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2016 - 2017
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NATIVE TITLE AMENDMENT (INDIGENOUS LAND USE AGREEMENTS) BILL
2017
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Attorney-General, Senator the Honourable George Brandis QC)
NATIVE TITLE AMENDMENT (INDIGENOUS LAND USE AGREEMENTS) BILL
2017
GENERAL OUTLINE
Purpose and Objective
1. The Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 amends
the Native Title Act 1993 (Cth) (the Act), to resolve the uncertainty created by the Full
Federal Court decision in McGlade v Native Title Registrar & Ors [2017] FCAFC 10,
regarding area Indigenous Land Use Agreements (area ILUAs).
2. The primary objectives of the Bill are to:
a. confirm the legal status and enforceability of agreements which have been
registered by the Native Title Registrar on the Register of Indigenous Land
Use Agreements without the signature of all members of a registered native
title claimant (RNTC)
b. enable registration of agreements which have been made but have not yet been
registered on the Register of Indigenous Land Use Agreements, and
c. ensure that in the future, area ILUAs can be registered without requiring every
member of the RNTC to be a party to the agreement.
Background - Indigenous Land Use Agreements
3. The Act provides a legislative process by which native title groups can negotiate with
other parties to form voluntary agreements in relation to the use of land and waters, defined
in the Act as Indigenous Land Use Agreements.
4. There are three types of ILUAs:
a. Body corporate ILUAs are made in relation to land or waters where a
registered native title body corporate exists
b. Area ILUAs are made in relation to land or waters for which no registered
native title body corporate exists, and
c. Alternative procedure ILUAs.
5. ILUAs may provide for certain 'future acts' to be undertaken on land or waters, such
as mining, or provide access to an area, in exchange for compensation to native title groups.
6. The Act specifies requirements which must be met in order for an agreement to be an
area ILUA. One such requirement, at s 24CD, is that all persons in the 'native title group', as
defined in the section, must be parties to an area ILUA. Under that section, the native title
group consists of all "registered native title claimants" (RNTC) in relation to land or waters
in the area. An RNTC is defined as "a person or persons whose name or names appear in an
entry to the Register of Native Title Claims" (s 253). The RNTC - the native title group for
the purposes of s24CD - is typically a subset of the larger group that may hold native title
over the claim area.
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Impact of the decision in McGlade v Native Title Registrar & Ors
7. On 2 February 2017 the Full Federal Court handed down McGlade v Native Title
Registrar & Ors [2017] FCAFC 10 (McGlade), which overturned previous authority on the
parties to area ILUAs under the Act (QGC Pty Ltd v Bygrave (No 2) [2010] 189 FCR
412)(Bygrave).
8. The court found in McGlade that an area ILUA could not be registered unless all
members of the RNTC were parties to the agreement and therefore, an area ILUA could not
be registered unless it had been signed by all members of the RNTC, including in cases
where a member had passed away before being able to sign.
9. This overturned the decision in Bygrave that an area ILUA could be registered if it
had been signed by at least one member of the RNTC, on the basis that the 'registered native
title claimant' was defined as a singular entity under the Act.
10. In McGlade the Full Federal Court agreed with the finding in Bygrave that the RNTC
was defined as a singular entity under the Act. However, it found that the specific drafting of
s 24CD(1), containing the words 'all persons', as well as the reference to 'registered native
title claimants' (plural) in s 24CD(2)(a), indicated that the required parties to an area ILUA
must be every member of the RNTC individually, including persons now deceased.
11. The McGlade decision created uncertainty in the native title sector regarding the
status of areas ILUAs. It meant that:
a. area ILUAs registered without the signatures of all RNTC members, including
members who are deceased, were agreements which did not meet the
requirements for ILUAs as defined under the Act, and
b. area ILUAs lodged for registration which do not comply with McGlade could
no longer be registered.
12. The decision only affected area ILUAs (Subdivisions C and E, Division 3 of Part 2 of
the Act), but not alternative procedure agreements (Subdivision D) or body corporate
agreements (Subdivision B).
