2 April 2021
What you need to know
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Parliament has finally enacted the long awaited reforms to the Native Title Act 1993 (Cth), with the Senate passing the Native Title Legislation Amendment Act 2021 (Cth) on 3 February 2021.
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Section 31 right to negotiate agreements at risk following the Full Federal Court's 2017 decision in McGlade v Registrar National Native Title Tribunal ([2017] FCAFC 10) have been validated by the Amendments.
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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.
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The Government's comprehensive review of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) is ongoing.
What you need to do
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During the right to negotiate process, note that parties to section 31 agreements are now required to notify the National Native Title Tribunal of the existence of any ancillary agreements.
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Consider the impact of the more significant amendments on development scheduling. In particular:
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section 47C, which allows historical extinguishment to be disregarded on park areas, including extinguishment by public works; and
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section 24MD(6B)(f), which creates a new 8 month objection period for 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.
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History of the Amendments
The Native Title Legislation Amendment Act 2021 (Cth) (Amendments) was passed on 3 February 2021 and commenced on 25 March 2021.
The Amendments have been a long time coming, with some of the provisions being recommended by the Australia Law Reform Commission's 2015 report Connection to Country: Review of the Native Title Act 1993.
After its 2017 Options Paper and 2018 Consultation Paper and exposure drafts of the Bill, 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 into Parliament in October 2019, and referred to the Senate Legal and Constitutional Affairs Legislation Committee.
The Committee recommended that the Senate pass the Native Title Legislation Amendment Bill 2019 (Cth) (See the 19 August 2020 Report). The Committee welcomed the amendments proposed in the Bill and did not adopt any stakeholder recommendations to amend any of the Bill's provisions.
Many stakeholders had called for broader reform to the Native Title Act 1993 (Cth) and may be disappointed that the Committee did not undertake a broad analysis of the legislation. However, the Committee reported that "consideration of further reform should not delay the proposals in the Bill, some of which are urgent."
Key components of the Amendments
The Amendments are largely directed at improving the efficiency of the native title system for all parties. While many of the Amendments are uncontroversial and implement widely supported recommendations made in previous reviews, there are some provisions that may affect project development quite significantly .
We have written about these details in our 2019 Native Title Year in Revie article Slow and Steady: Native Title Legislative reform moves forward and our 2018 Native Title Year in Review article Update on Native Title Act Reform.
Set out below is brief summary of the key issues for proponents.
Section 31 agreements validated
The Amendments confirm the validity of most section 31 right to negotiate 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). (see Schedule 9, Item 2).
However, agreements where no person comprising the registered native title claimant is a party, are not validated. This is a departure from the amendments introduced to validate Indigenous land use agreements (ILUAs), but is explained on the basis of the significant and binding effect of these agreements and the fact that there is no authorisation process. It is not known how many agreements this exception will affect, but we expect it to be relatively few.
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 currently includes a 2-month notification and objection process and an option for objections to be heard by an independent person or body. Prior the amendments, an objection could only be referred for hearing by the native title party, leaving many objections potentially unresolved.
The Amendments include a new section 24MD(6B)(f) of the Native Title Act that requires the Government party to refer an objection for hearing, but not until 8 months after notification (Schedule 6, Part 1).
This is longer than the 6 month period in the right to negotiate process, which was intended to be the more significant procedural right. Section 24MB(6B) was originally intended to be the more streamlined process.
Proponents that may be affected by section 24MD(6B) compliance will need to ensure project timeframes adequately provide for the extended period.
Amendments still do not address WA mining lease validation
The Amendments do not resolve the issue arising from the High Court's decision in Forrest & Forrest Pty Ltd v Wilson ([2017] HCA 30) relating to the validity of mining tenements in Western Australia.
The Western Australian government introduced the Mining Amendment (Procedures and Validation) Bill 2018 in late 2018 to confirm the validity of mining tenements affected by the High Court decision. The State is seeking complementary amendments to the Native Title Act to ensure that its legislation is valid under the Native Title Act.
We understand that discussions are continuing between the Commonwealth, Western Australian Government and native title stakeholders about this matter.
For Western Australia, the uncertainty caused by Forrest & Forrest remains a live issue and one that the State and Commonwealth need to resolve as soon as possible.
Amendments relating to the 'right to negotiate' process
There are number of new provisions to increase transparency around section 31agreements and the associated ancillary agreements.
New section 41A(1)(f) requires the parties to section 31 agreements to notify the National Native Title Tribunal (NNTT) of the existence of any ancillary agreements when providing copies of section 31 agreements to the Registrar. There is no requirement to provide a copy of the ancillary agreement itself.
The NNTT is required to create a register of section 31 agreements like the ILUA Register (new section 41B). This Register will not have legislative effect like the ILUA Register and the agreements themselves are not be made public. The Register must include a description of the agreement area, the parties and their contact details, the term of the agreement and whether or not there is an ancillary agreement.
