Footnotes

CHAPTER 1 - INTRODUCTION

[1]        House of Representatives, Votes and Proceedings, No. 145-28 November 2012, pp 2001-2002.

[2]        Senate, Journals of the Senate, No. 129-29 November 2012, p. 3481.

[3]        Senate, Journals of the Senate, No. 136-28 February 2013, p. 3691.

[4]        Explanatory Memorandum (EM), p. 2.

[5]        EM, p. 3. An Indigenous Land Use Agreement is an agreement about the use and management of land and waters made between native title groups and other people, organisations or governments: see National Native Title Tribunal, 'What is an indigenous land use agreement', August 2010, available at: http://www.nntt.gov.au/Indigenous-Land-Use-Agreements/Pages/Aboutindigenouslanduseagreements.aspx (accessed 28 February 2013).

[6]        The Hon Nicola Roxon MP, Attorney-General, 'Echoes of Mabo: AIATIS Native Title Conference', Townsville, 6 June 2012, available at: http://pandora.nla.gov.au/pan/132822/20130204-0704/www.attorneygeneral.gov.au/Speeches/Pages/2012/Second%20Quarter/6-June-2012---Echoes-of-Mabo---AIATSIS-Native-Title-Conference.html (accessed 28 February 2013).

Another of the reforms announced by the then Attorney-General is the taxation reform to be made by the Tax Laws Amendment (2012 Measures No. 6) Bill 2012, which is currently before the House of Representatives, see: House of Representatives, Notice Paper, No. 156‑18 March 2013, p. 3.

[7]        EM, p. 2. The Courts and Tribunals Legislation Amendment (Administration) Act 2013 received Royal Assent on 12 March 2013 (Act No. 7 of 2013).

[8]        See: http://www.ag.gov.au/Consultations/Pages/Currentnativetitlereforms.aspx (accessed 28 February 2013).

[9]        House of Representatives Hansard, 28 November 2013, p. 13650.

[10]      EM, pp 8 and 16-17.

[11]      EM, p. 8.

[12]      EM, p. 17.

CHAPTER 2 - OVERVIEW OF THE BILL

[1]        Explanatory Memorandum (EM), p. 8.

[2]        These provisions provide for historical extinguishment to be disregarded in relation to: pastoral leases held by native title claimants (section 47); reserves covered by claimant applications (section 47A); and vacant Crown land covered by claimant applications (section 47B).

[3]        'Park area' is a defined new term (proposed new subsection 47C(2) of the Native Title Act 1993 (Cth) (Native Title Act)); 'relevant public work' is also a defined new term (proposed new subsection 47C(10) of the Native Title Act).

[4]        An applicant will still be required to establish the elements of the claim – namely, that the land is the applicant's traditional land, and the applicant has maintained his or her traditional connection to that land (see the Note to proposed new subsection 47C(7) of the Native Title Act).

[5]        The non-extinguishment principle is set out in section 238 of the Native Title Act.

[6]        EM, pp 12-13.

[7]        EM, Statement of Compatibility with Human Rights, pp 4-5.

[8]        Section 233 of the Native Title Act defines the meaning of 'future act'.

[9]        Paragraph 31(1)(b) of the Native Title Act. A grantee party is the person who has applied for or requested the doing of the future act: see paragraph 29(2)(c) of the Native Title Act.

[10]      EM, p. 16.

[11]      (1996) 134 FLR 211 at 224-225.

[12]      EM, p. 17.

[13]      EM, p. 18.

[14]      EM, p. 16.

[15]      EM, Statement of Compatibility with Human Rights, p. 4.

[16]      EM, p. 20.

[17]      EM, p. 20.

[18]      EM, p. 20.

[19]      Paragraph 24CH(2)(d) of the Native Title Act.

[20]      Proposed new paragraphs 24ED(1)(c)-(f) of the Native Title Act.

[21]      EM, p. 22.

[22]      EM, p. 24.

