The Native Title Legislation Amendment Bill 2019 (Cth) (NTLAA) passed both Houses of Parliament on 3 February 2021. It makes changes to the Native Title Act 1993 (Cth) (NTA), the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act) and will lead to changes to various regulations, including the Native Title (Federal Court) Regulations 1998 (Cth) and the Native Title (Prescribed Body Corporate) Regulations 1999 (Cth). The changes are largely technical.
Applicant provisions
The NTLAA amends the NTA to allow a native title claim or compensation group to impose conditions on the authority of its authorised applicant and require public notification of any such conditions. If there are no conditions, the applicant may act by majority. The Act also provides for the composition of the applicant to be changed without further authorisation in some circumstances, and for succession-planning arrangements for individual members. Finally, it clarifies that the applicant owes fiduciary duties to the claim group.
Extinguishment
The Act amends the NTA to allow historical extinguishment to be disregarded over national, state and territory parks with the agreement of the relevant government.
Indigenous Land Use Agreements (ILUAs) and s 31 Agreements
The NTLAA makes a number of amendments to provisions relating to ILUAs. Body corporate ILUAs may cover areas where native title has been extinguished, and minor amendments can be made without the need for a new registration process. It specifies that deregistering an ILUA does not invalidate future acts done pursuant to that ILUA.
The Act also retrospectively validates s 31 agreements that may not have been entered into by all registered native title claimants and requires the registrar to create and maintain a public record of s 31 agreements.
Changes to the CATSI Act
Prescribed body corporate (PBC) rule books must now contain rules about dispute resolution pathways for persons who are (or claim to be) common law holders, and provide for all common law holders to be directly or indirectly represented in the PBC. Membership applicants can no longer be refused if applicants meet the membership criteria. The reforms also grant a new head of power to the Officer of the Registrar of Indigenous Corporations (ORIC) to place a PBC under special administration for serious or repeated failure to comply with native title obligations.
Powers of the Registrar
The National Native Title Tribunal is empowered to mediate disputes between PBCs and/or their members and persons who are or claim to be common law holders upon request.
Response
Many Indigenous groups sought broader and more substantial reforms, including amendments to the right to negotiate. Concerns were also raised about the retrospective application of the provisions validating certain s 31 agreements, and the fact that ILUAs authorised through fraud, undue influence or duress would remain valid and still affect native title. The Greens sought to have the disregarding of extinguishment over national parks apply by default (without the need for government consent). However, this was not successful.