Bills Digest no. 124 2008–09
Native Title Amendment Bill 2009
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Date
introduced: 19 March
2009
House: House of Representatives
Portfolio: Attorney-General
Commencement:
Sections 1 to 3
commence on Royal Assent.
Schedules 1-4,
Schedule 5 Part 1 and Schedule 6 commence on the day after Royal
Assent or 1 July 2009, whichever is the later.
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The purpose of the Bill is to amend the Native Title Act
1993 (Cth) (the Act or NTA) to implement institutional reform
to give the Federal Court of Australia (the Court) a central role
in managing native title claims. Notably Schedule 1 of the Bill
will allow the Court to determine who should mediate a particular
native title claim.
Schedules 2, 3 and 4 of the Bill will amend, replace and expand
provisions relating to Court procedure and financial assistance for
mediations. Schedule 5 seeks to consolidate existing arrangements
for the registration of representative bodies. Schedule 6 makes
minor and technical amendments to the Act.
The National Native Title Tribunal (the Tribunal) was
established under the Native Title Act 1993
(Cth). The Tribunal is administered by the
Attorney-General s Department and performs the following
functions:
- applies the registration test to native title claimant
applications
- mediates native title claims under the direction of the Federal
Court of Australia
- provides notification of native title applications and
indigenous land use agreements
- maintains the Register of Native Title Claims, the National
Native Title Register and the Register of Indigenous Land Use
Agreements
- makes arbitral decisions about some future act matters
- negotiates other sorts of agreements, such as indigenous land
use agreements.[1]
This Bills Digest does not cover the background to historical
native title legislative developments. The author has assumed some
knowledge and understanding of the area. For preliminary reading,
see electronic sources such as:
In 2005, the Howard Government commissioned Mr Graham Hiley QC
and Dr Ken Levy to consider, and make recommendations on, the roles
of the Court and the Tribunal in native title mediation.[2] Amendments to the Act
were made in 2007 following this review of the claims resolution
process. The amendments to the Act in 2007 made it clear that the
Court could not mediate while an application was with the Tribunal
for mediation.[3]
In their 2006 review, Mr Hiley QC and Dr Levy had disagreed on a
key issue about which body should have ultimate control of native
title alternative dispute resolution.[4] The Howard Government chose to
implement Dr Levy s recommendation to give the Tribunal an
exclusive mediation role with increased powers. The Rudd Government
is of the view that this has not worked to create an efficient
native title mediation process and has made a policy decision to
follow Mr Hiley s recommendation to give the Court mediation
powers.[5] The policy
will not remove the mediation role from the Tribunal entirely; the
Court will be able to direct that the Tribunal hear particular
matters as appropriate. In this light then, the Court will have an
overseer of workload role as well as a role in the mediation
process through the Registrar, Deputy Registrar, District Registrar
or Deputy District Registrar of the Court.
The idea of moving the mediation role to the Federal Court is
not without criticism:
One complaint made against giving the Court
control of the mediation process is that the judges, because of
their very independence, are apt to be inconsistent in their
approach.[6]
However,
the Federal Court, with its collegiate
appellate structure, national allocation of judges and Commonwealth
jurisdiction with powers of cross vesting, is suited to developing
consistent national approaches that are still sufficiently flexible
to have proper regard to the circumstances of particular States,
regions and matters.[7]
Note though that this comment, while it might be true, is a
little misguided in this context because it is not the
Judges who will be conducting any mediation proceedings;
that role will be undertaken by Registrars or similar persons, as
indicated above.
The current system of having the Tribunal manage all mediation
processes has not worked to produce efficient native title
determinations.[8]
The cost and delays will likely be curbed significantly if the
Federal Court is given a role in overseeing and participating in
some of the mediation processes. Further, the Court will reduce the
Tribunal s workload by being able to make determinations on matters
other than native title.
During the Senate Legal and Constitutional Affairs Committee s
Inquiry into the provisions of the Bill, the Registrar (and Chief
Executive Officer) of the Federal Court were asked about the role
of the Native Title Tribunal in mediation once the Bill is
passed:
Senator TROOD But you still see the tribunal as
having a critical and important role in the whole process of
resolution. After all, there is a very considerable resource there.
There is an already established institution with a great deal of
expertise in mediation. I am sure the government has told you there
are no more resources available for exercising this responsibility.
You cannot expect any more resources so you are going to have to
manage the additional powers that you are undertaking within your
existing resources. Perhaps that means that the tribunal will end
up with more work than it previously had.
