On 17 October 2019, the Hon Christian Porter MP introduced the Native Title Legislation Amendment Bill 2019 (the Bill) to the House of Representatives. The Bill proposes to amend the Native Title Act 1993 (NT Act) and Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act).
A similar bill was introduced before the House of Representatives on 21 February 2019 (February Bill). As foreshadowed in our previous article, the February Bill lapsed due to the Federal election.
The Bill has been referred to the Senate Legal and Constitutional Affairs Legislation Committee, which is required to submit a report with recommendations to Parliament by 28 February 2020 (Committee Report).
Summary of reforms
In broad terms, the key reforms proposed by the Bill are:
- validation of existing section 31 Agreements to resolve uncertainty surrounding their status following the decision in McGlade v Native Title Registrar & Ors  FCAFC 10 (with important exceptions set out in our earlier article);
- details of section 31 Agreements will be maintained on a register maintained by the Native Title Tribunal Registrar;
- removal of native title parties’ effective right of veto in respect of infrastructure procedure objections by providing that objections must be heard within eight months (including objections lodged and not withdrawn or heard prior to when the reform becomes law);
- registered native title applicants will be able to make decisions by majority by default, subject to native title groups placing conditions on the applicants’ authority;
- empowering native title groups to make changes to the composition of the registered native title applicant, including where an individual is unable to act due to death or incapacity;
- any conditions on decision making power of the applicants will be recorded on the National Native Title Tribunal Register;
- previous extinguishment of native title over national and state parks may be disregarded where parties agree;
- allowing minor amendments to be made to registered indigenous land use agreements without re-authorisation; and
- new powers, and additional regulations, for registered native title bodies corporate and prescribed bodies corporate.
Importantly, the Bill does not include amendments which address the potential invalidity of certain mining leases in Western Australia arising from the High Court’s decision in Forrest & Forrest Pty Ltd v Wilson  HCA 30 (Forrest & Forrest).
The Bill is substantially the same as the February Bill, subject to minor amendments which are set out below.
Amendments do not address WA Forrest & Forrest issue
As those in the mining industry are aware, in Forrest, a majority of the High Court held that mining lease applications which were not accompanied by a mineralisation report are invalid. The Western Australian government swiftly responded by introducing the Mining Amendment (Procedures and Validation) Bill 2018 (Mining Bill) into the WA Legislative Assembly on 28 November 2018. The Mining Bill confirms the validity of granted mining tenements, thus restoring the status quo. You can read more on Forrest in our previous article on the decision.
In our opinion, future acts (namely, the grant of mining leases) that have been validated under the Mining Bill are invalid from a native title perspective, even if those mining applications went through the future act process. A future act (namely, the grant of a mining lease) must be valid, apart from its effect on native title. In our opinion, any invalidity from a native title perspective can only be fixed by Commonwealth legislative action.
Retrospective validation of section 31 agreements
Section 31 agreements primarily relate to the grant of mining and exploration rights over land which may be subject to native title and the compulsory acquisition of native title rights.
Following the decision of the Full Federal Court in McGlade, there is uncertainty surrounding the validity of section 31 agreements. In short, in McGlade the Court held that ILUAs were invalid where not all members of the registered native title applicant had signed the agreement. You can read more in our previous articles available here and here.
The necessary implication of McGlade was that section 31 agreements (which had not been signed by all of the registered applicants) were also vulnerable to invalidity on the same grounds.
The Bill proposes to retrospectively confirm the validity of section 31 agreements where, among other things, only one of the persons who comprised the registered native title claimant was a party to the agreement. The explanatory memorandum for the Bill acknowledges that this amendment will disempower individuals or minority applicants who seek to challenge the validity of the agreement on legitimate grounds. However, the reform is stated to be necessary, proportionate and in the service of providing certainty to all stakeholders in the native title system. It is also proposed that the Government party to a future act negotiation may limit its involvement in negotiations if the other parties give their consent. However, the Government party must still be a party to the ultimate agreement.
The Bill also provides that the National Native Title Tribunal Registrar must maintain a register of all section 31 agreements it receives, together with a record of whether or not the parties have entered into any other written agreement in connection to the future act (e.g. an ancillary agreement containing the commercial terms of the agreement between the parties). Third parties will be able to access this information on request. However, parties to the agreement may notify the Registrar if it does not wish this information to be disclosed. The Registrar must then not disclose that information.
Objections to the infrastructure procedure (section 24MD(6B)) must be heard after eight (8) month deadline
There is currently no statutory limit on the amount of time that a native title party may sustain an objection against the proposed grant of mining tenure for the sole purpose of infrastructure associated with mining, pursuant to section 24MB(6B) of the Native Title Act. As a result, objections may continue for an indefinite period with no right for the grantee or Government party to bring the objection to an end by way of a determination.
