does not engage the criminal process rights under Articles 14 and 15 of the ICCPR.

121. It is noted, however, that the strict liability offence is considered reasonable, necessary and proportionate. The offence is of a regulatory nature and is consistent with the CATSI Act's enforcement regime, which includes other strict liability offences. It is considered necessary because members should be promptly informed when their membership of an RNTBC has been cancelled. The offence will thus help to ensure that RNTBCs act in a fair manner towards their members. This offence is proportionate in that it carries a relatively low penalty of 5 penalty units and only applies to those people subject to regulation under the CATSI Act.

122. The benefits of ensuring that RNTBCs act in a fair manner towards their members justifies the imposition of a minor penalty.

Conclusion

123. The Bill is compatible with human rights because it promotes the protection of human rights and to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.