CHAPTER 1


CHAPTER 1

INTRODUCTION

1.1        On 28 November 2012, the Native Title Amendment Bill 2012 (Bill) was introduced into the House of Representatives by the then Attorney-General, the Hon Nicola Roxon MP.[1] On 29 November 2012, the Senate referred the provisions of the Bill to the Senate Legal and Constitutional Affairs Committee (committee) for inquiry and report by 13 March 2013.[2] The Senate subsequently extended the reporting date to 18 March 2013.[3]

Purpose of the Bill

1.2        The Bill seeks to introduce targeted amendments to the Native Title Act 1993 (Cth) (Native Title Act), to improve the operation of the native title system, with a focus on improving agreement‑making, encouraging flexibility in claim resolution, and promoting sustainable outcomes.[4]

1.3        The Bill contains amendments to:

  • clarify the meaning of 'good faith' and make associated amendments to the 'right to negotiate' provisions;
  • enable parties to agree to disregard historical extinguishment of native title in areas set aside, or where an interest is granted or vested, for the purpose of preserving the natural environment, such as parks and reserves; and
  • streamline processes for Indigenous Land Use Agreements.[5]

Background to the Bill

1.4        The Bill seeks to implement some of the reforms announced by the then Attorney‑General at the National Native Title Conference in Townsville on 6 June 2012.[6] These reforms build on the amendments contained in the Native Title Amendment Act 2009 (Cth), and the reforms to be made by the Courts and Tribunals Legislation Amendment (Administration) Act 2013 (Cth), which seeks to improve the effectiveness and efficiency of the Federal Court of Australia and the National Native Title Tribunal, by reforming their administrative structures and processes.[7]

1.5        An exposure draft of the Bill was released on 21 September 2012 for a four week consultation period. The Attorney-General's Department (Department) received 25 submissions to that consultation, all of which are available publicly on the Department's website.[8] In her second reading speech, the then Attorney-General advised that all views submitted to the consultation have been carefully considered and 'the government believes a sensible balance has now been struck'.[9]

1.6        The Explanatory Memorandum (EM) indicates that certain amendments proposed in the Bill respond to two cases heard in the federal courts: Western Australia v Ward (2002) 213 CLR 1 (Schedule 1), and FMG Pilbara Pty Ltd v Cox [2009] FCAFC 49 (proposed new paragraph 31(1)(c) of the Native Title Act; item 3 in Schedule 2).[10]

1.7        In Western Australia v Ward, the High Court of Australia held that the vesting of Crown reserves under the Land Act 1933 (WA) extinguished native title in those reserve areas. The EM explains:

As a result, although subsection 23B(9A) of the [Native Title] Act excludes the vesting of the Crown reserves from the previous exclusive possession act provisions, the Court found that they were nonetheless extinguishing acts under common law. The result is that the vesting of national, [s]tate and [t]erritory parks and reserves under legislation similar to the Land Act 1933 (WA) extinguished native title, despite the exclusion provision in subsection 23B(9A) of the [Native Title] Act.

The amendment[s] in [Schedule 1] will ensure that native title can be recognised over parks and reserves where there is agreement between parties, even where the creation or vesting of the national, [s]tate or [t]erritory park or reserve may otherwise extinguish native title.[11]

1.8        In the second case referred to in the EM – FMG Pilbara Pty Ltd v Cox – the Full Court of the Federal Court of Australia held that a party could be found to have negotiated in good faith even where there may have been no substantial negotiations about the doing of the actual act in question:

[Proposed new paragraph 31(1)(c)] will ensure parties negotiate in a productive manner and discuss the substantive matters at issue.[12]

Conduct of the inquiry

1.9        The committee advertised the inquiry in The Australian on 5 December 2012. Details of the inquiry, including links to the Bill and associated documents, were placed on the committee's website at www.aph.gov.au/senate_legalcon. The committee also wrote to 114 organisations and individuals, inviting submissions by 31 January 2013. Submissions continued to be accepted after that date.

1.10      The committee received 25 submissions, which are listed at Appendix 1. All submissions were published on the committee's website.

1.11      The committee held a public hearing on 6 March 2013 at Parliament House in Canberra. A list of witnesses who appeared at the hearing is at Appendix 2, and the Hansard transcript is available through the committee's website.

Acknowledgement

1.12      The committee thanks those organisations and individuals who made submissions and gave evidence at the public hearing.

Note on references

1.13      References to the committee Hansard are to the proof Hansard. Page numbers may vary between the proof and the official Hansard transcript.

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