Mr Soden We expect the tribunal to continue to
perform a very important role in mediating native title matters and
in providing the other facilities that it undertakes. But to be
frank it would be wrong to assume that every matter that is
presently before the tribunal will remain with the tribunal. The
process that I mentioned, of the court looking at every case that
is pending, will result in some things changing.[9]
Of particular note in this transcript is the expectation that
the Tribunal will continue to mediate native title matters. It is
likely that the workload of the Tribunal might diminish as more
mediation conferences are conducted by the Court. At the time of
publication of this Digest, it is not clear whether there are
long-term plans to cut back the role of the Tribunal further or to
allocate extra funding to the Court to perform the additional
function. The Tribunal will require funding to continue for
mediation proceedings.
The Bill has been referred to the Senate Legal and
Constitutional Affairs Committee for inquiry and report by 7 May
2009. Details of the inquiry are at
http://www.aph.gov.au/Senate/committee/legcon_ctte/native_title/index.htm
Submissions to the Senate Legal and Constitutional Affairs
Committee s Inquiry into the provisions of this Bill show a general
support for the Bill, welcoming the proposed changes. This Bills
Digest does not analyse the specific detail of the views presented
in the submissions to the Inquiry. The Tribunal s submission was
less supportive and expressed concern about the system or processes
becoming ad hoc, fragmented, less efficient and more expensive to
the Commonwealth if the amendments proceed.[10]
The Tribunal, as a significant stakeholder, further noted that
there could be confusion and
lack of clarity, about the respective powers
and functions of the Court and the Tribunal especially the extent
of the court s capacity to direct the Tribunal to do things
.[11]
Nonetheless, the Tribunal noted an inevitability of the Bill
proceeding and suggested some change to improve the operation of
amendments which it considers to be unnecessary and potentially
counterproductive.[12]
The proposed legislation appears to have widespread support from
native title practitioners and academics. Explicitly,
the current system for resolving matters has
not been successful. It has certainly failed the taxpayer. But more
importantly it has failed Indigenous people. It has allowed a once
in a century opportunity to redress one of the fundamental scars of
our country to slip away. In this regard, we all suffer from the
failure.[13]
The changes now proposed by the Government do
not succumb to the fallacy that giving the Court responsibility for
supervising the resolution of native title matters is incompatible
with mediation or other forms of alternative dispute
resolution.
Whatever shortcomings the Federal Court of
individual judges may have, it remains the most competent,
transparent, independent and accountable institution in the
system.
Unjamming the system, slowly building region,
state and nationwide momentum towards settlements will be a major
challenge for the Court. It will undoubtedly require a level of
coordination and consistency in approach if it is not to end in
tears[14].
The Tribunal is accepting of the policy change to give the Court
a role in native title mediation but has expressed some concerns
about the administrative arrangements and about the ability for the
Court and Tribunal to coexist and complement each other in the
native title framework:
Broadly speaking, the tribunal is concerned
that, because individual judges will have broad discretionary power
about who will conduct mediation, the system or processes may
become ad hoc or fragmented, less efficient and potentially more
expensive to the Commonwealth. We are also concerned that there
could be confusion and lack of clarity about the respective powers
and functions of the court and the tribunal, especially the extent
of the court s capacity to direct the tribunal to do things and
possibly to allocate tribunal members to mediate particular matters
and to direct how mediation is to be conducted, which raises legal
and resource issues. There are issues about how mediators other
than the court or the tribunal are to be identified, paid and
supported administratively and with specialist geospatial,
research, legal and other resources.[15]
Aboriginal and Torres Strait Islander Social Justice
Commissioner Tom Calma has welcomed the proposed reforms but has
further emphasised the need to address funding issues for claimants
and their representative bodies.[16]
Further amendments to native title law may be on the agenda
following the High Court s Chief Justice Robert French comments
that it is necessary to reverse the onus of proof in some
circumstances. The Attorney-General and the Prime Minister have
indicated their in principle support to the idea.[17]
The Explanatory Memorandum states that there is no direct
financial impact on Government revenue from this Bill. However,
there is some ancillary debate about the level of financial
assistance available to applicants in native title matters that
are, or will be, either before the Court or the Tribunal. This is
likely to be addressed in the 2009-2010 Budget.
Many of the changes to the provisions of the Act are technical
and administrative. However, the Bill raises three key issues:
- the new role of the Federal Court in the mediation of native
title matters,
- the ability of the Court to make determinations on other
matters, and
- the streamlining of processes relating to Native Title
Representative Bodies.
