Key issues and concerns raised
This chapter sets out the main issues raised by submitters to the
inquiry concerning the Native Title Amendment (Indigenous Land Use Agreement)
Bill 2017 (the bill).
First, this chapter sets out support for the bill's provisions,
particularly how it would give certainty, not only to Indigenous organisations
and communities, but also industry and agricultural stakeholders.
Second, it sets out concerns that witnesses and submitters raised about
the bill, including:
the lack of consultation informing the bill's development;
potential deficiencies in the bill's reliance on majority decision-making;
that its provisions may increase complexity of the processes to
remove certain applicants from the registered native title claimant (RNTC);
retrospective provisions of the bill; and
possible unintended consequences of the bill.
Lastly, this chapter also outlines the views and recommendations of the
Support for the bill
The committee received evidence from witnesses and submitters that
supported the bill. This support centred on several issues, including that its
provisions would give certainty to:
industry and agricultural stakeholders when making agreements
with traditional owners, or for some agreements that have already been agreed;
Indigenous communities and organisations when making agreements
for the use of their land, or where Indigenous Land Use Agreements (ILUAs) have
already been agreed.
Certainty for industry and pastoral
Some witnesses and submitters told the committee that they supported the
bill's provisions, as it would give industry and agricultural stakeholders some
certainty to the viability of current and future ILUAs for the use of land,
particularly given the ramifications of the McGlade decision.
Ms Kirsten Livermore, Senior Adviser, Minerals Council of Australia,
told the committee how private enterprise has supported positive relationships
Indigenous land use agreements have been and continue to be
an essential part of the business of developing and operating resources
projects in Australia. They secure legal rights and foster cooperative
relationships, both important elements of the stability necessary for long-term
resource projects. The relationship that resources companies seek to have with
Indigenous people is based on two principles. Firstly, our member companies
acknowledge that, as the first people of Australia, Indigenous people have a
special connection to their traditional lands and waters. Also, as neighbours
to resources projects, Indigenous communities should share in the benefits from
the development of these resources.
For the past two decades, companies have relied on ILUAs as a
voluntary legal mechanism for reaching agreement with Indigenous parties over
access to land and the sharing of financial returns and other benefits such as
jobs and business opportunities. 
Ms Livermore told the committee how the McGlade decision had
created a good deal of uncertainty over both active and future ILUAs:
The number of existing ILUAs impacted by McGlade has
not been fully determined. The National Native Title Tribunal tells us that 126
ILUAs have been registered without the signatures of all members of the registered
native title claimant since the time of the Bygrave case in 2010, which
endorsed the practice. What is not known is the much higher number of ILUAs
registered despite missing the signatures of deceased registered native title
claimants, which was the practice of the Native Title Tribunal dating back well
before the Bygrave case, possibly as far back as 1998. Uncertainty of that
scale and of such consequence must be resolved as a matter of urgency so that
the benefits received by affected Indigenous communities are not affected or,
at worst, revoked.
Similarly, AgForce told the committee that the McGlade decision
threatened to add more complexity to the already long, drawn-out process for
many agricultural stakeholders negotiating leases with ILUAs:
Communicating native title legislation to our pastoralists is
a pretty difficult thing. It is associated with lots of paperwork and it is
drawn out over years and years. Many of our pastoralists actually question what
is a really cumbersome process to achieve what seems like a really easy, simple
thing to do. The McGlade decision questions the validity of these
agreements and would create further doubt and complexity for our people. It is
a shadow over the legislation at a time when really we want people to have
enough confidence in the system to agree to and understand the ILUA process and
hold it up going forward. We would really value their participating in the
process, and they really struggle to understand this legislation, the case and
everything around it. We strongly recommend that the bill be passed for this
reason, so that we can get on to negotiating good outcomes in good faith.
Mr Ian Macfarlane, Chief Executive, Queensland Resources Council, noted
that it was not just industry that had concerns about the ramifications of the McGlade
decision, but also many traditional owners.
As I said before—in terms of these operations—long before
this issue was raised, they were operating with the support of their Indigenous
communities or their traditional owners. Their traditional owners, as I said,
are as concerned about the current situation as we are, as the government is
and as infrastructure proponents are. It is not just the mining industry; it is
quite a broad spread of business, community and government who have used ILUAs
to progress projects.