CHAPTER 3 - KEY ISSUES

[1]        For example: Just Us Lawyers, Submission 1, p. 1; Australian Human Rights Commission (AHRC), Submission 3, p. 5; Native Title Services Victoria, Submission 4, p. 7; Yamatji Marlpa Aboriginal Corporation Submission 9, p. 6; Cape York Land Council Aboriginal Corporation Submission 10, p. 2; Goldfields Land and Sea Council, Submission 11, p. 7; Agreements, Treaties and Negotiated Settlements Project, Submission 12, p. 3; Australians for Native Title and Reconciliation (ANTaR), Submission 19, p. 3; National Congress of Australia's First Peoples, Submission 24, p. 10.

[2]        For example: Just Us Lawyers, Submission 1, p. 2; Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS), Submission 18, p. 3.

[3]        For example: Just Us Lawyers, Submission 1, p. 2; AHRC, Submission 3, p. 5; Cape York Land Council Aboriginal Corporation, Submission 10, p. 2; Goldfields Land and Sea Council, Submission 11, p. 8; Agreements, Treaties and Negotiated Settlements Project, Submission 12, pp 3-4; Law Society of South Australia, Submission 14, p. 1; Carpentaria Land Council Aboriginal Corporation, Submission 15, p. 3; Central Desert Native Title Services, Submission 23, p. 4; National Congress of Australia's First Peoples, Submission 24, p. 10.

[4]        Submission 4, p. 8.

[5]        For example: Native Title Services Victoria, Submission 4, p. 8; Goldfields Land and Sea Council, Submission 11, p. 8; Agreements, Treaties and Negotiated Settlements Project, Submission 12, p. 3; Australian Lawyers for Human Rights, Submission 22, Attachment 1, p. 5.

[6]        Submission 4, p. 8, Submission 11, p. 8 and Submission 24, p. 10, respectively.

[7]        Submission 15, p. 3.

[8]        Submission 1, p. 2.

[9]        For example: Native Title Services Victoria, Submission 4, p. 9; Cape York Land Council Aboriginal Corporation, Submission 10, p. 2; Goldfields Land and Sea Council, Submission 11, p. 9; Carpentaria Land Council Aboriginal Corporation, Submission 15, p. 4; Central Desert Native Title Services, Submission 23, p. 4.

[10]      Submission 4, p. 9.

[11]      Submission 23, p. 5. Central Desert Native Title Services argued that it is not appropriate to vary the native title determination process in the way proposed by the Bill: see p. 5.

[12]      For example: National Farmers' Federation, Submission 6, pp 1-2; AIATSIS, Submission 18, pp 3-5; Australian Lawyers for Human Rights, Submission 22, pp 3-4.

[13]      Submission 18, p. 4 (emphasis in the original). Also see: Australian Lawyers for Human Rights, Submission 22, pp 3-4.

[14]      Submission 12, p. 5.

[15]      For example: AHRC, Submission 3, p. 5; Native Title Services Victoria, Submission 4, p. 10; Agreements, Treaties and Negotiated Settlements Project, Submission 12, p. 5; ANTaR, Submission 19, pp 3-4; National Congress of Australia's First Peoples, Submission 24, p. 10.

[16]      For example: Goldfields Land and Sea Council, Submission 11, pp 8-9; Native Title Services Victoria, Submission 4, p. 9.

[17]      For example: Queensland Government, Submission 2, p. 2; Chamber of Minerals and Energy of Western Australia (CME), Submission 7, p. 1; Association of Mining and Exploration Companies (AMEC), Submission 20, pp 6‑7.

[18]      For example: Queensland Government, Submission 2, pp 3 and 7-9; Western Australian Government, Submission 8, p. 15; Minerals Council of Australia, Submission 13, p. 7; AMEC, Submission 20, p. 7.

[19]      Submission 2, p. 3. The Queensland Government identified a number of drafting and practical issues with proposed new section 47C of the Native Title Act 1993 (Cth) (Native Title Act): see pp 3-7.

[20]      Submission 8, p. 15 and Submission 20, p. 7, respectively.

[21]      Ms Melanie Stutsel, Minerals Council of Australia, Committee Hansard, 6 March 2013, p. 22. See also Minerals Council of Australia, Submission 13, p. 6.

[22]      Mr Kym Duggan, Attorney-General's Department (AGD), Committee Hansard, 6 March 2013, p. 33.