These changes are likely to make aspects of native title
litigation and mediation significantly more efficient and will
reduce the delays currently experienced with native title
determinations. High Court Chief Justice French has acknowledged
that:
native title process was burdensome and can be
likened to rolling a large rock uphill the effort seems relentless
and sometimes the rewards elusive. We may be a long way from the
summit but we are beyond the point where the rock is likely to roll
down the hill again.[18]
As mentioned earlier, the Court will not replace the Tribunal as
the sole mediation body. It will create an overseer role for the
Court and this is intended to have the effect of managing the
workload between the Tribunal and the Court. The Government is of
the view that:
having one body control the direction of each
case means that the opportunities for resolution can be more
readily identified. This reform has the potential to significantly
improve the operation of the native title system.[19]
The second key issue of significance are the amendments that
will enable the Court to make determinations that cover matters
beyond native title. Currently, section 86F of the Act recognises
that broad agreements can be negotiated but does not clearly
provide that it is within the Court s jurisdiction to make
determinations dealing with matters beyond native title, or
recognise that the Court may be able to assist the parties to
negotiate side agreements covering matters beyond native title.
[20]
The Australian Human Rights Commission, in its submission to the
Senate Committee s Inquiry into the Bill, wants other options to be
considered and further consultation done in this area.[21]
The Government sees a need to streamline the provisions relating
to recognition and re-recognition of Native Title Representative
Bodies (NTRBs) in the Act. This streamlining will reduce the
paperwork for NTRBs and therefore lead to more timely decisions.
The provisions will be moved to one part (Part 11) of the Act.
This Schedule amends the Native Title Act 1993 on
matters relating to mediation. Item 1 will insert
new paragraphs 4(7)(aa) and 4(7)(ab) which will
provide (in the Overview of the Act) for the Federal Court to refer
native title and compensation applications for mediation and allow
the Federal Court to give effect to terms of agreements reached by
parties to proceedings including terms that involve matters
other than native title. This item is associated with the
amendments in item 6, which give the Court a
central role in the management of all native title claims.
Items 2-4 make small amendments that allow for
mediation to be dealt with by the Federal Court. Item
3 adds mediation to the list of topics under
Division 1A of the Act which contains the general rules on the
following topics:
- referring applications to the NNTT for mediation (see
Division 1B);
- agreements and unopposed applications (see
Division 1C);
- conferences (see Division 2);
- orders (see Division 3).
Existing section 86A outlines when mediation procedures are
available to native title applicants. Items 5 and
7-11 will remove references to the Tribunal as the
mediation body thus leaving it open for the Federal Court to have a
mediation role in native title proceedings. Item 6
will repeal existing subsection 86B(1) and substitute
proposed subsections 86B(1), (2) and (2A) which
require that the Court refer each application made under section 61
to an appropriate person or body for mediation.[22] This is to be done as soon as
practicable and may be referred to an appropriate person or body
including an officer of the court (proposed subsection
86B(2A)). See also proposed section
94D(2)(b) (inserted by item 35). One of
the main intentions of the amendments is to remove the Tribunal
mediators and to allow the Court to appoint any qualified
and appropriate mediator. Proposed subsection
86(2A) allows this to include the Registrar, a Deputy
Registrar, a District Registrar or a Deputy District Registrar of
the Court.
Amendments to subsection 86B(5) made by item 12
will allow the Court to refer, at any time in a proceeding, the
whole or part of the proceeding to an appropriate person or body
for mediation. The Court may take into account:
- the
training, qualifications and experience of the person who is to be,
or is likely to be, the person conducting the mediation
(proposed subsection 86B(5A)). This person could
be an officer of the Court (proposed subsection
86B(5B)).
In making a referral, proposed subsection
86B(5C) will allow the Court to make an order about the
way in which the mediation is to be provided; whether the person
conducting the mediation may be assisted or any other matter the
Court considers relevant.
Item 13 will allow a mediator to appear before
the Court if the Court considers that the mediator might be able to
assist the Court in relation to a proceeding. Proposed
subsection 86BA notes that to avoid doubt,
proposed subsection 94D(4) applies to the mediator
when appearing before the Court. That subsection will outline who
must conduct mediation conferences and what sort of assistance the
mediator may have. The specifics of the subsection are explained
below (item 35).