Certainty for Indigenous
communities and organisations
Some Indigenous organisations also told the committee that the proposed
amendments would ensure certainty for existing and new ILUAs.
Mr Wayne Nannup, Chief Executive Officer, South West Aboriginal Land and
Sea Council (SWALSC), broadly supported the amendments. He set out the benefits
the South West Native Title Settlement ILUAs for the claim group he represents,
including statutory recognition as the traditional owners of the region:
Effectively, the [Noongar (Koorah, Nitja, Boordahwan
(Past, Present, Future) Recognition Act 2016 (WA)] is actually the glue for
all the agreements. It is what actually gives life to the benefits that can
flow from the agreement. The other benefits include our land, housing and
conservation estate participation. There is an economic base, a standard
Noongar heritage agreement, a community development framework and an economic
participation framework. Everything contained in the ILUA gives us, the Noongar
people, the opportunity to manage our assets, manage our programs, be
financially independent and ultimately have self-determination. I note that,
when we talk about resolving our claims, be they as they may, the opportunity
actually provides us with exactly that: self‑determination—how we look
after our own concerns, our people, our way. That is exactly what we are
endeavouring to do through the south-west settlement.
The National Native Title Council (NNTC) told the committee that the
bill was a positive step for negotiating agreements:
The NNTC believes that the amendments proposed are not large
and are technical in nature. The effects of the amendments however will be
significant, will lead to improved agreement making processes and will put
beyond doubt the currently uncertain interests of parties to affected ILUAs.
The Dja Dja Wurrung Clans Aboriginal Corporation (DDWCAC) supported the
amendments, submitting that the McGlade decision had:
...created concern and uncertainty for DDWCAC about the
validity of several exploration, mining, and development ILUAs we have
negotiated in good faith over the past five years, and the current status of
the obligations and benefits that are specified in these agreements....
Our settlement ILUA and agreements provide the foundation for
what we are working to achieve for present and future generations of Dja Dja
Wurrung People. The agreements provide us with formal recognition by the State,
resources that support our core operations and activities, Aboriginal title to
and joint management of parks and reserves, active participation in natural
resource management, an alternative future act regime, and business and
economic development opportunities.
Concerns raised about the bill
Some submitters noted their dissatisfaction with the consultation period
for this inquiry noting that the McGlade decision was handed down on 2
February 2017 and the bill was introduced in Parliament on 15 February 2017.
For example, the Law Council of Australia (the Law Council) argued that
the time period is not sufficient for stakeholders to properly consider the
The Cape York Land Council, the Cape York Partnership and Balkanu argued
that the hasty consultation process may lead to unfair outcomes:
The speed with which this Bill has been produced and the
urgency with which it is being urged through the Parliament, is unwarranted and
if not properly considered, likely to cause injustice.
While the Cape York Land Council, the Cape York Partnership and Balkanu
are not in favour of what they describe as 'blanket validation' of ILUAs
proposed by the bill, they do agree that legislative amendments are needed:
The Cape York Land Council (“CYLC”) has identified a number
of ILUAs within its region that may be impacted by the ruling in McGlade, and
believes legislative amendments are needed.
Other evidence suggested that the bill's amendments were designed to
favour mining and private sectors.
For example, the Wangan and Jagalingou Family Council suggested the bill was
indicative of a 'knee-jerk reaction' made by the government to protect the
interests of the mining industry and private sector.
As discussed in chapter 1 of this report, the bill proposes amendments
which give effect to Recommendations 10-1 and 10-2 of the ALRC report. The
proposed amendments, contained in items 4 and 6 of schedule 1, would amend
sections 251A and 251B of the Act to 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 be used to authorise ILUAs.
The committee notes that these proposed amendments appear to be in
addition to amendments that are designed to reverse the decision in McGlade.
The committee also notes that there are other, related recommendations of the
ALRC report which are not dealt with in the bill; specifically amendments to
section 203CB(2) of the Act and subregulations 8(3) and 8(4) of the Native
Title (Prescribed Bodies Corporate) Regulations 1999.
The campaign letter concerning this bill, of which over 20,000 copies
were received by the committee, also argued that:
The Bill has not been subject to proper consultation
There is no evidence that this Bill is urgent or that changes
to native title laws need to be pushed through right now.
