2017 review

native title insight 16 May 2018 Native Title Year in Review 2017 - Other issues in native title

Authorisation and NTA reforms

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The following articles appear below:

  • Authorisation under the spotlight
  • Update on Native Title Act Reforms

Authorisation under the spotlight

In Gomeroi People v Attorney General of New South Wales [2017] FCA 1464 and Kum Sing on behalf of the Mitakoodi & Mayi People #5 v State of Queensland [2017] FCA 860 a replacement applicant brought an interlocutory application pursuant to section 66B of the Native Title Act 1993 (Cth) for an order to replace the current applicant.  In both cases the validity of the authorisation meetings were challenged by the applicants who were sought to be replaced.  However, the Federal Court found that the new applicants were properly authorised despite some defects in the authorisation process. 

Gomeroi People v Attorney General of New South Wales 

In Gomeroi People v Attorney General of New South Wales, the current applicant challenged the section 66B application arguing that it should be dismissed on a number of grounds relating to the authorisation process, including: 

  • the meeting notice was inadequate and was not adequately advertised; 
  • the conduct of the meeting was irregular and/or unfair; 
  • the composition of persons that attended the meeting was not appropriately representative of the Gomeroi Claim Group; and
  • the replacement applicant is not representative of the Gomeroi Claim Group. 

The Federal Court said that the requirement to "authorise" does not require an authorisation meeting to be held.  Justice Rangiah noted that, as a matter of practicality, questions of authorisation are usually dealt with by holding a meeting but the Native Title Act confers no particular status on such a meeting, nor does the Native Title Act prescribe rules for conduct, nor conditions for validity. 

Justice Rangiah identified five reasons that notification and conduct of claim group meetings are more problematic than other types of meetings commonly encountered by the Courts, as: 

  • identification of all the members of the claim group can be difficult; 
  • where there is a meeting of a large number of people, the counting of votes can be difficult;
  • there are administrative, record-keeping and logistical difficulties associated with large claim group meetings;
  • there is no fixed set of rules that must be adhered to in the conduct of an authorisation meeting; and
  • a meeting to consider a replacement applicant produces emotional responses which can overflow. 

The Court found that there were defects in the meeting notice, the participant registration process, record keeping and general conduct of the meeting. However, it concluded that individually and cumulatively these defects made no material difference to the outcome. The Court held that the replacement applicant was authorised by the claim group.

Mitakoodi & Mayi People #5 v State of Queensland 

Similarly, in Mitakoodi & Mayi People #5 v State Of Queensland, the current applicant and the State challenged the section 66B application by replacement applicants on a number of grounds, including:

  • lack of opportunity afforded to certain members to participate in the meeting; and
  • that the meeting was not representative of the whole of the Mitakoodi claim group. 

Despite these challenges, Justice Reeves considered that it was appropriate for him to exercise his discretion to make the order sought by the replacement applicants. 

Native Title Act reforms address authorisation issues 

The Federal Government's Options Paper for Reform to the Native Title Act 1993 deals with the issues regarding authorisation and replacing applicants through the section 66B process. 

A proposal raised in the Options Paper is to allow the composition of the applicant to be changed in circumstances where a member is unwilling or unable to continue acting, or where the terms of an agreement provide for it, through an application to the Federal Court without going through the further authorisation process required by section 66B.  

For more information on the Options Paper, see our article on Update on Native Title Reforms. 

key points to note
  • In the context of authorisation for section 66B applications, the Court is willing to overlook defects in the process if the cumulative effect is that such defects make no material difference to the outcome.
  • Regardless of these decisions, the replacement of applicants on native title claims continues to cause significant problems for claim groups because of the complicated, time consuming and expensive process required by the Native Title Act.  
  • This issue has been flagged for reform for many years (see eg the Australia Law Reform Commission's 2015 report Connection to Country: Review of the Native Title Act 1993) but has not progressed.  There has been renewed exposure to the issue since the McGlade amendments to the Native Title Act (see our 2016 Native Title Year in Review).  It is in the interests of all stakeholders that the current reform proposals are implemented.  
  • It is not known how many of the 246 unresolved native title claims around Australia are hampered by authorisation issues but there is no doubt that authorisation law reform would assist in speeding up the progress of some of these claims.  


