Australia – Slow And Steady: Native Title Legislation Reform Moves Forward.

7 May 2020

 

Introduction

 

What you need to know

 

• There has been very little progress on reforms to the Native Title Act 1993 (Cth) (Native Title Act)  in the last 12 months.

 

• After lapsing in April 2019, the Native Title Legislation Amendment Bill 2019 (Cth) (Bill) was re-introduced into Parliament in October 2019, and referred to the Senate Legal and Constitutional Affairs Legislation Committee. The Committee's report is is now due 19 August 2020.

 

• In December 2019, the Minister for Indigenous Australians announced a comprehensive review of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act).  The review is intended to build on the findings of the 2017 technical review of the CATSI Act.

 

• It is not yet clear whether the CATSI Act review will have any impact on the timing of the Native Title Act reforms.

 

• It is hard to gauge the Federal Government's current appetite for progressing native title legislative reforms.  Although stakeholders overwhelmingly support the majority of the proposed amendments in the Bill (and many are a long time coming), they are still likely to be divisive during parliamentary debates.

 

What you need to do

 

• Watch for the release of the Senate Committee Report in August 2020 and monitor the progress of the Bill in Parliament.  

 

• Western Australia should note that Parliament still needs to deal with the native title legislative "fix" required to address the Forrest & Forrest case and associated proposed amendments to the Mining Act 1978 (WA), affecting mining lease validity in that State.

 

Status of the Bill

 

There has been very little progress on reforms to the Native Title Act in the last 12 months.

 

The Federal Government introduced the Native Title Legislation Amendment Bill 2019 on 21 February 2019, but the Bill lapsed in April 2019 when the Federal election was called.  

 

The Bill was re-introduced on 17 October 2019, and referred to the Senate Legal and Constitutional Affairs Legislation Committee. The Committee's report was due 16 April 2020, but an extension has been granted to 19 August 2020. The Committee received 22 submissions on the Bill, all of which were generally supportive of the Bill.

 

The Committee held public hearings in Western Australia between 10 and 13 March 2020, with other States to follow.  You can follow the progress of the Bill on the Parliament of Australia website here.

 

Reminder of the key components of the Bill

 

The October 2019 version of the Bill is almost identical to the February 2019 version, but for a small number of amendments to the CATSI Act. 

 

The proposed amendments are intended to improve the efficiency of the native title system for all parties. While many of the proposed amendments are uncontroversial and implement widely supported recommendations made in previous reviews, there are some proposals that may significantly affect proponents if they become law. We have written about these details in our 2018 Native Title Year in Review article Update on Native Title Act Reform.  

 

Set out below is brief summary of the key issues:

 

Section 31 agreements to be validated

 

The proposed amendments would confirm the validity of most section 31 agreements which might be invalid because of non-execution by any of the persons comprising the registered native title claimant following the Full Federal Court's decision in McGlade v Registrar National Native Title Tribunal ([2017] FCAFC 10).   

 

Disregarding historical extinguishment on park areas 

 

The Bill contains a proposed new section 47C of the Native Title Act which would allow for the extinguishment of native title in "park areas" to be disregarded with the written agreement of the State, Territory or Commonwealth that created the "park area".  The provision would apply on Crown land or freehold land held by the Crown or a statutory authority of the Crown. 

 

New 8 month timeline added to the section 24MD(6B) objection process 

 

Section 24MD(6B) of the Native Title Act applies to the creation of a right to mine for the purpose of an infrastructure facility associated with mining and to some compulsory acquisitions of native title.  It includes a 2-month notification and objection process and an option for objections to be heard by an independent person or body.  As presently drafted, an objection can only be referred for hearing by the native title party, leaving many objections potentially unresolved.  

 

The Bill proposes a new section 24MD(6B)(f) that requires the Government party to refer an objection for hearing, but not until 8 months after notification.  This is longer than the 6-month period in the right to negotiate process, which was intended to be the more significant procedural right.