Bills Digest No. 135, 2012–13

13 June 2013

Native Title Amendment Bill 2012

Diane Spooner, Kirsty Magarey and Tyler Fox
Law and Bills Digest Section

Date introduced: 28 November 2012

House: House of Representatives

Portfolio: Attorney-General

Commencement: On Royal Assent

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill's home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation. When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

Purpose of the Bill

The purpose of the Native Title Amendment Bill 2012 (the Bill) is to amend the Native Title Act 1993 (the Act or the NTA)[1] to:

·         counteract historical extinguishment of native title in parks and reserves if there is an agreement to this effect by the relevant Commonwealth, state or territory government and the native title party

·         insert a new provision which clarifies the requirements for ‘good faith’ negotiations and

·         make amendments in relation to Indigenous land use agreements (ILUAs).

Structure of the Bill

The Bill has four Schedules:

·         Schedule 1 deals with reversing the current legal effect of declaring an area a national, state or territory park and would, on agreement between the parties, allow native title to continue to subsist

·         Schedule 2 deals with the meaning of ‘good faith’ and the conduct and effort expected of parties in seeking to reach a negotiated agreement. It will extend time from six to eight months before a party can seek arbitration, and require a party to establish that they have acted in good faith where it has been alleged that they have not

·         Schedule 3 deals with registration and authorisation processes in relation to ILUAs including simplifying the process to make minor amendments without having to go back to the National Native Title Tribunal each time and

·         Schedule 4 deals with ‘minor technical amendments’ and will not be discussed in the Digest.

Background

The second reading speech by the Attorney General proclaims that the Bill is designed to make ‘the native title system fairer and more flexible’.[2] The Bill’s introduction was forecast in June 2012, while an Exposure Draft of the legislation was released on 21 September 2012 for a four-week consultation period.[3] The Bill was then introduced on 28 November 2012. More details regarding the consultation process are contained in the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs report on this Bill, as there were questions raised regarding its adequacy, although there was a detailed response provided.[4] The Majority report of the House of Representatives Committee which inquired into the Bill commented that there had been ‘extensive consultations with key stakeholders [since 2010]’.[5] Nevertheless questions regarding the adequacy of the consultation were one of the major concerns expressed in the minority Opposition report in the subsequent Senate inquiry.[6]

The two Parliamentary inquiries into this Bill show that, while some state governments, the Coalition and interests such as the Minerals Council and the National Farmers’ Federation do not support the Bill the majority of native title representative bodies do, as well as a number of interested non-government organisations. Further details are provided in the ‘Key issues and provisions’ section of this Digest and in the two reports from the Parliamentary inquiries.

Committee consideration

House of Representatives and Senate Committees

On 29 November 2012, the Bill was referred concurrently to the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs and the Senate Legal and Constitutional Affairs Legislation Committee, both of which reported in March 2013.[7]

The submissions to the two inquiries are sometimes duplicated, but in some cases include additional information, as appropriate to the Committees’ terms of reference. There is some cross referencing and overlap, however the House of Representatives Committee explained the differences:

1.25 The mandate of the Senate Legal and Constitutional Affairs Committee is to inquire into legal and constitutional matters, and the Senate Committee has conducted a more legal and technical inquiry into the drafting of the Bill.

1.26 The House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs’ mandate is to consider and provide an oversight function for the rights, protections, wellbeing and sustainable economic outcomes for Aboriginal and Torres Strait Islander people. Since the Selection Committee has determined to refer the Bill to the Committee, it is this mandate and perspective which the Committee brought to the inquiry into the Bill.[8]

Both majority reports recommended the Bill’s passage, with the House of Representatives recommending a more comprehensive inquiry into the native title system in the new Parliament[9], and the Senate Committee recommending various amendments to the Bill. Both minority reports by Coalition members rejected the Bills. More detailed consideration of the reports and the suggested amendments are included in the ‘Key issues and provisions’ section of this Digest.

