In June this year, the Commonwealth Government flagged the possibility of the reform of the current Native Title Regime.

Exposure draft legislation has now been released, containing a number of proposed amendments to the Native Title Act 1993 (Cth) which are aimed, generally, at the creation of a more agreement-centric and less adversarial regime.

Significant Amendments

The exposure draft puts forward three significant amendments to the existing legislative regime:

1. The Right to Negotiate

Parties are currently required as a precondition to the doing of any act effecting Native Title to negotiate in ‘good faith’ about whether the act should in fact be done and, if so, whether any conditions should be attached to the carrying out of the act.

If the parties do not reach agreement after six months, any or all of them can make application to the National Native Title Tribunal for a determination.

The proposed amendments will require all parties involved to negotiate for a period of eight months prior to an application for determination being made.

These negotiations must be carried out in accordance with the “good faith negotiation requirements” set out in the proposed amendments. Parties will accordingly be required to use all reasonable efforts to reach agreement, and must as a minimum:

  • attend and participate in meetings at reasonable times;
  • disclose relevant information (other than confidential or commercially sensitive information) in a timely manner;
  • make reasonable offers and counter-offers;
  • give genuine consideration to proposals of other negotiation parties and respond to such proposals in a timely manner;
  • refrain from capricious or unfair conduct that undermines the negotiations;
  • recognise and negotiate with other negotiation parties; and
  • refrain from acting for an improper purpose in relation to the negotiations.

A party who applies for a determination under the proposed regime will also be required to prove that it has complied with the “good faith negotiation requirements” before the National Native Title Tribunal can make the determination.

2. Historical Extinguishment

The exposure draft contains provisions which will allow the Government and native title parties involved in negotiations to formally agree to disregard the extinguishment of native title over any area of land set aside for the purpose of preserving the natural environment (such as a park or nature reserve), as well as extinguishment brought about by public works on that land.

This agreement will be valid as against any third parties holding an interest in the land, even though they are not required to be a party to it. These interest holders are however required to be notified of the effect of the agreement once made.

Notwithstanding this, the exposure draft makes it clear that existing third party rights will not be altered by an agreement. An agreement will however restrict the ability of current interest holders (and future interest holders) to acquire new or additional interests in the land effected.

3. Indigenous Land Use Agreements (ILUAs)

Amending an ILUA

The exposure draft seeks to remove the need for parties to re-register an already registered ILUA where only minor changes to its terms are made by the parties.

A ‘minor amendment’ is one relating to a matter which the Registrar was not obliged to consider in deciding whether to register the ILUA in the first instance. Some examples given are:

  • Updated legal property descriptors (provided they do not change the geographic area covered by the ILUA in practice);
  • Updated legal description identifying a party;
  • Updated legal description identifying contact details; and
  • Updated administrative processes required between the parties.

Changes to application of Particular forms of ILUA

Body Corporate ILUAs

The exposure draft contains a number of provisions which seek to alter the current position in relation to Body Corporate ILUAs whereby they cannot be used where a registered native title body corporate holds native title pursuant to a determination which includes areas where native title has been extinguished.

The amendments propose to change this so that a Body Corporate ILUA can include areas under a determination where native title has been extinguished.

Area Agreement ILUAs

The stated aims of the Commonwealth Government in relation to the treatment of Area Agreement ILUAs in the exposure draft are twofold:

  • to ensure that all reasonable measures are taken to safeguard native title interests in the area the subject of the ILUA; and
  • to provide all potential native title holders with the opportunity to have their interests or objections to registration considered prior to a decision being made about registering the ILUA.

Consequently, the exposure draft focuses mainly on reforming the current ILUA authorisation and objection processes.

Authorisation Requirements

In addition to maintaining the current position in relation to the authorisation of Area Agreement ILUAs, whereby prescribed native title bodies corporate and registered native title claimants must be involved in the process (and evidence to this effect provided), the exposure draft also requires that the ILUA be additionally authorised by any native title party who can establish a prima facie case that they may hold native title over an area where there is no determination or registered native title claim.

Objection Procedures

There is currently a three-month notification period mandated by the Native Title Act, during which objections can be made by any person claiming to hold native title in relation to the agreement area, in circumstances where the representative body has certified the Area Agreement ILUA.

The exposure draft seeks to amend this by:

  • In all cases reducing the notice period from three months to one month; and
  • allowing any person who is able to make a prima facie case that they hold native title to object to the registration to object to registration in cases where the ILUA has not been certified.

4. Future Developments

The time for public comment on the exposure draft ended on 19 October 2012; however the Bill has not yet been introduced into Parliament.

Further updates on the content and passage