Introduction and background
On 16 February 2017, the Senate referred the provisions of the Native
Title Amendment (Indigenous Land Use Agreements) Bill 2017 (the bill) to the
Legal and Constitutional Affairs Legislation Committee (the committee) for
inquiry and report by 17 March 2017.
The committee tabled an interim report on 17 March 2017, seeking an extension
of time to table its final report by 20 March 2017.
The Senate Selection of Bills Committee recommended that the bill be referred
to the committee for the following reasons:
The recognition and protection of native title is important
to Indigenous Australians and the broader Australian community.
It is appropriate and responsible for the Senate to properly
examine the impact of proposed amendments to native title law.
Additionally, the Selection of Bills Committee noted the reason for
referral was to allow the committee to seek 'Stakeholder views on the Bill'.
Background and purpose of the bill
On 2 February 2017, the Full Federal Court handed down a decision on the
McGlade case that overturned previous authority on the necessary parties
to an area Indigenous Land Use Agreement (ILUA).
Before the McGlade case, the established authority was the Bygrave
decision that determined that an area ILUA could be registered if it had been
signed by at least one member of the registered native title claimant (RNTC),
on the basis that the RNTC is defined under the Native Title Act 1993 (the
Act) as a singular entity.
The Full Federal Court in McGlade agreed that the Act defined the
RNTC as a singular entity. However, it noted that subsection 24CD(1) of the Act
contained the words 'all persons', as well as the plural 'registered native title
claimants' in section 24CD(2)(a).
Accordingly, the Court found these words indicate that the required parties to
an area ILUA must include all individual members of the RNTC, including any
relevant members who were now deceased.
The Explanatory Memorandum explains that the McGlade decision created
a level of uncertainty about the status of area ILUAs, which means:
ILUAs registered without the signatures of all RNTC members, including members
who are deceased, were agreements which did not meet the requirements of ILUAs
as defined under the Act, and
ILUAs lodged for registration which do not comply with McGlade could no
longer be registered.
The Explanatory Memorandum states that the primary objectives of the
bill are to:
the legal status and enforceability of agreements which have been registered by
the Native Title Registrar on the Register of Indigenous Land Use Agreements
without the signature of all members of a registered native title claimant
registration of agreements which have been made but have not yet been
registered on the Register of Indigenous Land Use Agreements, and
that in the future, area ILUAs can be registered without requiring every member
of the RNTC to be a party to the agreement.
Indigenous Land Use Agreements
The National Native Title Tribunal (NNTT) defines an ILUA as:
...a voluntary agreement between a native title group and
others about the use of land and waters. These agreements allow people to
negotiate flexible, pragmatic agreements to suit their particular circumstances.
There are three kinds of ILUAs that are recognised by the NNTT, namely:
Body Corporate ILUAs, which can be made once a
determination of native title has occurred over the entire agreement area. These
agreements are between the relevant Registered Native Title Body Corporate
(RNTBC) and other parties.
Area ILUAs, which are made over land and sea. These are
agreements between the native title group and other parties about native title
matters. The native title group can be a RNTC and/or a RNTBC and/or any person
who claims to hold native title over the agreement area.
Alternative procedure ILUAs, which are agreements between
a native title group, that is, RNTBC and/or representative bodies, and relevant
government and other parties. This type of ILUA cannot provide for the
extinguishment of native title rights and interests.
The NNTT also sets out an overview of the ILUA registration process in a
diagram (see figure 1.1 below). This process has the following steps:
- identify the need for an agreement;
identify what the agreement needs to be about and the parties to the
establish the most appropriate ILUA for the circumstances;
apply to have the ILUA registered with the Registrar;
the Registrar checks that the application and the ILUA comply with the
Act and parties will need to address any problems;
the Registrar notifies relevant parties and the public of the ILUA;
parties resolve obstacles to registrations, such as objections;
the Registrar registers the ILUA.
The Explanatory Memorandum notes that ILUAs may provide for certain
future acts to be undertaken, such as mining or to provide access to an area,
in exchange for compensation to native title groups.
Importantly, the Explanatory Memorandum explains that the McGlade decision
only affects area ILUAs, and not body corporate or alternative procedure ILUAs.
Figure 1.1 Diagram of the ILUA Process
The number of ILUAs and other
agreements potentially affected
It is unclear exactly how many proposed and registered ILUAs may be
affected by the McGlade decision. Regarding proposed ILUAs, the
Parliamentary Library has noted:
In relation to the ILUAs that were the subject of proceedings
in McGlade, the Western Australian Government has stated that the
decision 'will delay the commencement of the 6 South West Native Title
Settlement Agreements'. It is also
reported that the McGlade decision could preclude the registration of a
proposed ILUA relating to the Carmichael coal mine and rail project in Far
North Queensland, as the relevant agreement was reportedly not signed by all
individual members comprising the RNTC.