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills’ Alert Digest No. 1 2013 raised an issue regarding the retrospective application of an item in Schedule 2 of the Bill.[10] In its Fourth Report of 2013 the Committee provided details of a letter it had received from the Attorney-General explaining the arrangements and recommended that the import of this letter be inserted appropriately into the Explanatory Memorandum.[11]

Parliamentary Joint Committee on Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible –citing in particular its observance of the human right to enjoy and benefit from culture (Article 27 of the International Covenant on Civil and Political Rights (ICCPR) and Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)), and the right to self-determination (Article 1 of both the ICCPR and the ICESCSR).[12]

The Parliamentary Joint Committee on Human Rights’ comments on the Schedules of the Bills were detailed, and it considered that the Bill ‘broadly promotes the right to enjoy and benefit from culture and the right to self-determination’.[13]

The Committee endorsed the arrangements in Schedules 1 and 2 but with respect to the arrangements in Schedule 3 it resolved to seek clarification regarding:

… why it is necessary to restrict the objection processes to an ILUA and how this is consistent with the right of all members of a community, including individual members, to enjoy their culture.[14]

Apart from the provisions of the Bill the Committee identified a strong thread in the submissions asking why the Bill did not include provisions to shift the burden of proof in cases establishing native title. This was a recommendation in the 2009 Native Title Report which suggested:

That the Native Title Act 1993 be amended to provide for a shift in the burden of proof to the respondent once the native title applicant has met the relevant threshold requirements in the registration test.

That the Native Title Act 1993 provide for presumptions in favour of native title claimants, including a presumption of continuity in the acknowledgment and observance of traditional law and custom and of the relevant society.[15]

On this matter the Committee said it:

… intends to write to the Attorney-General to seek clarification regarding the omission from the bill of provisions addressing the burden of proof in relation to native title applications and claims and whether the current burden of proof provisions in the Native Title Act 1993 are compatible with the right to self-determination.[16]

The Australian Greens in their additional comments in the Senate Committee report on the Bill recommend that the Bill incorporate provisions reversing the burden of proof as provided for in the Private Senator’s Bill, Native Title Amendment (Reform) Bill (No. 1) 2012.[17]

Policy position of non-government parties/independents and major interest groups

The varied and different perspectives on issues raised by the Bill are discussed under the individual Schedules in the ‘Key issues and provisions’ section of this Digest. The submissions to the committees of inquiry reflected traditional divides on these questions, with the National Farmers Federation and the Minerals Council, for instance, raising concerns, whereas non-government organisations, and native title organisations, generally welcomed the proposed changes or felt they did not go far enough.

The two inquiries resulted in reports which included majority endorsements of the Bill and minority reports from opposition members suggesting that the Bill should not be passed or should be severely amended. In the Senate inquiry there were additional comments by the Australian Greens, welcoming the Bill’s amendments but suggesting the Bill should incorporate elements of their Bill currently before the Senate regarding the burden of proof (which would require a government to disprove a claim, rather than demanding of applicant groups that they satisfy overly demanding evidence requirements to prove a claim).

Financial implications

The Explanatory Memorandum states that ‘[t]here is no direct financial impact on government revenue from this Bill’.[18]

Key issues and provisions

Schedule 1—Amendments

The central amendment proposed by Schedule 1 of the Bill is the insertion of a new section 47C into the Native Title Act (NTA). A number of prerequisites must be satisfied before new section 47C will apply. One of these prerequisites is that a claimant application or a revised native title determination application is made in relation to the relevant land (proposed paragraph 47C(1)(a)).

The NTA allows an application to be made to the Federal Court of Australia seeking a determination that native title does, or does not, exist in relation to an area of land or water (a native title determination application).[19] Such applications may be made by a person or group of people claiming to have native title to an area (claimant applications[20]) or by a person who does not claim to have native title to an area, but does have a non-native title interest (non-claimant applications[21]). Another type of application that may be made is a revised native title determination application. This is an application for revocation or variation of an approved determination of native title.[22] A determination may be revoked or varied if events have taken place since the determination was made that have caused the determination no longer to be correct; or if the interests of justice require the revocation or variation.[23]

As mentioned above, new section 47C will only apply if a claimant application or a revised native title determination application is made. In such circumstances, and providing that sections 47, 47A and 47B of the NTA do not apply[24], an agreement may be reached under section 47C between the relevant native title representatives and the relevant Commonwealth, state or territory government, to disregard any extinguishment of native title in parks and reserves. This allows native title to be recognised in such areas, where there is agreement between the relevant parties, provided that the elements of a native title claim can be established.

