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Chapter 2 - Overview of the Bill
2.1
This chapter discusses each of the four schedules of the Bill as follows:
-
Schedule 1: minor and technical amendments;
-
Schedule 2: Native Title Representative Bodies (NTRBs);
-
Schedule 3: Prescribed Bodies Corporate (PBCs); and
-
Schedule 4: technical amendments relating to legislative
instruments.
Schedule 1: minor and technical amendments
2.2
Schedule 1 of the Bill would make a large number of minor and technical
amendments to the Native Title Act. According to the Explanatory Memorandum,
'most of the amendments would clarify or improve existing provisions of the
Native Title Act, although some would provide for new processes.'[1]
2.3
Aspects of these technical amendments have been subject to a public
consultation process. The Attorney-General's Department released an initial
discussion paper on the technical amendments for public comment in November
2005, followed by a second discussion paper in November 2006.[2]
2.4
These amendments are discussed below in the following broad categories:
-
future act and Indigenous Land Use Agreement (ILUA) processes;
-
processes for making and resolving native title claims;
-
obligations of the Registrar in relation to the registration of
claims; and
-
other amendments.
Future act and ILUA processes
2.5
Schedule 1 includes amendments to:
-
improve the process for notifying ILUAs (see, for example, items
7, 9-13, 18-19, 27-28);
-
ensure the National Native Title Tribunal (NNTT) provides a
report after an inquiry into an objection to registering an alternative
procedure ILUA (see especially item 95);
-
include automatic weather stations as facilities for services to
the public for the purposes of the future act regime (see especially item 34);
-
enable the combination of two or more existing leases, licences,
permits or authorities to be a 'permissible renewal' for the purposes of the
future acts regime (see especially item 33); and
-
enable assistance to be provided by the Native Title Registrar
(Registrar) to parties seeking to register an ILUA (see especially items 6, 17
and 26).
Processes for making and resolving
native title claims
2.6
Schedule 1 also includes provisions to:
-
amend application provisions to require certain types of
information to be provided (see, for example, items 71-73, 76);
-
amend notification provisions to ensure appropriate parties are
notified of new or amended claims (see, for example, items 80, 81 and 86);
-
streamline the process for replacing the native title applicant
in claims (see for example, items 79 and 82);
-
give the Federal Court greater ability to deal with questions
about the authorisation of claims which arise during proceedings and ensure
claimants identify the basis of authorisation for claims (see especially item
88);[3]
-
encourage access by parties to hearings (such as directions
hearings) through teleconferences and other facilities (see especially item
85); and
-
clarify the timeframe in which a respondent may simply withdraw
from a proceeding (see especially item 87).
Obligations of the Registrar in
relation to the registration of claims
2.7
Schedule 1 also contains amendments which would:
-
require the timely application of the registration test,
particularly where the exercise of procedural rights would flow from
registration of a claim (see especially item 101);
-
exempt amended claims from going through the registration test
where the amendments would not affect the interests of other parties, such as
where the area of the claim is being reduced or there is a change of name or
address (see especially item 102);[4]
and
-
provide for internal review of registration decisions by the
Registrar (or his or her delegate) in addition to the existing provision for
review by the Court (see especially item 107).
Other amendments
2.8
Other amendments made by this Schedule would:
-
restrict the use of information obtained by the NNTT in
exercising its assistance function (see items 5, 16, 20, 21, 25, 30, 57, 66,
68, 89 and 113);
-
clarify the scope of alternative state regimes under section 43
(see for example items 61-63)
-
make clear that a determination for an alternative state regime
must be revoked where that regime ceases to have ongoing effect, thereby
ensuring resumption of the right to negotiate provisions of the Native Title
Act (see items 64 and 65);
-
amend sections 87 and 87A in response to recommendation 9 of this
committee's report on the Native Title Amendment Bill 2006, which recommended
the government consider amending section 87A (items 90-91);
-
change notification provisions to ensure that native title
holders, who are yet to set up a PBC, are notified of future acts where the PBC
would otherwise have been notified (see for example items 35-37 and 43-54);
-
clarify that certification of a claim or ILUA by an NTRB is still
valid if that NTRB is subsequently derecognised or ceases to exist (see item
106);
-
establish a more flexible scheme for payments held under right to
negotiate processes (in particular, replacing the existing trust regime with a
bank guarantee regime - see items 55, 58-61 and 69); and
-
clarify when information is added to, amended or removed from the
registers setting out details of native title claims, determinations and ILUAs
(see, for example, items 100, 108, 109 and 112).