I have serious concerns about the way this Bill was rushed
into Federal Parliament and is being pushed to a vote, without adequate
Any reforms should follow full and proper consultation with
the people it impacts; Aboriginal and Torres Strait Islanders and their
However, some submitters disagreed. For example, the NNTC stated the
bill's proposed amendments have been amply considered over a number of years in
a number of processes, including:
the ALRC's review of the Native Title Act in 2015;
the Native Title Amendment Bill 2012; and
the investigation into ILUAs prepared for the Council of
Australian Governments in 2015.
The Explanatory Memorandum explains the urgent need for the Commonwealth
to introduce the bill, and sets out what consultation has been undertaken in
developing its provisions:
The McGlade decision raised considerable uncertainty
for all parties doing business on native title land. Urgent amendments are
imperative to preserve the operation of currently registered ILUAs and provide
the sector with a prospective process for registering ILUAs which minimises the
risks presented by the McGlade decision.
Given the limited timeframe, the Attorney-General's
Department consulted with stakeholders in relation to the legal implications of
the McGlade decision to the greatest extent possible, including State
and Territory governments, the National Native Title Tribunal, and the National
Native Title Council.
At the committee's most recent Estimates hearing, the Attorney‑General
provided further information about the stakeholders consulted about the bill:
...the government with the support of the two most relevantly
affected states, Western Australia and Queensland, [has sought] the support of
the most immediately affected industry stakeholders, in particular, as
represented by the Queensland Resources Council, and the National Native Title
Council, representing the Indigenous claimant stakeholders, all of whom pressed
the government to move swiftly to restore the status quo—and we did so.
Concerns over decision-making
The committee received evidence that raised concerns over the change to
native-title decision making processes proposed by the bill. While some
witnesses supported the move to allow decisions to be confirmed by majority,
others maintained that decisions should be made unanimously.
The Law Council outlined the kind of decisions that may be considered by
ILUAs. Given the serious consequences of many of these decisions, it noted the
importance of rigorous procedural protocols and safeguards:
[ILUAs] may include the authorisation of any future act, the
extinguishment of native title rights and interests (including without
compensation), the manner in which the native title rights and interests may be
exercised forever into the future, and to whom any compensation for the
interference (if any) might be paid.
...Given the potentially significant effects of the
registration of an Area Agreement, the procedural safeguards in relation to its
registration are fundamentally important.
Some submitters raised concerns about the default position that would
allow a majority of members of a registered native title claimant to be a party
to an area ILUA.
For example, whilst he was generally supportive of the bill, Mr Greg McIntyre
SC, highlighted that it:
...is posited upon the assumption that the minority view of a
group of the persons comprising the registered native title claimant (or
applicant) is wrong and should be over-ridden by a majority view.
Mr McIntyre also acknowledged the proposition that some decisions are of
such significance that they should not be made except by a unanimous or
consensus position of those affected. He drew this theme out further at the
public hearing, asking whether there should be more consideration of why some
ILUAs were not agreed unanimously:
...the overriding of the minority view is perhaps something
which should not be done in haste, and the retrospective validation of over a
hundred agreements without some inquiry as to why they were not signed by the
unanimous group is something which ought to be considered before the
legislation is passed.
Mr McIntyre outlined the benefits of more nuanced decision-making
processes that allowed minority views to be aired, investigated and evaluated
so that the reasons for the dissenting view are understood.
In this, he highlighted that the notion that a minority view should be accorded
some weight is not unique to the Native Title Act 1993 (NTA), but
that it is also found in legislation such as the Corporations Act 2001
Moreover, he also noted that a number of state Strata Titles provisions require
unanimous resolution for particular types of decisions, which could provide
some models for consideration.
However, the committee also received evidence that supports the proposed
amendments for agreement to be reached by majority.
Some noted that the effect of McGlade is to give individual members of a
RNTC a right to veto decisions, simply by failing or refusing to sign an
agreement authorised by the native title holders.
For example, the NNTC noted that it:
...is not aware of any other Australian community whose
decisions can be vetoed in the manner envisaged by the current provisions of
the [Native Title Act] and puts forward that such a system is discriminatory,
is inconsistent with the principles of self determination and is in
contravention of articles 3, 18, 21.1, 23 and 32.1 of the United Nations
Declaration on the Rights of Indigenous Peoples.
In a similar vein, a number of submissions argued that a reliance on
unanimous decisions could give undue influence to minority dissenters, who
could prosecute their own grudges through ILUA processes.
