Bills Digest No. 70, 2016–17
PDF version [814KB]
Christina Raymond
Law and Bills Digest Section
7 March 2017
Contents
Purpose of the Bill
Structure of the Bill
Background
The decision in McGlade
v Native Title Registrar
Facts and key
provisions
Grounds of challenge
Key legal
issue—interpretation of section 24CD
Decision
Reasons
Joint judgment—North and Barker JJ
Individual judgment—Mortimer J
Implications of the
decision
Development,
introduction and passage of the Bill in the House of Representatives
Potential appeal
from the Full Federal Court decision in McGlade
Committee consideration
Senate Legal and Constitutional
Affairs Committee
Legislative scrutiny committees
Policy position of non-government parties/independents
Opposition and the
Australian Greens
Independents and
minor parties
Position of major interest groups
Public comments of
native title sector stakeholders
Evidence of
stakeholder consultations on the Bill
Financial implications
Special appropriation—Item 13
Statement of Compatibility with Human
Rights
Rights in relation to culture and
self-determination
Measures that may warrant further
explanation
Key issues and provisions
Items 1 and 5—Parties to ILUAs (area
agreements)
Items 9 and 10—retrospective
validation of ILUAs and registration applications
Item 12—specific validation provision
for the four ILUAs in the McGlade litigation
Items 14 and 11—Attorney-General’s
rule-making power and related provisions
Item 13—‘Just terms’ compensation
Other provisions
Items 4 and 6—Further amendments to
the authorisation requirements for making ILUAs
Concluding comments
Date introduced: 15
February 2017
House: House of
Representatives
Portfolio: Attorney-General's
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 the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at March 2017.
Purpose of
the Bill
The Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 (the Bill) proposes to amend the Native
Title Act 1993 (NTA)
to address the effects of the decision of the Full Court of the Federal Court
of Australia in McGlade v Native Title Registrar (McGlade).[1]
The Full Court in McGlade decided unanimously that all individual
persons comprising the registered native title claimant (RNTC)[2] must sign an Indigenous
Land Use Agreement (ILUA)[3] made under the NTA, in order for that ILUA to be registered.[4] The decision created
uncertainty about the validity of the registration of ILUAs that had not been
signed by all individuals comprising the RNTC, because it overturned a previous
decision of the Federal Court which held that an ILUA need only be signed by
one or more of the individuals comprising the RNTC.[5]
The Bill proposes to remediate the effects of the decision in McGlade in the following ways:
a. confirm the legal status and enforceability of
agreements which have been registered by the Native Title Registrar on the
Register of Indigenous Land Use Agreements without the signature of all members
of a registered native title claimant
b. enable registration of agreements which have
been made but have not yet been registered on the Register of Indigenous Land
Use Agreements, and
c. ensure that in the future, area ILUAs can be
registered without requiring every member of the RNTC to be a party to the
agreement.[6]
The Bill contains two additional measures,[7] which implement
recommendations of the Australian Law Reform Commission (ALRC) in its 2015
report, Connection to Country: Review of the Native Title Act 1993 (Cth)
(2015 report).[8]
These measures relate to the authorisation by the wider claim group of the
making of ILUAs, and applications for native title determinations or for
compensation under the NTA.[9]
They do not appear to be strictly necessary to remediate the effects of the McGladedecision, but will improve flexibility in the decision-making
processes of native title claim groups by removing some limitations in the
current provisions.
Structure
of the Bill
The Bill contains a single schedule of proposed
amendments, which is divided into two parts.
Part 1 (items 1-7) contains the main amendments to the NTA,
which govern the process by which registered native title claimants are to
become parties to an ILUA.
The key proposed amendments in Part 1 reverse the
effects of the decision in McGlade by providing that an ILUA entered
into after the commencement of the Bill must be signed and executed by either:
- a
person or persons nominated or determined by the native title claim group or
- if
the native title claim group has not nominated a person or persons, a majority
of persons who comprise the registered native title claimant.[10]
Other proposed amendments in Part 1 implement two recommendations
of the ALRC in its 2015 Report with respect to authorisation requirements,[11]
or are consequential to the amendments outlined above.[12]
Part 2 (items 8-14) contains application, transitional
and savings provisions dealing primarily with existing ILUAs and
registration applications and decisions that may be invalid as a result of the reasoning
in McGlade.
The key measures in Part 2 propose to:
- validate
retrospectively ILUAs made, registered or lodged for registration on or before
the date of the McGlade decision (2 February 2017) that would otherwise
be invalid as a result of the reasoning in McGlade
(That is, not all of the individuals comprising the RNTC had signed the
agreement)[13]
- separately
validate the registration of the four ILUAs that were the subject of
proceedings in McGlade (which form part of the South West Native
Title Settlement in Western Australia)[14]
- confer
a broad rule-making power on the Attorney-General to make disallowable
legislative instruments prescribing matters of a transitional nature, and other
matters considered necessary or convenient to give effect to the amendments[15]
and
- provide
for the determination and payment of compensation, in the event a court were to
find that any of the provisions of the Bill constituted an acquisition of
property within the meaning of section 51(xxxi) of the Constitution,
thereby seeking to protect the amendments from being found unconstitutional.[16]
Background
The decision in McGlade v Native Title Registrar
Facts and key provisions[17]
McGlade
concerned a challenge to the proposed registration of four ILUAs forming part
of the South West Native Title Settlement.[18] (That is, the relevant
ILUAs had been made but were not yet registered.)
Each of the four ILUAs in McGlade was
a type of ILUA known as an ‘area agreement’ under Subdivision C of Division 3,
Part 2 of the NTA.[19]
In broad terms, area agreements are used when there has not been a
determination of native title over the whole of the geographical area covered
by the agreement.[20]
Subdivision C prescribes who must, and who
may, be parties to an area agreement. The applicable requirements depend on
whether there is a native title determination (or determinations) or a
registered native title claim (or claims) over land or waters within the
geographical area covered by the agreement.[21]
In addition, to be registered, the making
of an area agreement must be authorised[22]
by the persons who hold, or who claim to hold, native title in the land and
waters in the agreement area.[23]
In other words, the ILUA is executed by a (generally) more limited group of
persons who are parties to the agreement, but the making of the agreement must
be authorised by a wider group of persons who hold or claim to hold native
title. (Depending on the circumstances, the wider group might include members
of a native title claim group for a registered native title claim over the
agreement area, persons determined by the Federal Court to hold native title in
land or waters within the agreement area, and other persons who say they hold
native title over the agreement area but have not filed a native title claim,
or their claim application is not registered.)[24]
The applicants in McGlade were
persons who claimed to hold native title in land and waters within the areas
covered by each of the four ILUAs. They sought orders declaring that each one
of the four ILUAs was not an ‘agreement’ within the statutory meaning of that
term in the NTA and therefore incapable of being registered.
Not all of the individual persons
comprising the RNTCs for each of the four ILUAs had signed the relevant
agreements. In some instances, the non-signing claimants were unwilling to
sign the relevant ILUA (despite the native title claim groups for each ILUA
authorising the making of the agreements, and directing the individual persons
comprising the relevant RNTC to sign them). In other instances, the non-signing
claimants were unable to sign the ILUA because they had passed away or were
incapacitated.
Grounds of
challenge[25]
In broad terms, the legal basis for the challenge
was a technical issue of statutory interpretation concerning sections 24CA
and 24CD of the NTA.
Section 24CA—meaning of ILUA (area
agreement)
An ‘ILUA (area agreement)’ is defined
in section 24CA of the NTA as an agreement that meets certain
requirements as prescribed in other provisions of the NTA (namely,
sections 24CB-24CE).
As mentioned above, the powers of the
Native Title Registrar in Division 3 of Part 2 in relation to the registration
of ILUAs are limited to those agreements which satisfy the statutory definition
of an ILUA. (In relation to area agreements, this is the definition in 24CA.)
Section 24CD—‘all persons’ and ‘all RNTCs’
The requirements of section 24CD in
relation to the parties to an area agreement must be satisfied for an area
agreement to meet the requirements of section 24CA.
Subsection 24CD(1) provides that ‘all
persons in the “native title group” in relation to the area must be parties to
the agreement’.
The term ‘native title group’ for the
purpose of subsection 24CD(1) is defined in subsections 24CD(2) and
24CD(3) according to whether there are, or are not, any RNTCs or registered
native title bodies corporate[26]
in relation to any of the land or waters in the area covered by the agreement.
Subsection 24CD(2) defines the ‘native
title group’ if there is a registered native title claimant, or a registered
native title body corporate, in relation to any of the land or waters in the
area.
Paragraph 24CD(2)(a) relevantly
provides that the ‘native title group’ in relation to RNTCs consists of ‘all registered
native title claimants in relation to the land or waters in the area’.
Hence, where there is an RNTC, the effect
of subsections 24CD(1) and 24CD(2) and paragraph 24CD(2)(a) is that ‘all
persons’ in the relevant ‘native title group’ (being ‘all RNTCs’) must be parties
to the agreement.
Applicants’ submissions on section 24CD
The applicants in McGlade argued
that the correct interpretation of the phrase ‘all persons’ in
subsection 24CD(1) and ‘all RNTCs’ in paragraph 24CD(2)(a) is that each of
the persons whose names appear on the Register of Native Title Claims as the
applicant in relation to the claim must individually be a party to the relevant
ILUA, and as a result, must sign and execute it.[27]
The applicants submitted that the
Full Court should decline to follow a previous decision of a single judge
of the Federal Court in the matter of Bygrave.[28] There, Reeves J held that
paragraph 24CD(2)(a) required the signature of one or more individual
persons comprising the RNTC.[29]
On the view adopted by Reeves J, there was no
requirement that all of the individual persons comprising the RNTC must act unanimously.
Nor was there a requirement that each individual must assent to the agreement by
the act of signature, or specifically provide consent to becoming a party.[30]
Key legal
issue—interpretation of section 24CD
The key issue for the Full Court was whether
the phrases ‘all persons’ in subsection 24CD(1) and ‘all RNTCs’ in paragraph
24CD(2)(a) of the NTA meant that an ILUA (area agreement) must be signed
by either:
- every individual comprising each RNTC within
the area covered by the agreement or
- at least one individual from each RNTC
within the area covered by the agreement.[31]
Decision
The full court (North, Barker and Mortimer JJ) held, unanimously,
that the four ILUAs were not agreements within the meaning of section 24CA of
the NTA and, accordingly, were not registrable.[32]
Reasons
All members of the full court held that section 24CD of
the NTA requires all of the individual persons comprising an RNTC to
sign an ILUA (area agreement) in order for it to be registrable.[33]
Their Honours unanimously declined to follow Bygrave on this point.[34]
However, some differences in reasoning were apparent between the joint judgment
of North and Barker JJ and the individual judgment of Mortimer J.
Joint judgment—North and
Barker JJ
In their joint judgment, North and Barker JJ held that the
term ‘RNTC’ as used in subsection 24CD(2) means the ‘entity’ comprising all of
the individual persons whose names are recorded on the register of native title
claims as applicants in relation to a native title claim over land or waters in
the agreement area. On this view, the phrase ‘all RNTCs’ in paragraph
24CD(2)(a) meant all of the RNTC as ‘entities’ (that is, all individuals
jointly).[35]
However, their Honours held that paragraph 24CD(2)(a) must
be read in combination with the phrase ‘all persons in the native title
group’ in subsection 24CD(1).[36]
They held that the combined effect of the text of subsections 24CD(1) and (2)
is that ‘the various persons who jointly comprise the registered native title
claimant or claimants in relation to each of the ILUA must be parties to each
ILUA’.[37]
Their Honours further held that the consequence of a
person being a party to an agreement, in the absence of any contrary intention
in the NTA, is that each party must sign the agreement to indicate they
are bound by it.[38]
Hence, if one of the individuals comprising the RNTC ‘refuses, fails, neglects
or is unable’ to sign a proposed ILUA then ‘the document will lack the quality
of being an agreement recognised for the purposes of the NTA’.[39]
Their Honours acknowledged that one consequence of their
interpretation of subsection 24CD(1) and paragraph 24CD(2)(a) may be to
effectively confer upon individuals comprising the RNTC an ability to ‘veto’
the registration of an ILUA (by declining to sign it) contrary to the
wishes of the wider native title claim group. However, their Honours indicated
that these consequences did not bear upon the technical construction of the
provisions (contrary to the reasoning of Reeves J in Bygrave summarised
above). They stated:
As inconvenient as this outcome may be considered to be by
some, especially in a case such as the present where a large number of persons
jointly comprise the registered native title claimants; where some signatures
may have been difficult to obtain; and where some persons are deceased, the
textual requirements of the NTA in Subdiv C are as they are. While
this may mean that any one of the persons who jointly comprise a registered
native title claimant can effectively veto the implementation of a negotiated
area agreement by withholding their signature to the agreement, that is what
the NTA recognises as possible. Whether the NTA should provide
for some mechanism, apart from s 66B or in addition thereto, for responding to
the types of agreement making issues raised in these proceedings, is a policy
issue for the Parliament to consider, not this Court.[40]
Individual judgment—Mortimer J
In apparent contrast to the reasoning of North and Barker
JJ, Mortimer J did not appear to base her decision on the construction of the
phrase ‘all persons in the native title group’ in subsection 24CD(1).[41]
Rather, Mortimer J appeared to place weight upon the statutory
concept of an ‘RNTC’ for the purpose of paragraph 24CD(2)(a) as an entity
with a ‘collective, but singular, character’.[42]
She stated:
[T]he only signature which can constitute the signature of
the registered native title claimant is the signature of each and every
individual who constitutes that entity. That is, as the definition [of the term
‘RNTC’] in s 253 provides, the person or persons whose names are entered
on the Register as the applicant. In my opinion, the will, or intention, of an
entity such as a registered native title claimant is a collective will or
intention, representing as it does the earlier expression of the will of the
native title claim group. The disagreement of one individual constituting the
registered native title claimant may represent the disagreement of a
significant proportion of the native title claim group. If all individuals
comprising the registered native title claimant sign the document then it can
be said objectively that act represents the act of the native title claim
group. Section 251A [which prescribes the process by which the claim group may
authorise the making of an ILUA] then requires the will of the whole group to
confirm what its representatives have done, or propose to do, before the whole
group will be bound.[43]
It followed that her Honour did not support the view of
Reeves J in Bygrave that section 24CD should not be given a construction
that would enable an individual person constituting an RNTC to ‘frustrate or
veto’ the making of an ILUA. She stated:
[A]n individual who holds views different from those of the
majority of the individuals constituting the registered native title claimant
may nevertheless be conscientiously performing her or his representative role.