Items 14-20 are mainly consequential amendments
for when the court orders the cessation of mediation being
conducted now by mediators rather than by the Tribunal
alone.[23]
Item 17 will insert a new ground upon which the
Court may order that mediation cease. Proposed paragraph
86C(1)(c) will allow the Court to make such an order if it
is appropriate to do so for any other reason .
Item 21 makes a significant amendment to
section 86C of the Act. Proposed subsection 86C(6)
will allow the Court (after making an order under subsections (1),
(3) or (4) which relate to the cessation of the mediation) to make
any other orders that the Court considers are reasonably necessary
or appropriate to deal with the cessation of the mediation.
This is the key to the flexibility of the new system. As Andrew
Chalk notes:
[Moving matters] into and out of mediation at
the judge s discretion will give the Court far greater flexibility
without having to first meet any statutory condition. With frank
reporting from the mediator, and active and timely case management
from the judge, there is no reason that priority matters cannot be
resolved in much shorter timeframes than they are at
present.[24]
Items 22-34 make consequential and minor
amendments that are necessary to effect the institutional changes.
The amendments to subsection 86D(1) and 86D(2) will allow the Court
to determine questions of fact or law that are referred to it by a
mediator. Amendments to section 86E will allow the Court to request
a progress report on mediations that are being conducted by the one
or more mediators. These amendments will provide more scrutiny of
the case management load.
Item 35 will insert proposed section
94D-94S (Division 4) that outline the rules relating to
the conduct of a mediation conference. Many of these are
consequential and move provisions that exist under section 136A of
the Act to the new Division. They are not new provisions. Moving
them to a different part of the Act makes it clear that the
provisions apply to all mediators subject to a referral from the
Court under section 86B. The provisions cover the following
areas:
- who must conduct conferences and what assistance they may have
(proposed subsections 94D(2) and (3). Note that
this still includes Tribunal members
- statements made in a conference may not be used later in court,
unless agreed (proposed subsection 94D(4))
- parties attendance at conferences (whether required, limited or
excluded) (proposed subsection 94E)
- mediator s powers to direct a party to produce a document
(proposed subsection 94G)
- referral powers on questions of fact or law (proposed
subsection 94H)
- referral powers about dismissing a party to the proceedings
(proposed subsection 94J)
- privacy and the disclosure of information in a mediation
(proposed subsection 94K and
94L)
- the production of documents and a mediator giving evidence to a
Court (proposed subsection 94M)
- the requirement to report to the Federal Court
(proposed subsection 94N)
- specific reporting requirements (proposed subsection
94P and 94Q)
- protection and immunity of mediator (proposed
subsection 94R)
Items 36-38 and 41-66 makes
minor consequential amendments to terminology as a result of moving
the mediation function to the Court. Item 39 repeals Division 4A of
Part 6 of the Act.
Items 67 and 68
will insert two new definitions into section 253. The term mediator
will be defined by reference to the person or body who is
conducting the mediation following a referral under subsection
86B(1) and the term person conducting the mediation means the
person mentioned in subsection 94D(2) who conducts a conference
under section 94D in relation to the mediation concerned. See
item 35 for details about who must conduct
conferences.
Items 69-73 in Part 2 of the Bill will provide
that the amendments apply to applications made under section
61[25] regardless
of whether that application was made before or after commencement
of that section.
The Explanatory Memorandum notes that the
intention of this is to clarify that the amendments apply to all
future applications and to existing applications still in
progress.[26] The
purpose of item 70 is to clarify that a thing done
for the purposes of the current provisions relating to the
mediation conferences are taken to be done as under the proposed
amended provisions relating to the mediation conferences .[27] Item
72 deals with reviews to the tribunal on whether there are
native title rights and interests. If the review has not been
completed before the commencement of the amendments, the referral
is taken as having been made under the new proposed
subsection 136GC(2).
Items 1-4 make minor corrections and rewording
of headings to facilitate the new mediation role of the Court.
Item 5 is a significant provision that will
insert proposed subsections 87(4)-87(11) allowing
the Court to make consent orders about matters other than native
title. A consent order is technically an agreement that has been
reached by the parties during the mediation conference that then
become an order by the Court. Proposed subsection
87(4) allows the Court to give effect to terms of the
agreement that involve matters other than native title.