For example, Ms Suzanne Kelly suggested:
The decision about whether to enter into an agreement belongs
with the community and we have a right not to be vetoed by recalcitrant
The current Amendment Bill will overcome these problems and
because of this I support the passage of the Bill and urge the Committee and
the Parliament to support the decision of the Noongar people and to move ahead
with passing it into law.
Issues with the removal of
applicants (section 66B)
An outcome of McGlade is that all persons comprising the RNTC
must now sign the agreement for it to be registered. In the case where people
comprising the applicant cannot, or refuse to, sign the agreement the only
available mechanism is to remove those people as an applicant by making an
application to the Federal Court pursuant to section 66B of the NTA. This
includes cases where the applicant is deceased.
At the public hearing, Mr Greg McIntyre SC outlined some of the
difficulties of removing a native title claimant, as well as the proper
requirements for a meeting held under section 66B:
The collective group are required to participate in an
authorisation meeting. The Noongar claim is unique because it is such a large
claimant and involves such large numbers of people. Typically, native title
claimant groups would generally be 1,000 or 2,000 people—that is kind of an
average group. The primary requirement under section 66B, which is for any
authorisation meeting, is that proper notices go out, and then it is a question
of who turns up. So it is a democratic process in the sense that people are
given notice, and if they want to be there and participate then they do. If
they do not, they are governed by whatever the view is of the meeting. The
reason some of those meetings take a long time is that the quantity of people
and often the geographical spread of them.
Ms Simona Gory, appearing in a private capacity alongside the McGlade
applicants, argued that section 66B provides important protections as it
allows judicial oversight of any removal process:
The effect of the bill is to in effect remove that protection
and remove the built-in mechanism for judicial oversight in the event there is
disagreement among the authorised representatives. We say that is highly
significant given the fact that there are often alleged deficiencies in the
authorisation process and the adequacy or fairness of that process is often hotly
contested, as it is in the McGlade case.
However, the NNTC outlined some of the difficulties with the current
section 66B processes:
The process has a propensity to create community division
which can fracture communities and in turn further undermine agreement making,
it requires an authorisation meeting of the claim group – the notification and
conduct of which is prohibitively expensive – and it is prohibitively slow in
that final Court orders for removal of members of the Applicant (the RNTCs)
generally take more than one year to be made following a s66B meeting.
The Full Federal Court in McGlade considered that section 66B of
the Act may not be an ideal mechanism to deal with such matters:
As inconvenient as this outcome may be considered to be by
some, especially in a case such as the present where a large number of persons
jointly comprise the registered native title claimants; where some signatures
may have been difficult to obtain, and where some persons are deceased, the
textual requirements of the NTA in Subdiv C are as they are. While this may
mean that any one of the persons who jointly comprise a registered native title
claimant can effectively veto the implementation of a negotiated area agreement
by withholding their signature to the agreement, that is what the NTA
recognises as possible. Whether the NTA should provide for some mechanism,
apart from section 66B or in addition thereto, for responding to the types of
agreement making issues raised in these proceedings, is a policy issue for the
Parliament to consider, not this Court.
Concerns relating to the timely execution of agreements and the costs
associated with the process outlined in section 66B of the
Act were shared by some submitters.
For example, Native Title Services Victoria noted that in the case of a
recently deceased applicant, the process may be culturally inappropriate. The Australian Institute of Aboriginal and Torres Strait
Islander Studies (AIATSIS) acknowledged its support of a simple and
inexpensive procedure in the circumstances where the removal of the applicant
is not controversial or disputed.
The campaign letter concerning this bill was broadly supportive of
amendments to the Act that could streamline the removal and replacement of an
applicant that had passed away or lost capacity. However, this letter also
noted that this is an entirely different situation to removing an applicant
solely because they object to an agreement.
Concerns over retrospective
The retrospective provisions of the bill apply to area ILUAs made on or
before 2 February 2017. The Explanatory Memorandum states that the primary
objectives of the bill are to:
- confirm 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 (RNTC)
- enable registration of agreements which have been made but
have not yet been registered on the Register of Indigenous Land Use Agreements...