Outline of the Bill
13. This Bill makes various amendments to the Act in order to:
a. secure existing agreements which have been registered on or before
2 February 2017 but do not comply with McGlade
b. enable registration of agreements which have been made and have been
lodged for registration on or before 2 February 2017 but do not comply with
McGlade, and
c. clarify who must be a party to an area ILUA in the future unless the claim
group determines otherwise.
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14. The Bill will preserve the status quo for agreements registered under the Act or that
were pending registration on or before the date of the McGlade decision. The Act specifies
that ss 24EA, 24EB and 24EBA provide for the effect of the registration of agreements.
15. The Bill also overturns the position in McGlade that every person who comprises the
RNTC must to be a party to an ILUA in relation to agreements made on or after the
commencement of the Act as amended.
16. The position in McGlade means that if a single member of the RNTC withholds their
consent to be a party to the ILUA, the agreement cannot be registered despite authorisation of
the agreement under s 251A involving all persons who hold or may hold native title within
the area of the area ILUA. This is an unnecessary barrier. It means that the only alternative
available to a native title claim group is to re-authorise a new applicant and make an
application under s 66B of the Act removing the member or members of the RNTC who
refuses to sign.
17. Native title stakeholders have indicated that this process can impose high costs on
claim groups, which often have limited resources, and that it can cause delays for claim
groups and third parties.
18. The amendments to ILUA requirements support the integrity of authorisation
processes, by ensuring that native title claim groups can nominate who will carry out the will
of the claim group and execute the agreement. The amendments also give primacy to the role
of authorisation, reflecting the view that authorisation, along with other check and balances
established under the Act, provides sufficient protection for the claim group.
Retrospective provisions
19. These amendments provide for retrospective application of certain provisions,
in order to address specific issues arising from the decision made in McGlade.
20. These amendments preserve the status quo for agreements registered on or before the
date of the McGlade decision, providing certainty about interests granted and benefit paid in
reliance on the agreement. It will also allow for consideration of agreements which had been
lodged for registration on or before McGlade and ensure that the will of the native title claim
group in authorising the agreement is not frustrated only because of the effect of the McGlade
decision.
Compensation for acquisition of property otherwise than on just terms
21. It is not thought likely that the Bill involves the acquisition of property otherwise than
on just terms.
22. The Bill does however provide for compensation to persons for acquisition of
property otherwise than on just terms should this be determined to have happened as a result
of the operation of the amendments.
23. These provisions provide that, in the event that it is determined that a person's
proprietary rights have been affected without compensation as a result of the Act, the
Commonwealth will be liable to pay a reasonable amount of compensation to that person.
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Consultation
24. The McGlade decision raised considerable uncertainty for all parties doing business
on native title land. Urgent amendments are imperative to preserve the operation of currently
registered ILUAs and provide the sector with a prospective process for registering ILUAs
which minimises the risks presented by the McGlade decision.
25. Given the limited timeframe, the Attorney-General's Department consulted with
stakeholders in relation to the legal implications of the McGlade decision to the greatest
extent possible, including State and Territory governments, the National Native Title
Tribunal, and the National Native Title Council.
26. Further, as many of the amendments are aimed at preserving the status quo for
registered ILUAs, the Bill will not significantly alter the way in which the law operated up to
the McGlade decision.
FINANCIAL IMPACT
27. This Bill will have a nil or insignificant financial impact on Commonwealth
Government departments and agencies.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Native Title Amendment (Indigenous Land Use Agreements) Bill 2017
1. This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in s 3 of the Human Rights (Parliamentary Scrutiny) Act
2011.
Overview of the Bill
2. The Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 (the Bill)
makes a number of amendments to the Native Title Act 1993 (Cth) (the Act).
3. The Bill addresses uncertainty created in the native title sector regarding the status of
area Indigenous Land Use Agreements (area ILUAs), as a result of the decision of the Full
Federal Court in McGlade v Native Title Registrar & Ors [2017] FCAFC 10 (McGlade).
4. These amendments clarify requirements for area ILUAs, provide certainty to parties
regarding the status of existing area ILUAs, and strengthen the integrity of ILUA processes.
