On 17 October, the Attorney General, Mr Christian Porter introduced and gave the second reading speech for the Native Title Legislation Amendment Bill 2019 (Cth) (‘the Bill’) to the House of Representatives of the Commonwealth Parliament. The aim of the Bill is firstly, to provide a more supportive and streamlined framework for the systems of resolution for native title claims and agreement-making for land use, and secondly, to grant greater autonomy for native title groups in the processes of decision-making and dispute resolution concerning the land.
Currently under sections 251A and 251B of the Native Title Act 1993 (Cth) (‘the NT Act’), persons involved in a native title claim may authorise a delegated person to make indigenous land use agreements and applications for native title claims. Authorisation is granted on the condition that the decision-making process for assigning authorisation is in accordance with traditional laws and customs. In the case where there is no traditional process, a process for deciding authorisation must be constructed and agreed upon. The Bill proposes a new section 251BA in the NT Act to allow persons to impose conditions on authorised persons such as requirements that the authorised person receives approval from the claim group before agreeing to a consent determination or discontinuing a claim. The amendment is intended to secure the representation of the claim group’s interests and ensure that authorised persons are made accountable to their responsibilities to protect those interests.
If the Bill is passed, a new section 62C of the NT Act concerning claims where there are multiple authorised persons who are jointly the applicant will introduce a default rule allowing applicants to act by majority. However, section 251BA will allow for the majority rule to be displaced through the imposition of a condition of unanimity of agreement. The amendments are indicative of an attempt to allow for greater flexibility within the internal decision-making processes of native title groups.
The proposed amendments intend to extend that flexibility to the governance structures of native title groups by allowing persons under section 251BA to establish conditions setting out processes in the case of the death or physical or mental incapacity of an authorised person such as succession planning arrangements. Furthermore, members of claimant applications or compensation claim may apply for a Federal Court order to allow the group to replace the ceasing member.
With regards to improvements to streamlining claims resolution and agreement-making processes, one of the main amendments is the widening of the scope of areas which body corporate Indigenous land use agreements (ILUAs) apply, which is intended to be more cost and time efficient in comparison to relying on area Indigenous land use agreements. The explanatory memorandum states that the amendments to ILUAs will:
Furthermore, the Bill proposes a new section 47C concerning national parks covered by native title applications to promote agreement making and greater flexibility to disregard historical extinguishment. If the Bill is passed, it will allow for agreements between registered native title body corporates (RNTBCs) and the relevant Commonwealth, State or Territory government to disregard any prior extinguishment of native title rights and interests in relation to mutually agreed park areas claimed by the native title group that are currently Crown land or covered by a freehold estate by the Crown. Park areas are areas such as national or state parks that are set aside under federal or state law for the purpose of preservation of the environment. The effect of such an agreements between body corporates and governments would be to set aside that granted or vested governmental interest.
Notably, the Bill, as a matter of pragmatism, clarifies the validity of native title agreements under section 31 of the NT Act relating to the grant of mining and exploration rights over land which may be subject to native title and the compulsory acquisition of native title. The provision is intended to provide consistency and certainty by upholding the Federal Court decision in McGlade v Native Title Registrar & Ors s  FCAFC 10.
Finally, Schedule 8 of the Bill provides measures to improve the transparency, accountability and governance of native title corporations through amendments to the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (‘CATSI Act’). Currently, the NT Act requires common law holders to establish or nominate a corporation when a determination recognising native title is made. Once these Aboriginal and Torres Strait Islander coporations are registered on the Nationa Native Title Register, they become RNTBCs. If passed, the Bill will add a requirement to the internal governance rules within Division 66 of the CATSI Act that states that if the corporation is an RNTBC, the corporation’s constitution must include provisions establishing the process of dispute resolution between the corporation and a person who claims to be a common law holder of native title regardless if the person is a member of the corporation. Furthermore, the Bill suggests that there must be eligibility requirements relating to common law holders for membership and that there are limited and non-discretionary grounds for membership cancellation. The intent of these amendments is to ensure disputes are resolved as early as possible before costly legal advice is required.
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