At this time the Australian Greens cannot support recommendation 2 of
the majority report that the Native Title Amendment (Indigenous Land Use
Agreements) Bill 2017 (the Bill) be passed.
The Australian Greens have concerns regarding the haste at which this
Bill was introduced and passed through the House of Representatives and the
lack of consultation that has been undertaken with Aboriginal and Torres Strait
Islander communities regarding this Bill. It is particularly concerning given
the complexity of native title arrangements and the significance of these
amendments. Similar concerns were expressed in a number of the submissions to
We also have concerns about the short time frame for the Senate inquiry
into the Bill. Due to these concerns, the Australian Greens moved an amendment
to the Selection of Bills Committee Report (No. 2 of 2017) to extend the
reporting date of this inquiry until 8 May 2017. This amendment was not
supported by the Senate.
During this inquiry concerns have been raised relating to Indigenous
Land Use Agreements (ILUAs) that are outside the scope of the inquiry, such as
the barriers to negotiation, the power imbalance between the parties, the
ability to apply only once for registration, the role of prescribed body
corporates, non-claimant applicants and the enforceability of the agreements.
Such concerns demonstrate the need for further consultation with Aboriginal and
Torres Strait Islander communities with regards to changes to ILUAs as well as
the Native Title Act 1993 (Cth) more broadly.
The Bill is in two parts: part one measures will affect the rules for
future area Indigenous Land Use Agreements (ILUAs) i.e. those that are made on
or after the commencement of the Bill. Part two measures will affect existing
area ILUAs as well as those agreements made on or before 2 February 2017.
Arguments for and against the proposed amendments have been outlined in the
submissions to the inquiry. This report will look at some of these arguments.
Part One Amendments
As outlined in the majority committee report, the authority prior to the
decision in McGlade
was that in Bygrave,
specifically that area ILUAs could be registered if they had been signed by at
least one member of the registered native title claimant (RNTC) on behalf of
the majority where proper authorisation had been provided by the native title
Interestingly, the amendments in Part One (Items 1 and 5 of Schedule 1)
to supersede the interpretation of the existing provisions in McGlade do
not reinstate the interpretation applied in Bygrave. Rather, these
amendments will apply a new set of rules to future area ILUAs, specifically the
native title claimant group will be able to nominate which member/s of the RNTC
are required to be parties to the area ILUA, or where no member/s have been
nominated, a majority of the members of the RNTC must be parties to the area
In its submission the National Congress of Australia's First Peoples
We strongly oppose both nominating representatives, as well
as the simple majority requirement in the proposed amendment to s24CD(2)(a). No
Aboriginal or Torres Strait Islander person should have their native title
rights violated by an ILUA they do not agree to. Allowing in ILUAs where a
potentially large proportion of the native title claim group disagrees is
unjust and compromises our native title rights.
Mr McIntyre SC argues in his submission that some decisions are so
significant that they should require unanimous support of those affected,
rather than a mere majority. He says:
In the McGlade case, where the decision being made
included a decision to surrender all native title, a case could be made for
requiring a greater than majority decision being required to make such a final
decision as to rights, and a process which avoids the sublimation of a minority
view opposing a decision of such significance, particularly if the majority is
The Law Council of Australia in its submission says:
In considering the appropriateness of the amendments, it is
important to note the nature and the effect of Area Agreements... upon
registration, it is possible that people who hold native title rights and
interests can be bound by an agreement that they have not had actual notice of,
have not had legal advice in relation to, and were not a party to... The types of
matters which may be the subject of an Area Agreement are not trivial.
They then go on to say that:
Given the potentially significant effects of the registration
of an Area Agreement, the procedural safeguards in relation to its registration
are fundamentally important. The requirement that all the people who comprise
the registered native title claimant be a party to the agreement is one of
those safeguards and the removal of it should be carefully considered.
The Northern Land Council (NLC), the Native title Representative Body
for the Top End of the Northern Territory, notes in its submission that the McGlade
decision does not affect its area because all the members of the RNTCs are
parties to the ILUAs in its area.