5. Specifically, the Bill contains amendments to:
secure existing agreements which have been registered on or before
2 February 2017 but do not comply with McGlade
enable registration of agreements which have been made and have been
lodged for registration on or before 2 February 2017 but do not comply with
McGlade, and
clarify who must be a party to an area ILUA in the future unless the claim
group determines otherwise.
6. Part 1 provides amendments to improve the flexibility and efficiency of area ILUA
processes, by providing native title holders with to the ability to determine who will be party
to an agreement (ss 24CD, 251A, and 253).
7. Part 2 makes amendments to provide certainty to parties to area agreements affected
by the McGlade decision. These amendments will ensure that any area agreement which was
authorised and registered prior to McGlade, without the signatures of all members of the
RNTC, is taken to be, and always to have been, a valid ILUA. These amendments will also
enable the registration of area agreements which were authorised and lodged for registration
prior to McGlade, without the signatures of all members of the RNTC.
Human rights implications
8. The Bill engages the following human rights:
the right to enjoy and benefit from culture, and
the right to self-determination.
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The right to enjoy and benefit from culture
9. The right to enjoy and benefit from culture is contained in Article 27 of the
International Covenant on Civil and Political Rights (ICCPR) and Article 15 of the
International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 27 of
the ICCPR protects the rights of individuals belonging to minorities within a country to enjoy
their own culture. Article 15 of the ICESCR protects the right of all persons to take part in
cultural life.
10. The United Nations Human Rights Committee has stated that culture can manifest
itself as a particular way of life associated with the use of land resources, especially in the
case of Indigenous peoples, which may include such traditional activities as fishing or
hunting and the right to live on lands protected by law.1
11. The United Nations Committee on Economic, Social and Cultural Rights has stated
that Indigenous peoples' cultural values and rights associated with their ancestral lands and
their relationship with nature should be regarded with respect and protected.2
12. The Act as a whole promotes the right to enjoy and benefit from culture, by
establishing processes through which native title can be recognised, and providing protection
for native title rights and interests. The amendments in this Bill continue to promote these
rights, by providing certainty to native title claimants and holders, and third parties on the use
of native title land and waters through voluntary agreements.
13. Specifically, the amendments aim to protect rights and interests of native title holders
which already exist under agreements that have been registered or have applied for
registration but have not been signed by all RNTC members.
14. The amendments will also assist area ILUAs to be made more efficiently in cases
where an agreement has been validly authorised by a group which holds or may hold native
title, but one or more members of the RNTC are unable or unwilling to sign the area ILUA.
This may be for a variety of reasons- an elderly member may have passed away before being
able to sign, or a member may not wish to sign the agreement for personal reasons or the
ILUA does not affect their country.
15. These amendments also aim to address concerns that agreements which have been
validly authorised by the broader native title group can be frustrated in circumstances when
RNTC members disagree and refuse to sign. Disputes between RNTC members and the
broader claim group can lead to delays and burdensome costs. In addition, these amendments
seek to provide native title groups with greater flexibility in relation to authorisation
processes for area ILUAs. By providing native title groups with greater discretion to
determine how decisions will be made (using traditional decision-making processes or other
agreed process) and who will be a party to the area ILUA, these amendments aim to promote
efficient resolution of area ILUAs, and thereby assist Indigenous Australians to enjoy the
cultural values and rights associated with their traditional lands.
1 United Nations Human Rights Committee, General Comment No. 23 (1994).
2
The Committee on Economic, Social and Cultural Rights, General Comment No. 21 (2009).
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The right to self-determination
16. The right to self-determination is a collective right, in that it pertains to groups of
people, as opposed to individuals within a group. The right to self-determination, as set out
in Article 1 of the ICCPR and Article 1 of the ICESCR, entails the entitlement of peoples to
have control over their destiny and to be treated respectfully. This includes peoples being free
to pursue their economic, social and cultural development.
