Labor Senators support the objective of the bill: to improve native title claims resolution, agreement-making, Indigenous decision-making and dispute resolution processes.
Labor Senators note and support the concerns raised about deficiencies in this bill, which are outlined later in this report.
Labor Senators note that the Government introduced changes to the Australian Human Rights Commission (AHRC) which stopped the mandatory annual report by the Aboriginal and Torres Strait Islander Social Justice Commissioner into Social Justice and Native Title. No annual review has been conducted since 2016.
Labor Senators note that this bill only addresses a selection of technical refinements to the native title regime, and to date the Government has failed to respond to the 30 substantive recommendations for reform contained in the Australian Law Reform Commission's 2015 report on Connection to Country: Review of the Native Title Act 1993 (the ALRC report).
Labor Senators note that recently significant court decisions have been made affecting native title. In McGlade v Native Title Registrar [2017] FCAFC 10 (McGlade), the Full Federal Court of Australia made a decision with potentially sweeping impacts on a range of existing and future native title claims, negotiations and arrangements. The Government responded by expediting amendments to the Native Title Act, primarily as advocated for by third parties concerned their interests would be impacted by the McGlade decision. In 2019, in Northern Territory v Griffiths (Timber Creek), the High Court of Australia ruled that where native title was extinguished, native title holders were entitled to compensation for both economic loss and for non-economic loss arising from the intangible harm caused by the loss of spiritual connection to country. The Government has not responded to the Timber Creek decision. Labor Senators are concerned at the clear pattern from this Government of being unresponsive to native title holders but being expedient to accommodate the interests of third parties.
Labor Senators note that this bill does not address the consequences of the High Court's decision in Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30.
Acknowledgements
Labor Senators thank all submitters and witnesses for their contribution to this inquiry, and especially acknowledge the work of the Secretariat in facilitating the public hearings in Western Australia.
Overview
On 17 October 2019, the Senate referred the Native Title Legislation Amendment Bill 2019 to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 28 February 2020. On 4 December 2019, the Senate granted an extension of time for reporting until 16 April 2020. On 26 March 2020, the Senate granted an extension of time for reporting until 19 August 2020.
This bill is similar to another bill, also called the Native Title Legislation Amendment Bill 2019, which was introduced in the House of Representatives in April 2019 and subsequently lapsed at the dissolution of the 45th Parliament.
As stated in the Explanatory Memorandum, the bill:
…amends the Native Title Act 1993 (Native Title Act) and the Corporations (Aboriginal and Torres Strait Islanded) Act 2006 (CATSI Act) to improve native title claims resolution, agreement-making, Indigenous decision-making and dispute resolution processes…
The Bill will also confirm the validity of agreements made under Part 1, Division 3, Subdivision P of the Native Title Act (section 31 agreements) following the decision in McGlade v Native Title Registrar & Ors [2017] FCAFC 10 (McGlade).
The Senate Scrutiny of Bills Committee (scrutiny committee) and the Parliamentary Joint Committee on Human Rights (PJCHR) made comments on the bill.
According to the Minister's second reading speech, the bill attempts to implement a number of recommendations from recent reviews of native title, including:
the Australian Law Reform Commission's 2015 report on Connection to Country: Review of the Native Title Act 1993;
the Council of Australian Government's 2015 Investigation into Land Administration and Use, and
ORIC's 2017 Technical Review of the CATSI) Act, known as the ORIC review.
Evidence considered by the committee supported the bill's overarching intentions but serious deficiencies were raised about certain elements in the bill along with general frustration at the lack of comprehensive reform of the Native Title Act.
Native Title in Australia
The Native Title Act was never intended to be the only response to Mabo v Queensland [No 2]. It was widely recognised that a much broader compensation package was required to redress more than 200 years of dispossession endured by First Nations.
Alongside the Native Title legislation, a land fund and a social justice package were intended – neither has eventuated as originally envisioned.
