Native Title - stakeholders must look to next Federal Government for reforms
On 21 February 2019, the House of Representatives introduced the Native Title Legislation Amendment Bill 2019 (the Bill). The Bill amends the Native Title Act 1993 (Native Title Act) and the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act) with the aim of improving efficiency and transparency in the native title system.
Due to the limited number of sitting days for the Commonwealth Parliament over the next month, it is unlikely that the Bill will be debated or progressed prior to the calling of the Federal election. As such, it is likely that the Bill will lapse and stakeholders must look to the next Federal Government for native title reform.
In this article, we explain the key aspects of the current Bill, and identify processes which are a likely target for future reform.
The key reforms proposed by the Bill are:
The draft Bill does not include amendments which address the issue arising from the High Court’s decision in Forrest & Forrest Pty Ltd v Wilson  HCA 30 (Forrest).
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.
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.
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.
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:
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.
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.
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:
If you would like any further information on the above, please contact HopgoodGanim Lawyers’ Native Title and Cultural Heritage team.