As the Explanatory Memorandum explains, the Bill’s amendments respond to the outcome of Western Australia v Ward (2002) 213 CLR 1.[25] Western Australia v Ward was a case in which the High Court found that the establishment of a national park extinguished native title.

Proposed subsection 47C(2) defines the relevant areas quite broadly:

A park area means an area (such as a national, State or Territory park):

              (a)              that is set aside; or

              (b)              over which an interest is granted or vested;

by or under a law of the Commonwealth, a State or a Territory for the purpose of, or purposes that include, preserving the natural environment of the area, whether that setting aside, granting or vesting resulted from a dedication, reservation, proclamation, condition, declaration, vesting in trustees or otherwise.

Note that the effect of proposed paragraph 47C(1)(c) is to restrict the operation of the provision to ‘onshore’ places. The Explanatory Memorandum does not comment on this restriction and it was not explored in submissions either.[26] There were concerns expressed that the definition was so broad it could encompass too many areas, with the National Farmers’ Federation arguing that it could even apply to pastoral land.[27] The Attorney-General’s Department said that:

… legislation governing pastoral leases is unlikely to fall from the definition of park area. It is not intended to cover pastoral leases outside of park areas, and we clarify that in the explanatory memorandum.[28]

As set out above, section 47C will only apply in circumstances where a claimant application or a revised native title determination application is made to the Federal Court in relation to the relevant land. Subsection 47C(7) provides that, for the purposes of an application that relates to an area that is the subject of an agreement under paragraph 47C(1)(c), any extinguishment of native title rights and interests must be disregarded if it has been caused by the setting aside, granting or vesting of the park area, or the creation of any other prior interest in relation to the area. If the agreement under paragraph 47C(1)(c) includes a statement that the extinguishing effects of any public works in the park area are to be disregarded (subsections 47C(3) and (4)) then the application must also proceed on this basis.

If the result of the claimant application or revised native title determination application is a determination that native title rights and interests exist in the agreement area, the determination will have effect as set out in proposed subsection 47C(8). As the Explanatory Memorandum says[29]:

The effect of subsection 47C(8) is that any existing interests created prior to an approved native title determination will continue to operate to their full effect, but will suppress, rather than extinguish, any native title rights to the extent of any inconsistency.

The ‘non-extinguishment’ principle will apply to the setting aside, granting or vesting, or the creation of any other prior interest in relation to the agreement area. The non-extinguishment principle is set out in section 238 of the NTA.

This provision states, amongst other things, that if an act affects any native title in relation to the land or waters concerned, the native title is nevertheless not extinguished, either wholly or partly (subsection 238(2)), and if the act or its effects are later wholly removed or otherwise wholly cease to operate, the native title rights and interests again have full effect (subsection 238(6)).

Before any agreement to disregard any prior extinguishment of native title in a park area can be made, proposed subsection 47C(5) requires that the relevant government authority must ‘arrange for reasonable notification’ in the relevant state or territory. This can be through the internet, a newspaper, a radio notification ‘or otherwise’ so as to give ‘interested persons an opportunity to comment’.

There were some concerns as to whether the requirement to consult was an unreasonable fetter on the right to self-determination, as well as whether in fact the agreement of the relevant government should be necessary to preserve the native title interests.[30] The Parliamentary Joint Committee on Human Rights concluded that, given the ‘need to consider the interests of third parties’ it was a ‘reasonable and proportionate limitation that seeks to address a legitimate objective’.[31]

The benefits of the arrangements in Schedule 1 were set out by Professor Jon Altman and Francis Markham and summarised in the House of Representatives inquiry report:

·          Aboriginal and Torres Strait Islander people having an ‘added incentive to actively engage in the environmental management of these conservation areas’

·          the ‘possibility to encourage the deployment of Indigenous Knowledge alongside western science in management regimes’, and

·          the possibility to ‘deploy Indigenous labour in environmental management in places that are often regional and remote but where Indigenous people live’.[32]

There was strong support amongst a number of submissions for these amendments. However, in the Minority report of the House of Representatives Committee, the Coalition rejected the changes both on the grounds that there had been insufficient consultation regarding the proposals and because there was insufficient protection of any third party rights which might be extant in such areas.[33] They also had a view that the proposed section would ‘lead to less certainty and more protracted disputes and litigation’.[34]

Schedule 2—Negotiations

Subdivision P of Division 3 of Part 2 of the Native Title Act sets out the ‘right to negotiate’ (RTN) regime. Under the RTN regime, registered native title claimants and native title holders have the right to negotiate with respect to certain activities (‘future acts’) proposed by a government party which will affect native title.