If she or he is not, then she or he should be removed under s 66B, if the Court
is satisfied on evidence that is appropriate. If she or he is performing
such a role, then expressing a contrary view may lead to a change of mind, or
at least a modification of views, in the remainder of the individuals
constituting the registered native title claimant. One cannot assume the
motives for entering into an ILUA are any more objectively appropriate and reasonable
than the motives for not doing so. There are simply different perspectives, and
it is for the claim group as a whole, and the claim group only, to decide which
perspective should prevail. Ultimately, if the native title claim group desire
the same outcome as the majority of individuals constituting the registered
native title claimant, then the NT Act provides the solution in s 66B, read
with s 251B, conditional upon the Court’s satisfaction.[44]
Implications of the decision
The decision in McGlade was limited to the
registrability of four ILUAs, however, the reasoning extends to other ILUAs (area
agreements). In particular, it would appear to have implications for:
- proposed
ILUAs (area agreements) being those agreements which have been made but are
not yet registered, and were not signed by all of the individual persons
comprising the RNTC (or RNTCs) in relation to a native title determination
application (or applications) covering land and waters in the agreement
area and
- registered
ILUAs (area agreements) that were not signed by all individual persons
comprising the RNTC (or RNTCs) in relation to a native title determination
application (or applications) covering land and waters within the agreement
area. (For example, they were signed by one person purportedly on behalf of all
RNTC, or they were not signed by some persons who had passed away, were
incapacitated, were unavailable or declined to sign.)
It is possible, although not certain, that the reasoning in
McGlade might potentially have some indirect implications for other
forms of native title agreements made outside the ILUA scheme. These matters
are outlined below.
Implications
for proposed ILUAs (agreements made but not yet registered)
Validity of registration applications
The decision in McGlade indicates that the Native
Title Registrar has no power under the NTA to register as an ILUA (area
agreement) an agreement that is not within the meaning of section 24CA. A registration
application in relation to an agreement that did not satisfy the requirements
of section 24CA would not be a valid application under section 24CG. Accordingly,
a proposed area agreement that did not satisfy the requirements of section 24CD,
as interpreted in McGlade, could not be the subject of a valid
registration application or a registration decision.
NNTT moratorium on
registration
Theoretically, if an application were made to register such
an ILUA under section 24CG, another person might make an application to the Federal
Court to obtain orders to prevent its registration, on the basis that
registration would exceed the jurisdiction conferred on the Native Title Registrar
under the NTA (as occurred in McGlade).[45]
However, the likelihood that such applications may be made
in the foreseeable future may be reduced by the announcement of the NNTT on 10
February 2017 that the Acting Native Title Registrar had placed a moratorium on
the registration of all area ILUAs currently in the registration or
notification stage that may be affected by the McGlade decision.[46]
On 16 February 2017, the NNTT announced that the Acting Native
Title Registrar would maintain the moratorium until the outcome of the present
Bill is known.[47]
Validity of agreements
In the absence of registration, an agreement would not have
the legal force conferred by Subdivision E of Division 3, Part 2 of the NTA.[48]
While an agreement may have some force between its parties under the general
law of contract, this may be of limited utility since it would not validate
future acts for the purposes of the NTA and could not bind native title
holders who are not parties.[49]
Practical impacts
In the absence of remedial legislation and the inability to
register an area agreement on the basis of the decision in McGlade, it
seems that the finalisation and registration of some proposed area agreements
may be prolonged, or may be impossible if the agreement of all individuals
comprising the RNTC cannot be obtained.
For example, if remedial legislation were not passed, it
would be necessary for parties to take additional steps to ensure that the
requirements of section 24CD, as interpreted in McGlade, were complied
with in order to ensure that their agreements are registrable.
This may include, for example, identifying all individuals
comprising the RNTCs and ensuring that each individual signs the agreement. In
cases of death, incapacity or refusal of one or more individuals comprising an
RNTC to sign the agreement, it may be necessary for the claim group to apply to
the Federal Court under section 66B of the NTA to have the person
removed as an RNTC.[50]
A new authorisation under section 251A might be required. It would also be
necessary to make a new registration application, which would attract new
notification and objection periods.[51]
These measures may have significant resource implications.
Further, in the absence of a remedial legislative response,
the interpretation applied to sections 24CA and 24CD in McGlade might
potentially have some indirect influence on non-native title parties’ behaviour
in relation to the use of non-negotiated settlements. For example, if not all
of the individual persons comprising an RNTC were willing to sign an ILUA, the
prospective grantees of interests in land might consider approaching state governments
about possible compulsory acquisitions of native title rights and interests; or
they might consider making non-claimant determination applications.[52]
Numbers of affected ILUAs
made but not yet registered
It is unknown how many proposed ILUAs (area agreements) might
be affected by the decision in McGlade. In relation to the ILUAs
that were the subject of proceedings in McGlade, the Western Australian
Government has stated that the decision ‘will delay the commencement of the 6
South West Native Title Settlement Agreements’.[53]
It is also reported that the McGlade decision could preclude the
registration of a proposed ILUA relating to the Carmichael coal mine and rail
project in Far North Queensland, as the relevant agreement was reportedly not
signed by all individual members comprising the RNTC.[54]
Implications
for registered ILUAs that were not signed by all individuals comprising the
RNTC
The McGlade decision also calls into question the
validity of previous decisions to register ILUAs that were not signed by all
individual persons comprising the RNTC over the land and waters covered by those
agreements.
Since the reasoning in the McGlade decision indicates
that those agreements would not have been ILUAs within the meaning of section
24CA, registration decisions may be vulnerable to judicial review on the
grounds of jurisdictional error. This may also cast doubt upon the legally
binding effect of such ILUAs under section 24EA, and the validity of actions
done under or in accordance with such ILUAs under sections 24EB and 24EBA (such
as the granting of interests in land, like issuing mining, pastoral or other
specific purpose leases).[55]
The total number of affected ILUAs on the Register is
unclear. On 11 February 2017, it was reported that the NNTT had commenced an
audit of registered agreements to identify those which were potentially affected
and, at that time, had identified a possible 123 area agreements that relied
upon the reasoning in Bygrave, most of which were in Queensland.[56]
Since then, it has been reported that the number is ‘at least 126 ... covering mines,
gas fields and infrastructure projects’.[57]
Others have estimated that there are around 150 such agreements.[58]
It has also been suggested that ‘the problem could be even
worse, however, because pre-Bygrave, the Native Title Registrar did
not deny ILUA registration applications where the only missing signatures were
those of deceased members of the registered claimant’.[59]
Possible implications for
other native title agreements, or actions in relation to claimant applications
The decision and reasoning in McGlade is concerned specifically
with ILUAs (area agreements) and the interpretation of sections 24CA and 24CD
of the NTA. The NNTT has previously found that the interpretation
applied in Bygrave to the requirements for the
execution of agreements is specific to ILUAs. In particular, the NNTT found
that the Bygrave decision did not have direct application to the ‘right
to negotiate’ procedure under Subdivision P of Division 3 of Part 2 of the NTA,
under which the negotiation parties may reach agreement about the doing of a
future act under section 31, or proceed to an arbitral determination under
section 38.[60]
Nonetheless, it has been suggested that
‘the ramifications of the decision are likely to extend beyond ILUAs’ and in
particular the decision may mean that ‘in all circumstances, including with
respect to making right-to-negotiate, cultural heritage and other agreements,
instructing lawyers, or taking steps in a native title claim, and despite any
direction to the contrary that may be given by the claim group, the individuals
who comprise an applicant or registered claimant will be required to act
unanimously’.[61]
Development, introduction and passage of the Bill in the House of
Representatives
Policy announcement
On 13 February 2017, in response to a Question
without notice in the Senate, the Attorney-General announced the Government’s
intention to introduce a Bill to the Parliament that week, containing urgent
amendments to ‘reverse the effect of the McGlade decision’ and effectively
‘legislatively reinstate the Bygrave decision’.[62]
The Attorney-General stated that he
had instructed his Department in the previous week to prepare amending legislation,
following a briefing on the decision.[63] The Attorney-General further stated that the decision in McGlade
was considered to be ‘a very significant development in the law’ which
‘had not been anticipated’.[64]
Prior warning in August 2016
On 13 February 2017 it was reported that the
National Native Title Council (NNTC) had written to the Attorney‑General
in August 2016 warning of the potential impacts if the applications in the McGlade
matter were upheld, and recommending remedial amendments to the NTA.[65]
The letter reportedly stated that such a
result would ‘generate a major rupture for industry, government and native
title parties’ and warned that ‘it is to be expected that each of these sectors
would seek urgent remedy in the form of NTA amendments along the lines
of those being recommended in this correspondence’.[66]
The NNTC’s proposal was reportedly:
[A] very simple amendment to the NTA
to clarify that for an agreement to be registered as an ILUA, not all RNTCs
(applicants) are required to sign an agreement once it has been properly
authorised ... in a meeting on behalf of the wide traditional owner group ... This
would in effect codify Bygrave, eliminate the likelihood of repeated
litigation on this point and re-establish the certainty and confidence in the ILUA
provisions of the NTA that all parties need.[67]
During a media interview on 13 February
2017 the Attorney-General expressed the view that the above report was
‘misleading’ and stated:
[A] letter was sent to me, which was dealt
with in the ordinary manner by my Department in the second half of last year,
but the point made in that letter ... did not suggest that the law was [otherwise]
than it had been understood to be in Bygrave's case in 2010.
Now you don't legislate against the
possibility that a higher court might overturn the decision of a lower court
which has settled the law. So it wouldn't have been appropriate to legislate at
that time.[68]
A representative of the
Attorney-General’s Department gave evidence to the additional estimates hearing
of the Senate Legal and Constitutional Affairs Committee on 28 February 2017
indicating that the Department had been considering potential legislative
amendments (subject to government approval) to address the NNTC’s concerns as
part of a broader package of legislative amendments to implement
recommendations of the ALRC’s 2015 Report. He indicated that no proposals were
made for immediate or urgent legislative action in response to the NNTC’s
letter on the basis that Bygrave ‘was still the law’ and ‘was considered
settled’. However, he stated that ‘we were working on it. And the fact that we
had been working on it was one of the reasons we were in a good position to
respond when the McGlade decision was handed down’.[69]
Introduction, debate and passage in the House of Representatives
The Bill was introduced to the House of
Representatives on 15 February 2017 and, in somewhat unusual circumstances, was
read for a second time, debated and passed by that chamber on 16 February 2017.[70]
The Bill was also introduced in the Senate on 16 February
2017.[71]
During the debate of the Bill in the House
of Representatives, members of the Government argued that the urgency of the
Bill required its passage through the House on the same day, with a Senate Committee
inquiry into the provisions of the Bill to be conducted during the four-week
period before the Senate would next sit on 20 March 2017. It was said that
the Senate Committee inquiry would provide an opportunity for public consultations
on the proposed amendments.[72]
Members of the Opposition and the
Australian Greens argued that the timing for the debate of the Bill in the
House did not allow time for appropriate scrutiny, including stakeholder
consultation. (This is discussed subsequently in the Policy position of
non-government parties/independents section of this Bills Digest.)
Potential appeal from the Full Federal Court decision in McGlade
At the time of writing this Bills Digest it is not known
whether any of the respondents in McGlade have filed, or may file, an
application in the High Court for special leave to appeal the full Federal
Court decision. However, the remedial legislative response proposed by the
present Bill may make the prospects of an appeal less likely.
Committee
consideration
Senate
Legal and Constitutional Affairs Committee
On 16 February 2017, the Bill was referred to the Senate
Standing Committee on Legal and Constitutional Affairs for inquiry and report
by 17 March 2017.[73]
At the time of writing this Bills Digest, the Committee’s
website indicated that it had received 14 submissions. It had also announced a
public hearing in Brisbane on 13 March 2017. Further details are available at
the inquiry
homepage.
Some stakeholders representing traditional owners and Indigenous
communities have argued that an extension of the reporting date is required to
enable their communities to work through the proposed amendments and comment on
them.[74]
Others have suggested that further public hearings at other locations would be
desirable to ensure that Indigenous communities can participate directly.[75]
Legislative
scrutiny committees
At the time of writing this Bills Digest, the Senate
Standing Committee for the Scrutiny of Bills and the Parliamentary Joint
Committee on Human Rights had not reported on their consideration of the Bill.
This reflects that the Bill was introduced outside the reporting period covered
by the committees’ reports which were tabled on 15 and 16 February 2017 respectively.[76]
If there is an intention for the Bill to be debated in the
Senate in the sitting week of 20 March 2017, it is uncertain whether Senators
will have an opportunity to consider these committees’ reports on the Bill prior
to debate. It is also unclear whether the timing for the debate of the Bill
will enable each committee to receive, and report on, responses to any requests
for further information in advance of the Bill being debated.
Policy
position of non-government parties/independents
Opposition and the Australian Greens
The Opposition and the Australian Greens
voted against the Bill in the House of Representatives, on the basis that the
24-hour period between introduction and debate did not provide an adequate
opportunity to scrutinise its provisions.[77]
In their contributions to the second
reading debate in the House, Members of the Opposition stated that the
Opposition accepted, in principle, the need for a remedial legislative response
to the decision in McGlade. However, they indicated that the
Opposition’s position on the substantive provisions of the Bill would depend on
the outcomes of further scrutiny, including consultations with key
stakeholders—particularly native title claimants and holders and their
representative bodies, and Indigenous communities.[78]
The Australian Greens also supported the
need for further scrutiny of and consultation on the Bill before it was debated
or voted upon, particularly direct consultations with Indigenous communities
and organisations throughout Australia.[79]
At the time of writing this Bills Digest, the
Australian Greens do not appear to have announced an ‘in-principle’ position
on whether there is a need for remedial legislation in response to the decision
in McGlade.
Independents and minor parties
In the House of Representatives, the independent Members (the Member for Denison
and the Member for Indi) and the Nick Xenophon Team (the Member for Mayo)
voted for the Bill.[80]
At the time of writing this Bills Digest,
members of the cross-bench in the Senate do not appear to have announced their
respective positions on the Bill.
Position of
major interest groups
Public comments of native title sector stakeholders
A number of native title sector
stakeholders are reported to have supported the need for legislative amendments
to reverse the effect of the McGlade decision. These include the National Native Title Council (NNTC),[81]
the Queensland Government,[82] and the Queensland Resources Council.[83]
It is unclear from the reported comments
whether all of these stakeholders support the passage of the Bill as introduced
without any amendments to its individual provisions; or whether their comments are
more general statements supporting the need for the urgent passage of remedial
legislation to address the effects of the McGlade decision. This
may become apparent in the Senate Legal and Constitutional Affairs Committee
inquiry into the provisions of the Bill.
Evidence of stakeholder consultations on the Bill
The Explanatory Memorandum to the Bill states
that ‘given the limited timeframe, the Attorney-General’s Department consulted
with stakeholders in relation to the legal implications of the McGlade
decision to the greatest extent possible, including State and Territory
governments, the National Native Title Tribunal and the National Native Title
Council’.[84]
The Explanatory Memorandum refers to departmental
consultations with a limited group of stakeholders on the legal implications of
the McGlade decision. It
does not indicate whether these stakeholders were consulted on the specific
remedial approach proposed in the Bill, or whether they were given an
opportunity to comment on draft provisions prior to the introduction of the
Bill. Nor does the Explanatory Memorandum indicate whether the stakeholders
consulted are supportive of the particular remedial approach proposed in the
Bill, or its specific provisions. Again, the respective positions of these
and other stakeholders may become apparent during the Senate Legal and
Constitutional Affairs Committee inquiry into the provisions of the Bill.