[23]      Mr Kym Duggan, AGD, Committee Hansard, 6 March 2013, p. 33. Also see: Mr Duggan and Ms Lavinia Gracik, AGD, at pp 33-34 for a brief discussion in relation to the definition of 'park areas'.

[24]      Mr Kym Duggan, AGD, Committee Hansard, 6 March 2013, p. 34.

[25]      For example: Just Us Lawyers, Submission 1, pp 2-5; Goldfields Land and Sea Council, Submission 11, pp 5-7; Carpentaria Land Council Aboriginal Corporation, Submission 15, pp 4‑7; Central Desert Native Title Services, Submission 23, pp 2-3.

[26]      For example, see: Carpentaria Land Council Aboriginal Corporation, Submission 15, p. 5, which argued that proposed new subsection 31A(1) creates pressure on native title parties to reach agreement about the doing of the act; and Minerals Council of Australia, Submission 13, p. 3, which argued that the provision creates a new and potentially unrealistic expectation that an agreement will be reached.

[27]      Submission 13, p. 3.

[28]      Submission 8, p. 11.

[29]      For example: AHRC, Submission 3, p. 6; Native Title Services Victoria, Submission 4, p. 5; Goldfields Land and Sea Council, Submission 11, p. 5.

[30]      Submission 9, p. 4.

[31]      Committee Hansard, 6 March 2013, p. 11. Also see: Mr Mark Rumler, Goldfields Land and Sea Council, Committee Hansard, 6 March 2013, p. 12.

[32]      For example: Carpentaria Land Council Aboriginal Corporation, Submission 15, p. 5 (subparagraphs 31A(2)(a)(v)-(vi)); AIATSIS, Submission 18, p. 5; Central Desert Native Title Services, Submission 23, p. 3 (subparagraph 31A(2)(a)).

[33]      Goldfields Land and Sea Council, Submission 11, p. 6; ANTaR, Submission 19, p. 5. Also see: AIATSIS, Submission 18, pp 5-6; Central Desert Native Title Services, Submission 23, p. 2.

[34]      For example: Western Australian Government, Submission 8, p. 12; AMEC, Submission 20, p. 8.

[35]      Submission 17, p. 7. Also see: Queensland Government, Submission 2, p. 15; AMEC, Submission 20, p. 8.

[36]      For example: CME, Submission 7, Attachment 1, p. 5; Western Australian Government, Submission 8, p. 12; Minerals Council of Australia, Submission 13, p. 4.

[37]      Submission 8, p. 12. Also see: Queensland Government, Submission 2, pp 12-13.

[38]      Submission 13, p. 4.

[39]      Submission 13, p. 4. Also see: Native Title Services Victoria, Submission 4, p. 6, which advocated the development of a supplementary code or framework to guide negotiation parties as to their duty to act in good faith.

[40]      (1996) 134 FLR 211 at 224-225.

[41]      For example: CME, Submission 7, p. 2; Minerals Council of Australia, Submission 13, p. 3.

[42]      Submission 7, p. 2.

[43]      Committee Hansard, 6 March 2013, p. 20. Also see: Mr Mark Donovan, BHP Billiton, Committee Hansard, 6 March 2013, p. 20.

[44]      Submission 13, p. 3.

[45]      National Native Title Tribunal, Submission 17, p. 3.

[46]      For example: AHRC, Submission 3, p. 6; Native Title Services Victoria, Submission 4, p. 6; Yamatji Marlpa Aboriginal Corporation, Submission 9, p. 5; Goldfields Land and Sea Council, Submission 11, p. 6; Agreements, Treaties and Negotiated Settlements Project, Submission 12, p. 7; Carpentaria Land Council Aboriginal Corporation, Submission 15, p. 6; ANTaR, Submission 19, p. 5; Central Desert Native Title Services, Submission 23, p. 3; National Congress of Australia's First Peoples, Submission 24, p. 11.

[47]      For example: AHRC, Submission 3, p. 6.

[48]      Submission 22, Attachment 1, p. 4. In this context, Native Title Services Victoria suggested that the use of a 'reasonable person' test to assess the conduct of a proponent seeking an arbitral determination when negotiations are at an early stage: Submission 4, p. 5.