Parties must also notify the NNTT if any of this information changes (which would include the existence of a new ancillary agreement) and the NNTT must update the Register (new section 41B(3) and (4)).
Information from the Register must be made available to the public upon request, although there is provision for a party to ask that certain information not be made available.
The Amendments also expressly allow a government party to limit its participation in right to negotiate negotiations if the other parties agree, but remain a party to the section 31 agreement (new section 31(1A)). This reflects what regularly happens in practice and reduces the risk that the Government party's lack of participation leads to a good faith challenge by the native title party.
Disregarding historical extinguishment on park areas
The Amendments insert new section 47C of the Native Title Act, which allows 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" (Schedule 3, Part 1).
"Park area" is defined in section 47C(3) as
"… an area (such as a national, State or Territory park):
(a) that is set aside; or
(b) over which an interest is granted or vested;
by or under a law of the Commonwealth, a State or a Territory for the purpose of, or purposes that include, preserving the natural environment of the area, whether that setting aside, granting or vesting resulted from a dedication, reservation, proclamation, condition, declaration, vesting in trustees or otherwise."
The provision applies on Crown land and freehold land held by the Crown or a statutory authority of the Crown. It is immaterial if the land is subject to a lease or licence; covered by a dedication, reservation, proclamation, condition or declaration; used for a public purpose; or held on trust for the benefit of another person (section (47C(2)). The extinguishment of native title by the creation of the park itself and the creation of any prior interests, is disregarded.
Unlike other similar provisions that allow for historical extinguishment to be disregarded, there is no exception for public works. A section 47C agreement may provide that the extinguishing effect of any "relevant public works" is to be disregarded. A "relevant public work" is a public work constructed or established directly by the Commonwealth, the State or the Territory or constructed or established by another person on behalf of the Commonwealth, the State or the Territory" (section 47C)(11)).
Importantly, the Amendments make it clear that the agreement does not have to include such a provision – this is an agreement based process and the agreement may provide that the extinguishing effect of certain public works is NOT to be disregarded (section 47C(4), (5), (8)(c)(iii) and (9)(a)(iii)).
There is a 3 month notice and opportunity to comment process before a section 47C agreement can be made. The relevant Government must arrange for reasonable public notification of the proposed agreement and give interested persons an opportunity to comment (section 47C(6)).
Any determination of native title over the "park area" would not affect: the validity of the creation of the park area, the validity of any prior interests in the park area; any interest of the Crown in any capacity, or of any statutory authority, or of any other person in public works, or access to the public works; or any existing public access to the agreement area.
Existing determinations of native title can be re-opened and existing claims amended to obtain the benefit of this provision.
Where proponents have tenure or prospective projects on areas that are, or have historically been, "park areas", they will need to consider whether future grants, renewals and operations may require Native Title Act compliance, and whether a section 47C outcome might trigger un-anticipated native title compensation liability.
Amendments to improve workability of the Native Title Act
The Amendments include a number of relatively uncontroversial amendments relating to the Applicant's authority, the Applicant acting by majority, replacement of the Applicant, the right to negotiate process and technical changes intended to improve the claims resolution and agreement-making processes.
We have written about these details in our 2018 Native Title Year in Review article Update on Native Title Act Reform.
PBC governance, accountability and dispute resolution
The Amendments include a number of amendments to the Native Title Act and the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act) which aim to improve the governance and accountability of registered native title body corporates/prescribed body corporates (PBCs) and increase dispute resolution pathways.
The Amendments include:
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Membership: changes to membership provisions to better protect common law holders of native title by ensuring that a PBC's rule book reflects the relevant native title determination, preventing PBCs from establishing membership criteria, refusing or cancelling membership in a way that disenfranchises a section of a native title group and ensuring a pathway in the PBC rule book for resolution of disputes between common law holders and PBCs (Schedule 8, Amendments).
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NNTT new function to assist post-Determination: a new function for the NNTT to assist PBCs and common law holders of native title to promote agreement about native title issues and the operation of the Native Title Act (Schedule 7, Amendments). This complements the proposed new dispute resolution pathway to be included in the PBC's rule book.
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ORIC Registrar oversight: adding a new ground for the Registrar to appoint a special administrator to a PBC when there is a serious failure by the PBC to comply with its native title legislation obligations.
Review of the CATSI Act still in progress
In December 2019, the Minister for Indigenous Australians announced a comprehensive review of the CATSI Act. The review is intended to build on the findings of the 2017 technical review of the CATSI Act, but also include an assessment of the effectiveness of the CATSI Act as a special measure under the Racial Discrimination Act 1975 (Cth) and whether it can better support economic and community development opportunities for Aboriginal and Torres Strait Islander people. The review will also consider aspects of the CATSI Act that are working effectively, and areas that could be improved.
For further information, please contact:
Clare Lawrence, Partner, Ashurst
clare.lawrence@ashurst.com