Proposed subsection 87(5) will allow the Court the
same if the order is a native title determination. The
Explanatory Memorandum also notes that these provisions will also
have the scope to use existing powers to control the time parties
spent on wider agreements.[28]
Item 7 allows the Court, under proposed
subsections 87A(5), 87A(6) and 87A(7) to make orders that
cover matters beyond native title where parties reach an agreement
about part of an area. The Explanatory Memorandum notes that
these amendments would clearly provide that it
is within the Court s jurisdiction to, whether it is within its
power and appropriate to do so, make separate orders dealing with
(1) the determination of native title and (2) the matters covered
by the agreement, including matters other than native
title.[29]
Proposed subsection 87A(5) will allow the Court
to make an order on matters other than native title if the Court
considers that the order would be within its power and it would be
appropriate to do so. In doing so, the Court must take into account
any objections made by the other parties to the proceedings.
Examples of non-native title matters that may be covered are noted
in the Explanatory Memorandum as:
- economic development opportunities
- training
- employment and heritage
- sustainability
- viability
- the benefits for parties and existing principles or agreements
that might be relevant to in making orders about matters other than
native title.[30]
Proposed subsection 87A(8) will
allow the Court to take into account any objections made by other
parties in deciding whether to make an order under subsection (4)
or (5). With the intention of saving time during Court mediation,
proposed subsections 87A(9), (10), (11) and (12)
will allow the Court to accept an agreed statement of facts agreed
by some or all of the parties without requiring evidence.
Proposed subsection 87A(10) will require the
Registrar of the Court to notify, within 7 days, other parties to
the proceedings that the statement had been filed with the
Court.
The notification under proposed
subsection 87A(10) will facilitate the operation
proposed subsection 87A(11) which will require
that the applicant and the principal government respondent must
agree to the statement of facts. The principal government
respondent could be the Commonwealth, a State, a Territory, the
Commonwealth Minister, a State Minister or a Territory Minister
depending on the case, including the type of interests or the area
of the claim.[31]
Item 1 in Schedule 3 inserts a new
proposed section 214 into the Act. This section
will allow the Commonwealth Evidence Act 1995 to apply to
native title proceedings that commenced prior to 1 January 2009. In
particular, changes made under the Evidence Amendment Act
2008 to evidence given by Aboriginal and Torres Strait
Islander people will make it easier for a court to hear evidence of
Aboriginal and Torres Strait Islander traditional laws and customs,
where appropriate.
Proposed section 214 is very broad and will
allow the provisions of the Evidence Amendment Act 2008 to
apply to a native title proceeding that commenced prior to 1
January 2009 if:
- the parties consent, or
- the Court exercises its discretion to decide that it is in the
interests of justice that the amendments apply.
Item 2 of Schedule 4 is inserting a new section
that will cover all types of mediation (whether by Court or the
Tribunal). The drafting and the effect of this item is not new. It
is replicated on the existing section 183 of the Act which provides
for financial assistance in native title matters from the
Attorney-General. The amendments have the effect that financial
assistance may be available to any inquiry, mediation or
proceeding, whether it is before the Court or the Tribunal. It is
unlikely that this will actually lead to an increase in requests
for, or grants of, financial assistance because the guidelines for
assistance that are created under proposed paragraph
213A(5) will take into account the substantive changes to
the Act.
Similarly, proposed new subsections 213A(3), 213A(4),
213A(5) and 213A(8) will have effect (or validity) if the
initial application or authorisation was made under current
subsections 183(2A), 183(3), 183(4) and 183(7)
prior to the new subsections commencing. Explicitly, previous
applications and authorisations will continue under the new
provisions.
Part 1 Removal of transitional arrangements
Items 1-4 repeal the definitions of terms
relating to previous transitional arrangements. These are no longer
required. Consequently, item 5 removes references
to provisions that will be repealed. Items 6-8
also repeal subsections that have been spent.
Item 9 will insert a new provision to require
the Commonwealth Minister to determine applications for recognition
as a representative body under section 203AB as soon as practicable
after whichever of the following periods ends last :
- the initial time for making an application has passed, or
- any extended time given under subsection 203AB(2) for making an
application has passed, or
- the Commonwealth Minister has asked for more information under
subsection (1), which extends the time for finalising an
application by not less than 21 days.
Items 10 and 11 also repeal
subsections that are no longer effective. Additionally,
item 11 substitutes a new subsection
203AD(2) that specifies the period of recognition of the
body as a representative body. The provision notes that the
recognition of the body as a representative body takes effect on
the day specified in the instrument of recognition and ceases to
have effect at the end of the day specified in that instrument
unless the body s recognition is earlier withdrawn under section
203AH.
