1.1
On 17 October 2019, the Senate referred, contingent upon introduction in the House of Representatives, the provisions of the Native Title Legislation Amendment Bill 2019 (the bill) to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 28 February 2020. On 4 December 2019, the Senate granted an extension to report by 16 April 2020. On 26 March 2020, the Senate granted a further extension of time for reporting until 19 August 2020.
1.2
The Senate referred the bill to the committee following a recommendation of the Selection of Bills Committee. In referring the bill for inquiry, the Selection of Bills Committee highlighted that the bill is a complex area of law and identified the 'need to consider cultural approaches to native title of different traditional owner groups'.
Previous bill
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Another bill, also called the Native Title Legislation Amendment Bill 2019 was introduced into the House of Representatives on 21 February 2019. That bill lapsed at dissolution of the House of Representatives on 11 April 2019. The previous bill was very similar to the bill subject to this inquiry. The only difference between the two versions of the bill is changes to the commencement dates for measures in schedule 8 due to the passage of time, and for which the National Indigenous Australians Agency has policy responsibility.
Conduct of the inquiry
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Details of the inquiry were advertised on the committee's webpage. The committee called for submissions to be received by 28 November 2019 and also wrote to a range of organisations inviting them to submit. The committee continued to accept submissions after the closing date. The committee received 27 submissions, which are listed at Appendix 1.
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The committee held three public hearings in Western Australia: Perth, Kalgoorlie and Broome. The witnesses who appeared at the hearings are listed at Appendix 2.
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The public hearing scheduled to be held in Warburton on 11 March 2020 was unable to proceed due to COVID-19 travel restrictions to that area. The witnesses scheduled to appear in Warburton provided evidence to the committee via teleconference at the Kalgoorlie public hearing.
1.7
The committee scheduled a Canberra public hearing to take place in March 2020 to facilitate discussion on the bill and issues raised during the inquiry. The hearing was unable to proceed due to the COVID-19 situation and the committee subsequently submitted written questions on notice to a number of organisations. Answers to questions on notice received by the committee are listed at Appendix 1.1
Acknowledgement
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The committee thanks all submitters and witnesses for their participation in this inquiry.
Structure of this report
1.9
This report consists of three chapters:
This chapter outlines the background and key provisions of the bill and provides administrative details relating to the inquiry.
Chapter 2 examines the key issues relating to the bill raised in evidence;
Chapter 3 examines broader issues raised with the committee and provides the committee's view and recommendation.
Purpose of the bill
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The bill, introduced into the House of Representatives on 17 October 2019 by the Attorney-General, the Hon Christian Porter MP, would amend the Native Title Act 1993 (the Native Title Act) and the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (the CATSI Act).
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When introducing the bill, the Attorney-General explained the purpose of the bill is:
…to better support the resolution of native title claims and agreement-making around the use of native title land and to promote the autonomy of native title groups to make decisions about their land and to resolve internal disputes.
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The Attorney-General also explained the bill would 'implement practical and pragmatic improvements to ensure the ongoing effectiveness of the native title system'. Moreover:
The bill will also build on the amendments made by the Native Title Amendment (Indigenous Land Use Agreements) Act 2017 to provide certainty around the status of important mining and exploration related native title agreements affected by the Full Federal Court of Australia's decision in the matter of McGlade v Native Title Registrar & Ors.
Background to the bill
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The development of the bill has been informed by feedback from stakeholders following public consultation on an options paper for native title reform released in November 2017 and exposure draft legislation released in October 2018. The Attorney-General's Department emphasised that the options for reform were drawn from a number of reviews of the native title system, including:
the Australian Law Reform Commission's report on 'Connection to Country: Review of the Native Title Act 1993 (Cth)', published June 2015 (ALRC Report);
the report to the Council of Australian Governments on the 'Investigation into Land Administration and Use' published December 2015 (COAG Investigation); and
the Office of the Registrar of Indigenous Corporations' 2017 Technical Review of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act Review).
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The Attorney-General's Department explained that the purpose of its consultation on further potential native title reforms was twofold: (a) to seek stakeholder views on recommendations for native title reform from the reviews listed above and (b) to investigate and seek stakeholder views on any legislative response to the effect of the McGlade decision on section 31 agreements. Further background information on the McGlade decision is outlined below.
The McGlade decision
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The Full Federal Court's 2017 decision in McGlade held that a particular kind of native title agreement under the Native Title Act – area Indigenous Land Use Agreements (ILUAs) – were invalid where not all members of the applicant (being the authorised representatives of the native title claim group in a native title agreement or claim) were party to the ILUA, even in circumstances where a member of the applicant had passed away.
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This decision led to significant uncertainty in the native title system because it overturned a previous decision which held that an area ILUA is valid provided at least one member of the applicant was a party to the agreement. An audit of area ILUAs indicated that 126 area ILUAs were impacted by the decision.
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The government sought to address this uncertainty through the introduction and passage of the Native Title Amendment (Indigenous Land Use Agreements) Act 2017 (Cth), which came into force on 22 June 2017. The 2017 amendments retrospectively validated area ILUAs which were entered into without the signatures of all members of the applicant, and ensured that ILUAs could be entered into by a majority of the applicant, or otherwise according to the will of the claim group, in the future.
