In September 2012 the Commonwealth Government released an exposure draft of the Native Title Amendment Bill 2012 (Bill) for comment and in November 2012 the Bill was introduced into the House of Representatives. It was then referred by the House of Representatives to the Standing Committee on Aboriginal and Torres Strait Islander Affairs and by the Senate to the Senate Standing Committee on Legal and Constitutional Affairs. Each of these Committees tabled their reports in March 2013.

Summary of proposed changes

The key changes proposed in the Bill are:

Good faith process

  • the inclusion of specific indicia of “good faith” which will  be used in order to determine whether parties have negotiated in good faith
  • requiring the party who has referred the matter to the Tribunal for determination  to show that it has negotiated in good faith, which effectively reverses the onus of proof as that party will almost always be the project proponent or the government party
  • extension of the 6 month minimum negotiation period to 8 months

ILUA process

  • allowing amendments to ILUA’s once registered
  • shortening the period for objections to registration of ILUA’s

Disregarding of historical extinguishment

  • introduction of provisions to allow the relevant State or Federal Government agree with a native title party that historical extinguishment of native title over parks and nature reserves can be disregarded.

Current Status of the Bill

The House of Representatives Standing Committee recommended that the Bill be passed without amendment, whilst the Senate Committee recommended a number of changes. In response to each of these reports the Coalition has indicated that it does not support the recommendations that the Bill be passed.

In these circumstances we would consider it unlikely that the current Government will press for passage of the Bill when Parliament resumes in May 2013.