Amendments back on the cards for native title agreements: enhancing efficiency!

By Mark Geritz, Tosin Aro and Georgia Davis
26 Nov 2020
The Bill, which has been reintroduced, is designed to improve native title laws and practice by giving native title claim groups greater flexibility to set their internal processes, and streamlining and improving native title claims resolution and agreement-making.

Amendments proposed to the Native Title Act 1993 (Cth) (NTA) and Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act) are back on the cards, with the Federal Parliament reintroducing, and the House of Representatives passing, the Native Title Legislation Amendment Bill 2020.

The Bill was originally introduced to Parliament on 21 February 2019, but lapsed at dissolution on 11 April 2019. It was reintroduced on 17 October 2019, with the House of Representatives agreeing to the Bill on 10 November 2020. It is currently before the Senate.

Recap of amendments

The Bill is in substantially the same form as the 2019 version. The key amendments to the NTA likely to be of most interest to industry are:

  • Section 31 Agreements – retrospective validation: Providing retrospective validation of “section 31 agreements” that were potentially invalidated as a result of the Full Federal Court's decision in McGlade v Native Title Registrar [2017] FCAFC 10 (ie. “right to negotiate” agreements made under section 31 of the NTA by resources project proponents with registered native title claimants that included one or more deceased members).
  • Section 31 Agreements and Indigenous land use agreements (ILUAs) – majority execution: Confirming that, unless the conditions of their authorisation provide otherwise, a registered native title claimant will have validly become a party to a section 31 agreement or an ILUA once a majority of the persons comprising that registered native title claimant have executed the agreement.
  • Body corporate ILUAs: Permitting body corporate ILUAs to be made over areas where native title has been extinguished, provided such areas lie within the external boundaries of the determination area for which a registered native title body corporate has been determined to hold native title on trust for, or to be the agent, of the native title holders.
  • Historical extinguishment: Allowing prior extinguishment to be disregarded where State and Territory parks are covered by native title applications (subject to an agreement between the Government and the native title parties).

One substantive change to the Bill that was passed by the House of Representatives is that, in order to assess whether the proposed amendments have achieved the intended objectives, the House of Representatives passed an "evaluation mechanism" that will require the amendments to be evaluated within five years.

The Commonwealth Minister will prepare a report of the evaluation, which will be tabled in each House of Parliament within 15 sitting days of the preparation of the report (see new section 209A to the NTA).

To be continued…

As noted earlier, the Bill is currently before the Senate. Once the amendments do commence, we anticipate that flexibility and efficiency in native title agreement-making will be greatly enhanced.

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