A helpful outline of the legal framework and how it applies to future acts concerned with mining, including the creation of a right to mine is given by author Daniel Wells as follows:

A ‘right to mine’ encompasses a right to explore, prospect, extract or quarry. Such interests are referred to as ‘mining tenements’. Where Subdivision P applies, ‘native title parties’ have a right to negotiate (‘RTN’) with representatives of the government (‘government party’) and the mining company (‘grantee party’) about whether a mining tenement will be granted and, if so, under what conditions. …Where negotiations have been conducted in good faith but no agreement has been reached within six months of the notification day, a party may apply to the National Native Title Tribunal (‘NNTT’) for a ‘future act determination’. If the NNTT finds that the grantee party has failed to negotiate in good faith, the six month timeframe is reset. The standard for good faith, however, is hardly onerous’. [footnotes omitted].[35]

Currently, section 31 is the provision that requires that the negotiation parties must negotiate in good faith with a view to obtaining the agreement of each of the native title parties to the doing of the act, or the doing of the act subject to conditions.

In a ruling on this provision in 1996 the National Native Title Tribunal outlined the types of action that are required and these included:

Facilitating meetings, responding within reasonable time frames to correspondence and taking reasonable steps to engage in discussions with the parties.[36]

The key amendment is item 6, new section 31A which sets out the good faith requirements for negotiations by linking section 31 and new section 31A. Section 31 already requires good faith in obtaining agreement to the doing of the act, or the doing of the act subject to conditions, but does not stipulate or define ‘good faith’.

There have been criticisms of the good faith provisions in several quarters. As the then Attorney-General said in her second reading speech on the Bill:

But there are those [negotiating parties], at the fringes, who are acting capriciously or unfairly, those who are not seriously sitting down at the table with proposals or offers, or not turning up to meetings regularly and withholding information which is not commercially sensitive and would assist in reaching an agreement. There is a minority who are just sitting through negotiations, waiting for the clock to tick and time to expire before rushing off to an arbitral body.[37]

The strongest criticism has come about because of how good faith has been interpreted in the National Native Title Tribunal and Full Federal Court decisions, as described by one submitter to the Senate Committee:

The accumulated jurisprudence to date in the NNTT both before and after the decision of the Full Federal Court in Puutu Kunti Kurrama & Pinkurra People v FMG Pilbara Pty Ltd & Ors (“FMG Pilbara”) has created an extraordinarily low threshold that must currently be met by a Proponent at law in order to satisfy its only obligation under s31(1)(b)NTA which is to negotiate in ‘good faith’.[38]

The Act, however, does not require genuine good faith bargaining, in the sense of genuinely working towards an agreement or not undermining attempts to reach such an agreement — other than by failing to comply with the formal protocols of the bargaining process, such as attendance at meetings.

Item 3 of Schedule 2 adds new paragraph 31(1)(c) to require that negotiations must also include consideration of the effect of doing an act on the registered native title rights and interests of the native title parties. The proposed provision is aimed at ensuring that negotiations include consideration of the effect of the particular future act that is the subject of negotiation.[39]

If passed, it also will be a requirement that the parties use all ‘reasonable efforts’ to reach agreement (new subsection 31A(1)). New subsection 31A(2) then sets out both procedural and substantive elements of good faith:

·         attending and participating in meetings

·         disclosure of information (but not confidential or commercially sensitive information)

·         making reasonable proposals and counter proposals

·         responding to proposals in a timely manner

·         giving genuine consideration to proposals

·         refraining from capricious or unfair conduct that undermines negotiations

·         recognising and negotiating with the other parties

·         refraining from acting for an improper purpose and

·         any other matters the arbitral body thinks relevant.

As can been seen, the amendment picks up the elements such as ‘genuine’ and (not) ‘undermining’. Note new subsection 31A(3) specifically states that the good faith requirements do not mandate that an agreement must be reached. Interestingly, the Explanatory Memorandum is silent on this significant provision.

