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Native Title and Cultural Heritage Alert: Amendments to the Native Title Act 1993 proposed - 8 Nov 2012

The Commonwealth Government has released exposure draft legislation containing a number of proposed amendments to the Native Title Act 1993. These changes are designed to shift the focus of native title negotiations toward agreement-making and sustainable outcomes.

Partner Jonathan Fulcher and solicitor Courtney Smith outline the proposed amendments and explain how the amendments, if passed, are likely to affect native title negotiations moving forward.

Key changes

The exposure draft proposes three key changes to the Native Title Act:

  1. Amendments to the Right to Negotiate statutory provisions
  2. Amendments to the statutory provisions governing Indigenous Land Use Agreements (ILUAs)
  3. Amendments to the historical extinguishment provisions

Right to Negotiate provisions

Negotiations

The current Right to Negotiate process requires parties to negotiate in ‘good faith’ for a minimum period of six months before a future act determination application can be made with the National Native Title Tribunal. An extensive body of case law has assisted negotiation parties to understand what it means to negotiate in good faith.

Under the proposed amendments, parties will be required to negotiate in accordance with the ‘good faith negotiation requirements’ for a period of at least eight months before a future act determination application may be made.

The good faith negotiation requirements require the parties to use all reasonable efforts to reach agreement. To do so under the proposed amendments, a party will be obliged to:

  1. attend and participate in meetings at reasonable times; 
  2. disclose relevant information in a timely manner;
  3. make reasonable offers and counter-offers;
  4. give genuine consideration to proposals of other negotiation parties and respond to such proposals in a timely manner; 
  5. refrain from capricious or unfair conduct that undermines negotiation;
  6. recognise and negotiate with other negotiation parties; and 
  7. refrain from acting for an improper purpose in relation to the negotiations.

The parties are also required to establish productive, responsive and communicative relationships with each other.

Burden of proof

Under the current Native Title Act, where a future act determination application is made, the issue of whether the parties have negotiated in good faith only arises where one party to the application alleges that another party has not negotiated in good faith. The onus to prove lack of good faith lies with the party making the allegation. Typically, this is the native title party.

The proposed amendments shift this burden of proof. Under the proposed new process, a party who applies to the National Native Title Tribunal for a future act determination must show that it has negotiated in ‘good faith’ before the National Native Title Tribunal can make the determination. Typically, it is the State or a proponent who makes a future act determination application, thereby shifting the burden of proof from the native title party to the State or proponent.

Indigenous Land Use Agreements

Amending an ILUA

Currently, where any amendments are made to a registered ILUA, the ILUA must be re-registered to remain binding under the Native Title Act on all persons holding native title.

The exposure draft seeks to relieve the parties to an ILUA from the need to re-register where minor amendments are made to the agreement. 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.

Body Corporate ILUAs

Under the current legislation, a Body Corporate ILUA 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 (unless the agreement area is defined to include only those areas where native title has been determined to exist). The amendments propose to change this so that a Body Corporate ILUA can include areas under a determination where native title has been extinguished.

Authorisation of Area Agreement ILUAs

The proposed amendments seek to clarify who needs to be involved in the authorisation process for an Area Agreement ILUA if that process is to be carried out correctly. The exposure draft confirms that prescribed native title bodies corporate and registered native title claimants must be involved in authorisation. A new group of people is also included, namely 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.

Registration of Area Agreement ILUAs

Under the current provisions of the Native Title Act, there is a mandatory three-month notification period, 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.

There is currently no formal avenue to object to the registration of an Area Agreement ILUA in the absence of certification by the representative body. However, during the three-month notification period, a party can make a native title determination application in response, or alternatively, elect to provide information to the Registrar (which currently operates as an informal objection process).

The proposed amendments reduce the mandatory notification period to one month. Further, they propose a modification to the rights of native title parties to object to registration of an Area Agreement ILUA that has not been certified, allowing any person who claims to hold native title in relation to the agreement area (that is, any person who is able to make a prima facie case that they hold native title) to object to the registration.

Historical extinguishment

The proposed amendments make provision for the government and native title parties to disregard by agreement the extinguishment of native title over any park or reserve, defined as any area set aside for the purpose of preserving the natural environment. Such an agreement can also disregard the extinguishing effect of public works which may have occurred within the park or reserve.

An agreement to disregard extinguishment does not require the consent or agreement of interest holders other than the government and the native title parties. Other interest holders are afforded only a right to be notified of the agreement before the agreement is made.

While an agreement will not affect existing interests, it will impact on the rights of current interest holders to obtain further interests in the park or reserve. For example, a resources company holding exploration tenure would be caught by the future act provisions of the Native Title Act on seeking the grant of a production interest.

Where to from here?

Public comment on the exposure draft closed on 19 October 2012.

The Bill has not yet been introduced into Parliament. We expect to see it introduced in November or early in 2013.

We will continue to monitor the progress of the proposed amendments and will provide further updates as required.

For more information about the Native Title Act or these amendments, please contact HopgoodGanim’s Native Title and Cultural Heritage team.