In considering its response to the 1992 High Court decision on native title, the Keating Government requested the Aboriginal and Torres Strait Island Commission (ATSIC) provide its views on measures the Government should take to address the dispossession of First Nations. It is worth revisiting the key objectives of its report as outlined in the preface:
In this report, we propose draft principles of indigenous social justice to guide all future relationships between the Commonwealth and indigenous peoples and be capable of applying to the roles and responsibilities of other spheres of government. Acceptance of these principles would guide the major structural changes recommended in this report, including constitutional recognition, regional autonomy, the negotiation of a Treaty or comparable document, compensation, improved service delivery, recognition of the social and cultural diversity of Aboriginal and Torres Strait Islander peoples, protection of rights, and opportunities for economic development.
It should be noted that there have been other significant inquiries into native title in Australia in the past five years, including:
Australian Law Reform Commission 'Connection to Country: Review of the Native Title Act 1993 (Cth)' (June 2015);
Australian Human Rights Commission 'Indigenous Property Rights Project - Garma Roundtable' (2016); and
Council of Australian Government's 2015 Investigation into Land Administration and Use (2016).
A consistent theme in these reports to Government is the gradual weakening of mechanisms available to First Nations to recognise and protect their rights and interests under native title.
The role of the applicant and section 31 agreement validation
Schedule 1 amends the Native Title Act to allow, as the default position, an applicant to a native title claim to act by majority – within conditions imposed by the claim group and with allowance for the composition of the applicant to be changed in limited circumstances without further authorisation process.
Schedule 9 of the Bill seeks to confirm the validity of section 31 agreements that may potentially be affected by McGlade.
Evidence presented to this inquiry broadly supported both these changes however concerns were raised over their implementation.
As detailed in the Parliamentary Joint Committee on Human Rights (PJCHR) Report, both these measures affect First Nations' rights to culture and self-determination. The PJCHR sought the advice of the Attorney-General as to whether it would be appropriate for the Bill to include a requirement for an evaluation to be conducted within an appropriate timeframe to assess the impact of these measures. The Attorney-General rejected this proposal.
Considering the possibility of First Nations rights being curtailed detrimentally, Labor Senators support an independent evaluation be conducted consistent with the terms set out in the PJCHR report.
Deficiencies in the Bill
While firmly supporting the broad objectives of the bill, and calling on the Senate to support legislation that addresses those objectives, Labor Senators note that there are some concerns with the bill as drafted.
Labor Senators note that the last substantive legislative amendments to the Native Title Act occurred in 2007 and in the intervening years, there have been significant developments in the native title sector – warranting amendments that ensure the ongoing effectiveness of the native title system. Many of the amendments in this bill seek to address these issues, and as such, are supported by Labor Senators. There remain, however, clear deficiencies in the bill.
De-registration of an Indigenous Land Use Agreement (ILUA)
The bill proposes amendments to sections 24EB and 24EBA which allows any future act approved by a later de-registered ILUA to have no effect on the future act done in relation to that agreement.
Many submitters raised concerns about the appropriateness of this provision and the possibility of undue future acts remaining authorised.
The National Native Title Council notes:
…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.
Similarly, the Law Council of Australia notes:
The Law Council opposes the current form of proposed subsections 24EB(2A) and 24EBA(7), as there may exist valid reasons as to why the validity of a future act ought to be set aside, including that the agreement validating the act was affected by fraud, duress or coercion, or was registered in circumstances of jurisdictional error or other administrative law error.
CATSI Registrar oversight
The bill (Schedule 8 Part 3) provides increased powers to the Office of the Registrar of Indigenous Corporations (ORIC) to determine that a Registered Native Title Body Corporate (RNTBC) be under special administration.
Many submitters raised concerns about the nature of these increased powers, viewed within the context of the operation of RNTBCs, and the already-stretched resources with which they function.