The Senate Constitutional and Legal Affairs Legislation Committee[40] has recommended that the Government reconsider subsection 31A(2), with a view to incorporating the Njamal indicia set out in the decision Western Australia v Taylor[41] as the good faith criteria to be in the NTA. The Senate Committee outlined the arguments for and against the Njamal indicia and seemed more convinced with the submissions that supported that approach.

The proposed criteria in the Bill are mainly phrased in the positive, in the sense of whether a party has attended meetings (proposed subparagraph 31A(2)(a)(i)), or made reasonable proposals (proposed subparagraph 31A(2)(a)(iii)). However two of the criteria are phrased in the negative. Proposed subparagraphs 31A(2)(a)(vi) and (viii) refer to whether a party has refrained from capricious or unfair conduct or from acting for an improper purpose. The Senate Committee report mentions the submission of the National Native Title Tribunal (NNTT) which shows the difficulty in establishing that a party has refrained from certain actions. In summary the NNTT:

[s]uggests that it would be preferable to recast these paragraphs to require the arbitral body to have regard to whether the relevant negotiation party has ‘done’ something that can be more easily proven …[42]

Item 7 amends paragraph 35(1)(a) to extend from six to eight months the period until a negotiating party can apply for a determination under section 38 of the NTA.

The Bill will strengthen the consequences of failing to negotiate in good faith, by repealing and substituting subsection 36(2). Currently this provision requires one party to satisfy the arbitral body that another party (but not a native title party) failed to negotiate in good faith. If so satisfied, the arbitral body cannot make a determination under section 38 of the Native Title Act.[43] The new provision will provide that it is the second negotiation party who must establish that it did negotiate in good faith.

Schedule 3—Amendments

Indigenous Land Use Agreement (ILUA)

An Indigenous Land Use Agreement (ILUA) is a reference to various types of agreements that can be made by parties to a native title agreement under the Act.[44] These include ILUAs in respect of body corporate agreements[45], area agreements[46] and alternative procedure agreements.[47] The amendments in the Bill affect procedures regarding area and body corporate agreements.[48]

The purpose of ILUAs is to make it easier for native title claimants, given that native title is difficult to prove, and because the processing of native title claims can take a long time. [49]

Registration Process

Currently, section 24CH of the Act requires the Native Title Registrar to give notice of an ILUA area agreement to certain specified people or bodies. The notice is required to contain certain information (for example, the parties’ contact details), and must include a date of notice. To give notice is a decision that is not currently amenable to judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJR Act’) but judicial review would still be available under section 39B of the Judiciary Act 1903 (Cth).[50] The amendment to section 24CH would make this decision more easily amenable to judicial review under the ADJR Act. This change becomes significant given some native title bodies have already criticised the proposed repeal of current section 24CK by item 9 of Schedule 3. That amendment would remove the only process for objecting to the registration of an area ILUA, leaving only the option of judicial review, which can be an expensive and complicated process.[51]

The proposed section 24ED will allow native title parties to amend agreements without having to repeat the ILUA process when making minor adjustments. These minor adjustments would be limited to updating property descriptions (not including areas not previously in the ILUA), party names, ILUA administrative processes, or to do a thing specified by the Minister by legislative instrument in accordance with proposed subsection 24ED(1). The parties to the agreement must have agreed to the amendment and the Registrar needs to be given written notice of the amendments. This is a significant amendment that will allow for greater flexibility in the ILUA process.

Authorisation

Currently, section 251A sets out when people holding native title in relation to land or waters covered by ILUAs authorise the making of the ILUA. This authorisation may occur in one of two ways:

·         if there is a decision-making process that is required to be complied with under the traditional laws and customs of the people who ‘hold or may hold the common or group rights comprising the native title’, an agreement must be authorised in accordance with that process (current paragraph 251A(a)) or

·         when there is no such traditional decision-making process, authority must be given in compliance with the process agreed to and adopted by the people who ‘hold or may hold the common or group rights comprising the native title’ holders (current paragraph 251A(b)).