The Bill provides that, where an objection has been made and not withdrawn eight months after the notification of the grant, the Government party must ensure that the objection is heard.
Majority decision-making by default for registered native title applicants
The registered native title applicant is a person (or group of persons) who is authorised by the native title claim group to bring an application for a native title determination and to deal with all matters on behalf of the claim (including negotiating future act agreements).
In practice, native title claim groups have placed limits on the authority of the applicant by passing a resolution at an authorisation meeting. This limit on the applicant’s authority is not a matter of public record and causes uncertainty of authority. The proposed reforms provide that new native title applications must include the details of conditions on the applicant, which will be entered into the Register of Native Title Claims.
The Bill is targeted at increasing the efficiency and transparency of native title applicant decision-making for third parties seeking to do business with native title claim groups, and also to increase accountability of the applicants to the wider claim group.
To this end, the Bill clarifies that obligations of the registered applicants under the Native Title Act do not detract from common law or equitable duties owed to the native title holders. This is a response to the finding of the Federal Court in Gebadi v Woosup  FCA 1467 that applicants have fiduciary duties to the wider claim group.
The Bill proposes that:
- the applicants may act by majority as the default (rather than unanimously) unless conditions have been placed on the authority of the applicant by the claim group;
- claim groups may place conditions on the applicant’s authority;
- native title claim groups will have a period of six months to “opt-out” of the default rule;
- the composition of the applicant may be more readily changed without further authorisation processes in certain circumstances (e.g. due to death or incapacity); and
- empowering claim groups to put in place, succession planning for the group in the future which will not require repeated authorisations.
Historical extinguishment to be disregarded over state, territory and national parks
Native title is often extinguished over areas of state, territory and national parks even where traditional owners maintain strong connections to traditional lands and waters.
The Bill proposes to extend the circumstances in which the past extinguishment of native title may be disregarded and subsequently recognised where the park is Crown land or covered by a freehold estate held by the Crown.
The amendment increases the circumstances in which native title can be recognised and foreshadows that new claimant applications, and revised native title determinations, may be made over park areas. However, the new provision only applies where the native title party and the State party responsible for the park agree in writing. Agreements of this type may also provide that the extinguishing effect of any public work in the relevant area may also be disregarded.
Agreements of this type will be notified in the local newspaper, and stakeholders who have an interest in the relevant area will have three months to comment on the proposed agreement.
Where this occurs, it is likely the government party will need to negotiate co-management arrangements for parks and reserves with native title groups. Where a new claim is lodged or determination amended, it is likely that existing land access agreements over these areas may need to be renegotiated following a determination that native title exists.
Changes to the National Native Title Tribunal Register
The Bill promotes more efficient administration of the Register by providing that certain minor amendments (e.g. party details, property descriptions) may be made to registered ILUAs without re-authorisation.
The Bill clarifies that the removal of an ILUA from the Register does not invalidate future acts subject to that ILUA. During consultation, several stakeholders expressed concern that this amendment would have the effect of validating future acts where it is alleged (or demonstrated) that the ILUA would not have been entered into but for fraud, undue influence, or duress. It remains to be seen whether this provision will be included in future iterations of the Bill.
Amendments targeted at registered native title bodies corporate
The Native Title Act requires common law holders to establish a corporation when a determination recognising native title is made. Known as registered native title bodies corporate (RNTBCs), these entities hold the native title rights and interests on behalf of the group.
The effective, efficient and enduring management of native title rights and interests rely on the sustainable operation of RNTBCs.
The Bill proposes the following reforms which are targeted at improving accountability, transparency and governance of RNTBCs and at conferring new powers in respect of ILUAs and compensation applications:
- increased regulation of the interaction between RNTBCs and their members;
- clarification that a RNTBC may be put under special administration where it has failed to comply with certain obligations; and
- providing that body corporate ILUAs may cover areas where native title has been extinguished.
Amendments to the CATSI Act in the February Bill not included in the new Bill
The only substantial difference between the February Bill and the new Bill is in relation to amendments to the Corporations (Aboriginal and Torres Strait Islander) Amendment (Strengthening Governance and Transparency) Act 2019 (CATSI Amendment Act) which were proposed in the February Bill but have not been included in the latest Bill.
The omitted amendments concerned the CATSI Amendment Act and the application of replaceable rules for registered native title body corporates.
The Explanatory Memorandum and Second Reading Speech for the Bill do not provide any reasoning for the omission.
The Bill has been referred to the Senate Legal and Constitutional Affairs Legislation Committee. The Committee Report will be submitted to Parliament by 28 February 2020.
We will continue to monitor the progress of the Bill and will provide a further update once the Committee Report is released in early 2020.