[49]      Submission 15, p. 6.

[50]      Submission 4, p. 6. Also see: Queensland Government, Submission 2, p. 15.

[51]      Answer to question on notice, received 13 March 2013, Attachment B, p. 2.

[52]      For example: AHRC, Submission 3, p. 7; Native Title Services Victoria, Submission 4, p. 6; Yamatji Marlpa Aboriginal Corporation, Submission 9, p. 4; Goldfields Land and Sea Council, Submission 11, p. 6; Agreements, Treaties and Negotiated Settlements Project, Submission 12, p. 6; Carpentaria Land Council Aboriginal Corporation, Submission 15, p. 7; ANTaR, Submission 19, p. 5; Central Desert Native Title Services, Submission 23, p. 3; National Congress of Australia's First Peoples, Submission 24, p. 11.

[53]      Submission 3, p. 7.

[54]      Submission 17, p. 8.

[55]      Submission 8, p. 13.

[56]      For example: Just Us Lawyers, Submission 1, p. 5; National Native Title Tribunal (NNTT), Submission 17, pp 3-4; ANTaR, Submission 19, p. 5; Central Desert Native Title Services, Submission 23, p. 2.

[57]      Submission 17, p. 3.

[58]      Submission 17, p. 4.

[59]      Mr Kym Duggan, AGD, Committee Hansard, 6 March 2013, p. 30. Also see: Mr Duggan at pp 32-33.

[60]      Mr Kym Duggan, AGD, Committee Hansard, 6 March 2013, p. 31.

[61]      Mr Kym Duggan, AGD, Committee Hansard, 6 March 2013, pp 31‑32.

[62]      Mr Kym Duggan, AGD, Committee Hansard, 6 March 2013, p. 31.

[63]      Mr Kym Duggan, AGD, Committee Hansard, 6 March 2013, p. 32.

[64]      EM, p. 20. For example: see Yamatji Marlpa Aboriginal Corporation, Submission 9, p. 6; Cape York Land Council Aboriginal Corporation, Submission 10, p. 2; Minerals Council of Australia, Submission 13, p. 7; Carpentaria Land Council Aboriginal Corporation, Submission 15, p. 7; AMEC, Submission 20, p. 10; National Congress of Australia's First Peoples, Submission 24, p. 11.

[65]      For example: Law Society of New South Wales, Submission 16, p. 5; Central Desert Native Title Services, Submission 23, p. 6; Jumbunna Indigenous House of Learning, Submission 25, p. 3.

[66]      Submission 25, p. 3.

[67]      Submission 25, p. 3.

[68]      Submission 22, Attachment 1, p. 6. Also see: Law Society of New South Wales, Submission 16, pp 1 and 5, which submitted that the proposed amendment might prevent legitimate objections to registration; and Agreements, Treaties and Negotiated Settlements Project, Submission 12, p. 7, which noted that it will be difficult for some potential objectors because the amendment effectively requires material similar to that required for an application, and for many objectors it will be impossible to establish that within a one-month notice period.

[69]      Submission 18, p. 8.

[70]      Submission 10, p. 2.

[71]      Submission 16, p. 5. Also see: AIATSIS, Submission 18, p. 8.

[72]      Submission 17, p. 12.

[73]      Submission 3, p. 8. Also see: National Congress of Australia's First Peoples, Submission 24, p. 11.

[74]      Submission 17, p. 13.

[75]      Submission 18, p. 8. Also see: NNTT, Submission 17, p. 13, which noted the potential for complication when a native title representative body is not at arms' length from the certification of an ILUA.

[76]      Submission 16, p. 6.

[77]      Submission 14, p. 1 and Submission 16, p. 7, respectively.

[78]      Proposed new subsection 251A(2) of the Native Title Act; item 16 of Schedule 3. For example: Just Us Lawyers, Submission 1, pp 6-8; Queensland Government, Submission 2, pp 17-18; Native Title Services Victoria, Submission 4, pp 3-4; Goldfields Land and Sea Council, Submission 11, pp 4-5; Agreements, Treaties and Negotiated Settlements Project, Submission 12, pp 7-8; Minerals Council of Australia, Submission 13, p. 7; Law Society of New South Wales, Submission 16, p. 7; NNTT, Submission 17, pp 14-15; Central Desert Native Title Services, Submission 23, p. 6.