The NLC has always been of the view that the decision in QGC
v Bygrave (No 2) (2010) 189 FCR 412 was not good law and should not be
One way to ensure that everyone's interests are represented from the
outset is for the RNTC to reflect the various interests within the claim group.
At the hearing, Ms Gory, the junior counsel for the applicants in McGlade,
[T]he requirement that each authorised representative be a
party is important for a reason that I think has been overlooked thus far,
which is that it is not unusual for the claim group to appoint authorised
representatives to represent the interests of different family groups or clan
groups within a broader native title group. So if you remove the requirement
that all of the authorised representatives need to sign an ILUA you in effect
undermine the protection that has been given in the original authorisation,
which requires that the different representatives will represent the different
interests within the claim group.
For the claim groups that have been utilising this process, and ensuring
that decisions are made by consensus, Items 1 and 5 of Schedule 1 will
undermine this process. As the Law Council of Australia says 'it would be
understandable why a particular subgroup may be aggrieved, if that process is
suddenly departed from in the authorisation of an Area agreement.'
This would particularly be the case where a single large faction or particular
clan groups, where there is more than one involved, could potentially dominate.
On the other hand, a number of submitters argue that a single member (or
small group of members) of the RNTC should not be able to frustrate the will of
the majority by withholding their consent to being a party to the area ILUA,
which is a possibility in light of McGlade.
The National Native Title Council (NNTC) says in its submission that '[t]he
effect of this is to create an ILUA system that is markedly increased in its
difficulty and which will stymie ILUA making.'
In such a circumstance, the native title claim group would have to make
a section 66B removal application to remove the member or members who refuse to
become a party. This process can be costly and time consuming.
The Cape York submission proposes that traditional owners, rather than
applicants, authorise ILUAs. On the Cape York Peninsula, where there is 'One
Claim', the traditional owners for each area currently make decisions for their
area and who they want to sign off on the agreement.
At the hearing, Mr McLean, Barrister for Cape York Land Council, the Native
Title Representative Council for the Cape York Peninsula, said:
[I]n some agreements the signature has not even been sought
for the ILUA from the applicant, whose country that might not be. So a person
from the north of the country is not even being asked to sign off on an ILUA
for the south of the country. In fact, as I understand it, it is a breach of
traditional customary law to ask a person who is not of that country to put
their name to an ILUA and to sign off on an ILUA which is not for their
As a consequence of the McGlade decision, all individual members
would be required to be parties to an area ILUA, even if the ILUA was not for
their traditional country. Mr McLean gave an example at the hearing to
demonstrate how the decision in McGlade would frustrate the process they
are utilising. He said:
There was a decision over a women's lake. It is women-only.
We called the meeting, the men all walked out of the room and the women made
the decision. They entered into an agreement and they signed off on the agreement.
It is actually one of the ILUAs that is at risk. It is a very wrong for me to
then go and ask the male applicants to sign off on the ILUA. They would have to
be fully briefed and they simply will not do it.
Mr McLean also raised section 66B and changing a member using this
section during the hearing. He said:
This is a bit of a nonsense that not only is expensive and
takes a long time but I would have to change the applicants just for that ILUA.
For the people from those example – the women nominated to sign off – I would
have to change the applicant just for that. And tomorrow there would be the
ILUA over here; I would have to change the applicant again.
Following McGlade, a section 66B process would be required to
remove a deceased person from the RNTC. As the NTC says:
This is a prospect that is very unattractive given the
cultural sensitivities and respect required for those who are deceased. In many
places in Australia the names of deceased people are unable to be spoken let alone
publicly advertised (as is required in the notification of a s66B meeting) and
discussed at a large public meeting. Having to conduct such a meeting would
result in enormous difficulty for claim groups and their legal representatives
issue is not explicitly dealt with in the amendments contained in the Bill;
however, the amendments contained in items 1 and 5 of Schedule 1 do overcome
At least one submitter suggested that a more streamlined approach is
needed for removing and replacing a member where they have died or lost
capacity, and that they would support a bill being put forward to deal with
The Law Council of Australia acknowledged concerns regarding the cost of
section 66B removals in its submission. However, it went on to say '[o]ne of
the advantages of the 66B process if that the person is then made accountable
to the community for the action [refusing to sign the agreement] and, if they
are genuinely acting outside their mandate, they would be removed.'