Item 12 is a savings provision. The Explanatory
Memorandum notes that the provisions would operate to the effect
that a representative body that was recognised at the time of these
amendments coming into effect would continue to be recognised as if
the amendments had not been made. [32]
Part 2 Recognition of representative bodies
These provisions allow for a simplified process for the
re-recognition of current representative bodies. It is intended
that this will be more efficient by making the variation process
more streamlined. Provisions are made for extensions of time for
representative bodies to make submissions if required.
Item 17 will allow the Commonwealth Minister to
issue an invitation to an eligible body whether or not there is
already a recognised representative body for the area covered in
the invitation.
Item 18 outlines what the invitations must
contain and, under proposed subsection 203A(7),
the invitations may be general (that is, not to each eligible
body).
Item 19 inserts two new provisions,
proposed section 203AA and section
203AAA. Proposed section 203AA will allow
the Commonwealth Minister to revoke an invitation if he or she
considers it appropriate to do so and the time period for making an
application has not expired. If the application has not been
determined and the invitation is revoked, then the application is
taken never to have been made (proposed subsection
203AA(2)).
If an eligible body decides not to apply for recognition, the
eligible body must, under proposed section 203AAA,
notify the Commonwealth Minister of that decision before the end of
the period specified in the invitation under subsection
203A(3).
The remaining items in this Part (items 20-38)
address variation rules of the notification process for
representative bodies. These provisions are not problematic or
controversial.
Item 39 is a savings provision relating to
sections 203AAE, 203AF and 203AG of the NTA. On commencement, if
any matters (relating to extension, variation or reduction of an
area) are outstanding, the provisions that were in force prior to
the commencement of the amendments made by the Bill will apply to
those decisions.
The Explanatory Memorandum states that the intention of Schedule
6, among other things, is to:
- clarify that the Court is required to make a determination
about whether a native title determination is to be held on trust
or by a Prescribed Body Corporate (PBC) at the same time as, or as
soon as practicable after, making a determination that native title
exists in an area (item 2, items 10-12)
- simplify the provisions about cancelling bank guarantees held
as payments under a Right to Negotiate (RTN) process. This would
avoid unnecessary banking costs to future act proponents
(item 13)
- amend the provisions that govern trust arrangements under
alternative State and Territory regimes (items 3-9, 18,
19)
- clarify the penalty provisions (items
15-17).[33]
Item 1 replaces existing paragraphs 28(2)(a)
and (b) with provisions that expand the scope of determinations to
include cases where an amount is secured by either a bank guarantee
or is held on trust by the Registrar. This item corrects an error
from the Native Title (Technical Amendments) Act 2007.
Items 2-5 insert provisions that allow for the
option for States to secure an amount by trust or bank guarantee.
The Native Title (Technical Amendments) Act 2007 intended
to have a trust regime option and it was mistakenly removed
.[34]
Items 6-8 intend to avoid unnecessary banking
costs to future act proponents. These items make minor amendments
to proposed subsection 52(2)(a), (b) and (c) in column 3 of
table 5.
Item 9 will insert proposed section
52A which again was mistakenly removed in the Native
Title (Technical Amendments) 2007. This section will set out a
trust regime for payments held under the Right to Negotiate process
where an alternative State or Territory regime has a trust
regime.
Items 10-12 require, under proposed
section 55, the Court to make a determination in sections
56 and 57 about whether native title is to be held on trust and by
whom. The Explanatory Memorandum notes that the Court often makes a
determination that native title exists but it does not come into
effect until a PBC is registered. These amendments will require it
to be as soon as practicable after the determination.
Part 2 Application etc. Provisions
Item 18 notes that the amendment made by
item 5 applies in relation to the making of a
determination under paragraph 43(1)(b) of the Act after the
commencement of this item; and the revocation after the
commencement of this item of such a determination whether made
before or after that commencement.
Item 19 indicates the validation of
pre-commencement determinations. The determination is taken always
to have been as valid, as it would have been if paragraph 43(2)(j)
had been in force at the time the determination was made.
The primary purpose of this Bill is to give a central role in
native title mediation to the Federal Court of Australia. This
policy decision has been debated in the past but is unlikely to
attract particularly strong opposition in the current Parliament.
This is because the evidence shows that the existing system is not
working efficiently and the move to the Federal Court is based on a
recommendation from a 2005 independent review of native title
mediation.
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[21]. Submission
to the Discussion Paper (see Note 17) from the Australian Human
Rights Commission, p.7, available
here. Accessed 4 May 2009.
Monica Biddington
7 May 2009
Bills Digest Service
Parliamentary Library
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