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We're joined by Jonathan Fulcher who's a Partner and Courtney Smith who's a solicitor, both in the Resources and Energy Team at HopgoodGanim. Jonathan and Courtney thank you so much for joining me today.
Now Courtney I want to start with you, the Commonwealth Government has released exposure draft legislation containing a number of proposed amendments to the Native Title Act, what are the main changes that have been proposed?
Yes that's right they have introduced exposure draft legislation, there's effectively three key changes that are introduced. There's amendments to the right to negotiate provisions, amendments to the Indigenous Land Use Agreement provisions and then some – somewhat amendments to the Historical Extinguishment provisions. In the right to negotiate amendments they are effectively increasing the period of time for which parties need to negotiate before they can apply to the National Native Title Tribunal. They've also introduced some requirements for parties to negotiate in good faith, so they're trying to sort of codify what that actually means. In the amendments to the Indigenous Land Use Agreement provisions, there's some minor amendments to how you would go about amending an ILUA and how you would re-register an ILUA when you do make amendments to it. Following some recent case law as well there's been some uncertainty in the industry as to who's required to authorise an Indigenous Land Use Agreement, and the amendments seek to clarify that somewhat. It does introduce a new group of people where there is no determination or registered Native Title claim which is sort of the main area where there's been that confusion, now any group of people who can establish a prima facie case that they hold Native Title over an area is required to authorise an Indigenous Land Use Agreement, or at least that's the proposal under the new legislation. With the Historical Extinguishment provisions amendments are being introduced to make provision for the government and Native Title parties to disregard extinguishment of Native Title over a park or reserve where they agree to do so. So they're sort of the three key areas where the amendments are to be made.
Well Jonathan, Courtney's just mentioned a number of changes there, what's prompted the government to propose these changes?
Essentially there's been some case law in both the right to negotiate area and also in the Indigenous Land Use Agreement area that has created, in the case of Indigenous Land Use Agreements as Courtney said some uncertainty about how to go about the process. In relation to the right to negotiate there was a case which seemed to set as far as some people were concerned the bar quite low as to what a company had to do to negotiate in good faith, in other words it was a particularly difficult requirement. And the attempt to codify those requirements has perhaps is an attempt to raise the bar a bit about what companies need to do to meet that negotiate in good faith criterion. It's largely a – they're clarificatory amendments to deal with some – some case law that's you know perhaps suggested to people that things are not quite what they thought they were.
Well Jonathan you just mentioned there removing uncertainty and raising the bar, do you think that these changes will achieve what the government intends them to?
I don't really understand why people want to try and codify good faith, there's plenty of case law on the issue, there's been a lot of commentary about it. The reality is that you still do not have to compromise your commercial position in order to negotiate in good faith. And that unfortunately is the misnomer that surrounds the whole question of good faith. There's a view that if you don't make a decent offer from the view of the other party you somehow not meeting your good faith requirement, that's not the case. And it still isn't the case with the proposed amendments, because there's no way the government could intervene to say that good faith requires you to make an offer that you can't afford. So for example where one of the amendments suggests that you have to refrain from capricious or unfair conduct that undermines negotiation, of course any conduct that prevents at least a good attempt of a successful outcome is, you know, is going to go to the question of good faith. Giving genuine consideration to proposals of other negotiation parties and responding to such proposals in a timely manner is one of the other things that they're attempting to beef up a little. Well that's what good faith is, if you get an offer or a proposal from someone you give it good consideration and you respond to it in a meaningful way.
You ultimately don't have to agree with that if you chose not to.
Well no, if it compromises you commercially and you hold that genuinely and you can, you know you can adequately justify that to a court, there isn't any amount of good faith provisions that are going to mean that the court will find that you've negotiated in bad faith. Now one of the things that the amendments do is that they change the burden of proof in relation to good faith such that the developer now has to prove they have negotiated in good faith rather than at the present time the Native Title party has to satisfy the onus that the developer hasn't negotiated in good faith. So there's going to be a switching of the burden there. So there's an attempt to sort of make it harder for the developer to get over the good faith hurdle.
Well what practical changes then will parties to native title negotiations need to make if these amendments are passed?
Well I think that there'll need to be a very careful and clear documentation of your right to negotiate process, so that you've got you know an adequate evidentiary base to satisfy the onus that you've negotiated in good faith. Now anyone who's done this for any period of time will already be doing that so it's not going to change. For instance it's not going to change our practice in relation to good faith, because we're already doing that level of documentation of what we've done to respond and how, you know how long it's taken us and those kinds of things. The practical changes in relation to Indigenous Land Use agreements might well require some greater attention to the way authorisation of the agreements is done, and I could imagine that people will be even more concerned to identify in the case where there's no legislative claim who has a prima facie interest in the area, that process of identification of the right parties is going to be therefore – is going to therefore require a lot more concentration.
And Jonathan do you think these changes will have a positive effect on Native Title negotiations overall?
It depends on whose point of view you're looking at. I think it will – it will create some clarity for those who are engaged in Indigenous Land Use Agreement negotiations, so it will have a positive effect there, because the case law that's you know been handed down in the last six to 12 months in relation to authorisation has been a little bit confusing. I think though that the – the amendments to the good faith provisions I think will create a whole new sag of case law about what it means to negotiate in good faith when we've got plenty of guidance already, and so I think the attempt to beef up good faith is a retrograde step in my view, I just don't think that will have a positive effect on – on the process. I don't see any difficulty with the extension from six to eight months of a negotiation period because by enlarge most right to negotiate procedures go at least that long anyway, before people go to arbitration.
Well Courtney, just I guess as a final question, has the government indicated when we're likely to see a draft Bill?
They haven't made any firm indication but we expect that it will probably go before parliament next year when they reconvene for the new year, it's not looking like it's going to be introduced before the end of this year's out.
Okay well it will be something that everyone will be keeping an eye on. Jonathan and Courtney thank you so much for joining me today.
Thanks very much Kate.