Australia - Slow And Steady: Native Title Legislation Reform Moves Forward.
Legal News & Analysis - Asia Pacific - Australia - Dispute Resolution - Regulatory & Compliance
7 May 2020
What you need to know
There has been very little progress on reforms to the Native Title Act 1993 (Cth) (Native Title Act) in the last 12 months.
After lapsing in April 2019, the Native Title Legislation Amendment Bill 2019 (Cth) (Bill) was re-introduced into Parliament in October 2019, and referred to the Senate Legal and Constitutional Affairs Legislation Committee. The Committee's report is is now due 19 August 2020.
In December 2019, the Minister for Indigenous Australians announced a comprehensive review of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act). The review is intended to build on the findings of the 2017 technical review of the CATSI Act.
It is not yet clear whether the CATSI Act review will have any impact on the timing of the Native Title Act reforms.
It is hard to gauge the Federal Government's current appetite for progressing native title legislative reforms. Although stakeholders overwhelmingly support the majority of the proposed amendments in the Bill (and many are a long time coming), they are still likely to be divisive during parliamentary debates.
What you need to do
Watch for the release of the Senate Committee Report in August 2020 and monitor the progress of the Bill in Parliament.
Western Australia should note that Parliament still needs to deal with the native title legislative "fix" required to address the Forrest & Forrest case and associated proposed amendments to the Mining Act 1978 (WA), affecting mining lease validity in that State.
Status of the Bill
There has been very little progress on reforms to the Native Title Act in the last 12 months.
The Federal Government introduced the Native Title Legislation Amendment Bill 2019 on 21 February 2019, but the Bill lapsed in April 2019 when the Federal election was called.
The Bill was re-introduced on 17 October 2019, and referred to the Senate Legal and Constitutional Affairs Legislation Committee. The Committee's report was due 16 April 2020, but an extension has been granted to 19 August 2020. The Committee received 22 submissions on the Bill, all of which were generally supportive of the Bill.
The Committee held public hearings in Western Australia between 10 and 13 March 2020, with other States to follow. You can follow the progress of the Bill on the Parliament of Australia website here.
Reminder of the key components of the Bill
The October 2019 version of the Bill is almost identical to the February 2019 version, but for a small number of amendments to the CATSI Act.
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. We have written about these details in our 2018 Native Title Year in Review article Update on Native Title Act Reform.
Set out below is brief summary of the key issues:
Section 31 agreements to be validated
The proposed amendments would confirm the validity of most 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 ( FCAFC 10).
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.
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 an option 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 process, which was intended to be the more significant procedural right.
Bill still does not address WA mining lease validation
The Bill still does not include amendments to resolve the issue arising from the High Court's decision in Forrest & Forrest Pty Ltd v Wilson ( 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 (WA) in late 2018 to confirm the validity of mining tenements affected by the High Court decision. The State is seeking 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
The Bill contains a number of relatively uncontroversial amendments relating to the Applicant's authority, the Applicant acting by majority, replacement of the Applicant, the right to negotiate process and technical changes intended to improve the claims resolution and agreement-making processes.
We have written about these details in our 2018 Native Title Year in Review article Update on Native Title Act Reform.
PBC governance, accountability and dispute resolution
The Bill contains a number of amendments to the Native Title Act and the CATSI Act which aim to improve the governance and accountability of registered native title body corporates/prescribed body corporates (PBCs) and increase dispute resolution pathways.
The proposals include:
Membership: changes to membership provisions to better protect common law holders of native title by ensuring that a PBC's rule book reflects the relevant native title determination, preventing PBCs from establishing membership criteria, refusing or cancelling membership in a way that disenfranchises a section of a native title group and ensuring a pathway in the PBC rule book for resolution of disputes between common law holders and PBCs (Schedule 8 of the bill).
NNTT new function to assist post-Determination: a new function for the NNTT to assist PBCs and common law holders of native title to promote agreement about native title issues and the operation of the Native Title Act (Schedule 7 of the Bill). This complements the proposed new dispute resolution pathway to be included in the PBC's rule book.
ORIC Registrar oversight: adding a new ground for the Registrar to appoint a special administrator to a PBC when there is a serious failure by the PBC to comply with its native title legislation obligations.
Review of the CATSI Act announced
In December 2019, the Minister for Indigenous Australians announced a comprehensive review of the CATSI Act. The review is intended to build on the findings of the 2017 technical review of the CATSI Act, but also include an assessment of the effectiveness of the CATSI Act as a special measure under the Racial Discrimination Act 1975 (Cth) and whether it can better support economic and community development opportunities for Aboriginal and Torres Strait Islander people. The review will also consider aspects of the CATSI Act that are working effectively, and areas that could be improved.
For further information, please contact:
Leonie Flynn, Ashurst