The amendments to the Native Title Act 1993 (Cth) which were proposed by our previous Government have been reawakened, including offshore recognition, and are now being put forward once again in the form of the Native Title Amendment (Reform) Bill 2014(2014 Bill).  In summary, these changes are favourable to native title parties and would place greater obligations on project proponents, such as the obligation to negotiate in good faith. The changes would also expand the right to negotiate to offshore areas, which was not previously the case.

If implemented the 2014 Bill will see the following changes to the Native Title Act 1993 (Cth):

Right to negotiate process  

  • the right to negotiate process will apply to offshore areas;
  • a definition of ‘negotiating in good faith’ will be included as well as criteria to determine whether parties have negotiated in good faith and parties will be required to negotiate in good faith for a period of at least 6 months;
  • the party who has referred the matter to the National Native Title Tribunal will be required to prove it has negotiated in good faith;

Historical extinguishment  

  • where land is part of a National, State or Territory park, prior extinguishment will be disregarded;

Applications for a determination  

  • connection by the native title claimants to land will be presumed and respondents will have the obligation to prove otherwise (which is a reverse of the current onus of proof of connection);
  • a substantial interruption or significant change in traditional laws or customs will be disregarded if the primary reason for the change or interruption is the action of a State or Territory or a person who is not an Aboriginal person; and

Commercial rights and interests  

  • native title rights and interests can be of a commercial nature.

Leave was granted for Senator Siewart who has re-introduced the 2014 Bill to continue her remarks on the next sitting day, being Monday 17 March 2014. We will track the progress of this Bill and will provide regular updates.

History of the Bill

As you may be aware, the Native Title Amendment (Reform) Bill (No. 1) 2012 (2012 Bill) was introduced into the Senate in February 2012. This Bill then lapsed on 12 November 2013 following the election of the Coalition. 

The 2014 Bill is on identical terms to the 2012 Bill. It was introduced into the Senate and received its second reading speech on 4 March 2014.