[79]      Submission 23, p. 6.

[80]      Submission 16, p. 7.

[81]      Submission 4, pp 3-4 (italics and emphasis in the original). Also see Goldfields Land and Sea Council, Submission 11, pp 4-5, which argued that the relevant phrase could be interpreted to mean that an ILUA can only be authorised by persons with a registered determination application.

[82]      For example: Just Us Lawyers, Submission 1, pp 6-7.

[83]      Submission 2, p. 17.

[84]      Submission 17, p. 15.

[85]      Submission 17, p. 14.

[86]      For example: Just Us Lawyers, Submission 1, pp 7-8; Queensland Government, Submission 2, pp 18-19; Law Society of New South Wales, Submission 16, p. 7.

[87]      Mr Kym Duggan, AGD, Committee Hansard, 6 March 2013, p. 29.

[88]      Attorney-General's Department, answer to question on notice, received 13 March 2013, Attachment B, p. 1.

[89]      Attorney-General's Department, answer to question on notice, received 13 March 2013, Attachment B, p. 1.

[90]      Attorney-General's Department, answer to question on notice, received 13 March 2013, Attachment B, p. 2.

MINORITY REPORT BY COALITION SENATORS

[1]            National Native Title Tribunal, Submission 17.

[2]            Western Australian Government, Submission 8.

[3]            Minerals Council of Australia, Submission 13.

[4]            Chamber of Minerals and Energy of Western Australia, Submission 7.

[5]            Association of Mining and Exploration Companies, Submission 20.

[6]            Chamber of Minerals and Energy of Western Australia, Submission 7, Attachment 1, p. 9.

[7]            Mabo and Others v Queensland (No 2) [1992] HCA 23.

[8]            Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the provisions of the Native Title Amendment (Reform) Bill 2011, November 2011, p. 41.

[9]            Wik Peoples v The State of Queensland [1996] HCA 40.

[10]          Government of Western Australia, Department of Mines and Petroleum, Quick Resource Facts, available at: http://www.dmp.wa.gov.au/7846.aspx (accessed 13 March 2013).

[11]          Attorney‑General of Australia, New President for National Native Title Tribunal, Media Release, 4 March 2013, available at: http://www.attorneygeneral.gov.au/Mediareleases/Pages/2013/First%20quarter/4March2013-NewPresidentforNationalNativeTitleTribunal.aspx (accessed 13 March 2013).

[12]          Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the provisions of the Native Title Amendment (Reform) Bill 2011, November 2011, p. 37.

[13]          FMG Pilbara Pty Lty v Cox

[14]          The Hon Nicola Roxon MP, Attorney-General, House of Representatives Hansard, 28 November 2012, p. 13651.

[15]          The Hon Nicola Roxon MP, Attorney-General, House of Representatives Hansard, 28 November 2012, p. 13651.

[16]          Chamber of Minerals and Energy of Western Australia, Submission 7, Attachment 1, p. 3.

[17]          Chamber of Minerals and Energy of Western Australia, Submission 7, Attachment 1, p. 3; Minerals Council of Australia, Submission 13, Attachment 1, p. 1.

[18]          Chamber of Minerals and Energy of Western Australia, Submission 7, Attachment 1, p. 3.

[19]          National Native Title Tribunal, Submission 17, p. 7.

[20]          FMG Pilbara Pty Lty v Cox

[21]          FMG Pilbara Pty Ltd v Cox

[22]          Attorney-General's Department, answer to questions on notice, received 13 March 2013, Attachment A, paragraphs 12, 13 and 14.

[23]          Attorney-General's Department, answer to questions on notice, received 13 March 2013, Attachment A, paragraph 14.

[24]          Committee Hansard, 6 March 2013, p. 22. 

[25]          Chamber of Minerals and Energy of Western Australia, Submission 7, Attachment 1.