Long-awaited procedural amendments to native title legislation made

Background

The Native Title Legislation Amendment Bill 2021 (the Amendment Bill) finally passed on 3 February 2021, and will commence in a staged manner, with the latest commencement date being in August 2021.

The Amendment Bill will amend both the Native Title Act 1993 (Cth) (NT Act) and the Corporations (Aboriginal and Torres Strait Islanders) Act 2006 (Cth) (CATSI Act). The amendments cover internal native title-holder decision-making and dispute resolution processes, mining and exploration-related agreements (referred to as s 31 agreements), and new exceptions for historical extinguishment principles over native title in state and national parks, as well as other minor procedural amendments.

What do you need to know?

1. Most s 31 agreements previously in doubt after the decision in McGlade v Native Title Registrar & Ors [2017] FCAFC 10 (McGlade) will be validated;
2. There will be new notification requirements for parties to s 31 agreements during the right to negotiate process;
3. The new exception to the rules for extinguishment of native title for national park areas will enable parties to agree that extinguishment should be disregarded, increasing the scope for claimants and governments to enter into agreements;
4. New powers will be given to the claim group including to impose conditions on the authority of the claim group and to require public notification of any such conditions;
5. The NT Act will require that some objections to future acts relating to mining or compulsory acquisition of native title be heard after 8 months if not withdrawn; and
6. New measures will be enacted to increase transparency and accountability for registered native title bodies corporate / prescribed body corporates (PBCs).

What are the key changes?

Section 31 agreements: validation, register and the right to negotiate process

The Amendment Bill is the second legislative response to the uncertainty created by the Full Federal Court decision in McGlade. That case held that one type of Indigenous land use agreements (ILUAs) under the NT Act, referred to as area agreements, were invalid where not all members of the applicant were party to the agreement. Amendments were made to the NT Act in 2017 (2017 Amendments) to provide certainty for the impacted ILUAs.

The Amendment Bill addresses the concerns that the reasoning in McGlade might also apply to s 31 agreements. Section 31 agreements are those agreements prepared following the ‘right to negotiate’ process which applies to certain future acts, and most commonly, in relation to the grant or renewal of mining and exploration licences.

Unlike the 2017 Amendments, the Amendment Bill will only confirm the validity of existing s 31 agreements where at least one member of the applicant group is a party. By contrast, the 2017 Amendments also validated area ILUAs where no person comprising the registered native title claimant was a party, in some circumstances. The reason for this difference is, unlike ILUAs, s 31 agreements do not require authorisation or registration to take legal effect, and it was considered inappropriate to extend validation to s 31 agreements where no member of the applicant group is a party.

The Amendment Bill will also:

• require the Native Title Registrar to maintain a basic public register of s 31 agreements, including details of the area covered, the parties and whether there is a collateral agreement; and
• include a new s 31(1A) which now permits a government party to limit its participation in right to negotiate negotiations if the other parties agree, while still remaining a party to the s 31 agreement.

Extinguishment: ability to disregard extinguishment in parks

Generally, once native title is extinguished it cannot be revived. In some cases, minor works in otherwise undeveloped areas have impeded native title claims.

The Amendment Bill inserts a new s 47C which permits governments and native title claimants to reach agreements to disregard prior extinguishment, and confirm recognition, of native title over park areas. Park areas include national and state parks or any area set aside, granted or vested for purposes including preserving the natural environment.

Importantly, parties may agree to disregard extinguishment by “public works” within parks – this departs from existing provisions allowing for extinguishment to be disregarded.

The Amendment Bill will also allow for existing agreements and determinations over park areas to be revisited, as an agreement made under s 47C may be grounds for an application to vary or revoke an existing native title determination.

It is anticipated this amendment will result in increased scope for state governments particularly to make agreements with native title claimants.

Applicants: uncontroversial amendments to authority

The ‘applicant’ is the person or group of people authorised by a native title claim group to manage a claim on their behalf and may enter into agreements (such as ILUAs or s 31 agreements). The NT Act does not adequately provide for the internal processes and controls to facilitate these processes.