17. The principles contained in the United Nations Declaration on the Rights of
Indigenous Peoples (the Declaration) are also relevant to the amendments in this Bill. While
the Declaration is not included in the definition of 'human rights' under the Human Rights
(Parliamentary Scrutiny) Act 2011, it provides some useful context as to how human rights
standards under international law apply to the particular situation of Indigenous peoples.
18. These amendments promote these rights by supporting the integrity of ILUA
processes, to enable Indigenous Australians to participate in and determine processes which
affect their rights and interests.
19. By providing native title holders with greater discretion to determine who can be
party to an agreement, these amendments emphasise the fundamental importance of
authorisation to the integrity of the native title system. Authorisation processes recognise the
communal character of Indigenous traditional law and custom, and ensure that decisions
regarding the rights and interest of Indigenous Australians are made with traditional owners.
20. As outlined above, these amendments also aim to promote efficient negotiation and
settlement of area ILUAs, to continue to assist Indigenous Australians to access the potential
social and economic benefits of native title.
Conclusion
21. The Bill is compatible with human rights because it promotes the protection of human
rights, particularly the right to enjoy and benefit from culture and the right to self-
determination.
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NOTES ON CLAUSES
Preliminary
Clause 1 - Short title
1. This clause provides for the short title of the Act to be the Native Title Amendment
(Indigenous Land Use Agreements) Act 2017.
Clause 2 - Commencement
2. This clause provides for the commencement of each provision in the Bill, as set out in
the table. Item 1 in the table provides that the whole of the Bill will commence on the day
which the Bill receives Royal Assent.
Clause 3 - Schedules
Part 1 - Amendments
Native Title Act 1993
Item 1 Paragraph 24CD(2)(a)
3. This item repeals paragraph 24CD(2)(a) of the Act, which requires all persons who
comprise the RNTC for land or waters within the area of the proposed area ILUA to be
parties to the area ILUA. The Bill substitutes a new paragraph to enable the native title claim
group to nominate which members of the RNTC are required parties to the area ILUA are or,
where no person or persons are so nominated, provides that a majority of the members of the
RNTC must be parties to the area ILUA.
4. This will provide native title claim groups with greater discretion to decide who
comprises the 'native title group', which is the group which must be party to the area ILUA
for it to be registered (in accordance with s24CD and subsection 251A(2)) [s 5 below].
The Bill also provides that if the native title claim group does not choose to make a decision
about the native title group, the default position will be that the area ILUA can be registered
if a majority of the members of the claim group are parties to the agreement.
5. These amendments apply to an area ILUA made on or after commencement of the Act
as amended.
Item 2 Subparagraph 24CG(3)(b)(ii) (note)
6. This item replaces "s 251A" with "s251A(1)" in the note.
7. The effect of the substitution is to ensure that the note refers to the correct subsection
of s 251A.
Item 3 Section 251A
8. This item inserts a subsection number before the start of the current paragraph. This is
because s 5 inserts a second subsection into the section.
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Item 4 Paragraph 251A(b)
9. This item removes the phrase "where there is no such process" and substitutes the
phrase "in any case".
10. This amendment gives effect to Recommendation 10-2 of the Australian Law Reform
Commission's Connection to Country: Review of the Native Title Act 1993 (Cth) report
(tabled 4 June 2015), which was endorsed by the Investigation into Indigenous Land
Administration and Use report to the Council of Australian Governments (December 2015).
That recommendation stated that the current provision, which requires a traditional
decision-making process to be used to authorise ILUAs unless such a process does not exist,
should be amended to ensure that claim groups can choose whether to use a traditional
decision-making process or an agreed-upon decision-making process.
11. This amendment empowers persons who are required to make a decision to authorise
an area ILUA under s 251A to determine what decision-making process should be used to
authorise that ILUA.
Item 5 Section 251A
12. This item inserts a new subsection, 251A(2), to enable a claim group to authorise a
person or group of persons, who are also members of the RNTC, to be a party to an area
ILUA under s24CD. The section also allows the claim group to authorise a process for
determining which members of the RNTC will be party to the agreement.
