Posted on March 26, 2019 by Lindsay Taylor 8

Native Title Legislation Amendment Bill 2019

The Native Title Legislation Amendment Bill 2019 (‘Bill’) is currently being considered by the Australian Parliament. The Bill was read for a second time in the House of Representatives on 21 February 2019 by the Attorney-General following which debate was adjourned. The next sitting of the House of Representatives will be from 2-4 April 2019.

The Bill amends the Native Title Act 1993 (‘NT Act’) and the Corporations (Aboriginal and Torres Strait Islander) Act 2006. It introduces significant amendments that will affect, amongst other things:

• the extinguishment of native title,
• the creation of indigenous land use agreements, and
• the role of the applicant in a native title claim.

We previously blogged about the amendments contained in the exposure draft bill that was exhibited for public comment.

The Bill before Parliament contains several noteworthy additional provisions to the exposure draft bill. These are summarised below.

Historical Extinguishment

Sections 47, 47A and 47B of the NT Act currently provide that in certain circumstances, ‘any extinguishment of the native title rights and interests … must be disregarded‘. This means that an act that would otherwise have an extinguishing effect, will not in fact extinguish native title rights and interests.

As discussed in our previous blog, the Bill introduces a further provision for when any prior extinguishment of native title rights and interests may be disregarded for the purpose of determining a native title claim.

Under proposed s47C, extinguishment may be disregarded over land that has been set aside, granted or vested to preserve the natural environment, for example ‘national, State or Territory parks‘ pursuant to an agreement between the government entity and any native title claimants.

The additional provision in the Bill before Parliament clarifies that it is immaterial whether the land is, amongst other things, subject to a lease or licence, covered by a dedication, reservation, proclamation or the like, made available under legislation for a public purpose, or subject to native title (proposed s47C(2)).

Role of the applicant

An applicant is authorised to bring a native title application on behalf of a native title claim group.

The additional provision in the Bill before Parliament requires the applicant to swear an affidavit that the applicant believes that the native title rights and interests claimed by the group have not been extinguished over any part of the area claimed in the application.

The additional provision applies to claimant applications (proposed ss62(1)(a), (1A)) and compensation applications (proposed ss62(3)(a), (4)) .

Indigenous land use agreements and other agreements

Certain agreements between native title groups and relevant government bodies cannot be made unless a registered native title claimant (‘RNTC’) is a party to the agreement.

A RNTC is a person or persons whose name or names appear in an entry on the Register of Native Title Claims as the applicant in relation to a claim to native title.

A RNTC is taken to be a party to an agreement if a majority of the persons who comprise that RNTC are parties to the agreement. The persons in the majority of the RNTC must notify the other persons who comprise the RNTC within a reasonable period of time after becoming parties to the agreement.

The additional provisions in the Bill before Parliament clarify that a failure by the majority of persons in the RNTC to notify does not in itself invalidate the agreement. This affects:

• area agreements (proposed ss24CD(2B) and 24CL(2B));
• alternative procedure agreements (proposed s24DE(6));
• agreements made under s31 of the NT Act in relation to mining rights (proposed s31(1D)); and
• agreements made under ss87 and 87A of the NT Act (proposed ss87(1AB) and 87A(1AB)).

Conclusion

The Bill introduces a number of significant amendments to the native title system. It purports to encourage the cooperation between governments and native title groups and ‘streamline‘ agreement-making processes. In particular, the Bill provides greater certainty in the validity of agreements entered into with RNTCs. For an overview of the amendments in the exposure draft bill, click here to read our previous blog.

UPDATE- Bill not proceeding

On 11 April 2019, the Bill lapsed at dissolution in the House of Representatives and will no longer be proceeding.

The Senate Standing Committee for the Scrutiny of Bills criticised the Bill’s retrospective validation of indigenous land use agreements and other agreements. On the other hand, the Parliamentary Joint Committee on Human Rights raised concerns with the effect of the Bill on human rights, such as the right to culture and the right to privacy.

If you would like to discuss the proposed amendments in the Bill, or if you have further comments, please contact Dr Lindsay Taylor on 02 8235 9701, or Elaine Yeo on 02 8235 9712.