The Amendment Bill will:

• allow the claim group to place conditions on the authorisation of the applicant;
• allow a majority of the applicant to make decisions or sign native title agreements, rather than requiring all members of the applicant to act together, if this is something the claim group wants; and
• make it simpler for the claim group to replace individual members of the applicant including through succession arrangements.

These changes provide a 6-month window in which individual claim groups can decide on how to apply the changes, for example whether to hold an authorisation meeting to place any conditions on the applicant’s authority.

These amendments will give more freedom to the claim group to manage the authority of the applicants bringing the native title application on their behalf, and bring the law in line with traditional laws and customs on how authorisations of claims have occurred in recent times.

Objections to compulsory acquisition of native title or grant or variation of tenements for mining infrastructure facilities

The Amendment Bill will make changes relating to the objection process for certain future acts which pass the freehold test. The affected future acts are those that involve the compulsory acquisition of native title by governments for the purpose of conferring rights to private entities, or the grant or variation of a mining right for the purpose of construction of an infrastructure facility such as a road (s 24MD(6B)).

Currently, if an objection is made to these future acts within 2 months of notification, and the objector requests that the objection be heard, the government party must ensure that this is done by an independent person. There is no statutory timeframe specified for these objections to be heard and the right to negotiate process does not apply to the grant or variation of a mining tenement for the purposes of construction of an infrastructure facility. Accordingly, this future act process provides a more streamlined process for mining companies, compared with the ‘right to negotiate’ process. Where the ‘right to negotiate’ process applies, such as to compulsory acquisition of native title rights, and no agreement is reached after 6 months following the notice of the future act being issued, then any party can choose to ask for independent arbitration.

However, when the Amendment Bill is enacted, if an objection has been made to a future act under s 24MD(6B), and it has not been withdrawn within 8 months after notification of the future act, the government must ensure that the objection is heard by an independent body, so that the objection does not go unheard.

PBCs: governance, dispute resolution and oversight

Recently, there has been some media attention on the governance and oversight of certain PBCs. Last month, the South Australian Premier, Steven Marshall, called for an inquiry in relation to PBCs in his state. The Amendment Bill will amend the CATSI Act to improve the accountability, transparency and governance of PBCs by:

• requiring PBCs to include dispute resolution pathways for persons who are or claim to be common law native title holders;
• removing the discretion of PBCs to refuse or cancel membership; and
• clarifying the oversight power of the Office of the Registrar of Indigenous Corporations to place a PBC under special administration where is has repeatedly or seriously failed to comply with its obligations under the NT Act.

Further, currently PBCs may only lodge native title compensation applications over areas where native title has been partially extinguished. The Amendment Bill will empower them to bring compensation applications over an area within their external boundary where native title has been fully extinguished.

What’s next?

Consideration of further reform is on the horizon. In relation to the NT Act, Amendment Bill will implement recommendations 10-5 to 10-9 of the Australian Law Reform Commission’s Connection to Country: Review of the Native Title Act 1993 (Cth) report. However, many recommendations in that report still have not been implemented, for example with respect to the definition of native title (recommendation 5) and traditional physical connection (recommendation 6).

Further, now that the uncertainty created by McGlade has been largely addressed, proponents are likely to be calling for a Commonwealth response to that created by the High Court decision in Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30 to mining tenements in Western Australia. In that case, the High Court found that a mineralisation report must be lodged with a mining lease application, and any failure to do so meant that the relevant Minister did not have power to grant a mining lease. While some amendments have been made to the Mining Act 1978 (WA) to address this issue, no amendments have yet been made to the NT Act.

Given the significant changes made in relation to extinguishment in park areas and ability to claim compensation for extinguishment of native title over greater areas, we expect to see more agreements being made with governments and compensation claims being made.

Finally, a review of the CATSI Act, led by the National Indigenous Australians Agency, is still underway and includes examining whether that Act can better support economic and community development opportunities for Aboriginal and Torres Strait Islander people, including through the native title process.

This article was co-authored with Trilby Donald.