Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2016 - 2017
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
NATIVE TITLE AMENDMENT (INDIGENOUS LAND USE AGREEMENTS) BILL
2017
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the
Attorney-General, Senator the Honourable George Brandis QC)
AMENDMENTS TO THE NATIVE TITLE AMENDMENT (INDIGENOUS LAND
USE AGREEMENTS) BILL 2017
GENERAL OUTLINE
Purpose and Objective
1. The purpose of these amendments to the Native Title Amendment (Indigenous Land
Use Agreements) Bill 2017 (the bill) is to respond to the report of the Senate Legal and
Constitutional Affairs Legislation Committee (the Committee) following its inquiry into the
bill and to rectify or clarify the drafting of a number of provisions in the bill.
2. The amendments to Schedule 1 of the bill would:
clarify the operation of the proposed s 251A(2) by moving the subsection into
s 24CD
remove the changes to the decision-making processes in s 251A and 251B
clarify the language of a number of the proposed provisions and amendments.
3. The amendments to Schedule 2 of the bill would:
remove item 11 of the bill
make a technical correction to rectify a drafting error.
FINANCIAL IMPACT
4. 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
Amendment to the Native Title Amendment (Indigenous Land Use Agreements) Bill
2017
1. This amendment 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 amendment
2. The amendment to the Native Title Amendment (Indigenous Land Use Agreements)
Bill 2017 clarifies the operation of a number of provisions within the bill.
Human rights implications
3. The bill engages the following human rights:
the right to enjoy and benefit from culture, and
the right to self-determination.
The right to enjoy and benefit from culture
4. 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.
5. 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
6. 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
7. 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. These further amendments 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.
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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8. Specifically, the amendments aim to preserve the control of native title holders over
decisions and agreements about their native title rights.
The right to self-determination
9. 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.
10. 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.
11. These amendments aim to preserve the control of native title holders over decisions
and agreements about their native title rights.
Conclusion
12. This amendment is compatible with human rights because it promotes the protection
of the right to enjoy and benefit from culture, and the right to self-determination.
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NOTES ON AMENDMENTS
Amendments to Schedule 1
Amendment 1 Paragraph 24CD(2)(a)
1. This amendment changes the proposed item 1 of the bill to reflect the new language
proposed for item 5.
2. The amendment provides that, for each Registered Native Title Claimant (RNTC) in
relation to land or waters within the area of the ILUA, the relevant parties to the agreement
will be the person or persons appointed by the claim group to be party to the ILUA. If no
appointment has been made, the amendment provides that a majority of the members of the
RNTC must be party to the agreement.
Amendment 2 Section 24CD
3. This amendment omits items 2 and 3 of the bill. These changes are no longer
necessary due to the change in approach to items 1 and 5.
Amendment 3 Section 251A
4. This amendment omits item 4 of the bill as per recommendation 1 of the Senate Legal
and Constitutional Affairs Legislation Committee Report into the bill, tabled 20 March 2017.
Amendment 4 Section 24CD
5. This amendment inserts a new subsection (8) into s 24CD. This subsection replicates
the proposed s 251A(2), item 5 of the bill, which was intended to enable the native title claim
group to choose which member or members of the RNTC would be a party to an ILUA on
behalf of the wider group.
6. The inclusion of item 5 in section 251A may have created confusion about the
authorisation of area ILUAs, and the different decision-making parties for the two
subsections could have contributed to that confusion. As a result, this amendment moves item
5 to the section dealing with parties to an ILUA, so there is no suggestion that it affects s
251A, or that that section affects it.
7. The amendment provides that a claim group may appoint a person or persons to be
party to an ILUA on behalf of the claim group either by nominating a specific person or
persons, or specifying a process for determining which person or persons will be party to the
ILUA.
Amendment 5 Section 251B
8. This amendment omits item 6 of the bill as per recommendation 1 of the Senate Legal
and Constitutional Affairs Legislation Committee Report into the bill, tabled 20 March 2017.
Amendment 6 Section 253
9. This amendment provides a definition for 'appoint' in the definitions section of the
Act.
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10. The amendment ensures that the meaning of 'appoint' as it operates in s 24CD is
confined to the subdivision of the Act dealing with area ILUAs.
Amendments to Schedule 2
Amendment 7 Item 9
11. This amendment inserts a missing word into item 9 of the bill.
Amendment 8 Item 11
12. This amendment omits item 11 of the bill as per recommendation 1 of the Senate
Legal and Constitutional Affairs Legislation Committee Report into the bill, tabled 20 March
2017.
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