The Australian Greens note the broad in-principle support from a cross-section of stakeholders and submitters for many of the amendments outlined in the Native Title Legislation Amendment Bill 2019. However, given the concerns raised through the submissions and at the inquiry hearings, the Australian Greens believe there are fundamental concerns that need to be addressed before the bill can progress any further.
The Australian Greens want to see a fair, accessible, and effective native title system that delivers outcomes for First Nations peoples, one which is consistent with the UN Declaration on the Rights of Indigenous Peoples and international human rights law.
Some stakeholders, including Yamatji Marlpa Aboriginal Corporation and Central Desert Native Title Services, submitted that the Bill contains urgent amendments to the Native Title Act that should be passed as a matter of urgency.
However, other submitters including the National Native Title Council, Law Council of Australia, ANTaR, and NSW Aboriginal Land Council, argued that they could not support some of the provisions as currently drafted.
The Australian Greens support the approach adopted by the National Native Title Council in examining the Bill from a native title holder's perspective and asking whether it improves the recognition and rights of native title holders.
Schedule 1: Role of the applicant
Several concerns were raised by submitters about the proposed amendments to the role of the applicant. Part 2 of Schedule 1 amends the Native Title Act to allow an applicant to a native title claim to act by majority as the default position. This provision would commence six months after proclamation.
The Law Council of Australia took issue with the retrospective scope of proposed sections 24CD, 24CL, 62C and 87.
The Law Council submitted that the vague wording of the sections could mean default rule by majority applies to claim groups or applicants determined prior to the commencement of these sections:
For example, it is not clear that proposed section 62C would only apply to new authorisations, given that the phrase 'anything' is vague. It may have the effect that a majority of the authorised persons who make up an applicant can make decisions after the commencement of the item, even if the native title claim group authorised the applicant at a time when it was expected all would have to agree. If section 62C does operate retrospectively in this regard, native title claim groups would need to undertake the cost and time of meeting again to impose conditions, should they wish to displace the new default rule by majority.
The Law Council has concerns that this may be contrary to the right of First Nations peoples to self-determination and to the exercise of free, prior and informed consent.
The Law Council also submitted these proposed sections:
do not require the majority of the claim group or applicant to give notice to the other persons of the claim group or applicant prior to entering an agreement or making a decision.
As a result, the Law Council recommends that the amendments proposed should only apply in relation to authority undertaken after the amendments and the default majority should be required to provide notice in writing at least 7 days prior to executing an agreement.
Emeritus Professor Jon Altman noted in his submission the dangers of a default majority position:
But if such an approach is not countenanced, it strikes me that the requirement to act by majority as the default position is fraught with potential dangers particularly when a larger regional group might be negotiating over a proposed development, like a mine, in a distinct locality….
Majority decision making is a very western liberal democratic institution that might not sit comfortably with Indigenous decision-making processes, bearing in mind that continuity of customs and traditions need to be demonstrated in legal native title claim processes.
Schedule 2: Indigenous Land Use Agreements
Part 2 of Schedule 2 inserts two new subsections to 'clarify' that when an Indigenous Land Use Agreement is removed from the Register this does not invalidate future acts approved pursuant to that Indigenous Land Use Agreement.
ANTaR, the National Native Title Council and the Australian Human Rights Commission all expressed concern that these amendments would validate any future act authorised by the Indigenous Land Use Agreement, including instances where an agreement was affected by fraud, undue influence or duress.
The National Native Title Council said in its submission:
This means that any future act authorised by the ILUA that has been done through fraud, undue influence or duress remains valid and will still affect native title. As with the recognised exceptions to indefeasibility of registered title under the Torrens system in Australia there should be similar exceptions in relation to future acts authorised pursuant to a deregistered ILUA. The amendment is only supported if this exception is included.
It should be noted that the Federal Court already has the power to 'de-register' an Indigenous Land Use Agreement where it has been procured through fraud, undue influence or duress.
Schedule 3: Historical Extinguishment
There was widespread support for proposed section 47C which enables prior extinguishment to be disregarded in national parks where this is agreed to by the Commonwealth, State or Territory. However, concerns were expressed about the detail of its operation.
