This chapter outlines broader issues raised during the course of the inquiry including: the need for further reform to the Native Title Act 1993 (the Native Title Act) and the consultation processes on the bill.
Further reform to the Native Title Act
Many submitters and witnesses advocated for further amendments to the Native Title Act. The National Native Title Council (NNTC) recommended further amendments to remedy the 'existing future act determination processes and other future act processes' which, in its view, are 'demonstrably not fair to native title holders'. ANTaR echoed the proposals from the NNTC.
The Western Australian Government (WA Government) expressed disappointment that a number of matters it supported in the Commonwealth Government’s options paper process have not been included in the bill and viewed this as 'a lost opportunity that could provide for greater efficiency and effectiveness in the native title system'. The WA Government emphasised that it would like to see these additional reforms pursued later in another bill.
The Kimberley Land Council (KLC) suggested amendments to RNTBC costs recovery, and future act processes:
(a) clarify and expand the functions in respect of which costs may be recovered by RNTBCs;
(b) make clear that a party invoiced by a RNTBC / PBC for performance of native title functions is obliged to pay;
(c) link the process and time frames for future act procedures to the obligation on proponents to pay invoiced amounts; and
(d) require specific consideration of the matters under s237 of the NTA by the State party before an expedited procedure statement may be included in a s29 future act notice.
Other evidence highlighted the need for broader reform to the Native Title Act. The KLC argued that 'there needs to be a complete overhaul of the act'. The NNTC suggested that a number of proposals from the Australian Law Reform Commission's Connection to Country report could 'usefully be considered as part of any [Native Title Act] legislative reform process'. Similarly, the KLC referred to the ALRC review as providing a 'starting point' for discussing further reform and stated that 'there's some good work that can [be leveraged]'. When discussing the timing of the passage of the bill, Mr Bergmann encouraged 'a more comprehensive process to look at how the act works in the best interests of everyone'.
The Australian Lawyers Alliance argued that several 'proposals for reform remain unaddressed' in the bill. In particular:
the Bill has failed to address the need to amend the NTA to confirm that a native title right may be exercised for commercial purposes and extending the right to negotiate to sea country. The ALA submits that this is crucial to the recognition and protection of native title.
The Attorney-General's Department advised the committee:
As with most legislative development processes, during consultation a number of suggestions were made by stakeholders on further reforms to the Act. Not all of these are reflected in the Bill. In some cases this is because proposals were refined as a result of the stakeholder consultation process itself, and may be subject to further consideration (such as the proposal for the conferral of arbitral functions on the NNTT…). In other cases, proposed reforms are contingent on external factors.
The Attorney-General's department reiterated that 'the bill reflects a package of measures which are broadly supported by key stakeholders in the native title system' and would implement recommendations by a number of reviews including the ALRC Report. Moreover, the department, along with the NIAA, 'remains committed to ongoing engagement with stakeholders to continue to address emerging native title issues and future areas for reform'.
Comments on regulations
The South Australian Chamber of Mines and Energy (SACOME) submitted views on the Registered Native Title Bodies Corporate Amendment Regulations with particular reference to how the current Native Title (Prescribed Bodies Corporate) Regulations 1999 (PBC Regulations) are operating in South Australia. The SACOME advised that the 'current PBC Regulations require a RNTBC to consult with common law holders of native title and a representative body for the relevant area prior to making a native title decision'.
The SACOME expressed concern that changes to the regulations outlined in the 2018 Exposure Draft regulations would 'require exploration companies and RNTBCs to consult with common law native title holders each time they propose to enter an exploration NTMA'. In particular:
From a South Australian perspective, the inability for a RNTBC to enter an exploration NTMA without first going through a detailed community consultation process each time, will place a significant time and cost burden on South Australian exploration companies. The costs of such community meetings can be quite large and, unless the meetings can be aligned with AGMs (or meetings at which other business is conducted), the costs will almost entirely be passed on to the explorer.
The SACOME argued that the 'current PBC regulations work well with the existing Part 9B process in South Australia keeping costs to a minimum for all stakeholders'.
As outlined earlier in this report, the development of the bill was informed by submissions to an options paper and exposure draft legislation.
The committee received evidence expressing a range of views on the consultation processes undertaken to inform the bill.
Some inquiry participants highlighted that the bill had been informed by 'significant stakeholder consultation'. For example, the Minerals Council of Australia (Minerals Council) submitted:
Key technical reforms contained in the bill are drawn from extensive reviews including by the Australian Law Reform Commission and the Council of Australian Governments as well as the recent two year consultation process undertaken by the Commonwealth Government.
The NNTC commended the 'co-operative and inclusive approach' adopted for the development of the exposure draft, with particular reference to the establishment of the Expert Technical Advisory Group (ETAG) which was recommended as an approach to be 'adopted for other legislative reform or policy development initiatives'.
In contrast, some stakeholders that had engaged in the Commonwealth government’s consultation process were less positive. Emeritus Professor Jon Altman, acknowledged that consultation with stakeholders had occurred but it was unclear how that consultation had informed the bill:
[A]s one of those stakeholders it is far from clear to me how the issues that I have raised have been addressed. The departmental process for decision-making in this important area of national policy has received considerable input from submissions and stakeholder consultations, but there is no indication provided on how this input from a diversity of stakeholders has been assessed, nor how stakeholder trade-offs have been negotiated.
