Update on Native Title Act Reform

 What you need to know

• The Federal Government introduced the Native Title Legislation Amendment Bill 2019 on 21 February 2019 but the Bill is not likely to be debated before the Federal election is called.  
• The proposed amendments are intended to improve the efficiency of the native title system for all parties. 
• Although many of the proposed amendments are uncontroversial and implement widely supported recommendations made in previous reviews, there are some proposals that may significantly affect proponents if they become law. 
• The introduction of the Bill so close to the calling of the next Federal election means that native title reform is an issue that will be left to the next Federal Government (of whatever party) to progress. 
• Look out for the publication of our Native Title Year in Review 2018 shortly, which will outline other significant native title legal developments in 2018.

The Federal Government introduced the Native Title Legislation Amendment Bill 2019 on 21 February 2019 but the Bill is not likely to be debated before the Federal election is called.

Context of the Bill

The Bill proposes to amend the Native Title Act 1993 (Cth) (Native Title Act) and the Corporations (Aboriginal and Torres Strait Islander) Act 2006.  It follows the release in October 2018 of an exposure draft of the Bill and accompanying draft regulations (Registered Native Title Bodies Corporate Legislation Amendment Regulations 2018).

The Attorney General also published a Native Title Reform Consultation Paper explaining the proposed reforms, along with 2 Fact Sheets (Overview and PBCs).  The exposure drafts were prepared after consultation on the Options Paper – Proposed Reforms to the Native Title Act 1993 (Cth) (see our article in the 16 May 2018 Native Title Year in Review: Update on Native Title Act Reforms).  

The proposed amendments are intended to improve the efficiency of the native title system for all parties.  While many of the proposed amendments are uncontroversial and implement widely supported recommendations made in previous reviews, there are some proposals that may significantly affect proponents if they become law. 

Section 31 agreements to be validated

The proposed amendments would confirm the validity of section 31 agreements which might be invalid because of non-execution by any of the persons comprising the registered native title claimant following the Full Federal Court's decision in McGlade v Registrar National Native Title Tribunal ([2017] FCAFC 10).

However, agreements where no person comprising the registered native title claimant is a party, would not be validated.  This is a departure from the amendments introduced to validate indigenous land use agreements (ILUAs), but is explained on the basis of the significant and binding effect of these agreements and the fact that there is no authorisation process.  It is not known how many agreements this exception will affect.

Disregarding historical extinguishment on park areas 

The Bill contains a proposed new section 47C of the Native Title Act which would allow for the extinguishment of native title in "park areas" to be disregarded with the written agreement of the State, Territory or Commonwealth that created the "park area".  The provision would apply on Crown land or freehold land held by the Crown or a statutory authority of the Crown.

Any determination of native title over the "park area" would not affect: the validity of the creation of any prior interests in the park area; any interest of the Crown in any capacity, or of any statutory authority, or of any other person in public works, or access to the public works; or any existing public access to the agreement area.

The Bill envisages existing determinations of native title being re-opened and existing claims being amended to obtain the benefit of this provision. 

New 8 month timeline added to the section 24MD(6B) objection process

Section 24MD(6B) of the Native Title Act applies to the creation of a right to mine for the purpose of an infrastructure facility associated with mining and to some compulsory acquisitions of native title.  It includes a 2 month notification and objection process and for objections to be heard by an independent person or body.  As presently drafted, an objection can only be referred for hearing by the native title party, leaving many objections potentially unresolved. 

The Bill proposes a new section 24MD(6B)(f) that requires the Government party to refer an objection for hearing, but not until 8 months after notification.  This is longer than the 6 month period in the right to negotiate (RTN) process, which was intended to be the more significant procedural right. 

Bill does not address WA mining lease validation

The Bill does not include amendments to resolve the issue arising from the High Court's decision in Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30 relating to the validity of mining tenements in Western Australia.  

The Western Australian government introduced the Mining Amendment (Procedures and Validation) Bill 2018 in late 2018 to confirm the validity of mining tenements affected by the High Court decision.  The State seeks complementary amendments to the Native Title Act to ensure that its legislation is valid under the Native Title Act.  We understand that discussions are continuing between the Commonwealth, Western Australian Government and native title stakeholders about this matter.

Amendments to improve workability of the Native Title Act

• Applicant acting by majority (unless the group decides otherwise): It has long been recommended that the Native Title Act be amended to allow the applicant to act by majority.  Under proposed new section 62C, in native title determination applications and compensation applications, the "default rule" would be that a majority of persons comprising the registered native title claimant may do anything required or permitted by the registered native title claimant.  The proposed amendments will also provide that it is sufficient if a majority of the persons comprising the registered native title claimant is a party to an ILUA or section 31 agreement (ss 24CD(2A), 24CL(2A), 24DE(5) and 31(1C)).

• Authorisation of the applicant: The proposed amendments contain uncontroversial changes to allow the claim group to place conditions on the authorisation of the applicant.  These changes are designed to implement recommendations made by the Australian Law Reform Commission in its 2015 Report Connection to Country: Review of the Native Title Act 1993 (Cth).
• Replacement of the applicant: The Native Title Act currently requires an authorisation process before a claim group can replace individual members of the applicant, even where a member of the applicant is deceased or unable to act because of physical or mental incapacity.  The authorisation process is time consuming, extremely costly and often divisive.  The Bill proposes to remove the need for an authorisation process in these circumstances.  It will also allow claim groups to put in place succession-planning arrangements for individual members of the applicant as part of the authorisation process.
• Amendments relating to the RTN process: The Bill proposes that a government party may limit its participation in RTN negotiations if the other parties agree, but remain a party to the section 31 agreement.  
• There is also an amendment requiring that parties notify the National Native Title Tribunal (NNTT) of the existence of any ancillary agreements when providing copies of section 31 agreements to the Registrar.  There would be no requirement to provide a copy of the ancillary agreement itself.  Further, the NNTT will be required to create a register of section 31 agreements like the ILUA Register.  It would not have legislative effect like the ILUA Register and the agreements themselves would not be made public, but it will create more transparency for RTN agreements.
• Amendments relating to ILUAs, claims resolution, agreement-making and compensation claims:  The proposed amendments include a number of technical changes intended to improve the claims resolution and agreement-making processes. 
• Post-determination dispute resolution and accountability: The proposed amendments contain several changes which aim to improve the way disputes are handled after a determination of native title has been made.  These are particularly relevant to registered native title body corporates/prescribed body corporates (PBCs) and members of the native title holding groups.  There are also many amendments relating to decision making by PBCs which add a much needed level of scrutiny to their decisions.  The Attorney General has released a Fact Sheet with information on these reforms and the practical impact they will have on PBCs and native title holders.  We discuss some of these proposals in more detail in our article. Further developments on governance and misappropriation of funds under native title agreements below.