Update on Native Title Act Reforms 

A draft Bill for reforms to the Native Title Act is expected in mid 2018, after a 3 month consultation period on the Federal Government's Options Paper.  The Federal Government has indicated that it plans to introduce the Bill in 2018.  

Reform timetable 

The Federal Government released its Options Paper for reforms to the Native Title Act 1993 (Cth) on 29 November 2017.  This was one of the outcomes promised after the Native Title Minister's meeting between Federal, State and Territory Governments in October 2017.

Consultation on the reforms occurred via an Expert Technical Advisory Group comprising Indigenous, government and industry representatives and public consultation. Submissions on the Options Paper were sought until the end of February 2018.

Over 45 submissions were received from a range of stakeholders including Indigenous bodies, land councils, representative bodies, State Governments, industry bodies (mining, exploration, energy, pastoralists and infrastructure providers). 

The Attorney General's Department has indicated that an exposure draft of a reform bill is planned for release in mid 2018.  Consultation will follow for 3-4 weeks, after which a final bill will be prepared for introduction to Parliament in 2018.

Section 31 agreements are included in the proposals 

The first issue covered in the Options Paper is the need for amendments to address the implications of the Full Federal Court's decision in McGlade v Registrar National Native Title Tribunal [2017] FCAFC 10 for right to negotiate agreements under section 31 of the Native Title Act.  As discussed in our 2016 Native Title Year in Review, the Native Title Amendment (Indigenous Land Use Agreements) Act 2017 (Cth) does not address this issue and leaves doubt over hundreds of tenements granted in reliance on these agreements.

What else is covered in the options paper? 

In addition to Section 31 Agreements, the Options Paper canvasses reforms in the areas of:

  • Authorisation 
  • Agreement making 
  • Indigenous decision making 
  • Claims resolution and process 
  • Post-determination decision making.

The suggested reforms are mainly derived from recommendations made by the following earlier reviews:

  • the ALRC report ‘Connection to Country: Review of the Native Title Act’ 2015 (ALRC Report);
  • the COAG report 'Investigation into Indigenous Land Administration and Use' 2015 (COAG Investigation);
  • the Office of the Registrar of Aboriginal Corporations 2017 Technical Review of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act Review).  

Notably, the Options Paper also includes a number of proposed reforms suggested by State and Territory governments.  In particular, the calls by the Western Australian government to amend the Native Title Act to allow for mining legislation amendments that will validate current invalid mining tenure (following the High Court decision in Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30).

The Government has not included earlier suggested reforms that proposed significant changes to key legal concepts.  Instead, the focus is on operational issues - claims resolution, agreement making and dispute resolution. 

key points to note
  • We know from previous reform proposals how difficult it is to progress native title reform in our current political climate. For this reason, the Minerals Council of Australia, Chamber of Minerals and Energy of Western Australia, Queensland Resources Council and South Australian Chamber of Mines and Energy have submitted that the RTN agreement/section 31 issue should be separated from wider reform and be the subject of urgent legislation to allow swift passage through parliament. The Minerals Council of Australia has also called for any separate bill to address the need for mining legislation reform in Western Australia to validate invalid mining tenure following the High Court's Forrest & Forrest decision.
  • That industry proposal to pass an initial/separate amendment Bill has been strongly opposed by the National Native Title Council.  
  • The Attorney-General remains committed to circulating an exposure draft Bill in 2018.
  • The draft Bill will require detailed consideration when it is released. The express language of each provision will need to be carefully considered both to confirm that it will operate as intended by the Federal Government and to understand its impact on a stakeholder's existing and future operations. 
  • While it is comforting to see the Federal Government progressing its reform agenda, the release of a draft Bill (and even the introduction of a Bill to parliament) is a long way from the finish line. The passage of a Bill through both chambers of Parliament is unlikely to be smooth. 

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