The KLC offered mixed views on the consultation process. The KLC commended the government on its 'inclusive approach' and acknowledged the mechanisms provided 'an opportunity to drill down into some of the details around the operational concerns that happen within the Native Title Act'.
However, the KLC also suggested that the consultation undertaken on the bill had been 'inappropriate' and not 'at the level of consultation that the KLC prefers'. In particular:
[W]hen we're dealing with such important matters like this, I think it's imperative to try and get down to the community level and have broader consultations rather than dealing with individuals from particular corporations or entities.
Original Power was critical of the consultation undertaken on the bill:
[T]he Government has again apparently chosen to consult with select representatives of the NTRBs and NTSPs (through the ''National Native Title Council'') rather than with the authorised representatives of native title holders, even though there is no apparent urgency involved in the amendments. The Government claims to have held over 40 consultation meetings about the 2018 Bill, but does not say who it has consulted apart from an Expert Technical Advisory Group comprised of nominees from the National Native Title Council, National Native Title Tribunal, government and industry.
The Government again seems to be relying on compliant NTRB and NTSP representatives to avoid proper, good faith consultation consistent with UNDRIP [United Nations Declaration on the Rights of Indigenous Peoples] standards and to provide the appearance of Indigenous support for its proposed amendments.
At its public hearings, the committee heard from witnesses who were unaware of the bill and the consultation processes undertaken by the government, prior to attending the public hearings. Mr James Murphy explained that, prior to learning about the committee's hearing in Kalgoorlie, he had no knowledge of the bill and was not aware of any prior consultation on the bill being facilitated by the government.
Representatives from the Karajarri Traditional Lands Association advised they 'have had no opportunity to have any input or to consider what the proposed amendments may mean on a practical level'. The Karajarri Traditional Lands Association elaborated by outlining some of the particular challenges experienced by Indigenous people when considering proposals such as those outlined in the bill:
Any laws in relation to Indigenous people always seem to have some degree of urgency and happen without the proper consultation process. Unfortunately, that's to our detriment…
To be fair to Indigenous people, it's all in a language that a lot of Indigenous people don't understand. As well, they don't understand the implications of that language, as far as the definitions and interpretations that are inserted into the amendments and how they are interpreted in law.
The Attorney-General's Department detailed the public consultation process undertaken to develop the bill which was taken in two stages:
release of an options paper on native title reform which sought views on the recommendations from the ALRC Report, COAG Investigation and the ORIC Technical Review, as well as policy proposals from the states and territories. The options paper was open for submission from 29 November 2017 until 28 February 2018; and
release of exposure draft legislation which was informed by stakeholder feedback on the options papers. The exposure draft was open for submissions from 29 October 2018 until 10 December 2018.
During consultation on the options paper, officials from the Attorney-General’s Department and the National Indigenous Australians Agency (NIAA) met with over 40 stakeholder organisations in locations across Australia. The NIAA also sent copies of the options paper via post and email to all RNTBCs.
To provide technical assistance on the development of the bill, the government convened a native title Expert Technical Advisory Group (ETAG) comprised of representatives from:
the National Native Title Council;
industry peak bodies (including the National Farmers' Federation, Minerals Council of Australia and Pastoralist and Graziers Association (WA));
state and territory governments; and
the Commonwealth (including officials from the Attorney-General’s Department, NIAA, the National Native Title Tribunal and the Federal Court of Australia).
The ETAG held four workshops on 27 to 28 November 2017, 1 March 2018, 24 August 2018 and 30 November 2018.
The Attorney-General and then Minister for Indigenous Affairs also co-chaired a roundtable on options for reform with the National Native Title Council (the peak organisation for native title representative bodies and service providers) and other native title corporations and representative bodies on 16 March 2018.
The committee welcomes the amendments proposed in this bill, recognising that it has been informed by extensive consultation and options for reform drawn from a number of native title reviews.
The committee recognises the support for several measures in the bill which will improve native title claims resolution, agreement making, Indigenous decision making and dispute resolution processes. In particular, the validation of section 31 agreements will provide certainty for both the projects the subject of agreements and the benefits that flow from them to native title holders, including employment and monetary payments.
The committee supports proposals in the bill to increase the transparency and accountability of RNTBCs, and the creation of new pathways to assist in the resolution of disputes following a native title determination. The committee acknowledges the evidence explaining the challenges affecting RNTBCs, with particular reference to funding and resourcing. The ongoing review of the CATSI Act is an opportunity to identify further measures to assist and support RNTBCs to fulfil their roles and responsibilities.
The committee acknowledges calls for further reform to the Native Title Act and is cognisant that some inquiry participants may be disappointed that the committee did not undertake a broad analysis of native title legislation. However, the committee was tasked with undertaking an inquiry into the provisions of the bill and has therefore focused its attention on the proposed amendments in the bill.
The committee welcomes advice from the Attorney-General that emphasises the Commonwealth government's ongoing commitment to engaging with Indigenous peoples and their representatives on native title issues. The committee understands that feedback on the operation of the bill provided through formal and informal consultation mechanisms will inform government consideration of future amendments. The committee is of the view that consideration of further reform should not delay the proposals in this bill, some of which are urgent.
The committee recommends that the Senate pass the bill.
Senator Amanda Stoker