Item 14 of Schedule 3 amends section 251A so that it refers to people ‘who may hold’ native title, in addition to the current reference to people ‘holding’ native title. This will ensure that the section consistently refers to persons ‘who hold or may hold’ native title, as at present this phrasing is used in paragraphs 251A(a) and (b), but not the introductory sentence of section 251A. Item 15 then amends paragraphs 251A(a) and (b) to remove references to ‘the common or group rights comprising’ native title. Instead, both of these paragraphs will refer to ‘persons who hold or may hold the native title’.

Proposed subsection 251A(2), inserted by item 16, then clarifies the meaning of the term ‘persons who may hold native title’. The term is a reference to those who can establish a prima facie case that they may hold native title. However, a number of submitters to both Committees, including the Cape York Land Council Aboriginal Corporation, Central Desert Native Title Services and the Queensland Government stated that what is required to meet this prerequisite of prima facie case is not clear.[52] The confusion over who may authorise ILUAs was a critical issue in the submissions to both the Senate and House of Representatives inquiries into the Bill.[53]

Proposed subsection 251A(3), also inserted by item 16, sets out requirements for the authorisation process when ILUAs cover designated areas for which there is not a registered native title body corporate or registered native title claimant. This amendment would require persons who hold or may hold common or group rights comprising the native title over the designated area to authorise the making of an ILUA, as far as it affects the designated area. It is designed to address current legal uncertainty about who may authorise an ILUA[54], but may impose a burden on the time and resources of native title parties to seek out further groups of people who may hold claims, bringing greater uncertainty to the process when analysed in respect of the reasonable efforts to identify those who may have a native title claim under subparagraph 24CG(3)(b)(i).[55] It may also allow individuals to veto an agreement, according to the submission by Just Us Lawyers.[56]

The Senate Legal and Constitutional Affairs Committee’s only recommendation in respect of Schedule 3 was that the ILUA objection period should not be reduced from three months to one month.[57] The Coalition Senators’ Minority report voiced concerns over the lack of consultation in relation to the amendments.

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ISSN 1328-8091

[1].              Native Title Act 1993, viewed 30 May 2013, http://www.comlaw.gov.au/Details/C2013C00128

[2].              N Roxon, ‘Second reading speech: Native Title Amendment Bill 2012’, House of Representatives, Hansard, 28 November 2012, p. 13 649, viewed 8 April 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F50ef4858-02bd-437b-a64f-599769ecfec6%2F0017%22

[3].              The Attorney General’s Department website documents these developments; Australian Government, ‘Current native title reforms’, Attorney-General’s Department website, viewed 8 April 2013, http://www.ag.gov.au/Consultations/Pages/Currentnativetitlereforms.aspx

[4].              See generally: House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs,
Native Title Amendment Bill 2012, Advisory report, House of Representatives, Canberra, March 2013, and in particular at p. 3. viewed 8 April 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=atsia/native%20title%20bill/index.htm

[5].              Ibid., p. 3.

[6].              Coalition Senators, Native Title Amendment Bill 2012 [Provisions], Minority report, Senate Legal and Constitutional Affairs Legislation Committee, The Senate, Canberra, March 2013, p. 40, viewed 8 April 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=legcon_ctte/completed_inquiries/2010-13/native_title_2012/report/index.htm

[7].              House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, Inquiry into the Native Title Amendment Bill 2012, House of Representatives, Canberra, March 2013, viewed 30 May 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=atsia/native%20title%20bill/index.htm; Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Native Title Amendment Bill 2012, The Senate, Canberra, March 2013, viewed 30 May 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=legcon_ctte/completed_inquiries/2010-13/native_title_2012/index.htm

[8].              House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, Native Title Amendment Bill 2012, Advisory report, op. cit., p. 4.

[9].              Ibid., pp. xi and 44.

[10].              Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 1 of 2013, 6 February 2013, pp. 68–69, viewed 30 May 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=scrutiny/alerts/2013/index.htm

[11].              Senate Standing Committee for the Scrutiny of Bills, Fourth Report of 2013, The Senate, Canberra, 20 March 2013, pp. 135–136, viewed 30 May 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=scrutiny/bills/2013/index.htm

[12].              The Statement of Compatibility with Human Rights can be found at pages 3–5 of the Explanatory Memorandum.

[13].              Parliamentary Joint Committee on Human Rights, Sixth Report of 2013, May 2013, pp. 43–50, viewed 8 June 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=humanrights_ctte/reports/index.htm

[14].              Ibid., p. 48.

