Amendments to the Native Title Act 1993 - some improvements for the energy and resources sector

The amendments to the Native Title Act 1993 ("NTA") follow an extensive review process announced by the Commonwealth Attorney-General on 7 September 2005. The elements of the reform package include:

• amendments to the NTA to improve existing processes for native title negotiation and litigation;
• reform of the native title non-claimants (respondents) financial assistance program to encourage agreement-making rather than litigation;
• an independent review of native title claims resolution processes to consider how the National Native Title Tribunal ("NNTT") and the Federal Court may work more effectively in managing and resolving native title claims.

On 15 April 2007 the Native Title Amendment Act 2007 (Cth) received royal assent and commenced operation. These amendments are the first substantial amendments to the NTA since the 1998 amendments (which implemented the 10 point plan). The provisions of most practical relevance to the energy and resources sector appear to be those which:

Enable the dismissal of native title claims made in response to future act notices, where the claim is not subsequently progressed towards a native title determination:

• At present, native title claims are often made over the area covered by a future act (for example an exploration or mining licence) so that a native title claim group can obtain the right to negotiate with the proponent. Often the claim will remain many years after negotiations have concluded and/or after the tenement has been granted. Native title claims that are not progressed towards a native title determination are an unnecessary burden on the resources of the native title system including proponents who may be parties to the claim in the Federal Court and participate in mediation in the NNTT. The Federal Court now has the power to dismiss such native title claims.

Make available funding to develop or review standard forms of agreement in relation to acts that attract the right to negotiate or the expedited procedure processes that so often impact on project development:

• The development of standard form agreements has the potential to streamline agreement-making in relation to project development. For example, a mining company that has numerous tenements covering the claim areas of different native title claim groups in a particular region could apply for funding to develop or review a standard form of agreement with each of those claim groups. While many resource proponents have already developed standard form agreements, the amendments outline the circumstances in which funding may be obtained to develop or review such agreements.

A summary of other relevant legislative provisions is set out below:

• the NNTT now has the power to compel parties (including respondent parties such as mining companies) to attend (native title) mediation conferences and to produce documents relevant to the existence of native title;
• all parties to (native title) mediation in the NNTT are now required to act in good faith. The NNTT can report any instance of a lack of good faith to the relevant Minister, Departmental Secretary, the Court, to legal professional bodies and in the NNTT's Annual Report;
• unregistered native title claims may be dismissed by the Court if the native title applicants do not take steps to amend their claim into registrable form;
• the NNTT has been given a new function to conduct a review into whether a native title claim group holds native title rights and interests, to facilitate the mediation process. The review is expected to be conducted by examination of papers and documents relevant to connection, and there is no power to hold any hearing. Participation in reviews is voluntary and there is no power to compel parties to attend or to produce documents. Unless the parties agree, evidence may not be given in the Court as to any statements made in the course of the review. The NNTT must produce a report however it is not binding on the parties. The report may be provided to the Court and other parties to the proceeding;
• the NNTT is also able to conduct a new type of inquiry in the mediation process known as a native title application inquiry, regarding any matter or issue relevant to the determination of native title. An inquiry cannot be held at the same time as a review. Participation in such inquiries will be voluntary, and cannot be held unless the native title applicant agrees to participate. If a hearing is held in the course of an inquiry it must be held in private unless the parties agree otherwise. At the end of the inquiry the NNTT must produce a report and may make non-binding recommendations. The Court must consider whether to receive into evidence the transcript of evidence from an inquiry, may draw any conclusions of fact from the transcript, and may adopt any recommendation, finding, decision or determination of the NNTT.

Further amendments to the NTA are expected to be made in due course upon the enactment of the Native Title Amendment (Technical Amendments) Bill 2007 (Cth), which was referred to the Senate Legal and Constitutional Affairs Committee for inquiry and report by 8 May 2007. If enacted, this Act will in part:

Enable the replacement of native title applicant(s) where the applicant(s) consent to their replacement or removal, or where the applicant has died or become incapacitated:

• Often a negotiated agreement cannot be fully executed because one or a number of the native title applicants will not sign the agreement, which can lead to the costs of negotiation being thrown away. It is notoriously costly and difficult to successfully make an application in the Federal Court to replace such applicant(s). The proposed amendments will facilitate the replacement of an applicant where he/she consents to his/her replacement or removal.

* Native Title & Cultural Heritage Consultant, Land & Heritage Pty Ltd

Clayton Utz and Land & Heritage Pty Ltd enjoy a strategic relationship - jointly offering complementary strategy, negotiation and legal services to public and private clients engaging with Indigenous communities.