Stated purpose
This Bill amends the Native Title Act 1993 (Cth) (NTA) and the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act) to improve native title claims resolution, agreement-making, Indigenous decision-making and dispute resolution processes, including to:
give greater flexibility to native title claim groups to set their internal processes;
streamline and improve native title claims resolution and agreement-making;
allow historical extinguishment over areas of national and state park to be disregarded where the parties agree;
increase the transparency and accountability of registered native title bodies corporate; and
create new pathways to address native title-related disputes arising following a native title determination.
Relevant provisions
Role of the applicant
An applicant is authorised to bring a native title application on behalf of a native title claim group. The Bill proposes the requirement of the applicant to swear an affidavit that they believe 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 (s 62(1)(a) NTA). This provision applies to claimant applications (ss 62(1)(a), (1A) NTA) and compensation applications (ss 62(3)(a), (4) NTA).
The Bill proposes inserting a new section (62C) into the NTA. This section would create a default rule that persons comprising the applicant act by majority. The default position can be displaced if the applicant gives authority to act on different conditions. Such conditions must have public notification.
Indigenous land use agreements
The Bill proposes to allow amendments to registered ILUAs that update property descriptions and parties to the agreement (s 24ED NTA). Changes to the property descriptions cannot result in the inclusion of any area of land or waters not previously covered by the agreement. Presently, there is a level of uncertainty about whether and to what extent an ILUA may be amended after the native title registration (Conlon v QGC Pty Ltd (No 2) (2017) 359 ALR 460).
The Bill also proposes permitting body corporate ILUAs to be registered over:
part of a determination area in which native title was determined not to exist; and
an area expressly excluded from a determination because a claim could not be made over that area because it was subject to a ‘previous exclusive possession act’ (s 24BC NTA).
Historical extinguishment
The Bill proposes an extension of the circumstances in which historical extinguishment can be disregarded to areas of national, state or territory parks, and certain pastoral leases (s 47C NTA). A ‘park area’ is defined as an area set aide, granted or vested for the purposes that include preserving the natural environment of the area, for the purposes of a claimant application or revised native title determination application.
Allowing a registered native title body corporate to bring a compensation application
Native title body corporates will be able to bring a claim for compensation for extinguishment of native title in a range of circumstances (s 62 NTA). This provides native title groups with a wider range of options for bringing compensation proceedings.
Intervention and consent determinations
The Bill makes a number of technical amendments to clarify the role of the Commonwealth Minister as intervener in native title proceedings, and the procedural requirements for the Federal Court to make determinations with the consent of the parties (ss 87, 87A NTA).
Register of s 31 agreements
The Bill proposes the requirement for the Registrar to create and maintain a public record of s 31 agreements (s 41B NTA). The record would include a description of the area of land or waters; name and address of each party to the agreement; the period in which the agreement will operate; and whether there are any ancillary agreements between the parties.
National Native Title Tribunal
The Bill confers a new function on the Native Title Tribunal to allow it to provide assistance to registered native title bodies corporate promoting agreement about matters relating to native title corporations and native title holders (s 60AAA NTA).
Registered native title bodies corporate
The Bill proposes an amendment to the CATSI Act to improve accountability, transparency and governance of registered native title bodies corporate (Schedule 8 NTA). The proposed provisions relate to refusal of membership, cancellation of membership and clarifies that rules in a corporation’s constitution include rules that relate to the resolution of disputes.
Just terms compensation and validation
Section 31 agreements potentially affected by the Full Federal Court’s decision in McGlade will have their validity confirmed. The Bill also includes a ‘fail safe’ provision to ensure that if the Bill effects the acquisition of property of a person other than on just terms (within the meaning of paragraph 51(xxxi) of the Constitution), that person would be entitled to compensation.
For further information see the Explanatory Memorandum and the Second Reading Speech.