Further, some provisions of the Bill deal
with particular ILUAs—namely, the four agreements forming part of the South
West Native Title Settlement which were the subject of proceedings in McGlade.[85] The extrinsic materials to the Bill do not indicate whether the
parties to these ILUAs were specifically consulted on these provisions, and if
so, whether they are supportive of the proposed measures. In considering
any consultations conducted with the State of Western Australia on the proposed
amendments, regard might be had to the caretaker conventions in force in that
State from 1 February 2017[86]
(the day before the Full Federal Court decision in McGlade).[87]
Financial
implications
The Explanatory Memorandum states that the
Bill is anticipated to have a nil or insignificant financial impact on
Commonwealth departments or agencies.[88]
Special
appropriation—Item 13
Item 13 of Schedule 1 to the Bill could potentially have
significant financial implications if the Bill is passed.
It contains a standard compensation clause of a kind commonly used to manage
constitutional risk arising from section 51(xxxi) of the Constitution.[89] It provides that the Commonwealth is liable to pay ‘reasonable
compensation’ in the event that the operation of the proposed amendments would
amount to an acquisition of property by the Commonwealth other than on just
terms within the meaning of section 51(xxxi).
Item 13 provides that the Consolidated Revenue Fund is
appropriated for the purpose of making payments of compensation, in the event
that the operation of the amendments would amount to an acquisition of property
other than on just terms, within the meaning of those concepts in section
51(xxxi). This item is examined in the ‘key issues and
provisions’ section below.
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011, 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.[90]
Rights in
relation to culture and self-determination
The Statement of Compatibility identifies that the Bill
engages the right to enjoy and benefit from culture,[91]
and the right to self-determination.[92]
It suggests that the Bill is compatible with these rights because it promotes and
protects them.[93]
The Statement of Compatibility places emphasis on the objective
of the proposed amendments to enable ILUAs to be made more efficiently and
‘thereby assist Indigenous Australians to enjoy the cultural values and rights
associated with their traditional lands’.[94]
In particular, it notes the objective of the proposed amendments to remove the
ability of a small number of individuals comprising an RNTC to effectively
frustrate an agreement by declining to sign it, including in circumstances
involving disputes between individual RNTC members and the broader claim group.[95]
The Statement of Compatibility further emphasises the
Government’s intention that the amendments will provide native title claim
groups with greater discretion to determine who can be a party to an ILUA.[96]
It also notes the intention of the Bill to provide claim groups with greater flexibility
in relation to their authorisation processes for the making of ILUAs.[97]
Measures
that may warrant further explanation
The Statement of Compatibility is framed at a broad level
of generality, focusing on the overall objectives of the proposed amendments
without analysing the details of specific measures.
The compatibility of two proposed measures in the Bill
would have benefited from specific explanation in the Statement of
Compatibility, as they do not appear to be addressed fully by the general
explanation summarised above. The first proposed measure is contained in item
1, and the second in items 4 and 6.
Compatibility of the
proposed ‘party requirements’ with the right to self-determination—item 1
Item 1 provides for the means by which individual
persons comprising an RNTC are to become parties to an ILUA, through the
insertion of new paragraph 24CD(2)(a) in the NTA.
The Statement of Compatibility notes that the proposed
amendments will promote the right of Indigenous Australians to
self-determination by ‘providing native title holders [and presumably native
title claimants] with greater discretion to determine who can be party to an
agreement’.[98]
Proposed subparagraph 24CD(2)(a)(i) evidently
fulfils this objective by providing that a native title claim group may
nominate or determine which individual persons comprising the RNTC may be
parties to an ILUA, and therefore represent the claim group’s interests.
However, the Statement of Compatibility does not specifically
explain the basis upon which the ‘default rule’ in proposed subparagraph
24CD(2)(a)(ii)[99]
is considered to be compatible with the right of a native title claim group to
self-determination.[100]
The application of a ‘default rule’ necessarily involves the Parliament
imposing a legal rule, based on an external set of values or interests to
those of a claim group, to define the composition of the relevant ILUA parties
who are to represent the interests of the relevant claim group.[101]
It might be accepted that it is desirable, from a
pragmatic perspective, for the Parliament to prescribe some kind of statutory ‘default
rule’ to enable the agreement-making process to proceed in the event that the
claim group does not make a decision in accordance with proposed
subparagraph 24CD(2)(a)(i). (This might cover circumstances in which the
claim group has been unable to make a decision about the relevant parties, or
the mechanism for selecting them, as a result of an internal ‘deadlock’ or
disagreement.)[102]
However the Statement of Compatibility does not address
the compatibility of the specific ‘default rule’ in proposed
subparagraph 24CD(2)(a)(ii), being a majority of the persons comprising the
RNTC. For example, it does not identify or seek to address the possibility
that a ‘default’ majority requirement might not be regarded as legitimate by a
claim group, and could serve to promote or exacerbate intra-group disputes.
(Noting that an intra-group dispute or disputes might have prevented the claim
group from reaching a decision about the nomination of the ILUA parties, or a
process for determining these parties, in the first place.)
The substance of a potential ‘default rule’ in proposed
subparagraph 24CD(2)(a)(ii) is discussed further under the Key issues and
provisions section of this Bills Digest.
Human rights compatibility
of the amendments to the authorisation requirements—items 4 and 6
The general explanation provided in the Statement of
Compatibility appears to focus on the proposed amendments to the NTA
governing the means by which individual persons comprising the RNTC are to become
parties to an ILUA (items 1 and 5). The Statement of Compatibility
appears to make only a brief reference to the proposed amendments to the
authorisation requirements for the making of ILUAs in existing paragraphs 251A(a)
and 251A(b) (item 4).[103]
It does not appear to provide any commentary on the corresponding proposed
amendments to the authorisation requirements for native title determination and
compensation applications in existing paragraphs 251B(a) and 251B(b) (item 6).
As mentioned above, items 4 and 6 purport to
implement recommendations of the ALRC in its 2015 report (recommendations 10-1
and 10-2). These measures are not limited to remediating the decision in McGlade.
The proposed amendments to section 251A in item 4 will have a
considerably broader application to all types of ILUAs, not only area
agreements. Similarly, the proposed amendments to section 251B in item 6
will apply to all actions done in relation to native title determination and
compensation applications. The Statement of Compatibility would have benefited
from a separate analysis of these measures, which identified explicitly their
broader application and analysed their compatibility in that context.
Further, given the stated objective of implementing ALRC
recommendations 10-1 and 10-2 is to provide claim groups with ‘maximum
flexibility’ in making decisions about authorisation,[104]
consideration might be given to whether this could be complemented with further
measures in the ALRC’s recommended package of reforms to authorisation
requirements in Chapter 10 of its 2015 Report. In particular, a number of the
ALRC’s recommendations may add protections to ensure that additional flexibility
delivers outcomes that are beneficial to the group’s interests. For example, the
ALRC recommended that the NTA should be amended to impose a statutory
duty on each member of the applicant to avoid obtaining a benefit at the
expense of the common law native title holders.[105]
Key issues
and provisions
Items 1 and
5—Parties to ILUAs (area agreements)
Outline
of items
Item 1 of Schedule 1 to the Bill proposes to repeal
existing paragraph 24CD(2)(a) and substitute a new provision which prescribes
the manner in which an RNTC is to become a party to an ILUA (area agreement) as
required by subsections 24CD(1) and (2).
As noted above, existing paragraph 24CD(2)(a) provides
that, if there is an RNTC in relation to the land or waters in the agreement
area, the ‘native title group’ whose members must all be a party to the
agreement is comprised of ‘all RNTCs in relation to land or waters to the
area’. As also mentioned above, this provision must be read in conjunction with
subsection 24CD(1) which requires ‘all persons in the native title group’ to be
a party to the agreement.
Item 1 will replace existing paragraph 24CD(2)(a)
with a new provision which provides that, if there is an RNTC in relation to the
land or waters in the agreement area, the native title group will consist of
the following, for each RNTC in relation to land and waters in the area:
(i) if a person has
been nominated or determined under subsection 251A(2) by the native title claim
group concerned to be a party to the agreement—that person or those persons; or
(ii) if no persons have
been nominated or determined under subsection 251A(2) by the native title claim
group concerned to be a party to the agreement—a majority of the persons who
comprise the registered native title claimant.
In other words, the proposed amendment displaces the
interpretation of the existing provisions in McGlade that all individual
persons comprising an RNTC must be parties to an ILUA (area agreement) with a
provision enabling the claim group to choose individual parties, or a process
for determining individual parties, from among the persons comprising the RNTC:
proposed subparagraph 24CD(2)(a)(i). In the event that the claim group
does not exercise a choice, proposed subparagraph 24CD(2)(a)(ii)
provides a ‘default rule’ that a majority of individuals comprising the RNTC must
be parties to the agreement.
Item 5 makes amendments to section 251A to
prescribe the process by which a claim group may nominate or determine a person
or persons to be a party to the ILUA.
It inserts proposed subsection 251A(2), which is
the provision referred to in proposed subparagraphs 24CD(1)(a)(i) and (ii) (outlined
above).
Proposed subsection 251A(2) provides that, when
authorising the making of an agreement, a claim group may do either or both of
the following:
(a) nominate
one or more of the persons who comprise the registered native title claimant
for the group to be a party or parties to the agreement;
(b) specify a
process for determining which of the persons who comprise the registered native
title claimant for the group is to be a party, or are to be parties, to the
agreement.
The proposed amendments in item 5 appear to address
a limitation in the existing scope of section 251A identified by the Full Court
in McGlade—namely, that the power of a claim group to authorise the
making of an agreement does not confer a power upon the group to control the
constitution of the RNTC for the purpose of determining the individuals who are
to be a party to an ILUA.[106]
Item 5 confers an express power to nominate or determine individual
persons from among the claim group to be ILUA parties, and provides that this
power is exercisable contemporaneously with the power to authorise the making
of the agreement.
If the Bill is passed, the amendments in items 1 and 5
will apply prospectively to agreements made on or after the commencement of the
amending Act, being the day of Royal Assent.[107]
Explanation
for the proposed legislative approach
The Explanatory Memorandum contains a general
justification for the overall approach to the proposed amendments in items 1
and 5 in the form of creating a general rule (enabling the claim group to
self-select the ILUA parties) and a default rule (applicable in the event the
claim group does not self-select the parties). The Explanatory Memorandum states
that the proposed amendments are intended to ‘provide native title claim
groups with greater discretion to decide who comprises the native title group’
and ensure that the claim group ‘retains control over who must be a party to
the agreement for it to be an ILUA’.[108]
The Explanatory Memorandum further states that this
approach is intended to remove the ‘unnecessary barrier’ to agreement making as
a result of the decision in McGlade and ‘support the integrity of the
authorisation process’.[109]
It also states that this approach will ‘give primacy to the role of authorisation,
reflecting the view that authorisation, along with other [checks] and balances
established under the Act, provides sufficient protection for the claim group’.[110]
The Explanatory Memorandum does not outline the reasons
for selecting the particular ‘default rule’ in proposed paragraph
24CD(2)(a)(ii) that a majority of individual persons comprising each RNTC
in relation to the agreement area must be parties to the ILUA, if the claim
group does not nominate or determine the parties. However, the Minister’s second
reading speech states that this measure is consistent with recommendations of
the ALRC in its 2015 report that the applicant in relation to a native title
claim should be able to act by majority as the default position, rather than
jointly.[111]
Comments
Different
legislative approaches to in relation to future and extant ILUAs (area
agreements)
Items 1 and 5 will remove the effects of the
decision in McGlade in relation to ILUAs (area agreements) made in the
future.[112]
Specifically, these items will remove from section 24CD any express or implied
statutory requirement that all individual persons comprising the RNTC must sign
an ILUA in order for it to be registrable.
However, items 1 and 5 will not reinstate the
interpretation of section 24CD applied in Bygrave (namely, that only one
or more of the individual persons comprising the RNTC need sign the agreement).
Rather, items 1 and 5 will apply a new set of rules
to ILUAs made in the future. The Bill, through the measures in Part 2
of Schedule 1, will only reinstate the interpretation of section 24CD applied
in Bygrave in relation to extant ILUAs and associated registration
decisions and registration applications (being those ILUAs and
registration decisions or registration applications made on, or before, 2
February 2017).
The Explanatory Memorandum includes a general
acknowledgement that the Bill proposes to regulate extant and future ILUAs
differently.[113]
However, it does not appear to contain a direct explanation of the reasons that
a different approach to the interpretation of section 24CD in Bygrave was
evidently thought necessary in relation to future ILUAs.
Should
the provisions governing future ILUAs adopt the interpretation of section 24CD
applied in Bygrave?
In the absence of direct explanation in the extrinsic
materials to the Bill—and in view of public commentary about the general objectives
of the Bill to effectively reinstate the position in Bygrave—it might be
asked why item 1 does not simply adopt the interpretation in Bygrave
as the legal rule in proposed paragraph 24CD(2)(a)?
In particular, it might be asked why the interpretation of
section 24CD applied in Bygrave may not have been thought suitable (or
optimal) as either the sole legal rule governing the means by which persons
comprising the RNTC are to become parties to an ILUA; or as the default rule in
place of the majority requirement in proposed subparagraph
24CD(2)(a)(ii)?
On one hand, it might be argued that the legislative
adoption of the interpretation applied to section 24CD in Bygrave could
give stronger effect to the policy objective identified in the Explanatory
Memorandum to ‘give primacy to the role of authorisation’.[114]
On the basis of Reeves J’s reasoning in Bygrave, it could do so by
reducing the role of an RNTC in being a party to an ILUA (area agreement) to a statutory
mechanism or device through which the wider claim group (which lacks legal
personality) could enter into the ILUA.[115]
Hence, it would only be necessary for at least one individual comprising the
RNTC to be a party to the agreement. That person would be taken to have
executed the agreement as a representative party for the claim group. The main
focus of inquiry and assessment for the purpose of registration would be
whether the claim group had authorised the making of the agreement.[116]
On the other hand, reducing the role of the RNTC as an
ILUA party to a purely procedural mechanism by which the claim group may
enter into the agreement might not necessarily ‘support the integrity of the
authorisation process’.[117]
For example, as Mortimer J observed in McGlade, a requirement that only
one individual comprising an RNTC need sign and execute an ILUA
(area agreement) might produce unintended consequences in the
authorisation of area agreements covering more than one claim area, as a result
of disparities in the relative size and influence of two or more claim groups.[118]
On this view, the approach proposed in item 1 and 5 might provide a stronger
degree of assurance that the will of the claim group is likely to be given
effect in the execution of the agreement.
Ultimately, a decision about the means by which the
individuals comprising the RNTC are to become parties to an ILUA under section
24CD will require a policy decision about the desired role of the RNTC in the
agreement-making process, and its relationship with the wider claim group. There
may be value in exploring this underlying policy issue with relevant
non-government and government stakeholders in the native title sector, in
addition to consulting them on the legal and practical implications of the
proposed approach in items 1 and 5.
Possible unintended or unacknowledged consequences of
items 1 and 5
A further issue in relation to items 1 and 5 is
whether these measures may have unintended consequences; or may have broader
consequences that are intended by the proponents of the Bill but may have not
been specifically identified in the extrinsic materials. Two potential unintended
or unacknowledged consequences are outlined below.
An implied function or
power to remove individuals comprising the RNTC as ILUA parties?