The Aboriginal and Torres Strait Islander Social Justice Commissioner, June Oscar AO notes:
…the Commission also wishes to emphasise that the capacity of RNTBCs to effectively discharge their statutory obligations and fulfil the cultural, social and economic aspirations of native title holders can be hindered by limited financial resources and governance capacity, including a lack of understanding by directors of the regulatory and legislative obligations of RNTBCs. The Commission reiterates its view that the capacity of RNTBCs to comply with their native title legislation obligations would be enhanced through an increase in the Government provision of technical and financial resources to RNTBCs.
While supportive of better transparency and accountability, Labor Senators share concerns raised about the increased powers of ORIC - which curtail the rights of self-determination of native title holders – and the resourcing demands placed on RNTBCs as a result of these new compliance measures.
Commonwealth intervention
Schedule 5 of the Bill requires the Commonwealth to be a party to any agreement if it has intervened.
Submitters raised concerns about the complications and delays often associated with Commonwealth intervention. The Central Desert Native Title Services made the following comments in hearing:
Dr TAN (Director, Central Desert Native Title Services): We have expressed concern about expanding section 87 and the provision to require the Commonwealth, when it intervenes, to be a party to any consent determination. Our experience has been that the Commonwealth has sometimes intervened quite late in the piece when negotiations are well advanced, and, therefore, it delays matters to suddenly have to satisfy the Commonwealth as well after you've gone through and got agreement from most of the other parties. We see no need for the Commonwealth to be required to be a party to any consent determination. An area of concern we have noted in our submission is that section 31 agreements are basically private agreements. Our position is that that should remain the case.
Labor Senators share the concerns of the National Native Title Council amongst others, that this proposal may allow the Commonwealth to oppose an agreement even when all other parties are in support.
Historical Extinguishment
Labor Senators support the proposed section 47C (Schedule 3, part 1) but have some concerns in relation to its activation and operation.
Section 47C is merely an enabling provision that allows for historical extinguishment provided an agreement has been reached between relevant governments and native title holders.
As noted by the Law Council of Australia in their submission:
Proposed section 47C leaves the rights of native title parties at the discretion and goodwill of the government of the day. Current sections 47, 47A and 47B simply require extinguishment to be disregarded where extinguishment has occurred by reason of the acts specified. That is, the effect is automatic. In comparison, proposed paragraph 47C(1)(b) requires an agreement in writing with the government in order to trigger the operation of proposed section 47C. As the rights of the government and the public are protected by reason that the extinguishing effect of public works prevails over native title rights and, under subsection 47C(4), would require an explicit statement of agreement from the government to be disregarded, there is no need in most jurisdictions to also require general government agreement under paragraph 47C(1)(b) or public notification.
Concerns raised in Public Hearings
During the consultation period of this inquiry, several issues were consistently raised with the Committee.
Consultation process
The inadequate level of consultation provided by the Government on this bill has been concerning to the Committee and those that appeared before it.
It is clear that the Government's repeated assurance of a comprehensive consultation process is not a view shared by many submitters to this inquiry.
An example of this shortcoming can be seen in the experience of the Ngaanyatjarraku Council (WA):
Senator DODSON: … Did you have any consultation with the Attorney-General's Department?
Mr McLean (President, Shire of Ngaanyatjarraku): We've had none.
Senator DODSON: Is this the first time someone has talked to you about these amendments.
Mr McLean: That's correct.
This lack of consultation was also accompanied with an unexplained urgency from the Government to expedite the bill.
Evidence received by the Committee from native title holders and their representatives did not share this sense of urgency.
Increased cost burdens on Native Title representative bodies
Many submitters noted the increasing costs for representative bodies and the lack of adequate resourcing of PBCs to build their capacities as the responsible entities for the native title lands and third party impositions.