Regarding registered ILUAs that were not signed by all individuals
comprising the RNTC, the Parliamentary Library has suggested:
The total number of affected ILUAs on the Register is
unclear. On 11 February 2017, it was reported that the NNTT had commenced
an audit of registered agreements to identify those which were potentially
affected and, at that time, had identified a possible 123 area agreements that
relied upon the reasoning in Bygrave, most of which were in Queensland. Since
then, it has been reported that the number is 'at least 126 ... covering mines,
gas fields and infrastructure projects'. Others
have estimated that there are around 150 such agreements.
It has also been suggested that 'the problem could be even
worse, however, because pre-Bygrave, the Native Title Registrar did not
deny ILUA registration applications where the only missing signatures were
those of deceased members of the registered claimant'.
Moreover, the Parliamentary Library has also noted that some
commentators have suggested that McGlade could have ramifications beyond
It has been suggested [by the law firm Clayton Utz, who acted
for Adani in relation to the Carmichael coal and rail project] that 'the
ramifications of the decision are likely to extend beyond ILUAs' and in
particular the decision may mean that 'in all circumstances, including with
respect to making right-to-negotiate, cultural heritage and other agreements,
instructing lawyers, or taking steps in a native title claim, and despite any
direction to the contrary that may be given by the claim group, the individuals
who comprise an applicant or registered claimant will be required to act
Overview of the provisions of the bill
The bill is divided into two parts, which this section will discuss in
turn. Part one proposes amendments that would allow native title holders
to determine who will be party to an agreement. It also prescribes the rules by
which ILUAs made on or after the commencement of the bill would be governed.
Part two is intended to provide certainty to parties affected by the McGlade
decision and prescribes the rules by which ILUAs made on or before 2 February
2017 would be governed.
The Explanatory Memorandum explains that the amendments proposed in part
one of the bill would 'improve the flexibility and efficiency of area ILUA
This would be achieved through a number of provisions:
Paragraph 24CD (2)(a) of the Act would be repealed, which
requires that all persons who comprise the RNTC within the area of the proposed
ILUA to be parties to the area ILUA. The proposed new paragraph would allow the
native title claim group to nominate which members of the RNTC are required to
be parties to the area ILUA, or where no person(s) have been nominated, it
provides that a majority of members of the RNTC must be parties to the area
ILUA (proposed paragraph 24CD(2)(a)).
It enables a native title claim group to nominate one or more
members of the RNTC to be a party to the ILUA under section 24CD, as well as
enabling the registered native title claim group to decide on a process which
will determine who will be parties to the ILUA (proposed section 251A).
Where the phrase, 'where there is no such process', appears in
paragraphs 251A(b) and 251B(b), this is to be replaced with 'in any case'. The
Explanatory Memorandum explains that this is to give effect to Recommendations
10-1 and 10-2 of the Australian Law Reform Commission's Connection to
Country: Review of the Native Title Act 1993 report. The proposed
amendments would enable claim groups to choose whether to use a traditional
decision making or an agreed upon decision making process, to authorise ILUAs,
rather than requiring that a traditional decision making process is used to
Part two of the bill proposes amendments to agreements that may be
affected by the McGlade decision by:
securing existing agreements which have been registered on or
before 2 February 2017 but do not comply with the McGlade decision;
enabling registration of agreements which have been authorised,
registered, or lodged for registration on or before 2 February 2017 but do not
comply with McGlade decision.
Item 13 of the bill sets out compensation provisions, which would ensure
that should the operation of any of bill's provisions result in the acquisition
of property from a person, then that person is entitled to claim reasonable
compensation from the Commonwealth. Where the person and the Commonwealth do
not agree on the compensation amount, the person may institute proceedings in
the Federal Court.
Item 14 of the bill gives the Attorney-General the power to make
legislative instruments to address transitional issues relating to this bill,
to give effect to the bill's provisions.
The Explanatory Memorandum includes a financial impact statement that notes
the bill will have no, or insignificant, financial impact on Commonwealth
Government departments and agencies.
Compatibility with human rights
The Explanatory Memorandum notes the bill is compatible with the human
rights and freedoms recognised or declared in the international instruments
listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Moreover, the Explanatory Memorandum notes that the bill engages the
right to enjoy and benefit from culture and the right to self-determination and
concludes that the bill is compatible with these human rights.
Conduct of the inquiry
Details of the inquiry were advertised on the committee's website,
including a call for submissions by 3 March 2017.
The committee also wrote directly to some individuals and organisations inviting
them to make submissions. The committee received 59 submissions, which are
listed at appendix 1 of this report. These submissions are all available in
full on the committee's website.
Additionally, the committee received more than 20,000 campaign letters
and emails that were substantially similar. An example of this letter is
available on the committee's website.
A public hearing was held by the committee on 13 March 2017, in
Brisbane. A list of witnesses who appeared before the committee is listed at
appendix 2, and a Hansard transcript of the hearing is available on the
Structure of this report
This report consists of two chapters:
Chapter 1 provides a brief background and overview of the bill,
as well as the administrative details of the inquiry.
Chapter 2 discusses the issues raised by submitters to the
inquiry. It also outlines the committee's views and recommendations.
The committee thanks the organisations and individuals that made
submissions to this inquiry and all witnesses who attended the public hearing.
Navigation: Previous Page | Contents | Next Page