13. Subparagraph 251A(2)(a) allows a native title claim group to nominate which
members of its RNTC will be party to the ILUA under s 24CD. The claim group can elect a
single member of the RNTC, or it can elect more than one. This ensures that the claim group
can nominate members of the RNTC who the group is confident will carry out the will of the
group and execute the agreement as a party to the agreement.
14. Subparagraph 251A(2) (b) allows for a claim group to settle a process which will
determine who will be parties to the ILUA, rather than determining a specific person or
people. For example, the claim group may wish to authorise a process where the most senior
member of the RNTC must be party to the ILUA. This ensures that the claim group retains
control over who must be a party to the agreement for it to be an ILUA.
Item 6 Paragraph 251B(b)
15. The item replaces the phrase "where there is no such process" with "in any case".
16. This amendment implements Recommendation 10-1 of the Australian Law Reform
Commission's Connection to Country: Review of the Native Title Act 1993 (Cth) report
(tabled 4 June 2015), which was endorsed by the Investigation into Indigenous Land
Administration and Use report to the Council of Australian Governments (December 2015).
That recommendation stated that the current provision, which requires a traditional
decision-making process to be used to authorise an applicant unless such a process does not
exist, should be amended to ensure that claim groups can choose whether to use a traditional
decision-making process or an agreed-upon decision-making process.
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17. This amendment empowers the native title claim group to determine what type of
decision-making process should be used to authorise the applicant.
Item 7 Section 253 (paragraph (a) of the definition of authorise)
18. This item makes a minor amendment, to ensure that the definition of 'authorise' under
s 253 of the Act refers to subsection 251A(1), which will contain the process for authorising
an ILUA, and not subsection 251A(2), which will allow the claim group to nominate a person
or persons to be a party to the agreement and specify a process for determining which
members of the RNTC will be party to the agreement.
Part 2 - Application, transitional and saving provisions
Item 8 Application of amendments
19. This item ensures that amendments in Part 1 of the Bill apply to agreements which
have not been made as at the date of the Act. An agreement is 'made' once it has been validly
authorised and the relevant parties have entered into the agreement.
20. ILUAs which were authorised or registered before the McGlade decision are subject
to the saving provisions outlined in items 9 to 13, recognising in part, that many area ILUAs
were made in reliance on the judicial authority set by the decision in Bygrave in 2010.
Item 9 Validating agreements and registration on or before 2 February 2017
21. This item states that where an agreement purporting to be an ILUA was made and
registered on or before 2 February 2017, but was not signed by every member of the relevant
RNTC, that the agreement is taken to have been an ILUA for the purposes of the Act and its
registration is taken to have been valid.
22. This item also notes that sections 24EA, 24EB and 24EBA of the Act provide for the
effect of the registration of agreements.
23. The item also specifies that these retrospective provisions will not apply to
agreements considered in the McGlade decision.
Item 10 Validating applications for registration made on or before 2 February
2017--agreements
24. This item ensures that applications made to register agreements which, but for s 9,
were not area ILUAs at the time the registration application was made, the application is
taken to have been valid and effective.
Item 11 Validating applications for registration made on or before 2 February
2017--other cases
25. This item ensures that applications made to register agreements to which s 9 applies
are valid, where the application otherwise would have been invalid because of a reason
prescribed by the rules.
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Item 12 Validating particular agreements
26. This item deems the agreements which are excluded from the operation of s 9 due to
s 9(4) to be ILUAs from the commencement of this Act.
Item 13 Compensation
27. This item ensures that, if the operation of any of the provisions of the Bill would
result in the acquisition of property from a person, that person is entitled to claim reasonable
compensation from the Commonwealth in respect of that acquisition.
28. For example, if it is found that in a particular case the provisions retrospectively
deeming agreements to be ILUAs within the meaning of the Act has resulted in the
Commonwealth acquiring a right to make an application for review of the decision to register
that agreement, the person from whom that right is acquired is entitled to compensation for
the acquisition of the right.
Item 14 Rules
29. This item gives the Minister the power to make legislative instruments to address
transitional issues which relate to the implementation of any of the other items in this Bill.
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