The first such consequence is whether items 1
and 5 may, in conferring a function or power on the claim group to nominate
or determine the individual persons comprising the RNTC to be parties to an
ILUA, be open to interpretation as conferring an implied function or power
to remove or substitute such persons as ILUA parties.
Such an interpretation would seem to alter the existing
position that section 66B of the NTA is the vehicle for removing
individual persons comprising an RNTC who are unwilling or unable to sign an
ILUA, the making of which has been authorised by the claim group.
From a policy perspective, the merits of such an
interpretation are open to debate and may warrant further exploration and
consultation with native title sector stakeholders. To ensure clarity and
certainty, consideration might be given to including an express provision in
the Bill giving effect to the desired policy position (or including a
statement of the intended interpretation in the Explanatory Memorandum).
Effects of conferring a
limited statutory power to act by majority
The second such consequence is whether the proposed
amendments may risk creating unintended consequences by reason of enacting a
limited statutory power to act by majority. That is, the proposed amendments:
- make
specific provision for individuals comprising the RNTC to act by majority in
relation to becoming parties to and executing an ILUA (unless otherwise decided
by the claim group) and
- simultaneously
do not make corresponding amendments to expressly enable individuals
comprising the RNTC/applicant to act by majority in various other matters
provided for under the NTA—for example:
- dealing
with matters arising under the NTA in relation to a native title
determination or a compensation arrangement[119]
or
- executing
agreements in relation to future acts.[120]
This may mean that an RNTC/applicant is subject to
different statutory rules about whether it can act by majority, or whether it
is required to act jointly, in the context of different actions it may take in
relation to the native title claim.[121]
It might be questioned whether this may lead to confusion or arbitrariness, or
may produce unintended consequences for the interpretation of individual
provisions of the NTA in their broader context.
Further, it might be questioned whether the present Bill
may reflect a policy intention to single out ILUAs for differential treatment
in this regard; or whether there is an intention to introduce comparable
amendments to other provisions of the NTA in the future—for example, as
part of a response to the ALRC’s 2015 report.[122]
Items 9 and
10—retrospective validation of ILUAs and registration applications
Outline
of items
Items 9 and 10 of Schedule 1 provide for the retrospective
validation of ILUAs and their registration (item 9) and registration
applications (item 10) made on or before 2 February 2017, being the date
on which the McGlade judgment was handed down.[123]
Both items are expressed as applying to ILUAs that were
not agreements within the meaning of section 24CA only because
not all of the persons who comprised the RNTC (or RNTCs) for the area covered
by the agreement were parties to it, but at least one of the persons who
comprised the RNTC (or RNTCs) were parties.[124]
That is, the validation provisions apply if the sole
reason that an agreement did not fall within section 24CA was that it did
not meet the requirements of section 24CD as interpreted in McGlade, but
the agreement met the requirements of that provision as previously interpreted
in Bygrave. (Namely, the agreement was not executed by all of the
individuals comprising the RNTC or RNTCs in relation to the area covered by the
agreement, but it was executed by at least one individual comprising the
relevant RNTC or each of the relevant RNTCs.)
In this way, the proposed validation provisions will not
cure any invalidity arising from any non-compliance with other requirements of
sections 24CB-24CE, which are prescribed in section 24CA as essential elements
of an ILUA (area agreement).
If the relevant ILUA meets the conditions summarised above,
it is taken to be, and always to have been, an ILUA within the meaning of
section 24CA in relation to the area.[125]
Similarly, the relevant registration or registration application is taken to
be, and always to have been, as valid and effective as it would have been had
the relevant agreement been, and always have been, an ILUA.[126]
The retrospective validation of registration decisions by item
9 will ensure that the legal effects of registration under sections 24EA,
24EB and 24EBA of the NTA applies continuously to affected ILUAs from
their date of registration. (That is, the agreement is binding as between the
parties and non-party native title holders, and previous future acts authorised
or validated by the ILUA remain valid.)
Similarly, the retrospective validation of registration
applications by item 10 ensures that parties to proposed agreements
lodged for registration do not need to make new applications (including repetition
of preliminary steps such as re-executing the ILUA, and obtaining new
authorisation or certification) that would, in turn, have triggered new
notification and objection periods under the NTA.
Subitem 9(4) provides that the validation
provisions in item 9 do not apply to four named ILUAs forming part of the
South West Native Title Settlement in Western Australia. These are the four
ILUAs that were the subject of proceedings in McGlade. Item 12
(discussed below) makes separate provision for the validation of these ILUAs.
Comments
Items 9 and 10 appear to implement faithfully the stated
policy intention to restore the legal position to that articulated in Bygrave,
in relation to those ILUAs that were made and lodged for registration in
reliance on the interpretation of section 24CD in Bygrave, on or prior
to the judgment date in McGlade. In making specific provision for the retrospective
validation of such ILUAs, as well as their registration and registration
applications, these items appear to provide effective coverage of major areas
of risk.
Apparent
gap in coverage—ILUAs made between 3 February 2017 and commencement of the
amendments
However, there is an apparent gap in relation to the application
of items 9 and 10. These items are expressed as applying to ILUAs and
registration applications made on, or before, the judgment date in McGlade of
2 February 2017, whereas the proposed amendments in Part 1 of Schedule 1
will apply prospectively from the date on which the amending Act receives Royal
Assent.
Accordingly, the Bill does not appear to make provision for
ILUAs made or lodged for registration during the interim period between
3 February 2017 and day before Royal Assent. It appears that the legal
position in McGlade would apply to any such ILUAs—perhaps unless the
rule-making power in item 14 was interpreted as authorising the making
of rules that could prescribe different requirements.[127]
(Item 14 is discussed below.)
In practical terms, it is conceivable that this
apparent gap in coverage may not affect a significant number of ILUAs (if any)
given the NNTT’s moratorium on registrations, and the native title sector’s
awareness of the present Bill as a remedial response to the McGlade decision.
These factors might result in parties electing to defer the finalisation of any
extant negotiations nearing completion, and the execution of agreements and
lodgement of registration applications, until the outcome of the Bill is known.
Nonetheless, Members and Senators may wish to seek an
explanation from the Government for the reasons for the apparent gap in
coverage, which is not acknowledged or justified in the extrinsic materials to
the Bill.
If there is an intention that the proposed rule-making
power in item 14 would be exercised in relation to agreements made
between 3 February 2017 and the day before Royal Assent, such information may
also assist in scrutinising the proposed scope and breadth of the rule-making
power (noting that this matter is also unexplained in the extrinsic materials
to the Bill, as discussed below).
Potential
complexity—Creation of at least three different sets of rules
The gap in the application of items 9 and 10 also
means that Bill would create at least three different sets of legal rules governing
the parties to extant or future ILUAs.[128]
These rules are:
- ILUAs
made on or after the commencement of the Bill will be governed by the
amendments to the NTA in Part 1 of Schedule 1—namely, the claim
group must specify, or agree to a process for determining, the individuals
comprising the RNTC who are to be parties to the ILUA; or the NTA will
impose a default rule that the relevant parties must be a majority of
individuals constituting the RNTC
- ILUAs
made on or before 2 February 2017 will be governed by the retrospective
validation provisions of Part 2 of Schedule 2, which will generally
provide that the position in Bygrave applies—namely, that the
agreement must have been executed by at least one individual person comprising
each RNTC in relation to the land and waters within the agreement area, and
- ILUAs
made between 3 February 2017 and the day before the commencement of the Bill
will likely be governed by the position in McGlade. This will
mean that agreements made or lodged for registration during this period must be
executed by all individual persons comprising the RNTC or RNTCs in relation to
the land and waters within the agreement area. (There may be some question as
to whether the proposed rule-making power in item 14 is capable of
authorising rules that effectively provide for a different outcome.)
The existence of three different sets of rules may
generate complexity. It might be questioned whether the different arrangements
could be streamlined further.
Item 12—specific
validation provision for the four ILUAs in the McGlade litigation
Outline
of item
As noted above, subitem 9(4) excludes the four
ILUAs that were the subject of litigation in McGlade from the general
rules relating to the retrospective validation of ILUAs and their registration.
Item 12 further provides that the agreements prescribed in subitem
9(4) are taken to be ILUAs within the meaning of section 24CA of the NTA
from the date of commencement of the amending Act (if the Bill is passed).
Importantly, item 12 will validate these ILUAs if
they were invalid only because they failed to comply with the
requirements of section 24CD as a result of the McGlade decision. (That
is, they were not signed by all individuals comprising the RNTC or RNTCs for
the area covered by the agreement). It will not validate these ILUAs if they otherwise
do not comply with the requirements of sections 24CB-24CE, and are therefore
not agreements within the meaning of section 24CA.[129]
Comments
The extrinsic materials to the Bill do not explain why
separate validation provisions are needed for the four named ILUAs in subitem
9(4).[130]
The inclusion of item 12 in the Bill evidently suggests that there is a
perceived practical need for these provisions. However, there does not appear
to be any information available on the public record to inform the Parliament about
the reasons underlying this position.
Further, item 12 represents a call upon the
Parliament to pass a law that singles out individual agreements for
differential legal treatment and, by extension, the persons who will be bound by
those agreements or otherwise affected by their terms. In light of this,
members of the Parliament may wish to seek further information about the
Government’s reasons for this proposal, and obtain the views of the parties to
the relevant agreements and others who might be bound or otherwise affected by
their terms.[131]
Items 14
and 11—Attorney-General’s rule-making power and related provisions
Outline
of items
Item 14 of Schedule 1 provides that the Minister
administering the NTA (the Attorney-General) may, by legislative
instrument, make rules prescribing matters that are required or permitted to be
prescribed by the rules; or matters that are necessary or convenient to be
prescribed for carrying out or giving effect to the amending Act.[132]
Item 14 further provides that the rule-making power
may include matters of a transitional nature (including savings and
application provisions) relating to Parts 1 and 2 of Schedule 1.[133]
The item also contains a standard provision of a
declaratory nature, which provides that a general rule-making power of the kind
prescribed in item 14 does not authorise the making of rules of a
punitive, intrusive or otherwise significant nature.[134]
Item 11 is related to the rule-making power in item
14. It purports to validate an application for the registration of an ILUA that
was made on or before 2 February 2017, in circumstances that would not be
covered by the general validation provision in item 10 due to the
application of rules made under item 14.
In particular, item 11 validates applications for
the registration of agreements that were not ILUAs under section 24CA of
the NTA due to the decision in McGlade, but would have
been validated by subitem 9(2) of the Bill, and where the application
had not complied with another requirement for registration as prescribed in the
rules.[135]
Subitem 11(2) provides that a registration application that meets the
above requirements is taken to be, and always to have been, as valid and
effective as it would have been if the matters prescribed by the rules had been
satisfied.[136]
Comments
Absence
of contextual explanation and justification for the proposed amendments
The Explanatory Memorandum to the Bill does not provide information
about the circumstances in which it is anticipated that statutory rules would
be required to be made pursuant to item 14, including rules made for the
purpose of item 11. Nor does it contain justification for the scope and
breadth of the proposed rule-making power.[137]
In a general sense, it might reasonably be surmised that some
degree of flexibility is necessary to ensure that different factual scenarios
in relation to the potentially wide variety of affected ILUA are covered.[138]
Some form of delegation of legislative power might be considered appropriate to
deal efficiently with possible unforeseen and unintended consequences that
might arise in individual cases, which would otherwise require legislative
amendments to remove potentially arbitrary outcomes.
However, the absence of information in the extrinsic
materials to the Bill about the intended use of the rule-making power makes it impossible
to undertake meaningful analysis, in the abstract, of the proposed scope and
effect of the proposed rule-making power.
Insufficient
information about the scope and intended use of the rule-making power in
relation to item 11
Item 11 appears to validate registration
applications affected by the McGlade decision that would otherwise be
invalid for other reasons, in addition to the non-compliance of the relevant
agreements with sections 24CA and 24CD because they were not signed by all
individuals comprising the RNTC. Proposed paragraph 11(1)(d), in
combination with proposed paragraph 14(1)(a), provides that the rules
may specify the other reasons. Neither provision appears to limit the types of
reasons that may be prescribed by the rules. In this regard, it appears that item
11 could effectively enable the rules made for the purpose of proposed paragraph
11(d) to exempt ILUAs that are validated by subitem 9(2) from any
number of the general requirements for registration applications in section
24CG of the NTA and the Native Title
(Indigenous Land Use Agreements Regulations) 1999 (ILUA Regulations), by
prescribing the relevant provisions of section 24CG and the ILUA Regulations in
the rules.
Section 24CG and the ILUA Regulations prescribe some
important requirements to ensure the integrity of the registration process, and
by extension the making and authorisation of agreements. These include a
requirement in subsection 24CG(1) and regulation 7(2)(b) that all parties must
agree in writing to the making of the application; a requirement in subsection
24CG(2) and regulation 7 that certain documents or information
must accompany the application; and a requirement in subsection 24CG(3) that
the application must be accompanied by a certificate or a statement (and an
explanation of grounds) that all reasonable efforts have been made to identify
potential native title holders in the land or waters, and that all persons so
identified have authorised the making of the agreement.
The Explanatory Memorandum does not identify the types of
reasons intended to be prescribed in the rules made for the purpose of proposed
paragraph 11(1)(d), or explain more broadly why the inclusion of item 11
is considered necessary. These matters do not appear to be self-evident on
the face of the proposed provisions.
It is unclear which scenarios (or which particular
proposed ILUAs) are in contemplation as the beneficiaries of item 11,
and why their differential treatment was thought necessary or appropriate.
Information about this matter may assist the Parliament to scrutinise item
11. Such scrutiny might include consideration of any impacts that item
11 may have on the rights and interests of ILUA parties or others who may
be affected by the terms of an agreement, if it were registered despite the
defect (or defects) in its application that are effectively waived by the
validation provision in subitem 11(2).
Insufficient
information about other aspects of the proposed rule-making power in item 14
It is unclear why the rule-making power in subitem
14(1) should extend beyond matters of a transitional nature as specified in
subitem 14(2). The apparent effect of subitem 14(1) is that the
rule-making power may be exercised in relation to all matters considered
necessary or convenient for carrying out or giving effect to the amending Act
(if the Bill is passed) for as long as the amending Act is in force.
Further, in relation to the transitional rule-making power
in subitem 14(2), it is also unclear, in the absence of explanation in
the extrinsic materials, why powers of a transitional nature are considered
necessary in relation to the proposed amendments to the NTA in Part 1
of Schedule 1. As item 8 provides that the measures in Part 1 apply
in relation to agreements made on or after the commencement of the amending Act
(and not to extant ILUAs), it is unclear on the face of the proposed provisions
what, if any, transitional matters would arise.
As noted in the above discussion of items 9 and 10,
it might also be questioned whether there is an intention to rely upon item
14 to make rules that prescribe transitional matters in relation to
agreements executed between 3 February 2017 and the day before the amending Act
commences (if the Bill is passed).[139]
If there is such an intention, there may be some debate as to whether the general
rule-making power in item 14(1)(b) or subitem 14(2) would
be capable of supporting such an interpretation.[140]
Item 13—‘Just
terms’ compensation
Outline
of item
As mentioned above, item 13 of Schedule 1 contains
a standard clause used in Commonwealth legislation to manage the risk that it
may be found invalid for contravening the ‘just terms guarantee’ in section
51(xxxi) of the Constitution.