Mr Greg McIntyre SC urged caution in introducing retrospective
This legislation purports to operate retrospectively on over
100 agreements. I am only really aware of the Noongar one, and I have seen some
press about the Adani mine, which has always been a controversial topic. I am
saying—and I see that a number of the other submissions are saying—'Don't we
need to know a little bit more about some of these agreements, as to why the
minority might not have signed up, or why it was not a unanimous decision? Was
there some cogent reason for that?' As I said, historically in Australia we
have passed retrospective laws from time to time, but it is not something that
you would do automatically without being conscious of the broader social
The Law Council considered that the Explanatory Memorandum did not
contain sufficient information about which ILUAs would be affected by the McGlade
decision to assess if the retrospective amendments are appropriate.
According to Arnold Bloch Leibler, the bill's proposal to reverse the McGlade
decision by validating area ILUAs authorised, registered or lodged for
registration 2 February 2017 could undermine certainty and the rights
of Aboriginal and Torres Strait Islanders by:
- facilitating registration of agreements that may in
some cases be subject to significant intra-community dispute, at either or both
the authorisation and signatory stages; and
- denying native title claim groups the right to at
least be given a fresh opportunity to nominate parties as signatories to an
agreement, in light of the significant departure from the legal position as
understood in Bygrave.
Arnold Bloch Leibler submitted that it was of the view that a majority
of area ILUAs awaiting registration are not the subject of dispute or conflict.
However, it noted that:
...where there is significant dispute, rushing to paper over
that dispute, without consultation as to the proposed legislative change, is
likely to further entrench uncertainty and dissatisfaction.
In this, concerns were raised by a number of submitters that there are
many individual area ILUAs that have serious—and often unique— combinations of
issues to address following the McGlade decision,
RNTC members were deceased;
authorisation meetings may have occurred under advice that all
signatures were not necessary, even if communities preferred seeking unanimous
decisions to avoid tension;
there was a preference for all claim groups to sign the ILUA; and
claim groups were significantly divided over particular issues.
However, strong support for the retrospective provisions was received from
industry groups, and a number of Indigenous native title organisations.
For example, Clayton Utz outlined the importance of confirming and clarifying
the validity of existing arrangements:
The Native Title Registrar confirmed that, in its view,
Bygrave represented binding law. As a result, validly authorised ILUAs were
regularly registered even where they had not been signed by every member of
every RNTC in relation to the ILUA area...Given that these agreements were
entered into in good faith, while the enactment of retrospective legislation is
justifiably to be regarded as exceptional, it is correct that Parliament should
act to clarify the legal position.
AMPLA agreed that ILUAs were entered into in good faith by the parties
as well as by the NNTT and various governments, and set out potential
consequences should the validity of established ILUAs be questioned:
If ILUAs were not valid, it would call into question acts
that have been done in the past in reliance upon them (such as the grant of
mining and petroleum rights) and also the entitlement of native title parties
to benefits paid, and no doubt in many cases still payable, under those
AMPLA added that:
Confirmation of the validity of those agreements is therefore
commended and regarded as critical by AMPLA. It is considered by AMPLA to be in
the interests of all parties to such agreements that this action is taken
The Attorney-General's Department made it clear that the retrospective
provisions would ensure existing agreements prior to McGlade would be
valid, and not subject to challenges, as the bill would:
...ensure that agreements which were registered or were pending
registration prior to McGlade are deemed to be ILUAs and applications to
register them are deemed to be valid. So that removes one of the potential
grounds for challenge, as you have heard earlier today. While they are still on
the register they are deemed to be valid, but, at any point, they are subject
to challenge. So the retrospective validation removes that ability to challenge
Effect on the Noongar agreements
The committee notes that subitem 9(4) of the bill provides that the
retrospective validation provisions do not apply to the four Noongar agreements
subject to the McGlade proceedings.
The South West Aboriginal Land and Sea Council (SWALSC) raised concerns
regarding the different validation process for the Noongar agreements:
The consequences of limiting the validation of the Noongar
Agreements to the commencement of the Act will create uncertainty as to whether
the Noongar Agreements will be required to re-lodge for registration following
validation. Any additional requirement will unnecessarily lead to delays and
create significant cost implications.
At the hearing, Mr Stefan Le Roux, Principal Legal Officer, SWALSC, drew
the implications of re-negotiating agreements out further for the committee,
particularly noting the time this would take and financial costs:
We estimate that the time component is going to take
roundabout nine months at least. Then there is also the race on the native
title claimants, if I can call it that. They are already in a situation where
they have been waiting a number of years for the outcome in this matter, and
they will definitely have to wait at least another year for any outcome in this
SWALSC noted that the current registration process has taken more than
18 months and has not been finalised. SWALSC sought clarity from the
government and argued that there would be 'no utility or benefit in requiring
the Noongar Agreements to repeat the registration process...'