2.9
Finally, Schedule 1 would also make amendments to adjust or remove
misleading or ambiguous notes; provide for other notes to be included to assist
navigation of the Native Title Act; and amend drafting errors.[5]
Schedule 2: Native Title Representative Bodies
Background
2.10
Section 203B of the Native Title Act sets out the functions of NTRBs. In
summary, they include:
-
to assist and facilitate the preparation of native title
applications;
-
to provide written certification of applications for
determinations of native title, and related processes for land or waters in the
NTRB's area;
-
to promote dispute resolution between constituents about native
title applications and related processes;
-
to identify and notify, as far as possible, those who hold or may
hold native title over lands in the NTRB's area which may be the subject of
native title processes;
-
to be a party to ILUAs;
-
to undertake internal review of its decisions; and
-
other functions authorised by the Act.
Proposed amendments
2.11
Schedule 2 of the Bill will amend provisions governing NTRBs. In
particular, Schedule 2 of the Bill includes measures to:
-
repeal inoperative provisions (see especially items 1-3);
-
avoid duplication by ensuring that NTRBs are not subject to
provisions of the Commonwealth Authorities and Companies Act 1997 which
reflect obligations already imposed by their incorporation statutes (item 4);[6]
-
improve the process for reviewing decisions by NTRBs not to
provide assistance to Aboriginal or Torres Strait Islander persons (item 5 –
see further below); and
-
simplify and clarify provisions dealing with the transfer of
documents and records from a former NTRB to its replacement (item 6).[7]
2.12
One of the more substantive amendments in Schedule 2 is contained in
item 5, which amends the process for reviewing decisions by NTRBs not to assist
Aboriginal or Torres Strait Islander persons.[8]
Currently, section 203FB allows an Aboriginal or Torres Strait Islander person
affected by an NTRB's decision not to assist him or her to apply to the
Secretary of the Department of Families, Community Services and Indigenous
Affairs for a review of the decision. Under existing subsection 203FB(2), the
Secretary must appoint an external expert to conduct the review.
2.13
Proposed paragraph 203FB(2)(a) would allow the Secretary to review
assistance decisions. The Secretary will retain the ability to appoint an
external expert where more complex issues arise.[9]
The Explanatory Memorandum states that the proposed amendments will 'ensure
that the process for reviewing assistance decisions is more transparent,
efficient and timely.'[10]
Schedule 3: Prescribed Bodies Corporate
2.14
Schedule 3 of the Bill proposes amendments relating to the functioning
of Prescribed Bodies Corporate (PBCs). In particular, Schedule 3 of the Bill
includes measures designed to:
-
ensure that regulations can provide for the replacement of PBCs
at the initiation of the native title holders under all possible circumstances
(see items 1-6); and
-
partially implement two recommendations made in the Report on
Structures and Processes of Prescribed Bodies Corporate (the PBC Report).[11]
Background[12]
2.15
Under section 55 of the Native Title Act, where the Federal Court
determines that native title exists, the native title holders must establish a
body corporate to administer their native title rights and interests. The
native title holders must elect to establish one of two alternative kinds of
PBC. The alternatives are:
-
the native title is held in trust by the PBC (a trust PBC); or
-
the native title is held by the common law holders of native
title and the PBC acts as their agent (an agent PBC).
2.16
These alternatives have different legal consequences and, in particular,
affect the sort of legal relationship that the native title holders have with
the PBC. If the native title holders make no choice, the Court selects the
second alternative.
