The Native Title Act 1993, passed by the Keating Government in
1993, is one of the most important suites of laws passed by this Parliament.
That Act gave legislative form to the fundamental change to Australian law
created by the High Court’s decision in Mabo. In doing so, the Native Title Act
has been instrumental in redefining the relationship between Aboriginal and
Torres Strait Islander peoples and the wider Australian nation.
The law and practice of native title, including in relation to
Indigenous Land Use Agreements (ILUAs), has necessarily developed over time.
There have been a number of significant court cases, and at times amendments
have been made to the Native Title Act to ensure that it better fulfils the
important purposes for which it was established.
Labor members of this Committee acknowledge that the decision of the
Full Federal Court in McGlade v Native Title Registrar & Ors has far
reaching implications for a significant number of existing ILUAs made under the
framework of the Native Title Act.
Having heard evidence from a range of affected Indigenous groups and
other stakeholders, Labor accepts that legislative intervention is required to
provide certainty by ensuring that existing ILUAs, that were made in accordance
with the law as it was until the Court’s decision in McGlade, are not
rendered invalid. In addition, Labor members of this Committee accept that
changes to the Native Title Act in this Bill are required to ensure that ILUAs
currently under negotiation, as well as future ILUAs, are able to be effectively
However, there are parts of this Bill that are not necessary to remedy
the uncertainty created by the McGlade decision, specifically the changes to
section 251A and 251B of the Native Title Act, and the provisions for
validating applications for registration made on or before 2 February 2017 in
cases other than in relation to a lack of signatures as required by the
McGlade ruling. Accordingly, these provisions are not urgent, and Labor has
argued for and supports their removal from this Bill.
Lack of consultation
Labor members of this Committee also wish to express their concern about
the process associated with this Bill, which has been rushed as a consequence
of the failure of the Government to prepare for the possibility of an adverse ruling
in the McGlade litigation, despite being warned about the need to
prepare for that possibility last year. This has resulted in an extremely
rushed consultation process, which, given the importance of native title law to
so many Indigenous Australians, is at odds with the Prime Minister’s own
declaration in his Closing the Gap speech that the Australian Government would
be doing things with the Indigenous community rather than to the Indigenous
When Labor was last in Government we recognised that aspects of the
Native Title Act should be closely examined to ensure that the Act continued to
operate to effectively to serve its key purposes. Those purposes include:
to provide for the recognition
and protection of native title; and
to establish ways in which future
dealings affecting native title may proceed and to set standards for those
to establish a mechanism for
determining claims to native title.
Labor tasked the Australian Law Reform Commission to look at making
improvements to the Native Title Act, including a request to examine and make
recommendations in relation to a range of matters, including connection
requirements relating to the recognition and scope of native title rights and
In June 2015 the ALRC tabled its report, which included some 30
recommendations for changes to the Native Title Act.
It is of concern to Labor that in over 18 months the Government has
still not responded to the ALRC’s Report, and Labor calls for the Government to
respond to that report as soon as practicable. That Government response should
then be subject to a period of extensive consultation with affected individual
and communities, before any changes are made to the law itself.
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