Section 51(xxxi) of the Constitution provides that
the Commonwealth Parliament may only legislate with respect to the acquisition
of property by the Commonwealth upon ‘just terms’. Legislation that results in
an acquisition of property other than on just terms will be invalid.
Item 13 of Schedule 1 to the Bill appears to be
designed to manage any potential constitutional risk arising from the possible
application of section 51(xxxi) to the retrospective validation measures in Part
2 of Schedule 1.
Subitem 13(1) provides that, if
any provision of the Bill (if enacted) results in an ‘acquisition of property’
to which section 51(xxxi) of the Constitution applies from a person
other than on just terms, then the Commonwealth is liable to pay compensation
to that person.
Subitem 13(2) further provides that, if the Commonwealth and the other person do
not agree on the amount of compensation payable, the person may commence
proceedings in the Federal Court for the recovery from the Commonwealth of such
reasonable amount of compensation as the court determines.
Subitem 13(3) creates a special appropriation from the Consolidated Revenue Fund
for the purpose of making payments under subitems 13(1) and (2).
Relationship
of item 13 to existing compensation provisions in the Native Title Act
The NTA contains several
compensation provisions, some of which are constitutional ‘just terms’
compensation clauses.[141]
However, the existing compensation
provisions in the NTA are of no application to the proposed
retrospective validation provisions in Part 2 of Schedule 1 to the Bill.
This is because the retrospective validation provisions are not proposed to be
enacted as amendments to the NTA, but rather will be enacted as stand-alone
provisions of the amending Act. (The proposed amendments to the NTA in Part
1 of Schedule 1 to the Bill will, if enacted, be covered by the
corresponding compensation clauses in the NTA, particularly that in
section 53.)
How
might the measures in the Bill result in an acquisition of property other than
on just terms?
Acquisition
of property
The Explanatory Memorandum to the Bill makes brief
reference to the possibility that the retrospective validation measures in Part
2 of Schedule 1 may be found to result in an ‘acquisition of property’
within the meaning of section 51(xxxi) of the Constitution. It notes the
possibility that the effective extinguishment of a person’s right to seek the
review of a decision to register an ILUA might be found to constitute an
‘acquisition of property’.[142]
This might include, for example, the retrospective removal
of a right to seek the judicial review of a registration decision on the grounds
of jurisdictional error—namely, that the agreement did not meet the
requirements of section 24CD and was therefore not an agreement within the
meaning of section 24CA, because it was not executed by all individual persons
comprising the RNTC.[143]
The High Court has held that legislation that extinguishes
a right in the form of a ‘chose in action’[144]
can constitute an acquisition of property for the purpose of section 51(xxxi)
in certain circumstances. This is generally where the extinguishment confers an
‘identifiable and measurable countervailing benefit or advantage’ on another.[145]
The Explanatory Memorandum states that ‘it is not thought
likely that the Bill involves the acquisition of property otherwise than on
just terms’.[146]
This may reflect a view that any ‘benefit’ accruing to the Commonwealth (or
others) from the limitation of judicial review rights would not possess the
requisite ‘identifiable’ and ‘measurable’ characteristics to constitute an
‘acquisition’ within the meaning of section 51(xxxi).
The position outlined in the Explanatory Memorandum may
also be based on decisions of the High Court that legislation that removes or
modifies rights of a purely statutory nature, which are inherently susceptible
to variation, are not laws with respect to the acquisition of property within
the meaning of section 51(xxxi).[147]
The position asserted in the Explanatory Memorandum might further seek to
rely upon jurisprudence indicating that legislation will not be characterised
as a law ‘with respect to the acquisition of property’ within the meaning of
section 51(xxxi) if the purpose of that legislation is the ‘adjustment of
competing rights, claims or obligations of persons in a particular relationship
or area of activity’.[148]
Monetary
compensation as ‘just terms’
Broadly, the standard for ‘just terms’ is regarded as what
is fair and just—or what a legislature could reasonably regard as fair and
just—between the community and the owner of the thing taken.[149]
The High Court has generally held that legislation that provides for the
payment of ‘reasonable compensation’ as determined by a court is legislation that
provides for ‘just terms’ within the meaning of section 51(xxxi) of the Constitution.[150]
The validity of the existing ‘constitutional compensation
clauses’ in the NTA has not yet been tested in litigation to determine
whether they satisfy the legal standard for just terms under section 51(xxxi).
There has been some suggestion that the purely monetary compensation
contemplated by standard constitutional compensation clauses in Commonwealth
legislation might not satisfy the just terms requirement in relation to
acquisitions of property that are constituted by the extinguishment of rights that
are not readily replaced or compensated by the payment of money—potentially
including native title rights and Aboriginal land rights.[151]
However, any rights ‘acquired’ by the present Bill within
the meaning of section 51(xxxi) would not appear to be native title rights per
se, but rather rights of a procedural character in relation to the
execution and registration of an ILUA. Arguably, an acquisition of procedural
rights of this kind could be treated as compensable in pecuniary terms, or
otherwise by existing provisions of the NTA that accord procedural
fairness to the relevant person.[152]
Other
provisions
Items 4 and
6—Further amendments to the authorisation requirements for making ILUAs
Outline
of items
Item 4 and 6 of Schedule 1 contain additional
measures to those that purport to reverse the effects of the decision in McGlade.
These proposed amendments would implement recommendations of the ALRC in its
2015 report to amend the provisions of sections 251A and 251B of the NTA
that govern the authorisation of the making of ILUAs (section 251A) and native
title determination and compensation applications and related matters (section
251B).[153]
Existing section 251A provides for the process by which a
native title claim group may authorise the making of an ILUA (as is required
for the registration of an area agreement under sections 24CG-24CL). It
provides that if the group has a traditional decision-making process for
authorising an agreement, it must use such a process and cannot choose to
utilise a different process. Only if the group does not have a traditional
decision-making process can it choose to utilise a decision-making process as
agreed to, and adopted by, the group.
Similarly, existing section 251B requires a claim group to
use a traditional decision-making process for authorising an applicant to make
a determination or compensation claim (or to deal with matters arising in
relation to the application). If the group has such a traditional process, it
must use that process. If it does not have such a process, it must use a
decision-making process agreed to, and adopted by, the group.
ALRC
recommendations
The ALRC recommended the amendment of sections 251A and
251B to enable the claim group to choose either a traditional decision-making
process, or a decision-making process agreed to and adopted by the group.
The ALRC considered that allowing the group to choose its own
decision-making process would promote the autonomy of the group, would ensure
that the group maintained its ‘ultimate authority’, and would remove practical problems
arising from a lack of clarity about the existence of a traditional
decision-making process or limitations in the utility of traditional processes.[154]
The ALRC acknowledged that its proposed amendments would
not overcome all of the difficulties of a group choosing a decision-making
process (such as choices between one vote per family group, or one vote per
adult which may variously disempower larger or smaller family groups). However,
the ALRC considered that an alternative approach of prescribing a process by
statute would create new problems—for example, if the statute specified a
majority vote as a general rule, this may not be regarded as legitimate by some
claim groups and might serve to fuel rather than resolve disputes, and
undermine the autonomy of the claim group.[155]
Amendments
in items 4 and 6
Items 4 and 6 implement the ALRC’s recommendations
by providing that the two processes specified in paragraphs (a) and (b) of each
of sections 251A and 251B are alternatives. They remove the requirement that
non-traditional decision-making processes may only be used if there is no
traditional decision-making process.
Comments
Items 4 and 6 are not strictly necessary to
implement a legislative response to the McGlade decision. Nonetheless,
these measures appear to remove artificial limitations on the decision-making
processes prescribed by sections 251A and 251B in relation to authorisation,
which were supported by the ALRC and a majority of submitters to the ALRC’s
inquiry.[156]
Given that the inclusion of items 4 and 6 may evince
an intention to implement broader measures to improve authorisation
requirements, it might be questioned whether the Bill could be amended to
include measures implementing two further recommendations of the ALRC, which called
for corresponding amendments to other provisions of the NTA and
regulations made under the NTA that prescribe identical authorisation
requirements to those in sections 251A and 251B.[157]
In particular, the ALRC recommended that corresponding
amendment should be made to subsection 203CB(2) of the NTA,
which prescribes the process that a native title holder must follow in
providing consent to a native title representative body taking action on its
behalf. (The provision uses the same formulation as that in sections 251A
and 251B in relation to the use of a traditional process if there is one, or a
decision-making process agreed to and adopted by the group to which the person
belongs.)[158]
The ALRC also recommended amendments to
the Native Title (Prescribed Bodies Corporate) Regulations 1999, subregulations 8(3) and 8(4) of which prescribe the process by
which common law holders of native title must give consent for a native title
decision (using the same formulation as sections 251A and 251B noted above).
The ALRC agreed with stakeholder views that, if sections 251A and 251B
were amended, these regulations should also be amended to ensure consistency.[159] (While it would be legally possible to amend the regulations via
legislation, the usual means would be via the making of amending regulations.
The extrinsic materials to the Bill also do not identify whether the Government
intends to make amending regulations to implement this recommendation, which
would complement items 4 and 6.)
Concluding comments
Public policy objectives
Amending the NTA to remediate the effects of the McGlade
decision appears to be a sensible and prudent step. Such amendments could
provide certainty to the ILUA parties, non-party native title holders and other
land users about the legal status of extant ILUAs and acts done pursuant to their
terms. Amendments would also ensure that there are clear and certain procedural
requirements governing the making and registration of ILUAs in the future.
Individual provisions of the Bill
The detailed provisions of the Bill arguably merit further
scrutiny. An opportunity to hear and consider the views of key stakeholders
within the native title sector might be considered particularly important to
ensure that the Bill will achieve its desired objectives in a manner that is
workable, and avoids creating unintended legal or practical consequences. In
this regard, much may depend on the evidence provided to the Senate Legal and
Constitutional Affairs Committee inquiry into the Bill, and the findings and
recommendations of that Committee.
Two proposed measures that may warrant close attention are
the proposed requirements governing the means by which individuals comprising
the RNTC may become parties to an ILUA in new paragraph 24CD(2)(a) (item
1), and the broad rule-making power proposed to be conferred on the
Attorney-General that includes, but is not limited to, transitional matters (items
14 and 11).
Item
1—Parties to an ILUA (area agreement)
Item 1 will remove the effects of the McGlade
decision in relation to future ILUAs made after the commencement of the
amending legislation, but will not restore the legal position to that set down
in Bygrave.
The requirements in proposed new paragraph 24CD(1)(a)
differ to the interpretation of existing subsection 24CD(2) in Bygrave
that at least one of the individual persons comprising the RNTC need sign an
ILUA (area agreement) in order for it to be registrable.
The stated policy objective underlying the Bill is that
primacy should be given to the role of authorisation.[160]
If this view is supported as a matter of policy, then consideration might be
given to whether the legislative adoption of the Bygrave interpretation
of subsection 24CD(2) would be more compatible with this objective.
Item
14—rule-making power
Item 14 also proposes to confer an apparently broad
rule-making power upon the Attorney-General. The extrinsic materials to the
Bill do not appear to provide a substantive explanation of the reasons for the
proposed scope and nature of the power. They do not identify the types of
circumstances or scenarios in which it is envisaged that statutory rules would
be made; or the types of matters intended to be prescribed in the rules for the
purpose of the validation provision in item 11, which would enable
an ILUA to be registered despite the application’s non-compliance with the
prescribed matters.
Items
4 and 6—Authorisation requirements for the making of ILUAs and native title applications
A further issue that may merit further scrutiny is whether
the proposed amendments to the authorisation requirements in sections 251A and
251B of the NTA (items 4 and 6) will be fully effective if
implemented in isolation from the broader suite of reforms to authorisation
requirements recommended by the ALRC in its 2015 report.[161]
The ALRC’s recommendations included amendments to the consent requirements in
other provisions of the NTA and regulations, which correspond to its
proposed amendments to the authorisation requirements in sections 251A and 251B
(now proposed to be implemented by items 4 and 6 of the Bill).[162]
Potential unintended consequences
A further issue is whether the Bill may have unintended
(or unacknowledged) consequences in some respects.
For example, there may be some question as to whether the
conferral of a function or power upon a claim group to nominate or determine
the parties to an ILUA might be construed to include, by necessary implication,
a power to remove or substitute those parties. In any event, there may be a
substantive policy question as to whether the Bill should, or should not,
confer such a power.
The Bill might also have the potential to create
unintended consequences by authorising individual persons comprising an RNTC to
act by majority in executing an ILUA, without making corresponding amendments
to enable an applicant/RNTC to act by majority in other circumstances. (For
example, in dealing with matters arising under the NTA in relation to a
native title determination or compensation applications, or in negotiating and
executing agreements in relation to future acts.) It may mean that
RNTCs/applicants are subject to different statutory rules about whether they
can act by majority, or whether they are required to act jointly, in the
context of different actions they may take in relation to the native title
claim. This may lead to arbitrariness or confusion, or may produce unintended
consequences for the interpretation of individual provisions of the NTA
in their broader context.
Unknown status of a Government response to the ALRC’s 2015 report on
the NTA
A further matter, closely related to the above issue, is
that the present Bill proposes to implement partially a small number of the
ALRC’s recommendations in its 2015 report. This raises the question of whether
the Government will release a substantive response to the ALRC’s 2015 report
and, if so, when such a response will be released and implemented.
Procedural issues
Finally, in a broader sense, it might be questioned
whether the manner in which the Bill was introduced and debated in the House of
Representatives was conducive to the effective Parliamentary scrutiny of the
Bill, having regard to the complexity of the legislative regime of which it
forms part, and its significant legal and practical impacts on the native title
sector. The contention that the decision in McGlade ‘had not been
anticipated’ by the Government[163]
might also tend to suggest that there could be scope to improve upon existing
contingency planning arrangements, and their execution, in relation to matters
of this nature.
[1].
McGlade v Native Title Registrar [2017] FCAFC
10, 2 February 2017.
[2]. An
RNTC is defined in section 253 of the NTA in the following way:
‘Registered native title claimant, in relation to land or waters, means a
person or persons whose name or names appear in an entry on the Register of
Native Title Claims as the applicant in relation to a claim to hold native
title in relation to the land or waters’. As such, the RNTC in relation to a
particular native title claim comprises all of the individual persons whose
names are on the register as the relevant applicant in relation to that claim.
However, the RNTC as a whole does not have legal personality as an entity
separate to the individual applicants who jointly comprise it (for example, it
is not a corporation).
[3].
An ILUA is a voluntary agreement between a native title group and
others about the use of land and waters. The ILUA regime is established under subdivisions
B-E of Division 3, Part 2 of the NTA. ILUAs can cover land and
waters which are subject to a native title claim or a determination over all or
part of the area (but do not require there to be a determination or claim over
the area covered by the agreement). Broadly, ILUAs can include terms covering
matters such as: the doing of acts which may affect native title (such as
agreeing to a future development); how native title rights will coexist with
the rights of other people; the extinguishment by surrender of native title;
the provision of compensation; the provision of employment and economic
opportunities for native title groups; and matters relating to cultural heritage.
