Steady progress being made towards the reform of native title with release of Options Paper

By Tosin Aro, Mark Geritz

07 Dec 2017

Resources industry proponents should consider how the proposed reforms would work in practice and the extent to which they are deserving of support or of modification by 25 January 2018.

An Options Paper recently released by the Federal Government takes a common sense approach to the delivery of much-needed native title reform.

In releasing the Paper, the Government is seeking stakeholder views on a range of options to amend the Native Title Act 1993 (Cth) (NTA). These options are aimed at improving the existing native title system in a number of ways, most notably (from the perspective of project proponents and developers) by canvassing proposals for better facilitating agreement-making around the use of native title land.

The proposals aim to clarify and simplify the making of native title "future act" agreements. The Paper's focus on these practical considerations means that other areas that have previously been the subject of reform proposals, such as whether there should be a presumption of "connection" in favour of native title claimants and whether native title rights and interests can include rights and interests of a commercial nature may no longer be a priority for this round of reform.

Resources industry proponents should consider how the proposed reforms would work in practice and the extent to which they are deserving of support or of modification. Those inclined to contribute to the ongoing debate should note that the closing date for submissions is 25 January 2018.

Some of the key reform areas considered in the Options Paper are noted below.

Section 31 agreements

Parliament recently amended the NTA to clarify that Indigenous land use agreements (ILUAs) can be lawfully made even where they are not executed by all members of a registered native title claimant (RNTC) for the ILUA area.

RNTCs are also compulsory parties to section 31 agreements, which are commonly used to ensure that mineral and petroleum exploration and production tenements validly affect native title.

To address any possibility (given the decision in McGlade v Native Title Registrar [2017] FCAFC 10) of existing section 31 agreements (and, by implication, tenements granted in reliance on such agreements) being invalid where they did not contain a full set of RNTC signatures, the Paper asks whether the NTA should be amended to retrospectively confirm the validity of all existing section 31 agreements. From the perspective of delivering certainty for industry, we would support such an amendment.

For new agreements, the Paper invites comment on whether the NTA should be amended to clarify whether, for a RNTC to be a party to a section 31 agreement, all members of the RNTC must sign (or whether it would suffice for all living members, or even only a majority of members, to sign).

Applicants and authorisation

The Paper also considers whether amendments might be necessary to address such matters as:

  • the ability of a native title claim group to authorise their applicant to act by majority; and
  • whether authorisation should always be a precondition to a change of applicant under section 66B of the NTA.

In our view, these two themes are clearly interlinked. For example:

  • one might more readily accept a requirement for all (or all living) members of a RNTC to sign a section 31 agreement if the NTA were also amended to allow non-signing members to be removed under s.66B order without the need for a prior authorisation;
  • conversely, the need for changes to section 66B would perhaps not be so pressing if the NTA were amended to clarify that only a majority of signatures is required for a RNTC to become a party to a section 31 agreement.

Alternative agreement-making processes

Given the costs and time associated with making and registering ILUAs, the Paper considers whether the NTA should be amended to introduce a new type of agreement that can validate future acts without the need for authorisation. Currently, only section 31 agreements can achieve this - in relation to resources interests and in other limited circumstances.

The Paper notes qualified Government support for "increased flexibility" in agreement-making, where native title has been determined and negotiations can be undertaken with a prescribed body corporate (PBC) on behalf of the native title holders.

In our view, alternative agreements that do not require authorisation should also be available where - separately to any future act process - State or Territory legislation requires the consent of native title holders to be obtained (as is the case with the construction and operation of petroleum pipelines on or in land or waters in Queensland where native title exists - see section 401(2) of the Petroleum and Gas (Production and Safety) Act 2004 (Qld)).

Other proposed changes

The Paper also canvasses proposals for reform of the NTA in a number of other areas. Of these, some of the more relevant to project proponents include:

  • the extent to which ILUAs should be able to be amended by agreement among the named parties, without the need for a new authorisation or registration;
  • clarifying that deregistration of an ILUA will not affect the validity of future acts done in reliance on the ILUA while it was registered;
  • eliminating the requirement for Governments to be party to section 31 agreements (avoiding the need for ancillary agreements containing commercial terms confidential to the proponent and native title party); and
  • a consideration of whether, where separate groups claim to hold native title in relation to an area ILUA, all such groups should be required to authorise the making of the ILUA - and whether they should be entitled to do so separately.

Next steps

As we noted above, submissions on the Options Paper are invited before 25 January 2018.

Following consultation on the Paper, the Government will aim (by early 2018) to develop an exposure draft bill for further public comment.

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