A number of alternative proposals were put forward for the consideration
of the committee, specifically with regard to the default position of the
majority contained in Item 1 of the Bill.
One proposal was that alternative dispute resolution processes should be
looked at as a means for resolving disputes within claim groups. As Mr McIntyre
SC says in his submission:
If there is a dispute, with consequent dissentient voices,
there is a cogent argument that the resolution of that dispute should be by a
more nuanced approach tha[n] a mere majority over-ride. Arguably, there should
be a process which enables a proper airing, investigation and evaluation of the
reasons which may be the foundation for dissent, and a consideration of whether
it is reasonable to give credence to the dissenting views and whether there is
an opportunity to persuade those in dispute to a consensus decision.
The National Congress of Australia's First Peoples advocates for all
RNTCs to sign an ILUA, which was the process prior to Bygrave, and that 'a
process be developed for determining voluntary and informed consent to mitigate
against exploitation of our peoples.'
They too propose a alternative dispute resolution process, specifically
mediation, where either the claim group is unable to choose who should make up
the RNTC/s or where not all the members chosen agree to sign the ILUA. In this
regard, they say:
Providing for mediation in the event that not all authorised
applicants agree respects our right to self-determination while also accounting
for the complexity of native title rights and the importance of our connection
to the land.
Another proposal is that the traditional owners of the land as a group
consent to any action to be taken on the land, similar to the requirements of
section 23(3) of the Aboriginal Land Rights (Northern Territory) Act 1976.
It is argued that such an approach better reflects Aboriginal decision making
processes than the default position contained in the Bill,
as it requires more than a mere majority.
The Law Council of Australia posited yet another suggestion,
specifically that subparagraph 24CD(2)(a)(ii) be removed from the amendments.
This would have the effect of upholding the decision in McGlade and
require that all individual members of the RNTC be a party to an area ILUA,
unless a lesser number is specified by a claim group at the authorisation
The Australian Greens note paragraph 2.74 of the majority committee
report and agree that consideration needs to be given to the proposals put
forward in relation to ILUAs that involve significant consequences for native
title holders such as the surrender of native title. Such proposals should be
considered by the Government prior to debate on the Bill in the Senate and
consultation undertaken with Aboriginal and Torres Strait Islander peoples,
communities and organisations.
In regards to Item 4 of Schedule 1, which removes the requirement for a
group's traditional decision-making process to be used where one exists under
section 251A(b) of the Native Title Act 1993 (Cth), and allows groups to
utilise a non-traditional decision-making process 'in any case', the NLC raises
concerns in its submission saying '[t]raditional decision making is the essence
of native title as it reflects the ancient traditional laws and customs of the
Aboriginal and Torres Strait Islander people concerned in any given claim or
determination of native title.'
The NLC goes on to say:
The effect of that proposed change is to dilute the primacy
of traditional decision-making and make it optional. This may lead to undue
pressures bring placed on elders and senior people within a native title group
to forgo their intramural rights to ensure the primacy of the maintenance of
traditional law and custom especially in relation to the protection of cultural
The NLC does not support the proposed changes to s 251A(b) of the Native
Title Act 1993 (Cth) (though it does support the passage of the Bill
Item 6 of Schedule 1 makes a similar amendment to s 251B(b), by omitting
'where there is no such process' and substituting 'in any case'. The NLC did
not address this item in its submission.