The ILUA regime was enacted by the Native Title
Amendment Act 1998, which was a legislative response to the High Court
decision in Wik Peoples v Queensland (1996) 187 CLR 1; [1996] HCA 40,
23 December 1996 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow
and Kirby JJ). It replaced a more limited agreement-making regime under the NTA,
which was available to native title holders but not claimants (formerly known
as ‘section 21 agreements’). See further: G Neate, ‘Indigenous
Land Use Agreements—an overview’, Indigenous Law Bulletin, 4(21),
1999; and National Native Title Tribunal (NNTT), About
Indigenous Land Use Agreements (ILUAs), website.
[4]. Registration
of an ILUA refers to the act of the Native Title Registrar in placing a
copy of the ILUA on the Register of ILUAs established under Part 8A of
the NTA, in accordance with the registration requirements prescribed
by Subdivisions B-E of Division 3, Part 2. (For present
purposes, the relevant requirements are set out in sections 24CG-24CL.) Subdivision
E of Division 3, Part 2 of the NTA provides that the registration of
an ILUA is legally significant in two key respects. First, registration
gives the ILUA binding effect as between the parties (in addition to any
binding effect under the general law of contract) as well as binding native
title holders who are not parties to the ILUA (section 24EA). Secondly,
registration has the effect of validating ‘future acts’ (being certain
acts which affect native title in the land and waters within the area covered
by the ILUA) where the ILUA includes a statement that the parties consent to
the doing of such acts in the future, or a statement that the parties agree to validate
acts which were done previously (sections 24EB and 24EBA).
[5].
QGC Pty Ltd v Bygrave (No 2) (‘Bygrave’) (2010) 189 FCR 412, [2010] FCA 1019, 17 September 2010.
[6].
Explanatory
Memorandum, Native Title Amendment (Indigenous Land Use Agreements) Bill
2017, p. 2.
[7]. Schedule
1, items 4 and 6.
[8]. Australian
Law Reform Commission (ALRC), Connection
to country: review of the Native Title Act 1993 (Cth), ALRC, report,
126, June 2015, recommendations
10-1 and 10-2. See also: Explanatory
Memorandum, Native Title Amendment (Indigenous Land Use Agreements) Bill
2017, pp. 10–11.
[9]. NTA,
section 251A (authorising the making of ILUAs); and section 251B
(authorising native title determination and compensation applications and
dealing with matters arising in relation to those applications).
[10]. Schedule
1, item 1. (Further proposed amendments specifying the means by which
the native title claim group may nominate or determine persons to be party to
the ILUA are contained in item 5.)
[11]. Schedule
1, items 4 and 6. See also, Explanatory
Memorandum, Native Title Amendment (Indigenous Land Use Agreements) Bill
2017, p. 10.
[12]. Schedule
1, items 2, 3 and 7.
[13]. Schedule
1, items 9-11.
[14]. Schedule
1, subitem 9(4) and item 12. The South West Native Title
Settlement covers approximately 200,000 square kilometres of land and waters in
Western Australia. It has been described as ‘the most comprehensive native
title agreement proposed in Australian history’ and involves the full and final
resolution of all native title claims in the South West of Western Australia as
between the State and the Noongar People. There are six groups of native
title claimants or holders involved in the settlement, which is proposed to be
given effect via an ILUA with each group. See: Department of
Premier and Cabinet, Western Australia (DPC WA), South West Native Title Settlement,
website; and South West Aboriginal Land and Sea Council (SWALSC), Settlement
agreement, website. See further: DPC WA, Statement on Federal Court judgment—McGlade v Native Title
Registrar 2017, website, 14 February 2017;
and SWALSC, Message from the CEO—Federal Court decision in McGlade v Native
Title Registrar [2017] FCAFC 10, 2 February
2017.
[15]. Schedule
1, item 14.
[16]. Schedule
1, item 13.
[17]. The
summary of facts in this section is drawn from McGlade, [1]-[30] (North
and Barker JJ) and [278]-[288] and [317]-[340] (Mortimer J).
[18]. These
agreements are: the ‘Wagyl Kaip and Southern Noongar ILUA’, the ‘Ballardong
People ILUA’, the ‘South West Boojarah #2 ILUA’ and the ‘Whadjuk People ILUA’.
Details of each agreement, including maps of the relevant areas and the terms
of the agreements themselves, are available at: DPC WA, South
West Native Title Settlement: settlement publications, DPC WA website.
[19]. ‘Area
agreements’ are one of three different categories of ILUAs created under Subdivisions
B-D of Division 3, Part 2 of the NTA (the other two categories being
‘body corporate agreements’ and ‘alternative procedure
agreements’). Broadly, the demarcation of three categories of ILUA is
designed to provide tailored arrangements for the making of agreements in
different circumstances, depending on whether there are registered native title
claims or native title determinations in relation to some or all parts of the
land and waters in the area covered by the agreement. Subdivisions B-D
prescribe different requirements in relation to the persons who must be a party
to each type of agreement and the processes by which each type of agreement is
to be registered. There are also some minor differences in the matters which
can be the subject of each type of agreement. See further: N
Duff, Authorisation and decision-making in native title, Australian Institute of Aboriginal and
Torres Strait Islander Studies (AIATSIS), Canberra, 2017
at pp. 162-193 (Part 7.1—entering and authorising ILUAs).
[20]. For
a useful summary of the circumstances in which area agreements can be used,
see: Duff, op. cit., pp. 162–163.
[21]. In
particular, subsections 24CD(1)-(3) of the NTA provide that
several persons with native title interests in the land and waters in the
agreement area must be parties to an area agreement. These persons are
referred to collectively as the ‘native title group’ and individually
comprise: all registered native title bodies corporate (where a
native title determination or determinations exist over land or waters in the
area); all RNTCs (where a registered native title claim or claims
exist over land or waters in the area); and any one or more of the
following—persons who claim to hold native title, or representative
Aboriginal/Torres Strait Islander bodies (where there is no registered
native title claim or claims over land or waters in the area). Subsection
24CD(5) provides that Commonwealth, state and territory governments must
be a party to an area agreement if the agreement makes provision for the
extinguishment of native title rights by surrendering them to the relevant
Commonwealth, state or territory. Subsections 24CD(4), (5) and (6) also
provide that other persons may be a party to an area agreement. This
includes native title and government parties where their participation is not
required in the circumstances prescribed by subsections 24CD(1),(2), (3)
and (5). It also includes any other person (for example, prospective land users
such as mining companies).
[22]. NTA,
section 251A sets out the requirements for the authorisation of the making
of an ILUA by a native title claim group or holder, by reference to the group’s
decision-making processes. (This provision is discussed in the ‘key issues and
provisions’ section, in the context of proposed amendments in item 4 of
Schedule 1 to the Bill.)
[23]. See
NTA, sections 24CG-24CL.
[24]. See further: NNTT, Authorisation of area agreements,
fact sheet 11: a guide to authorisation of area agreements, NNTT, 2014.
[25]. The
following summary of the grounds of challenge is drawn from McGlade,
[31]–[90] (North and Barker JJ) and [341]–[347] (Mortimer J).
[26]. Registered
native title bodies corporate are corporate entities that are registered under
the NTA and are nominated by native title holders to hold their native
title rights and interests as their trustee or manage them as their agent once
a native title determination is made: NTA, section 253.
[27]. McGlade,
[61]–[75] (North and Barker JJ).
[28]. Bygrave,
op. cit. The applicants’ submissions in relation to Bygrave
are summarised in McGlade, [76]–[90] and especially [85] (North and
Barker JJ).
[29]. Bygrave,
[85] and the supporting reasoning at [66]–[84] (Reeves J). A useful summary
and analysis of the decision in Bygrave is provided in NNTT, Native Title Hot Spots: National Native Title Tribunal Legal
Newsletter, 34, May 2011, pp. 4–15.
[30]. Ibid., [87]-[109]
(Reeves J). This conclusion reflected Reeves J’s interpretation of the
underlying purpose of the provision to ‘provide a statutory mechanism or device
by which a large unincorporated group of indigenous persons with fluctuating
memberships and undetermined native title rights and interests can enter into
an ILUA’ which necessarily required ‘a legal person or persons to act as the
representative party for the large unincorporated group’. Hence, according to
Reeves J, section 24CD was no more than a procedural device, and the
individuals signing the agreement did not perform an active or substantive role
in personally assenting to it: Bygrave, [60]–[70]. One reason
Reeves J interpreted the statutory purpose of section 24CD as being merely
procedural was that a contrary interpretation would, in his Honour’s view,
produce ‘an absurd and unfair result’—namely, that section 24CD would ‘provide
an opportunity for an individual member of a registered native title claimant
to frustrate, or veto, a native title contracting group entering into an ILUA,
by refusing to become a representative party to that ILUA under section 24CD’. Reeves
J considered that this outcome would frustrate the purpose of the ILUA
provisions as a whole in Division 3 of Part 2 of the NTA, which was to
enable and facilitate agreement making: Bygrave, [95].
[31]. Note
that the full court also considered an additional issue in relation to one of
the four ILUAs (the Whadjuk People ILUA). This was whether the fact that one
RNTC signed the ILUA more than six months after a registration application was
made to the Registrar had the consequence that the ILUA did not comply with the
requirements of subsection 24CD(1) and paragraph 24CD(2)(a) and was therefore
not an agreement within the meaning of section 24CA. A majority of the Full
Court (North and Barker JJ) answered this question in the negative, on the
basis that any impediment to registration had been removed because the
agreement was ultimately signed before registration was completed: McGlade, [271]
and [275] (North and Barker JJ). However, this issue was not material to the
ultimate decision that the Whadjuk People ILUA was not registrable. The full
court held that the agreement was not of a kind within the meaning of
section 24CA on the basis that another person comprising the RNTC had not
signed the agreement because he had passed away.
[32]. Ibid.,
[268], [272]–[277] (North and Barker JJ) and [507]–[521] (Mortimer J).
[33]. Ibid.,
[240]–[244] (North and Barker JJ) and [504]–[506] (Mortimer J).
[34]. Ibid.,
[267] (North and Barker JJ) and [490]–[495] (Mortimer J).
[35]. Ibid.,
[233]–[238] (North and Baker JJ).
[36]. Ibid.,
[239]–[241] (North and Barker JJ).
[37]. Ibid.,
[242] (North and Barker JJ).
[38]. Ibid.,
[243] and further at [246] (North and Barker JJ).
[39]. Ibid.,
[244] and further at [245]–[247] (North and Barker JJ).
[40]. Ibid.,
[265] (North and Barker JJ).
[41]. Ibid.,
[417]–[419] (Mortimer J).
[42]. Ibid.,
[397] and the supporting reasoning at [362]–[386] especially [379]–[380]
(Mortimer J).
[43]. Ibid.,
[397] (Mortimer J).
[44]. Ibid.,
[494] (Mortimer J).
[45]. Note
that in McGlade, the full federal court made orders declaring that the
relevant ILUAs were not agreements within the meaning of section 24CA and that
the Native Title Registrar had no jurisdiction under Division 3 of Part 2 of the
NTA to register them. The Court declined to issue a writ of prohibition
ordering the Registrar not to register the agreements, on the basis this was
unnecessary as the Registrar is a public office holder who is presumed will
comply with the law: McGlade, Order 2(2) and [273]–[276] (North and
Barker JJ) and [517]–[521] (Mortimer J).
[46]. NNTT, ‘Statement
from the Native Title Registrar: McGlade v Native Title Registrar [2017]
FCAFC 10’, NNTT website, 10 February 2017.
[47]. NNTT, ‘Government
introduces legislation to address McGlade decision’, NNTT website,
16 February 2017.
[48]. NTA
section 24EA (registered ILUA is binding upon the parties and non-party
native title holders); section 24EB (validation of proposed future acts
where consented to under registered ILUA); and section 24EBA (validation
of prior future acts where validated under registered ILUA).
[49]. NTA,
section 24OA (unless a provision of the NTA provides otherwise, a
future act is invalid to the extent that it affects native title).
In the case of ILUAs, sections 24EB and 24EBA (see above note) are the
provision which ‘provide otherwise’ for the purpose section 240A.
[50]. An application for an order of the Federal Court under section
66B may, in turn, require resolution of any disputes about whether the
members of the claim group possessed the necessary authorisation to make the
application, and about the grounds for the application, generally that the
individual member of the RNTC who declined to sign the ILUA did so in excess of
the authority given by the claim group. See: NTA, subparagraph
66B(1)(a)(iv) and paragraph 66B(1)(b).
[51]. Examples
of additional steps which may lead to delay were identified in the submissions
of the South West Aboriginal Land and Sea Council (SWALSC) in McGlade,
summarised in the joint judgment at [131]–[132] (North and Barker JJ).
[52]. A non-claimant application seeks a decision from the court as to
whether native title exists in relation to the area of land or water covered by
the application (an applicant with a non-native title interest is effectively
seeking a determination that native title does not exist). In the event the
application is unopposed, the future act process in Subdivision F of Division 3
of Part 2 of the NTA applies. See further: NNTT, ‘Non-claimant applications in NSW’,
Information sheet, n.d.
[53]. DPC WA, ‘Federal Court judgment—McGlade v Native Title Registrar 2017’, DPC WA website, 14 February
2017. (Note that item 12, Schedule 1 to the Bill provides that the four
ILUAs in the South West Native Title Settlement will be validated from the
commencement of the proposed amendments, which is the day of Royal Assent. This
provision is discussed below.)
[54]. M McKenna, ‘Adani project frozen by shock land rights ruling’, The Weekend Australian, 11 February 2017, p. 1. See also:
‘Traditional owners challenge Adani mine deal’, Sky News, 13 February 2017; and Wangan & Jagalingou
Family Council, ‘No surrender—traditional owners move to defeat Adani’s fake
Indigenous Land Use Agreement in the wake of Noongar ruling’, media release, 7 February 2017.
[55]. Section
24EA provides that while details of an agreement are
entered on the Register of ILUAs, the agreement has effect between the parties
and all non-party native title-holders. Section 24EB validates future
acts where, at the time they are done, there is an agreement on the Register
including a statement to the effect that the parties consent to the doing of
the act. Section 24EBA contains a similar validating provision for
previous future acts that have already been done invalidly, where details are
on the Register of an agreement that includes a statement to the effect that
the parties validate the act. However, these provisions may not apply if the
registration of an area agreement was void ab initio due to
jurisdictional error. It might also be argued, in any event, that the term
‘agreement’ in sections 24EA, 24EB and 24EBA should be interpreted consistently
with the meaning of the term ‘agreement’ in section 24CA (in the case of area
agreements). On this view, an area agreement that did not satisfy the
requirements of section 24CD would not be an agreement to which sections
24EA, 24EB and 24EBA apply.
[56]. McKenna, ‘Adani project frozen by shock land rights ruling’, op. cit., p. 1.
[57]. M McKenna, ‘Native Title Act changes “urgent"’,
The Australian, 14 February 2017, p. 2.
[58]. S Fitzpatrick, ‘Indigenous groups laud native title bill changes’, The Australian, 17 February 2017, p. 7.
[59]. Clayton Utz,
‘Legislative
fix for McGlade native title decision to confirm ILUAs due this week', Clayton
Utz website, 14 February 2017.
(Readers may wish to note that this firm is retained to act
for Adani Mining Pty Ltd in relation to the Carmichael coal and rail project:
Clayton Utz, Expertise:
native title, Clayton Utz website, 2017. The McGlade
judgment indicates this firm acted for three of the respondents in that
case.)