2.17
When the Court approves the PBC, the PBC is placed on the National
Native Title Register, which is maintained by the NNTT. Once registered, the
PBC is the legal entity and contact for that group of native title holders. The
PBC conducts business between the native title holders and other people with an
interest in the area such as pastoralists, governments or developers.
2.18
In October 2006 the Attorney-General and the Minister for Families,
Community Services and Indigenous Affairs released a report entitled Structures and Processes of Prescribed
Bodies Corporate (the PBC Report).[13] The PBC Report was part of the six-part plan
for native title reform announced in September 2005. The PBC Report noted that
the primary roles of PBCs are to:
-
protect and manage determined native title in accordance with the
wishes of the broader native title holding group; and
-
ensure certainty for governments and other parties with an
interest in accessing or regulating native title lands and waters by providing
a legal entity through which to conduct business with the native title holders.[14]
2.19
The PBC report made 15 recommendations, many of which can be implemented
administratively or through amendments to the Native Title (Prescribed
Bodies Corporate) Regulations 1999 (the PBC Regulations). The Native Title
Amendment Bill 2006 implemented two recommendations from the PBC Report.
Schedule 3 of this Bill would implement two further recommendations:
recommendations 11 and 15.
PBC amendments proposed by the Bill
Replacement of PBCs
2.20
The Native Title Act envisages that regulations may provide for the
replacement of PBCs at the initiation of the common law holders. For example,
existing subsection 56(4) would allow for the replacement of a trust PBC by
another trust PBC, and section 60 would allow for the replacement of an agent
PBC by another agent PBC. However, according to the Explanatory Memorandum,
existing regulation-making powers may not allow an agent PBC to be replaced by
a trust PBC, or a trust PBC to be replaced by an agent PBC. Further, they may
not allow an agent PBC to become a trust PBC (that is, to change its functions
from those of an agent PBC to those of a trust PBC), or a trust PBC to become
an agent PBC. Items 1 – 6 will remedy these deficiencies.[15]
PBC Report recommendations
2.21
Recommendation 11 of the PBC Report proposed that the Native Title Act
should be amended to authorise a PBC to charge a third party for costs and
disbursements reasonably incurred in performing its statutory functions under
the Native Title Act or PBC Regulations at the request of the third party. It
also recommended that the amendments provide for an appropriate authority to
investigate such arrangements on request, to ensure the costs were reasonably
incurred. Item 7 of Schedule 3 inserts proposed sections 60AB and 60AC which
deal with fees for services provided by PBCs, and the giving of opinions about
those fees by the Registrar of Aboriginal Corporations.[16]
2.22
Recommendation 15 of the PBC Report related to the development of a
mechanism for the determination of a 'default' PBC in appropriate
circumstances, such as where there is no functioning PBC nominated by the
native title holders. Schedule3 would permit regulations to be made under
which a particular government funded body or bodies (a default PBC) could
perform the functions of an agent PBC (but not those of a trust PBC) in
relation to determined native title rights and interests in particular
circumstances. These circumstances include:
-
where the common law holders fail to nominate a PBC in
conjunction with a native title determination (see proposed subsection 59(2));
-
where a liquidator is appointed to a PBC (see proposed
subparagraphs 56(4)(d)(ii) and 60(a)(ii)); and
-
at the initiation of common law holders (see proposed
subparagraph 56(4)(d)(i), proposed paragraph 56(7)(a) and proposed subparagraph
60(a)(i)).[17]
Schedule 4: technical amendments relating to legislative instruments
2.23
Schedule 4 will make technical amendments to the Native Title Act to
reflect changes made by the Legislative Instruments Act 2003. Currently,
the Native Title Act provides that a number of determinations, instruments and
approvals are disallowable instruments for the purposes of section 46A of the Acts
Interpretation Act 1901. However, section 46A of the Acts Interpretation
Act was repealed in 2003. Section 6 of the Legislative Instruments Act now
provides that instruments that were disallowable instruments for the purposes
of section 46A of the Acts Interpretation Act are legislative instruments.
Schedule 4 therefore amends various provisions of the Native Title Act to refer
to legislative instruments, rather than disallowable instruments.[18]
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