28 Mar 2013

Native title reform: nothing to see here... yet!

by Tosin Aro

Two separate reports on the Native Title Amendment Bill 2012 reveal some differences of opinion on the future direction of reform, but the need for reform won't go away.

We recently discussed amendments proposed to be introduced into the Native Title Act 1993 (Cth) (NTA) by the Native Title Amendment Bill 2012 (NTA Bill). On 29 November 2012, the day after its introduction into Parliament by the then Attorney-General, the NTA Bill was referred, for inquiry and report:

  • by the House of Representatives Selection Committee to the House Standing Committee on Aboriginal and Torres Strait Islander Affairs; and
  • by the Senate to the Senate Standing Committee on Legal and Constitutional Affairs.

To recap, the NTA Bill would introduce changes to the NTA primarily to allow Government and native title parties to agree to disregard any prior extinguishment of native title in respect of "park areas" set aside for environmental purposes.

Specifically, in relation to the right to negotiate (RTN) process, with effect from 1 January 2013, it would:

  • replace the obligation to negotiate in good faith with an obligation to negotiate in accordance with new "good faith negotiation requirements";
  • extend to eight months the minimum period within which parties must negotiate before they can refer a negotiation to the National Native Title Tribunal for a determination; and
  • in determination proceedings, require a party accused of not negotiating in accordance with the good faith negotiation requirements to establish that it has done so (a reversal of the current onus of proof).

In relation to Indigenous land use agreements (ILUAs) it would

  • expand the scope of "body corporate agreement" ILUAs, which do not need to be authorised, to allow them to be used more widely;
  • confirm that "area agreement" ILUAs covering unclaimed areas must be authorised by all persons with a prima facie basis for claiming to hold native title over the relevant area; and
  • clarify that certain classes of amendments to ILUAs can take effect upon notification to the Native Title Registrar, without the need for a fresh registration process.

Having received and considered a number of submissions from a broad range of stakeholders, a process to which we contributed following a request by the House Committee's Inquiry Secretary, the House and Senate Committees handed down their reports in March 2013.

House Committee's views on the NTA Bill

The House Committee tabled its Report on 20 March 2013, concluding that the NTA Bill "represents positive reforms to the native title process and effectively achieves its stated objectives" and recommending that the House pass the Bill.

Despite some forceful submissions, particularly from participants in the resources industry, the House Committee did not accept that interested third parties should be included in negotiations to revive native title in park areas.

Nor did the House Committee accept that the codification of good faith arrangements could create uncertainty (and lead to increased litigation) in the negotiation process. Rather, the House Committee considered that the codification of the new arrangements would create "absolute certainty" for negotiation parties that negotiating with integrity with native title parties is an integral part of doing business in Australia.

While acknowledging that many major resources companies are already employing stringent corporate social responsibility values in their negotiations with native title parties, the House Committee noted that negotiating in good faith should routinely be incorporated into projected expenditure by all companies, and should not be considered an optional extra.

The House Committee endorsed the proposed measures to streamline the ILUA process and supported the clarification that the prima facie test would apply in establishing who should authorise ILUAs in unclaimed areas. The House Committee was unconcerned by the absence of a definition of "prima facie", noting that "a considerable body of case law" exists in this area.

The House Committee also declined to address the lack of clarity in the NTA Bill as to whether persons other than members of the relevant native title claim group could be required to authorise an ILUA in a registered claim area. This is unfortunate as clarifying this point was a stated objective of the Bill.

Finally, having received a number of submissions relating to possible future reform of the NTA (including proposals to reverse the onus currently placed on native title claimants to prove "continuous connection" to country as part of establishing their claim), the House Committee recommended that the House, at the commencement of the next Parliament, refer back to it a comprehensive inquiry into the native title system.

Senate Committee proposes two changes to the NTA Bill

The Senate Committee (in its Report, which was published on 18 March 2013) also recommended that the NTA Bill be passed, but proposed two notable revisions to the Bill.

Firstly, the Senate Committee recommended that the Government reconsider basing the criteria associated with the proposed good faith negotiation requirements on the equivalent standards contained in the Fair Work Act 2009 (Cth), reasoning that the criteria should instead mirror the "Njamal Indicia" (see Western Australia v Taylor) given that the latter were developed from a consideration of the specific issues facing parties in native title negotiations.

The Senate Committee also considered to be impractical the proposal to reduce to one month the "notification" period within which, in response to the proposed registration of an ILUA, persons claiming to hold native title would be able either to object or lodge their own claim (and have it registered). The Senate Committee favoured retaining the current three-month notification period.

Where to now for native title reform?

In their Minority Reports published in response to each of the House and Senate Committee Reports, the Coalition made it clear that it did not support the recommendations that the NTA Bill be passed. There has also been opposition to many elements of the NTA Bill from within the resources industry.

In these circumstances, and with the election already announced for September, it would be surprising if the Government chose to press for the passage of the Bill when Parliament resumes in May or, indeed, at any time during the remainder of the current Parliament.

However, whatever the decision made by the current Government, we do not expect (given their importance) that these issues will simply go away. We will continue to keep you apprised of major developments on the road to comprehensive native title reform.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.