However, a submission from the applicants in the McGlade matter
...if amendments should be sought [relating to the McGlade
decision] they should not be retrospective as this would undermine our
The committee notes later in this report that South West Aboriginal Land
and Sea Council will still be subject to the re-registration and objection
Possible unintended consequences
A number of concerns about unintended consequences of the bill were
raised by witnesses and submitters.
Different rules governing area
As outlined in chapter one of this report, part 1 of the bill concerns
ILUAs made on or after the commencement of the bill and part 2 sets out the
rules governing ILUAs made on or before 2 February 2017. Consequently, there
appears to be three different sets of rules governing area ILUAs depending on
when the agreement was made:
ILUAs made on or after the commencement of the bill – will be
governed by the proposed amendments in part 1 of schedule 2 of the bill. That
is, the claim group must specify, or agree to a process for determining the
individuals comprising the RNTC who are to be parties to the ILUA. If no persons
have been nominated or determined, the relevant parties must be a majority of
individuals constituting the RNTC.
ILUAs made on or before 2 February 2017 – will be governed by the
proposed amendment in part 2 of schedule 2 of the bill. This essentially
legislates the position in Bygrave, that the agreement must be executed
by at least one individual comprising each RNTC in relation to the area ILUA.
ILUAs made between 3 February 2017 and the day before the
commencement of the bill – will likely be governed by the position in McGlade.
That is, the area ILUA must be signed by all individuals comprising the RNTC,
or RNTCs, in relation to the agreement
There appears to be a degree of uncertainty about the rules governing
ILUAs made between 3 February 2017 and the day before the commencement of the
The Parliamentary Library noted that:
The existence of three different sets of rules may generate
complexity. It might be questioned whether the different arrangements could be
The Attorney-General's Department clarified that, regarding the powers
of the Attorney-General to make transitional rules by legislative instrument,
including transitional rules, under Item 14 of the bill:
At the moment, we do not have anything that would be dealt
with [by rules]. It is really just to ensure that, if something did emerge, it
could be dealt with. But it would still be subject to disallowance.
Potential administrative and legal
burdens placed on ILUA agreements
The committee heard that the bill's provisions may cause some ILUA
signatories an additional administrative burden or subject them to additional
legal challenges. Mr Stefan Le Roux, Principal Legal Officer, SWALSC, told the
committee that his organisation would have to re-register four agreements,
which would be a lengthy process, and could open up costly legal challenges or
additional review processes.
Mr Iain Anderson, Deputy Secretary, Civil Justice and Corporate Group,
Attorney-General's Department, conceded that this may be an issue for some
The difference with the SWALSC ILUAs is that they will still
have to go through the registration process, which brings with it the objection
process, but they will prospectively be ILUAs capable of being registered. So,
in a sense, a disadvantage is that they have to go back through that
registration objection process.
Mr Anderson explained the rationale for this differential approach:
The bill will validate the ILUAs subject to the McGlade
decision, but only from the date of the commencement of this bill. So only once
this bill actually—if and when this bill becomes law. The bill does not retrospectively
validate the Noongar ILUAs or the applications to register them because this
might constitute an inappropriate interference in the decision of the court and
in the exercise of judicial power. The result of that is that the Noongar ILUAs
can be resubmitted for registration or, alternatively, the parties might wish
to use section 66B of the act to authorise a new claimant group.
However, Mr Anderson also suggested some consultation with the SWALSC
had already been undertaken on ways this situation could be addressed:
We have met with SWALSC over the lunch break, and they have
said they will send us some further material to consider what their proposal
is. At the end of that it will be a decision for the government, and then for
Ultimately, [the matter of financing of this process] that is
going to be a matter for SWALSC from within their own resourcing. It is not
unusual for proponents to occasionally contribute to costs of meetings and
things like that, but that would have to be done within the existing budgetary
envelope for SWALSC and for the Western Australian government, if they wish to
Potential challenges to the
Some witnesses and submitters who supported the bill's provisions raised
concerns that the bill does not address potential challenges to 'future acts'
agreements made pursuant to section 31 of the NTA following McGlade. Section
31 provides a right to negotiate, in good faith, with a view to obtaining an
agreement in relation to the grant of mining and exploration rights over land
which may be subject to native title.