Concerns were raised about the interaction of section 47C with Aboriginal Land Claims made under the Aboriginal Land Rights Act 1983 (NSW):
The New South Wales Aboriginal Land Council believe the Bill as drafted will have unintended consequences of reducing the existing rights and interests of Aboriginal people under the Aboriginal Land Rights Act 1983 (NSW) and increasing legal uncertainty and costs for Aboriginal communities in NSW.
The New South Wales Aboriginal Land Council also submitted that the provisions relating to historical extinguishment in park areas:
Do not appropriately consider the unique interaction of the native title and NSW land rights regimes;
Do not provide sufficient legal safeguards to protect the existing and unique rights and interests for Aboriginal Land Councils in NSW;
Will result in increased uncertainty and legal complexities for Aboriginal communities, further burdening our communities with costly and adversarial legal proceedings;
Will reduce the amount of freehold land available to Aboriginal people under the compensatory and beneficial legislation of the ALRA;
Undermines the hard won rights of Aboriginal people in NSW; and
Fails to take into account the practical implications on Aboriginal communities in NSW.
As a result, the New South Wales Aboriginal Land Council have requested minor amendments to the bill to safeguard existing rights of Aboriginal Land Councils in NSW, including:
Explicitly recognising Aboriginal Land Claims made under the Aboriginal Land Rights Act 1983 as interests in section 47C(9)(a)(ii);
The requirement for the agreement of Aboriginal Land Councils, with an interest in the agreement area, under section 47C(1); and
Clarification that section 47C does not operate to diminish the rights and interests of Aboriginal Land Councils.
The Law Council also submitted that:
Proposed section 47C should be revisited and an attempt made to develop a more refined mechanism, which would have regard to the complex interaction between native title rights and land rights in New South Wales and ensure that the two regimes operate in harmony to maximise outcomes for Aboriginal people.
Schedule 5: Intervention and consent determination
Schedule 5 seeks to clarify the Commonwealth’s role as an intervenor in native title proceedings.
The National Native Title Council does not support this amendment because it could allow Commonwealth to oppose an agreement when all other parties agree:
The explanatory memorandum describes this amendment as 'technical' to clarify the role of the Commonwealth Minister in native title proceedings (Item 14). The amendment requires the Commonwealth to be a party to any agreement if it has intervened. This would theoretically allow the Commonwealth to oppose an agreement even where all the other parties are in agreement. This is not supported. It does not affect the existing right of the Commonwealth to intervene in proceedings generally (s 84A) or if its interests are affected.
Central Desert Native Title Services also opposed these amendments:
Central Desert does not support the proposed amendment which will have the effect of requiring the consent of the intervenor in various procedural and substantive matters. This is particularly the case where the Commonwealth, as intervenor, has no rights or interests in the land under claim and therefore has only an academic interest in the proceedings. While it is important for the views of the intervenor to be heard in any claim, agreements which determine the rights and interests of parties should not be prevented as a result.
These amendments are problematic and the Commonwealth should not be enabled to intervene, especially when negotiations are well advanced, in this way.
Schedule 8: Registered Native Title Bodies Corporate
Schedule 8 introduces a range of amendments to the Corporations (Aboriginal and Torres Strait Islander) Act around accountability, transparency and governance, which were mostly supported.
Part 3 proposes that the Registrar may place a Registered Native Title Body Corporate under special administration in the event of serious non-compliance.
The National Native Title Council voiced its opposition to the increased powers of the Registrar to place bodies corporate into administration:
The NNTC does not support increased powers of the ORIC registrar to intervene and place a RNTBC into administration. Any increase in powers for the Registrar that may intervene in the rights of self-determination of native title holders and their corporation is of concern. As the proposed amendments seek to increase the powers of the ORIC Registrar in relation to RNTBCs, in the NNTC’s opinion any new powers should be considered in the light of a more holistic review of the Act and the provisions affecting RNTBCs and the NTA.
We question whether this amendment is time critical or should wait until the National Indigenous Australians Agency has finished its comprehensive review of the CATSI Act and be included in future legislation.
Conclusion
The Australian Greens recommend the Government immediately addresses the key concerns raised by stakeholders throughout this inquiry, including around the majority default position of the applicant, Indigenous Land Use Agreements, the interaction with Aboriginal Land Claims made under the Aboriginal Land Rights Act 1983 (NSW), and the Commonwealth's role as an intervenor in native title proceedings.
Recommendation
That the bill not proceed until these matters are addressed, or alternatively, that the provisions that do have support and are considered urgent are dealt with separately.