[60]. Queensland Gas Company Limited & Ors /Iman People No 2;
Mandandanji People/Queensland, [2010] NNTTA 210, 17 December 2010
(Sosso DP) at [44]. See also: NNTT, Native Title Hotspots: National Native Title Tribunal legal
newsletter, op. cit., pp. 14-15.
[61]. Clayton Utz, ‘Native title agreement-making turned on its head’, Clayton Utz website, 3 February 2017.
[62]. G Brandis, ‘Answer
to Question without notice: native title’, [Questioner: D Smith], House of
Representatives, Debates, 13 February 2017, pp. 39–40.
See also G Brandis, ‘Transcript of interview with Ray Hadley—2GB’, media release, 14 February 2017; and See further: G
Brandis, Senate Legal and Constitutional Affairs Legislation Committee, Official
committee Hansard, (proof), 28 February 2017, pp. 71‑72.
[63]. Brandis, ‘Answer
to Question without notice: native title’, op. cit., p. 39.
[64]. Ibid.
[65]. M McKenna, ‘Brandis failed to act on land rights warning’, The Australian, 13 February 2017,
p. 1. (The NNTC is an alliance of Native Title
Representative Bodies (NTRBs) and Native Title Service Providers (NTSPs). Its
activities include advocacy and representation of the views of NTRBs and NTSPs,
as well as information-sharing among its members and providing a platform for
outside organisations to consult with NTRBs and NTSPs. See: NNTC, ‘About us’, NNTC website.)
[66]. Ibid.
[67]. Ibid.
[68]. G Brandis, Attorney-General, ‘Transcript of interview with Peter van Onselen—Sky News’, media release, 13 February 2017. See also: G Brandis,
Senate Legal and Constitutional Affairs Legislation Committee, Proof
Committee Hansard, 28 February 2017, pp. 69-70.
[69]. A
Walter, Attorney-General’s Department, Senate Legal and Constitutional Affairs
Legislation Committee, Official
committee Hansard, (proof), 28 February 2017, p. 70.
[70]. Australia, House of Representatives, Votes and proceedings, (proof), 34, 2016–17,
16 February 2017, pp. P559–P561. The House agreed to a motion moved by the
Leader of the House to suspend Standing Orders so as to enable the Bill to
proceed to a third reading without delay. (Prior to the debate of the Bill, the
House did not agree to a motion moved by the Leader of Opposition Business
calling upon the House to note, among other things, the Government’s intention
to put the Bill through all stages of debate before 2pm that day, and calling
upon the Government to ‘abandon this approach and allow time for proper
consultation with Aboriginal and Torres Strait Islander communities’: Australia,
House of Representatives, Votes and proceedings, op. cit., p.
P551.)
[71]. Australia, Senate, Journals, (proof), 30, 2016–17, 16
February 2017, p. 1009.
[72]. See for example, J Leeser, ‘Second reading speech: Native Title Amendment (Indigenous Land Use
Agreements) Bill 2017’, House of Representatives, Debates,
16 February 2017, pp. 21 and 22. See also: K Wyatt, ‘Second reading speech: Native Title Amendment (Indigenous Land Use
Agreements) Bill 2017’, House of Representatives, Debates,
16 February 2017, p. 25; and M Keenan, ‘Third reading remarks, Native Title Amendment (Indigenous Land
Use Agreements) Bill 2017’, House of
Representatives, Debates, 16 February 2017, p. 33.
[73] Senate
Standing Committee for the Selection of Bills, Report,
2 of 2017, 16 February 2017, p. 3 and Appendices 2 and 3. The
Senate did not agree to the motion of the Australian Greens to extend the
reporting date to 8 May 2017: Australia, Senate, Journals, (proof), 30, 2016–17, 16 February 2017,
p. 993. See also: R Siewert, Senate, Debates, 16 February 2017, p. 17 and
R Di Natale, Senate, Debates, 16 February 2017. The Opposition indicated that it was ‘sympathetic’
to the comments made by Senator Siewert on the motion, but considered that the
reporting date of 17 March 2017 was appropriate. The Opposition also indicated
that it would ‘await further advice from the Committee once that inquiry is
undertaken to see whether any further extensions are required’: K Gallagher,
Senate, Debates, 16 February 2017,
p. 18.
[74]. N Thorpe, ‘Native title being watered down for big mining, traditional owners
say’, NITV News (online), 3 March 2017; Seed
Youth Indigenous Climate Network, Consultation period for changes to Native
Title Act a complete sham, media release, 2 March 2016; and Wangan &
Jagalingou Family Council, Traditional
owners say Native Title Bill being rammed through needs more time and proper
negotiation, media release, 2 March 2017.
[75]. P
Dodson, Senate Legal and Constitutional Affairs Legislation Committee, Official
committee Hansard, (proof), 28 February 2017, p. 71.
[76]. The
Senate Scrutiny of Bills Committee Scrutiny
Digest, 2
of 2017, was tabled on 15 February 2017, covering the Bills introduced the
previous sitting week (at p. ix). The Parliamentary Joint Committee on
Human Rights Human
rights scrutiny report, 1 of 2017, was tabled on 16 February 2017
and examined Bills introduced between 28 November 2016 and 9 February 2017 (at
p. 1).
[77] Australia, House of Representatives, Votes and proceedings, (proof), 34,
2016–17, 16 February 2017, pp. P560–P561.
[78] See, for
example: M Dreyfus, ‘Second
reading speech: Native Title Amendment (Indigenous Land Use Agreements) Bill 2017’,
House of Representatives, Debates, (proof), 16 February 2017, pp. 16–18;
L Burney, ‘Second reading speech: Native Title Amendment (Indigenous Land Use
Agreements) Bill 2017’, House of Representatives, Debates,
(proof), 16 February 2017, pp. 23–24; W Snowdon, ‘Second
reading speech: Native Title Amendment (Indigenous Land Use Agreements) Bill
2017’, House of Representatives, Debates, (proof), 16 February 2017,
pp. 29–30; and T Burke, ‘Second
reading speech: Native Title Amendment (Indigenous Land Use Agreements) Bill
2017’, House of Representatives, Debates, (proof), 16 February 2017,
p. 30. See also: P Dodson, Senate Legal and Constitutional Affairs
Legislation Committee, Official
committee Hansard, (proof), 28 February 2017, p. 71.
[79] A Bandt, ‘Second
reading speech: Native Title Amendment (Indigenous Land Use Agreements) Bill
2017’, House of Representatives, Debates, (proof), 16 February 2017,
pp. 27–28.
[80] Australia, House of Representatives, Votes and proceedings, (proof), 34, 2016–17,
16 February 2017, pp. P560–561.
[81] McKenna, ‘Native Title Act changes urgent’, op.
cit.; and Fitzpatrick, op. cit.
[82].
Ibid.
[83].
Queensland Resources Council (QRC), ‘Statement by QRC Chief Executive Ian Macfarlane on Native Title
Amendment’, media release, 16 February 2017. See
also: See also: B McHugh, ‘Changes to legislation being looked at as ruling on Indigenous
agreements throws industry, governments into turmoil’, ABC News, (online edition), 9 February 2017.
[84] Explanatory
Memorandum, Native Title Amendment (Indigenous Land Use Agreements) Bill
2017, p. 5.
[85] Schedule 1,
subitem 9(4) and item 12.
[86]. Western
Australian Electoral Commission (WAEC), ‘Election
timeline—key election dates’, WAEC website.
[87]. See:
Department of Premier and Cabinet (Western Australia), State
General Election 2017: caretaker conventions: guidelines applying in Western
Australia during the state General Election period, 2017. (See, for
example, p. 5: ‘Major project approvals or policy decisions should be deferred
unless there is appropriate consultation with the Opposition parties. Whether a
particular decision qualifies as “major” is a matter for judgement.’)
[88] Explanatory
Memorandum, Native Title Amendment (Indigenous Land Use Agreements) Bill
2017, p. 5.
[89] Such
clauses are sometimes referred to colloquially as ‘historic shipwrecks clauses’
reflecting their first use in the Historic Shipwrecks
Act 1976, section 21. Contemporary Commonwealth drafting policy
with respect to the use of these clauses is set out in: Office
of Parliamentary Counsel, Drafting Direction No. 3.1—Constitutional law issues, reissued January 2017, pp. 2–3. A useful summary of these
clauses is also provided in: Australian Law Reform Commission (ALRC), Traditional rights and freedoms—encroachments by Commonwealth laws, Interim report, 127, July 2015, paragraph [7.33].
[90]. The
Statement of Compatibility with Human Rights can be found at page 6 of the Explanatory
Memorandum to the Bill.
[91]. Recognised
in International
Covenant on Civil and Political Rights, done in New York on 16 December
1966, [1980] ATS 23 (entered into force for Australia (except Art. 41) on 13
November 1980; Art. 41 came into force for Australia on 28 January 1994), Article
27; and International
Covenant on Economic, Social and Cultural Rights, done in New
York on 16 December 1966, [1976] ATS 5 (entered into force for Australia on
10 March 1976), Article 15.
[92]. Recognised
in ICCPR, Article 1 and ICESCR, Article 1.
[93]. Explanatory
Memorandum, Native Title Amendment (Indigenous Land Use Agreements) Bill
2017, p. 8.
[94]. Ibid.,
p. 7.
[95]. Ibid.
[96]. Ibid.,
p. 8.
[97]. Ibid.,
p. 7.
[98]. Ibid.,
p. 8.
[99]. The
relevant default rule specified in proposed subparagraph 24CD(2)(a)(ii) is
that a majority of persons comprising the RNTC must be parties to the ILUA, in
the event that the claim group does not make a decision under proposed
subparagraph 24CD(2)(a)(i) about the individuals who are to be parties to
the agreement, or about a process for determining the individuals who are to be
parties to the agreement.
[100]. As
the Statement of Compatibility observes (at p. 8), the standards in the United
Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)
provide context as to how human rights standards under international law apply
to the particular situation of Indigenous peoples. The following articles
of the UNDRIP may be relevant to interpreting the right of a native
title claim group to self-determination in the context of deciding upon the
individual persons comprising the RNTC to be parties to an ILUA: Article 4
(‘Indigenous peoples, in exercising their right to self-determination, have the
right to autonomy or self-government in matters relating to their internal and
local affairs’); Article 18(1) (‘Indigenous peoples have the right to
participate in decision-making in matters which would affect their rights,
through representatives chosen by themselves in accordance with their own
procedures, as well as to maintain and develop their own Indigenous
decision-making institutions’); Article 33 (Indigenous peoples have the
right to ‘determine their own identity or membership’ and to ‘determine the
structures and to select the membership of their institutions in accordance
with their own procedures’); and Article 35 (‘Indigenous peoples have
the right to determine the responsibilities of individuals to their
communities’). See: UNDRIP, GA Res 61/295, UN GAOR, 61st Sess,
107th Plen Mtg, Supp No 49, UN Doc A/RES/61/295
(13 September 2007).
[101]. It
is, of course, acknowledged that the new ‘party requirements’ in proposed
paragraph 24CD(2)(a) would not replace the authorisation requirements under
existing section 251A. The claim group would still be required to authorise
the making of the ILUA, and proof of such authorisation would remain a
condition of registration under existing subsection 24CG(3) and existing
sections 24CK and 24CL (as applicable).
[102]. As
native title lawyer Nick Duff observed (op. cit., pp. 87 and 235–236), the
Parliament is presented with two alternative options in framing legislative
requirements for claim groups’ decision-making processes in relation to
authorisation, where there is disputation within a claim group that prevents
the group from reaching agreement. First, the legislation could adopt a statutory
‘default criterion’ in the form of a ‘majoritarian failsafe’ rule, which
deems the group to have agreed in certain circumstances—for example, if a
majority of individuals agree. Alternatively, the Parliament could adopt
a statutory position whereby the group is taken not to have provided any authorisation
at all, with the result that the relevant agreement or action in relation
to the claim cannot proceed. Duff noted competing policy or philosophical arguments
for and against each option, emphasising that ‘it is a genuine policy choice
that is seldom recognised as such’ (at p. 236).
He noted that, if Parliament stays neutral in relation to intra-Indigenous
decision-making and does not impose a statutory default rule of the kind
identified in the first option, the outcome of the alternative option may seem
‘impractical or unfair from the perspective of the Native Title Act's
statutory purposes, since it would act as a brake ... But, if we are to take
seriously the idea of Indigenous political groupings making their own
decisions, it is difficult to see how the Australian legal system can resolve
an apparent impasse at the most basic procedural level without simply resorting
to “picking winners” ... Perhaps such imposition is justifiable but the Native
Title Act does not contain any justifying rationale nor provide any
guidance about which procedural values should be imposed in the event of a
deadlock’ (at p. 87). It is suggested that comments of this kind affirm the
importance of justifying proposals to impose a default rule in the NTA,
and the content of that rule.
[103]. Explanatory
Memorandum, Native Title Amendment (Indigenous Land Use Agreements) Bill
2017, p. 7 at paragraph [15]. However, the brief reference to the objective of
‘providing native title groups with greater discretion to determine how
decisions will be made (using traditional decision making processes or other
agreed processes)’ is made in the specific context of a discussion of area
ILUAs, and a policy intention to prevent or minimise the impacts of
intra-Indigenous disputes between individual persons comprising the RNTC and
the broader claim group. While the proposed amendment in item 4
would have some application in this specific context, it would also have a
considerably broader application to the authorisation of the making of all types
of ILUAs under Subdivisions B-D of Division 3, Part 2 of the NTA.
[104]. M
Keenan, ‘Second
reading speech: Native Title Amendment Indigenous Land Use Agreements) Bill
2017’, House of Representatives, Debates, (proof), 16 February 2017,
p. 8.
[105]. ALRC,
Connection
to country, op. cit., recommendation 10-9 and [10.94]-[10.95] and
[10.101]-[10.111].
[106]. McGlade,
[261]-[262] (North and Barker JJ), [430]-[431] and [441] (Mortimer J).
(Rather, the Full Court held that any such authority derived only from section
66B of the NTA, which authorises a member or members of the claim group
to apply to the Federal Court to have an individual person comprising the RNTC
removed from the register of claims.)
[107]. Item
8 (application of amendments in item 1) and clause 2 (commencement).
[108]. Explanatory
Memorandum, Native Title Amendment (Indigenous Land Use Agreements) Bill
2017, pp. 9 and 10.
[109]. Explanatory
Memorandum, Native Title Amendment (Indigenous Land Use Agreements) Bill
2017, p. 4.
[110]. Ibid.
[111]. M
Keenan, Minister for Justice, ‘Second
reading speech, Native Title Amendment Indigenous Land Use Agreements) Bill
2017’, House of Representatives, Debates, 16 February 2017,
p. 8. See also, ALRC, Connection
to country, op. cit., recommendation 10-1 and [10.81]-[10.83].
[112]. That
is, ILUAs made on or after the date upon which the proposed amendments would,
if enacted, commence (being Royal Assent).
[113].
