The Bill amends the Native Title Act 1993 (Cth) in relation to: the right to negotiate to apply to offshore areas; good faith negotiations; enabling extinguishment to be disregarded; reversal of the burden of proof; the definition of ‘traditional', and commercial rights and interests.
The Bill adopts Chief Justice French’s suggestion of a presumption of continuity which can be overturned by evidence of significant interruption (Lifting the burden of native title – some modest proposals for improvement, Federal Court, Native Title User Group, Adelaide, 9 July 2008). The burden of proof is shifted from the claimants to the respondents to prove disruption.
The Bill also strengthens the presumption by redefining ‘traditional’ to ensure that laws and customs can be considered traditional if they remain identifiable through time, rather than the current legal position that to be considered traditional, laws and customs must remain largely unchanged.
The Bill also provides for prior extinguishment to be disregarded by agreement. Also for the clarification on the meaning of ‘negotiating in good faith’, and provides that the party asserting good faith has the onus of proving they negotiated in good faith.
This Bill did not proceed.
For further information please see the Explanatory Memorandum and the Second Reading Speech.
Relevant provisions:
s 31(1A) Right to negotiate provisions
(1A) For the purposes of paragraph (1)(b), negotiate in good faith using all reasonable efforts includes but is not limited to the following:
(a) attending, and actively participating in, meetings at reasonable times including, where reasonably practicable, at a location where most of the members of the native title parties reside, if so requested by them;
(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;
(c) making reasonable offers and counter-offers;
(d) demonstrably giving genuine consideration to proposals made by other negotiation parties;
(e) responding to proposals made by other negotiation parties in a reasonable, timely and detailed manner, including providing reasons for the relevant response;
(f) refraining from capricious or unfair conduct that undermines the beneficial nature of the right to negotiate.
(1B) It is not necessary that a negotiation party engage in misleading, deceptive or unsatisfactory conduct in order to be found to have failed to negotiate in good faith.
(1C) In determining whether or not a negotiation party has negotiated in good faith using all reasonable efforts, the arbitral body must have regard to the financial resources of the negotiation party and, if the negotiation party is a native title party, any demands imposed on the native title party in relation to cultural and religious practices.
s 31(2A)
(2A) In any proceeding in which the application of paragraph (1)(b) is raised, the party asserting that it has negotiated in good faith using all reasonable efforts has the onus of proving that it has done so.
s 47C National, State or Territory park areas covered by claimant application
When section applies
(1) This section applies if:
(a) an application under section 61 is made in relation to an area; and
(b) when the application is made, the area is, or is part of, an area (such as a national, State or Territory park):
(i) that is set aside; or
(ii) in which an interest is granted or vested;
by or under a law of the Commonwealth, a State or a Territory for the purpose of preserving the natural environment of the area, whether that setting aside, granting or vesting resulted from a dedication, reservation, proclamation, condition, vesting in trustees or otherwise; and
(c) when the application is made, one or more members of the native title claim group occupy the area.
Prior extinguishment to be disregarded
(2) For all purposes under this Act in relation to the application, any extinguishment of the native title rights and interests in relation to the area by any of the following acts must be disregarded:
(a) the setting aside, granting or vesting mentioned in paragraph (1)(b);
(b) the creation of any other prior interest in relation to the area.
Effect of determination
(3) If the determination on the application is that the native title claim group holds the native title rights and interests claimed:
(a) the determination does not affect:
(i) the validity of the creation of any prior interest in relation to the area; or
(ii) any interest of the Crown in any capacity, or of any statutory authority, in any public works on the land or waters concerned; and
(b) the non-extinguishment principle applies to the creation of any prior interest in relation to the area.
s 47D Agreements to disregard prior extinguishment
When section applies
(1) This section applies if:
(a) an application under section 61 is made in relation to an area; and
(b) before a determination on the application is made, there is an agreement in writing between the applicant and the Government party that the extinguishment of native title rights or interests by a prior act affecting native title in relation to the area, or any part of the area, covered by the application be disregarded.
Prior extinguishment to be disregarded
(2) For all purposes under this Act in relation to the application, any extinguishment of the native title rights and interests by any of the following acts must be disregarded:
(a) the prior act itself;
(b) the creation of any other interest in relation to the area as a result of the prior act;
(c) the doing of any act by virtue of holding the interest.
Effect of determination
(3) If the determination on the application is that the native title claim group holds the native title rights and interests claimed:
(a) the determination does not affect:
(i) the validity of the creation of any prior interest in relation to the area; or
(ii) any interest of the Crown in any capacity, or of any statutory authority, in any public works on the land or waters concerned; and
(b) the non-extinguishment principle applies to the creation of any prior interest in relation to the area.
s 61AA Presumptions relating to applications
(1) This section applies to an application for a native title determination brought under section 61 if all of the following circumstances exist:
(a) the native title claim group defined in the application applies for a determination of native title rights and interests where the rights and interests are found to be possessed under laws acknowledged and customs observed by the native title claim group;
(b) the members of the native title claim group reasonably believe the laws so acknowledged and the customs so observed to be traditional;
(c) the members of the native title claim group, by the laws acknowledged and the customs observed, have a connection with the land or waters the subject of the application;
(d) the members of the native title claim group reasonably believe that persons, from whom one or more of them is descended, acknowledged traditional laws and observed traditional customs at sovereignty by which those persons had a connection with the land or waters the subject of the application.
(2) If this section applies to an application, it must be presumed, in the absence of proof to the contrary:
(a) that the laws acknowledged and customs observed by the native title claim group are traditional laws acknowledged and traditional customs observed at sovereignty; and
(b) that the native title claim group has a connection with the land or waters by those traditional laws and traditional customs; and
(c) if the native title rights and interests asserted are capable of recognition by the common law—that the facts necessary for the recognition of those rights and interests by the common law are established.
s 61AB Continuing connection
A court may determine that subsection 223(1) has been satisfied, despite finding that there has been:
(a) a substantial interruption in the acknowledgement of traditional laws or the observance of traditional customs; or
(b) a significant change to traditional laws acknowledged or traditional customs observed;
if the primary reason for the substantial interruption or the significant change is the action of a State or a Territory or a person or other party who is not an Aboriginal person or a Torres Strait Islander.
s 223 Traditional laws and customs
Traditional laws and customs
(1A) Without limiting subsection (1), traditional laws acknowledged in that subsection includes such laws as remain identifiable through time, regardless of whether there is a change in those laws or in the manner in which they are acknowledged.
(1B) Without limiting subsection (1), traditional customs observed in that subsection includes such customs as remain identifiable through time, regardless of whether there is a change in those customs or in the manner in which they are observed.
Connection
(1C) To avoid doubt, and without limiting subsection (1), it is not necessary for a connection with the land or waters referred to in paragraph (1)(b) to be a physical connection.
(1D) Nothing in subsection (1) requires:
(a) traditional laws to be acknowledged continuously; or
(b) traditional customs to be observed continuously; or
(c) a connection with the land or waters to be maintained continuously.