Mr Garstone, Acting CEO, Kimberley Land Council, explained these challenges:
This sort of leads on to the second part of the point I want to raise around the funding with regard to the native title sector. Again, in the opening comments we talked about how there are currently about 22 PBC's within the Kimberley. There are 17 that we work with. If you broaden that out across the whole of Australia there are over 200 PBCs and over 50 per cent of them don't receive any funding at all. The actual PBC support funding that we receive from the Commonwealth is very minimal. If you weigh up the governance requirements on those PBCs: that's to generally hold four board meetings, have an AGM—and they're not just basic AGMs. We're talking of bringing in hundreds of people to the meetings, so the cost incurred to that. Just managing that is very difficult. So the heart of your question is that quite often traditional owners won't be able to go and put an objection in and get the evidence to fight that, and it will be a form of activity happening on the land without any benefit to the traditional owners.
Senator SIEWERT: So that's a substantial loss to native title holders?
Mr Garstone: A substantial loss and impact, yes. That's correct.
In their written submission, the KLC notes:
that an area in need of urgent reform is the matrix of legislative provisions and procedures adopted by State parties which shift the cost of future act processes onto native title parties and therefore, to the extent that native title parties have the resources to participate in future act processes to protect native title rights, onto the public purse. This is an unacceptable cost shifting from private enterprise to public funding which should be addressed through urgent legislative reform.
The need for a comprehensive overhaul
Concerns were raised that the Native Title Act needs a more comprehensive overhaul so that native titleholders can benefit from their title and interests, and become more focused on developing economic opportunities - not just defence of their rights.
Mr Peter Yu, Chief Executive Officer, Nyamba Buru Yawuru, commenting on the lack of progress and the need for reform, notes:
So there is a need to refresh and revive. To deal with Senator Smith's comments, we've got to a certain stage. We could have got to this stage 20 years ago. We're a bit slow in this country, you know. We could have been sitting here with a different context altogether had the government considered—what I'm saying is not new. I'm not saying anything new. This has been around for 40 years. Had we done that then, we'd be a different space, so let's not waste the opportunity now. But we do need the instruments and we do need the institutional reform to deliver that, because it's in the delivery.
The impact of Native Title on families and communities
Submitters raised concerns about the litigious and adversarial nature of the native title regime and the division it has caused amongst families and communities.
Many expressed fatigue and cited the many years of legal struggle having detrimental impacts on individuals and communities.
Ms Mingli Wanjurri Glade observed:
Native title—we'll start with native title, because that's where we are, and it's really the last thing—destroyed a lot of our culture with each other. It destroyed many things. At first, we had to prove we were Aboriginal. Please. I've practised this all my life down south.
Concluding view
While it is clear that the broad objectives of this Bill are supported, evidence received by this committee overwhelmingly demanded a comprehensive overhaul of the Native Title Act.
First Nations have placed their trust in legal institutions to secure their native title rights yet have be repeatedly supplanted by the legislature denying their position in the interests of third parties. Multiple submitters noted that the high original undertaking of the Native Title Act has been brought into disrepute via amendments that have progressively eroded the rights and interests of First Nations.
Recommendation
Labor Senators call on the Minister for Indigenous Australians to instruct the Aboriginal and Torres Strait Islander Social Justice Commissioner to conduct a review of the operation of the Native Title Act and its impact on native title holders.
Recommendation
Labor Senators call on the Government to provide a comprehensive response to the 30 recommendations for reform in the Australian Law Reform Commission's 2015 report on Connection to Country: Review of the Native Title Act 1993.
Recommendation
Labor Senators call on the Government to work with First Nations people on a comprehensive legislative package to overhaul the Native Title Act so that native title holders can better leverage their land and sea assets without putting at risk their native title rights and interests.
Recommendation
Labor Senators call on the Government to include a formal evaluation mechanism on the proposed changes in relation to their effect on the rights to culture and self-determination of First Nations peoples, consistent with the terms set out in the PJCHR report.
Recommendation
Labor Senators call on the Senate to support the bill, with firm commitments from the Government to give effect to recommendations 1, 2 and 3 of this Minority Report, and the Government amending the Bill to give effect to Recommendation 4.
Senator the Hon Kim Carr
Deputy Chair
Labor Senator for Victoria
Senator Patrick Dodson
Labor Senator for Western Australia