The Australian Greens note paragraphs 2.75 and 2.77 (Recommendation 1)
of the majority committee report. Setting out in the Explanatory Memorandum the
need for Items 4 and 6 of the Bill, will not alleviate the concerns with these
provisions such as those articulated by the NLC with regards to the watering
down of traditional decision-making processes. Amendments to the Bill are
needed to address the issue but provision for consultation on these changes
should be made so that the views of Aboriginal and Torres Strait Islander
peoples, communities and organisations can be obtained.
Given the limited time for consultation on this Bill and the
implications the Part One amendments will have on future area ILUAs, and the
limited opportunity for submitters and witnesses to outline alternatives to the
measures, the Australian Greens cannot support the Part One amendments of the
Bill at this time.
Part Two Amendments
Area agreements that were made or registered prior to the McGlade decision
will be subject to the amendments contained in items 9 to 13. This will include
the proposed Adani ILUA.
As a consequence of the amendments in this part (Items 9 and 10 of
Schedule 1), existing ILUAs that are not signed by all individual members of
the RNTC will be considered to be, and to always have been, a valid ILUA. Area
agreements that were authorised and lodged for registration prior to McGlade
will be able to be registered, even if they were not signed by all
individual members of the RNTC.
Item 12 relates solely to the four agreements that were the subject of
the McGlade litigation. If the Bill passes, these agreements will be
taken to be ILUAs from the date of commencement of the amending Act. However,
these agreements will still need to go through the registration process.
The National Native Title Tribunal is aware of at least 126 existing
ILUAs that are affected by the McGlade decision.
In its submission, the NNTC says:
It is not clear whether this will result in the automatic deregistration
of registered ILUAs that are affected, however legal action to test whether
such ILUAs can remain on the register has already been intimated. To avoid a
period of protracted litigation and uncertainty, this situation is also in need
of remedy and the validity of currently registered ILUAs needs to be put beyond
During the hearing, Mr Hardie, Legal Adviser, Wangan and Jagalingou
Family Council said:
The fact of the matter is: no one is going to move to
overturn any ILUA where it is working because it is in no one's interest to
overturn it. I expressed, in my view, that these whole amendments are necessary
because of the existing provisions in the act. I refer to section 24EB, which
says: while something is on the register, it is valid. Section 199C says you
can only take it off the register in very limited circumstances. So you have
two things: (1) who is going to complain? (2) what is the avenue for removal of
those existing agreements? They are very narrow. I really think that we are getting
the cart before the horse. There are amendments necessary for the Native Title
Act. Some will have the consensus. But those amendment should not be made just
because of one little decision when you have the whole system to worry about.
In its submission, National Congress of Australia's First Peoples says:
Even though there is controversy surrounding some of the
agreements where not all traditional owners were required to sign, the strong
need to secure existing agreements justifies, and indeed necessitates, the
retrospective application of the proposed amendments.
As Mr Anderson, Deputy Secretary, Civil Justice and Corporate Group,
Attorney-General's Department, noted at the hearing:
The information that the tribunal has given us is that there
are 12 Queensland ILUAs where consent determination of native title was
dependent upon the ILUA being executed, and the ILUA was perhaps affected by
the decision in McGlade.
There is, however, very little detail available about the affected
ILUAs, and while we know that there are at least 126 ILUAs post 2010 that are
affected by the decision in McGlade, we do not know the reason for the
member/s of the RTNC not signing the agreement. We do not know the specific
numbers that were not signed due to a member/s being deceased. We also do not
know the numbers of ILUAs affected due to a deceased person not signing between
1998 and 2010 (the time period prior to Bygrave).
The National Native Title Tribunal has also been unable to establish how many
of the affected ILUAs relate to national parks since the hearing for the
Some submitters raised concerns about retrospectively validating the
affected ILUAs, however many there may actually be. In this regard, the joint
submission of Cape York Land Council, Balkanu Cape York Development
Corporation, and the Cape York Institute for Policy and Leadership said:
The fact that these current ILUAs that are implicated in the
wake of the McGlade decision concern the interests of governments and industry,
explains the alacrity with which law reform is sought. Of course the interests
of native titleholders under ILUAs are also implicated, but this should not
mean we blindly rush into supporting blanket validation and not seeking a fair
balance from law reform.