BHP Billiton explained that, in circumstances where the RNTC refuses to
sign an agreement, the matter may be referred to the NNTT for a determination.
This, they suggested, could disadvantage Indigenous communities by delaying
their right to negotiate:
Without that certainty the native title group may be placed
at a disadvantage in the negotiation and an increasing number of matters may be
referred to the National Native Title Tribunal for arbitration in order to
provide the parties with certainty. We consider this would cause all parties
unnecessary cost and delay and undermine the intent of the right to negotiate.
At the hearing, Mr Glen Kelly, Chief Executive Officer, National Native
Title Council, agreed that this was a legitimate concern:
It has been brought up by a number of parties independently
of anything within the rep bodies. They are particularly used with town
councils, main roads departments—infrastructure, all that sort of stuff—as well
as with mining and those sorts of things. I have had a bit of contact—not vast
amounts—with some state utilities in the west and I have seen advice floating
around from other jurisdictions that show a similar concern. So I would say
that there is a fairly legitimate concern, or that there is a reasonable level
The committee heard compelling evidence that a significant number of
ILUAs have been placed in jeopardy by the McGlade decision, and so there
is an urgent need for the Commonwealth to give certainty to all parties to
registered and proposed ILUAS.
This was clear not only in evidence given by the primary and
agricultural industry sectors, but also from the views expressed by traditional
land owners looking for assurance about current agreements, as well as agreements
that are yet to be negotiated, agreed and registered.
The committee heard that the ramifications of McGlade are
far-reaching across Australia. For example, it was noted that in Queensland
alone, 12 agreements currently face an uncertain future, with countless
others across Australia potentially requiring lengthy and arduous re-negotiation
The committee notes the amendments made by the bill secure existing
agreements that were registered on or before 2 February 2017, but which do not
comply with McGlade. This gives certainty to some groups of traditional
owners, and other stakeholders and communities who have invested their time,
efforts and goodwill to reach agreements in good faith.
The committee notes there are several areas that should be considered by
the Commonwealth in implementing its provisions and, indeed, regarding further
amendments to the Act.
The committee is concerned by the onerous administrative burden placed on
the SWALSC and the Noongar native title holders by having to proceed through
the re-registration process once again. The committee notes the department's
commitment to consider SWALSC proposals regarding this matter.
The committee has formed the view that the 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
Moreover, the Commonwealth should examine the proposals to amend the
Act, so that where ILUAs involve particularly significant consequences for
native title holders (such as the surrender of native title rights), then the
minority viewpoint is given due consideration, perhaps through a higher
threshold for decision-making.
In addition, the committee has noted that the bill contains proposed
amendments to sections 251A and 251B of the Act, recommended by the ALRC in
2015, and which deal with matters outside of the McGlade decision. The
committee considers that the Commonwealth should set out in the Explanatory
Memorandum why these are included as part of the bill and why they are required
to be implemented urgently while other related amendments recommended by the
ALRC are not. Without such explanation the committee considers that these
amendments should be deferred until such time as a bill dealing with all of the
important recommendations of the 2015 ALRC report is able to be considered by
the Parliament, therefore allowing the McGlade amendments to be urgently
addressed now. This will give certainty to all parties to registered and
proposed ILUAs, including traditional land owners, communities and other
The committee has also formed the view that the inclusion of item 11 of
the bill has raised doubts in the mind of the committee as to its impact on the
bill. Accordingly, the committee suggest that Item 11 be withdrawn from the
bill, and that it be considered in any later bill.
While the committee has noted the evidence indicating that further
consideration of other legislative amendments is needed, this process should
not delay amendments proposed by this bill which will provide certainty to
stakeholders following the McGlade decision. On this basis the committee
recommends that the Senate pass the bill.
The committee recommends, subject to paragraph 2.75, that proposed amendments
to sections 251A and 251B of the Native Title Act 1993 be removed from
the current bill and dealt with in any later bill involving government
proposals arising from the Australian Law Reform Commission report Connection
to Country: Review of the Native Title Act 1993, and that item 11 of the
bill is also removed for later consideration.
That the Senate pass the bill.
Senator the Hon Ian
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