[15].              Aboriginal and Torres Strait Islander Social Justice Commissioner, 2009 Native Title Report, report no. 2/2010, Australian Human Rights Commission, 2009, recommendations 3.2 and 3.3, p. 123, viewed 30 May 2013, http://www.humanrights.gov.au/sites/default/files/content/social_justice/nt_report/ntreport09/pdf/ntr2009.pdf

[16].              Parliamentary Joint Committee on Human Rights, Sixth Report of 2013, op. cit., p. 49.

[17].              Senate Legal and Constitutional Affairs Legislation Committee, Native Title Amendment Bill 2012 [Provisions], op. cit., p. 54.

              Native Title Amendment (Reform) Bill (No. 1) 2012, viewed 31 May 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2Fs869%22

[18].              Explanatory Memorandum, Native Title Amendment Bill 2012, p. 2, viewed 30 May 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fems%2Fr4944_ems_861906c5-acf4-4922-bcb1-ce652db4363e%22

[19].              National Native Title Tribunal (NNTT), ‘Claims – applications and determinations’, NNTT website, viewed 1 June 2013, http://www.nntt.gov.au/Applications-And-Determinations/Pages/default.aspx.

              See sections 13 and 225 of the NTA. Applications may also be made for compensation for loss or impairment of native title – see section 61 and Division 5 of Part 2 of the NTA.

[20].              See definition of ‘claimant application’ at section 253 of the NTA.

[21].              See sections 13 and 61 of the NTA.

[22].              See sections 13 and 61 of the NTA.

[23].              Subsection 13(5) of the NTA.

[24].              Very basically, under the NTA certain applications are restricted. For example, a claimant application cannot be made in relation to an area where an ‘exclusive possession act’ has been done (that is an area where native title has been extinguished). An application for native title rights that exclude all other rights cannot be made in relation to an area the subject of a previous ‘non-exclusive possession act’ (for example, agricultural or pastoral leases that co-existed with native title rights). See section 61A of the NTA. Such restrictions, however, do not apply in the circumstances covered by section 47 (pastoral leases held by native title claimants); section 47A (areas held as Indigenous freehold or reserves); or 47B (vacant Crown land). If sections 47, 47A or 47B applied to the application, an agreement would not need to be made to agree to disregard extinguishment of native title, as those sections explicitly provide that any extinguishment of native title is to be disregarded. That is, in contrast with section 47C, no agreement is necessary. Some submitters to the Parliamentary inquiries into the Bill questioned whether the section 47C consent requirements were appropriate. See, for example, submissions to the House of Representatives and Senate inquiries into the Bill by the Australian Human Rights Commission, Cape York Land Council and Australians for Native Title and Reconciliation.

[25].              Western Australia v Ward [2002] HCA 28; 213 CLR 1; 191 ALR 1; 76 ALJR 1098 (8 August 2002). See also http://www.austlii.edu.au/au/cases/cth/HCA/2002/28.html

[26].              For an exploration of issues regarding native title onshore and offshore see generally, S Sparkes, ‘Native Title – all at Sea?’, National Native Title Tribunal, 2002, viewed 18 January 2013, http://www.nntt.gov.au/news-and-communications/speeches-and-papers/documents/2002/speeches%20nt%20at%20sea%20sparkes%20august%202001.pdf

[27].              National Farmers’ Federation, Evidence to the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, Inquiry into the Native Title Amendment Bill 2012, quoted in the House of Representatives Standing Committee advisory report, op. cit., footnote 8, p. 9.

[28].              K Duggan (Attorney-General’s Department), Evidence to the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, Inquiry into the Native Title Amendment Bill 2012, quoted in the House of Representatives Standing Committee advisory report, op. cit., p. 9.

[29].              Explanatory Memorandum, Native Title Amendment Bill 2012, op. cit., paragraph 37, p. 12.

[30].              Parliamentary Joint Committee on Human Rights, Sixth Report of 2013, op. cit., pp. 45ff.

[31].              Ibid., pp. 45–46.

[32].              House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, Native Title Amendment Bill 2012, Advisory report, op. cit., p. 8.

[33].              Ibid., Coalition Senators, Native Title Amendment Bill 2012 [Provisions], Minority report, op. cit., p. 51.

