Posted on December 4, 2018 by Lindsay Taylor and Elaine Yeo
Overview of Proposed 2018 Native Title Reforms
In November 2018, the Commonwealth Attorney-General’s Department and the Minister for Indigenous Affairs released exposure draft legislation which proposed reforms to the native title system under the Native Title Act 1993 (Cth). The two exposure drafts, the Native Title Amendment Bill 2018 (‘Amendment Bill‘) and the Registered Native title Bodies Corporate Legislation Amendment Regulations 2018 (‘2018 Regulations‘) are currently on exhibition for public comment.
According to the public consultation paper released by the Attorney-General’s Department, the objectives of the reforms are to:
- give greater flexibility to native title claimants to set their internal processes,
- streamline and improve native title claims resolution and agreement-making,
- ensure the validity of existing agreements after the decision in McGlade v Native Title Registrar & Ors  FCAFC 10 (the McGlade decision),
- increase the transparency and accountability of prescribed bodies corporate, and
- create new pathways to address native title-related disputes arising following a native title determination.
Significantly, the reforms will:
- have a major impact on the role of the applicant in a native title claim,
- affect the creation of Indigenous Land Use Agreements,
- expand the provisions for disregarding historical extinguishment of native title rights and interests, and
- make changes to the functions and powers of the National Native Title Tribunal and native title body corporates.
Some of these reforms are discussed below:
Role of the applicant
An applicant is the person or group of people who is authorised to make a native title application and manage the application on behalf of a native title claim group. The reforms will provide the claim group with greater control and flexibility over the powers of the applicant.
The claim group can set conditions on the applicant’s authorisation. This means that the claim group can restrain the ability of the applicant to manage and make decisions on the group’s behalf. For example, it could be a condition of the applicant’s authorisation that they may not make a decision on behalf of the claim group without express written consent of the group.
If the applicant is more than one person, the claim group can also allow the applicant to act as a majority to make decisions and sign agreements, rather than requiring all members of the applicant to act together.
Furthermore, the claim group can remove and replace members of the applicant with more ease by an application to the Federal Court, rather than going through a new authorisation process.
Indigenous Land Use Agreements (‘ILUAs’) and other Agreements
The reforms also intend to make the process of making and registering ILUAs simpler and easier. For example, parties to an agreement may make minor amendments without registering a whole new ILUA on the Register of ILUAs.
Body corporate ILUAs may now be made over areas of land where native title has been extinguished. Previously, only area ILUAs could be made over these areas, but the major drawback of area ILUAs were that they were generally more costly as they involved an authorisation process and a longer notification period.
The reforms also retrospectively confirm the validity of certain agreements that are potentially affected by the McGlade decision. In that case, the Court found that area ILUAs were invalid if not all members of the applicant had signed the agreement. In addition to the general changes to the role of the applicant, the reforms confirm that agreements made in relation to mining rights made under section 31, are valid even where not all members of the applicant have signed the agreement.
Generally, once native title has been extinguished, it cannot be revived. Under the Native Title Act 1993 (Cth), extinguishment may be disregarded in narrow circumstances on unallocated Crown land, reserved or set aside for Aboriginal or Torres Strait Islander peoples and pastoral leases held by traditional owners. The new amendments now have further provisions for when extinguishment is to be disregarded on national, state or territory parks that have been set aside or granted to preserve the natural environment of the area.
For extinguishment to be disregarded, there needs to be an agreement between the relevant native title group and the Commonwealth, state or territory government responsible for the creation of the park. The relevant government must arrange for a reasonable notification and give at least 3 months for interested persons to comment on the proposed agreement. The reforms make clear that this agreement does not affect the validity of the act creating the park or any prior extinguishing act.
Powers and Functions of the National Native Title Tribunal (‘NNTT‘)
A new provision will allow the NNTT to provide assistance to registered native title bodies corporate and common law holders and promote agreement about matters relating to native title. According to the public consultation paper, this is intended so that the NNTT may assist with establishing governance processes, supporting dispute resolution and facilitating collaboration between the parties.
Registered Native Title Bodies Corporate
A native title body corporate is a corporation that is created for native title holders to hold or manage native title on their behalf.
Previously, a native title body corporate could only bring a compensation application over areas where native title has been partially extinguished or impaired. The Amendment Bill now allows the body corporate to bring the application over areas where native title has been fully extinguished.
The 2018 Regulations purport to improve the transparency of prescribed native title body corporates, which are body corporates that have been appointed as the representative of native title holders in a native title application. There is now a requirement for the body corporate to engage with the native title holders and the representative bodies for the area and certify that the consultation and consent requirements have been met.
The amendments further clarify that the Federal Court has powers to make orders for the whole or part of a claim area where the parties have reached agreement. If the orders are for only part of a claim area, the Federal Court has powers to subsequently make orders for the rest of that claim area.
Currently, a person whose native title interests will be affected by a proposed future act, may object to the act and request the matter be referred to an independent person or body for determination. The public consultation paper identified a concern that if the person does not make the request for referral, there would be no resolution of the issue since neither the proposing party nor the government have the power to refer the matter for determination.
The reforms now provide that if a native title group objects to a future act, after 8 months, the Commonwealth, State or Territory government must ensure that the objection is heard by an independent person or body. This will ensure that future act matters will be eventually resolved, even if the person who has objected does not initiate the resolution.
As demonstrated above, the exposure drafts have introduced quite a few reforms, a lot of which are technical and complex.
These exposure drafts are currently open for public consultation until Monday 10 December 2018.
If you would are interested in making a submission, or have any further comments, please contact Dr Lindsay Taylor at 02 8235 9701 or Elaine Yeo on 82359712.
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