Explanatory
Memorandum, Native Title Amendment (Indigenous Land Use Agreements) Bill
2017, p. 4. (The EM states that ‘the Bill will preserve the status quo for
agreements registered under the Act or that were pending registration on or
before the date of the McGlade decision ... The Bill also overturns the
position in McGlade that every person who comprises the RNTC must be a
party to an ILUA in relation to agreements made on or after the commencement of
the Act as amended’.)
[114]. Explanatory
Memorandum, Native Title Amendment (Indigenous Land Use Agreements) Bill
2017, p. 4.
[115]. Bygrave, [66]-[85] (Reeves J). See
especially his Honour’s remarks at [69] that ‘the particular purpose of s 24CD
is to provide a statutory mechanism or device by which a large unincorporated
group of Indigenous persons with fluctuating memberships and undetermined
native title rights and interests can enter into an ILUA under the Act’. (This
is in contrast to the view of the Full Federal Court in McGlade, in which it was held that the individuals comprising the RNTC are
not merely ‘fictional parties, but parties in their own, individual
right’ who were expected to indicate their assent to the agreement by signing
it: [252] (North and Barker JJ). See also: [264] (North
and Barker JJ) and [492]-[494] (Mortimer J).)
[116]. In a similar vein, some commentators have noted suggestions that the
NTA could be amended to give express effect to the outcome in Bygrave
by removing the requirement in section 24CD that individuals comprising the
RNTC must be parties to, and must execute, an area agreement. It has been
suggested that one way of achieving this would be for Subdivision C of Division
3, Part 2 of the NTA to provide that authorisation alone is sufficient
for the purpose of the registration of an ILUA (area agreement), and no further
step is required in relation to the execution of the agreement.
An alternative approach may be that, if the authorisation of the making of
an agreement is certified by the native title representative body (NTRB) in
relation to land or waters within the agreement area in accordance with
paragraph 203BE(1)(b), then the NTRB could be empowered to execute the
agreement on behalf of the group: Duff, op. cit., p. 171.
[117]. Explanatory
Memorandum, Native Title Amendment (Indigenous Land Use Agreements) Bill
2017, p. 4.
[118]. McGlade at [388] (Mortimer J).
[119]. See
NTA, subsection 61(2) (definition of applicant), section 62A (applicant
may deal with all matters arising under the NTA in relation to the
application) and section 251B (authorising the making of applications and
dealing with matters arising in relation to the application).
[120]. NTA,
Subdivision P, Division 3, Part 2. See further: ALRC, Connection to country.
[121]. For
example, in the context of ILUA negotiations by a native title claim group, item
1 of the Bill would have the effect that the individuals comprising the
RNTC may act by majority in becoming parties to the agreement and executing it,
in those circumstances in which proposed subparagraph 24CD(2)(a)(ii)
applies. However, if the RNTC (applicants) to a native title claim are
contemplating taking other action in relation to the claim application (such as
engaging lawyers or amending or discontinuing a claim application) then it
appears that they would be required to act jointly, unless specifically
authorised by the claim group to act by majority. (Useful summaries of
case law are provided in ALRC, Connection
to country, op. cit., [10.81]; and Duff, op. cit., pp. 109-11.
However, as noted by Mortimer J in McGlade at [435]-[436], the available
case law indicates some differences in judicial opinion as to whether section
251B of the NTA is capable of enabling a claim group to authorise the
individual applicants/RNTC to make decisions by majority. In McGlade,
Mortimer J indicated at [437]-[441] that her Honour was inclined to support an
interpretation in the negative, but did not consider it necessary to determine
the issue.)
[122]. ALRC,
Connection
to country, op. cit., recommendation 10-6 and [10.81]-[10.83]. (The
ALRC recommended that the NTA should be amended to provide that the
applicant may act by majority, unless the terms of the authorisation provided by
the claim group provide otherwise.)
[123]. See further item
8, which provides that the main amendments to the NTA in Part 1 of
Schedule 1 apply prospectively to ILUAs made on or after the commencement of
the amending Bill, if enacted (which is on the day of Royal Assent: per clause
2).
[124]. Subitems
9(1) (ILUAs and registration decisions) and 10(1)(d)-(e)
(registration applications)
[125]. Subitem
9(2).
[126]. Subitem
9(3) (registration decisions) and subitem 10(2) (registration
applications). Note that the reference in these provisions to the registration
or registration application being ‘as valid and effective as it would have
been’ makes clear that the validation provisions will not cure invalidity as a
result of non-compliance with other registration requirements (for example,
authorisation or certification requirements) or override the powers of the
Registrar to uphold objections to registration. See NTA, sections
24CG-24CL.
[127]. Item 14 may
not be capable of supporting such an interpretation, in view of the limitations
imposed by subitem 14(1)(b) (rules must be necessary or convenient for
the purpose of carrying out or giving effect to the Act) and subitem 14(4)(e)
(for the avoidance of doubt, the rule-making power does not extend to rules
that directly amend the text of an Act).
[128]. The phrase ‘at
least’ in the above sentence denotes that item 12 will apply separate
rules to the named ILUAs in subitem 9(4).
[129]. Subitems
12(1)(a)-(b) collectively provide that item 12 applies to an
agreement if item 9 would have applied to the agreement, but for its
exclusion as a named ILUA in subitem 9(4).
[130]. The
Explanatory Memorandum (at p. 12) contains a single sentence statement of the
legal effect of the provision.
[131]. A
representative of the Attorney-General’s Department gave evidence to the
additional estimates hearing of the Senate Legal and Constitutional Affairs
Committee inquiry on 28 February 2017 that ‘the ILUAs that were the subject of
the McGlade and related decisions are not affected by the Bill ... the rights of
those who objected [to the making and registration of the ILUAs] are not
affected in any way by this Bill’. I Anderson, Attorney-General’s
Department, Senate Legal and Constitutional Affairs Legislation Committee, Official
committee Hansard, (proof), 28 February 2017, p. 71. As this
statement is difficult to reconcile with the express provisions in subitems
9(4) and 12, members of the Parliament may wish to seek clarification about the
intended effect of these proposed measures.
[132]. Subitem
14(1).
[133]. Subitem
14(2).
[134]. Namely, the
rules that create an offence or civil penalty; confer powers of arrest,
detention, entry, search and seizure; impose taxation; set the amount of
an appropriation; or directly amend the text of the primary Act: Subitem
14(3). See also: Office of Parliamentary Counsel, Drafting
Direction No. 3.8—subordinate instruments,
reissued June 2016, pp. 3 and 6-7.
[135]. Subitem
11(1) especially paragraphs (d) and (e).
[136]. Subitem
11(2).
[137]. The
Explanatory Memorandum (at p. 12) contains a single sentence statement that item
14 ‘gives the Minister the power to make legislative instruments to address
transitional issues that relate to any of the other items in the Bill’. This
statement does not appear to be accurate to the extent it may suggest that the
rule-making power is limited to transitional matters. Subitem 14(2)
provides that the rule-making power extends to matters of a transitional nature
(including prescribing savings or application provisions). However, this
provision is expressed as ‘without limiting’ the broader rule-making power in subitem
14(1) (which appears to extend beyond transitional matters).
[138]. As
commentators have noted (in different contexts) it is not possible to design a
‘one-size fits all’ approach to native title agreement-making. See, for
example: ALRC, Connection to country, op. cit.,
[10.33], citing views of submitters to the inquiry and M Langton, From conflict to cooperation: transformations and challenges in the
engagement between the Australian minerals industry and Australian Indigenous
peoples, Public policy analysis produced for
the Minerals Council of Australia, Canberra, February 2015, p. 43.
[139]. Noting that
the position in McGlade would appear to apply to such agreements, as
outlined in the above discussion of items 9 and 10.
[140]. The conferral
of a general rule-making power to undertake actions that are ‘necessary or
convenient’ to give effect to a statute is unlikely to be interpreted as
authorising the making of rules that amend the provisions of an Act, or that
otherwise widen the application of the primary legislation
into a further field of regulation. See, for example: Morton v Union
Steamship Co of New Zealand Ltd (1951) 83 CLR 402, [1951] HCA
42 at 410 (Dixon, McTiernan, Williams, Webb, Fullagar and Kitto JJ; and Shanahan
v Scott (1957) 96 CLR 245 at
250, [1957]
HCA 4 (Dixon CJ, Williams, Webb and Fullagar JJ.)
[141]. In particular, section 53 of the NTA provides that, where the
doing of any future act, or the application of any of the provisions of the NTA
in any particular case would result in an acquisition of property from a person
other than on just terms, that person is entitled to compensation as is
necessary to ensure that the acquisition is made on just terms within the
meaning of section 51(xxxi). The Federal Court is invested with jurisdiction to
hear and determine matters in relation to section 53 (such as disputes about
the quantum of compensation) See also: NTA sections 18 and 22E (further provisions for constitutional ‘just terms’
compensation in certain circumstances). See further: Division 5, Part 2,
which imposes a ‘just terms’ requirement on other forms of (non-constitutional)
compensation payable under the NTA.
[142]. Explanatory
Memorandum, Native Title Amendment (Indigenous Land Use Agreements) Bill
2017, pp. 4 and 12.
[143]. As was the
case in Bygrave, a review application might be lodged at an earlier
stage on similar grounds. (For example, the decision of the Registrar under
section 24CH not to notify an agreement that is the subject of a registration
application, on the basis that the relevant agreement was not an ‘ILUA—area
agreement’ within the meaning of section 24CA because the requirements of
section 24CD were not complied with.) Judicial review rights may be available variously
under the Administrative
Decisions (Judicial Review) Act 1977, or under section 75(v) of
the Constitution (in the High Court) or section 39B of the Judiciary Act 1903
(corresponding jurisdiction in the Federal Court). See further, Bygrave
[19]-[38] (Reeves J).
[144]. Broadly,
a chose in action is an intangible property right that does not confer a right
of possession of a tangible object. A common example is a cause of legal action
(for example a right to sue a person seeking the enforcement of a contractual
right to payment, or damages in tort).
[145]. Mutual Pools and Staff Pty Ltd v Commonwealth (1994) 179 CLR 155, 185, [1994]
HCA 9 (Deane and Gaudron JJ).
[146]. Explanatory
Memorandum, Native Title Amendment (Indigenous Land Use Agreements) Bill
2017, p. 4.
[147]. A convenient
summary of the legal position is provided in: Wurridjal v
Commonwealth (2009) 237 CLR 309, 439-440, [2009] HCA 2
(Crennan J). (It might be suggested that the present Bill is a scheme with
respect to purely statutory rights which are inherently susceptible to
modification on the basis that: the ILUA scheme is a purely statutory creation;
and the procedural provisions governing the registration of
ILUAs constitute a scheme of a kind that will inevitably require modification
over time. That is, to ensure that the procedural arrangements for native title
agreement-making remain adapted and appropriate to contemporary circumstances.)
[148]. Nintendo Co
Ltd v Centronics Systems Pty Ltd (1994) 181 LCR
134 at 161 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ). (The
present Bill might be characterised as a law with respect to the adjustment of
the role of the RNTC as a party to ILUAS—area agreements and the relationship
of the RNTC and the wider claim group, and consequently the rights of those
‘entities’ and their individual members as between one another. Effecting a
change in the relationship between these parties, by amending the terms of
section 24CD, necessarily changes the meaning of an ‘agreement’ under section
24CA, and consequently the jurisdiction of the Registrar to register such
agreements. By extension, the scope and contents of rights to judicial review
of a registration decision on the grounds of jurisdictional error must
necessarily change as an incident of any change to the relationship between
ILUA parties and the claim group in section 24CD.)
[149]. Grace Bros
Pty Ltd v Commonwealth (1946) 72 CLR
269, 280 (Latham CJ), 285 (Starke J), 291 (Dixon J), 295 (McTiernan J); and
Nelungaloo Pty Ltd v Commonwealth (1947) 75
CLR 495, 569 (Dixon J).
[150]. See, for example, Wurridjal v Commonwealth (2009)
237 CLR 309, 389 (Gummow and Hayne JJ) and 429 (Heydon
J).
[151]. See, for
example, dicta in Wurridjal v Commonwealth (2009) 237 CLR 309,
433-434 (Heydon J) and 425-426 (Kirby J, in dissent). See
also: C Winnett, ‘Just terms or just money? Section 51(xxxi), native title and
non-monetary terms of acquisition’, UNSW Law
Journal, 33(3), p. 776. (However, it is also worth noting
that the Federal Court has applied other, non-constitutional compensation
provisions in Division 5, Part 2 of the NTA to calculate monetary compensation
for the extinguishment and impairment of native title. While these provisions
are separate to the constitutional ‘just terms’ compensation clauses for the
purposes of section 51(xxxi), they also include a statutory ‘just terms’
requirement. This might hold some persuasive value in cases concerning ‘just
terms’ compensation in relation to section 51(xxxi) of the Constitution.
For example, in Griffiths v Northern Territory of
Australia (No. 3) [2016] FCA 900, 24 August 2016,
Mansfield J ordered the Northern Territory Government to pay $3.3 million
compensation under the statutory compensation scheme in Division 5 of the NTA
for the extinguishment and impairment of native title rights. This included
$1.3 million for non-economic loss.)
[152]. For example, provisions
of Division 3, Part 2 of the NTA including: notice requirements in
relation to ILUAs (section 24CH) and provisions in the registration process for
the making of applications, objections about registration, and the
authorisation and certification of applications (NTA, sections 24GC-24CL).
See further: Wurridjal v Commonwealth (2009)
237 CLR 309, 425-426 (per Kirby J) who observed, in obiter, that the
(then) Northern
Territory National Emergency Response Act 2007, authorising the
Northern Territory intervention, may require the provision of ‘just terms’ of a
non-pecuniary kind in certain circumstances, such as ‘consultation before
action, special care in the execution of the laws; and active participation in
performance’.
[153]. Explanatory
Memorandum, Native Title Amendment (Indigenous Land Use Agreements) Bill
2017, pp. 10-11. See also: ALRC, Connection
to country, op. cit., recommendations 10-1 and 10.2.
[154]. ALRC, Connection
to country, op. cit., [10.51]-[10.55].
[155]. Ibid.,
[10.56].
[156]. ALRC, Connection
to country, op. cit., [10.57] and [10.59] (summary of stakeholder views
on the ALRC’s proposals, indicating majority support).
[157]. Ibid.,
recommendations 10-3 and 10-4 and [10.60]-[10.61].
[158]. Ibid.,
recommendation 10-1 and [10.61].
[159]. Ibid.,
recommendation 10-3 and [10.60].
[160]. Explanatory
Memorandum, Native Title Amendment (Indigenous Land Use Agreements) Bill
2017, p. 4.
[161]. See especially, ALRC, Connection to country, op. cit., Chapter
10—authorisation.
[162]. Ibid., recommendations 10-3 and 10-4 and [10.60]-[10.61] which supported corresponding amendments to the subregulations 8(3)
and 8(4) of the Native
Title (Prescribed Bodies Corporate) Regulations 1999 and subsection 203BC(2) of the NTA. (These provisions deal
with the provision of consent to native title decisions by common law native
title holders; and action taken by a native title representative body on behalf
of a native title holder or claimant. The requirements in these provisions
currently mirror those in sections 251A and 251B, and the ALRC recommended that
they should also be amended to ensure consistency.)
[163]. G
Brandis, ‘Response
to question without notice’, op. cit., p. 39.
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