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The committee's report on the 2017 bill expressed the view that:
[T]he Commonwealth should consider whether it is necessary to make further amendments to ensure the McGlade decision does not affect right-to-negotiate agreements, which are more widely used than ILUAs. Specifically, the Commonwealth should consider further amendments to ensure that the provisions for the 'right to negotiate in the future' under section 31 of the Act cannot be invalidated in a similar process to the McGlade determination.
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The amendments proposed in schedule 9 of the bill would address the uncertainty created by the McGlade decision by confirming the validity of certain agreements under section 31 of the Native Title Act (often referred to as section 31 agreements). Schedule 9 would validate agreements entered into before the McGlade decision was handed down even if they were not signed by all members of the registered native title claimant.
Overview of the bill
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The bill proposes to amend the Native Title Act in a number of areas including:
give native title groups greater flexibility around setting their internal processes, including to allow claim groups to impose conditions on the authority of the applicant and allow a majority of the applicant to make decisions on behalf of the applicant;
amend processes relating to ILUAs;
allow historical extinguishment over areas of national and state park to be disregarded where the parties agree;
allow for compensation applications over areas where native title has been extinguished;
clarify the role of the Commonwealth to intervene in native title proceedings; and
require the registrar to create and maintain a public record of section 31 agreements.
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The bill would also confirm the validity of certain agreements made under section 31 of the Native Title Act in light of the McGlade decision. These provisions would apply retrospectively to validate agreements entered into before the decision was handed down even if they were not signed by all members of the registered native title claimant.
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The bill would amend the CATSI Act to increase transparency and accountability of registered native title bodies corporate (RNTBCs) by:
requiring RNTBCs' constitutions to include dispute resolution pathways for persons who are or who claim to be common law holders, and provide for all the common law holders to be directly or indirectly represented in the RNTBC;
limiting the grounds for cancelling the membership of a member of a RNTBC to certain grounds;
removing the discretion of directors of RNTBCs to refuse certain membership applications;
specifying that the registrar may place a RNTBC under special administration in certain circumstances; and
ensuring that court proceedings relating to a RNTBC are to be commenced in Federal Court, unless transferred to another court.
Consideration by other parliamentary committees
Senate Scrutiny of Bills Committee
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The Scrutiny of Bills Committee (the scrutiny committee) raised scrutiny concerns about the retrospective application of the bill with particular reference to schedule 9 which deals with the validation of section 31 agreements made on or before the commencement of the Act.
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The scrutiny committee noted its particular concerns that the legislation will or might have a detrimental effect on individuals and reiterated its 'long-standing scrutiny concerns about provisions that have the effect of applying retrospectively'. Advice was sought from the Attorney-General about the necessity and appropriateness of retrospectively validating section 31 agreements, including more detail information regarding whether there will be a detrimental effect to any involved parties.
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In his response, the Attorney-General advised that section 31 agreements can underpin resources projects and provide benefits for native title groups and the 'uncertainty created by the potential invalidity poses risks to both those projects and the related benefits flowing to native title groups'. It was emphasised that widespread consultation on the proposed approach has indicated it is 'well-supported by the native title and Indigenous representatives, states and territories and peak industry groups'.
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Following consideration of the response, the scrutiny committee requested that the key information provided by the Attorney-General be included in the explanatory memorandum and, in light of the information provided, made no further comment on the matter.
Parliamentary Joint Committee on Human Rights
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The Parliamentary Joint Committee on Human Rights (the human rights committee) provided comments about how the bill may engage the right to culture and right to self-determination. Upon assessing the bill, the human rights committee noted legal advice provided to the committee that allowing native title applicants to act by majority as the default rule, and retrospectively validating section 31 agreements, may engage and limit the right to culture. The committee also noted advice that the measures may promote the right to self-determination. However, the bill's statement of compatibility with human rights does not provide an analysis as to how this right is promoted.
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The committee sought advice from the Attorney-General about 'whether it would be appropriate for the bill to be amended to require an evaluation to be conducted within an appropriate timeframe to assess the impact of these measures on the rights to culture and self-determination'.
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In his response, the Attorney-General reiterated the bill follows 'an extensive period of consultation with a wide range of native title sector stakeholders' and during the consultation 'there was a specific focus on engagement with Indigenous peoples and their representatives, including through targeted meetings with native title and peak Indigenous groups'.
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The Attorney-General's view was the bill did not require amendment to include a formal evaluation mechanism and emphasised a commitment to 'ongoing engagement with stakeholders, and in particular Indigenous peoples and their representatives, on native title issues. Moreover, the Attorney-General advised:
[E]xisting formal and informal consultation mechanisms will provide ample opportunity for feedback to be received on the operation of the provisions of the Bill, once enacted. If such consultations indicate legitimate issues with the operation of measures in the Bill, further amendments will be considered.
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In concluding its assessment, the human rights committee considered that:
[W]hile the bill may limit individual enjoyment of the right to culture, this must be balanced against the fact that the measures also promote the right to culture for the group as a whole, and noting additional safeguards in the bill, these measures may be a proportionate limit on the right to culture. The committee also considers the measures may promote the right to self-determination.
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The human rights committee considered that 'ultimately much will depend on how the proposed amendments and safeguards operate in practice'.
Note on references
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In this report, references to Committee Hansard are to proof transcripts. Page numbers may vary between proof and official transcripts.