Their suggestion for existing ILUAs where the individual member/s who
did not sign objected to the registration of the ILUA was for mediation to take
place between those of the RNTC who had not signed and the traditional owners,
facilitated by the National Native Title Tribunal. The suggestion for an
alternative dispute resolution process to address disputes is not dissimilar
from the recommendations of Mr McIntyre SC and the National Congress of
Australia's First Peoples for future area agreements outlined at paragraph 1.23
and 1.24 above. If this was unsuccessful, they then recommended a reconvening
of the authorisation meeting. Their argument being that if the Bill had passed,
the Part One amendments would allow such an ILUA to be registered, following
re-authorisation, even where all the individual members of the RNTC still had
The Law Council felt it did not have sufficient information regarding
the affected ILUAs to determine whether the amendments are appropriate.
If the invalidity of an Area Agreement has arisen because of
a bona fide reliance on the position in QGC Pty Ltd v Bygrave (No 2)  FCA
1019, and there was no challenge to the Area Agreement by any member of the
registered native title claimant, then the Area Agreement should be validated
to give effect to what was the uncontroversial intention of the parties at the
time. However, if there were genuine objections raised by such a person who
refused to sign the Area Agreement, and the objection is ongoing, it may be
unjust to validate it in those circumstances. As noted above, the Law Council
does not have a firm view on the proposed amendment given the lack of clarity
regarding how many (if any) Area Agreements fall within the latter category.
Mr McIntyre SC says in his submission:
The Committee has an obligation to satisfy itself that the
circumstances relating to each of those agreements which resulted in the
registered native title claimant group not acting unanimously did not have a
justification in terms of declining to agree to an ILUA for a reason which
legitimately addressed the rights and interests of the native title claim
group. It should not be assumed without investigation that the majority
decision of the native title claim group was correct and any view to the contrary
has no legitimacy.
It would be helpful to know why all the individual members of the RNTCs
did not sign on to the affected ILUAs. Is it because the member was deceased,
or incapacitated? Were they representing the views of their constituency – the
group they represented? Did they decline to sign because the agreement related
to another's country? Or were they being vexatious?
With regards to item 14, which provides the Minister with rule making
powers, the Bills Digest for the Bill says:
The Explanatory Memorandum to the Bill does not provide
information about the circumstances in which it is anticipated that statutory
rules would be required to be made pursuant to item 14, including rules made
for the purpose of item 11. Nor does it contain justification for the scope and
breadth of the proposed rule-making power.
In a general sense, it might reasonably be surmised that some
degree of flexibility is necessary to ensure that different factual scenarios
in relation to the potentially wide variety of affected ILUA are covered.138
Some form of delegation of legislative power might be considered appropriate to
deal efficiently with possible unforeseen and unintended consequences that
might arise in individual cases, which would otherwise require legislative
amendments to remove potentially arbitrary outcomes.
However, the absence of information in the extrinsic
materials to the Bill about the intended use of the rule-making power makes it
impossible to undertake meaningful analysis, in the abstract, of the proposed
scope and effect of the proposed rule-making power.
The Australian Greens are concerned regarding the scope of the power
conferred on the Minister via item 14, and its relationship to item 11.
Given the limited time for consultation on this Bill and the minimal
information available in relation to the affected ILUAs, the Australian Greens
cannot support Part Two of the Bill at this time.
The Australian Greens note paragraph 2.73 of the majority committee report
and agree that the Government should consider any implications for
right-to-negotiate agreements. More time is needed for any amendments to be
considered by the Committee and Aboriginal and Torres Strait Islander peoples,
communities and organisations.
The Australian Greens recommend that the Native Title Amendment
(Indigenous Land Use Agreements) Bill 2017 not be passed at this time.
The Australian Greens recommend that the inquiry into this Bill be
extended until 8 May 2017 to allow further consultation with Aboriginal and
Torres Strait Islander peoples, communities and organisations and other
possible approaches to be developed and canvassed.
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