[34].              Ibid.

[35].              D Wells, ‘The native title system as a market: Fortescue Metals Group and the Yindjibarndi’, Indigenous Law Bulletin, vol. 8, issue 4, 1 January 2013, viewed 30 May 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22library%2Fjrnart%2F2347262%22

[36].              National Native Title Tribunal, Tribunal rules on negotiation “in good faith”, media release, 7 August, 1996, viewed 18 January 2013, http://www.nntt.gov.au/news-and-communications/media-releases/pages/tribunal_rules_on_negotiation_in_good_fa.aspx

[37].              N Roxon (Attorney-General), ‘Second reading speech: Native Title Amendment Bill 2012’, op. cit., p. 13 651.

[38].              M Owens, Submission to the Standing Committee on Aboriginal and Torres Strait Islander Affairs, Inquiry into the Native Title Amendment Bill 2012, 8 February 2013, p. 3, viewed 30 May 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=atsia/native title bill/subs.htm

[39].              As set out in the Explanatory Memorandum to the Bill, this provision ‘addresses one of the outcomes of the decision of the full Federal Court in FMG Pilbara Pty Ltd v Cox [2009] FCAFC 49 (FMG v Cox), where a party could be found to have negotiated in good faith even where there may have been no substantial negotiations about the doing of the actual act in question. This amendment will ensure parties negotiate in a productive manner and discuss the substantive matters at issue’. Explanatory Memorandum, Native Title Amendment Bill 2012, op. cit., paragraph 60, pp. 16-17.

[40].              Senate Constitutional and Legal Affairs Legislation Committee, Native Title Amendment Bill 2012 [Provisions], op. cit.

[41].              Western Australia v Taylor (1996) 134 FLR 211, [1996] NNTTA 34, http://www.austlii.edu.au/au/cases/cth/NNTTA/1996/34.html

[42].              Ibid., p. 23.

[43].              These are determinations that the arbitral body can make when parties fail to reach an agreement.

[44].              Native Title Act 1993 (Cth), sections 24BA-24EC.

[45].              An agreement that meets the requirements of sections 24BB to 24BE is an Indigenous Land Use Agreement (body corporate agreement). See section 24BA of the Native Title Act 1993 (Cth).

[46].              An agreement that meets the requirements of sections 24CB to 24CE is an Indigenous Land Use Agreement (area agreement). See section 24CA of the Native Title Act 1993 (Cth).

[47].              An agreement that meets the requirements of sections 24DB to 24DF is an Indigenous Land Use Agreement (alternative procedure agreement). See section 24DA of the Native Title Act 1993 (Cth).

[48].              Native Title Act 1993 (Cth), sections 24CA-24CL.

[49].              Edwards v Santos (2011) 242 CLR 421, [24] (Heydon J). See also, http://www.austlii.edu.au/au/cases/cth/HCA/2011/8.html

[50].              QGC Pty Ltd v Bygrave (No 2) (2010) 189 FCR 412, paragraphs [11], [26], [32]-[33], viewed 24 April 2013, http://www.austlii.edu.au/au/cases/cth/FCA/2010/1019.html

[51].              Senate Legal and Constitutional Affairs Committee, Native Title Amendment Bill 2012 [Provisions], op. cit., [3.68]-[3.72]; House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, Native Title Amendment Bill 2012, Advisory report, op. cit., [2.82].

[52].              Senate Legal and Constitutional Affairs Committee, Native Title Amendment Bill 2012 [Provisions], op. cit., [3.65], [3.74]; House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, Native Title Amendment Bill 2012, Advisory report, op. cit., [2.86].

[53].              House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, Native Title Amendment Bill 2012, Advisory report, op. cit., [2.111]-[2.113].

[54].              Explanatory Memorandum, Native Title Amendment Bill 2012, op. cit., paragraph 111, p. 24.

[55].              Senate Legal and Constitutional Affairs Committee, Native Title Amendment Bill 2012 [Provisions], op. cit., [3.78]-[3.81].

[56].              House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, Native Title Amendment Bill 2012, Advisory report, op. cit., [2.90]-[2.92].

[57].              Senate Legal and Constitutional Affairs Committee, Native Title Amendment Bill 2012 [Provisions], op. cit., [3.94].