Commonwealth of Australia Explanatory Memoranda

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NATIVE TITLE LEGISLATION AMENDMENT BILL 2020

                          2019-2020




THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




              HOUSE OF REPRESENTATIVES




  NATIVE TITLE LEGISLATION AMENDMENT BILL 2019




   ADDENDUM TO THE EXPLANATORY MEMORANDUM




                (Circulated by authority of the
     Attorney-General, the Honourable Christian Porter MP)
NATIVE TITLE LEGISLATION AMENDMENT BILL 2019

This addendum responds to concerns raised by the Senate Standing Committee for the
Scrutiny of Bills in Scrutiny Digest 8 of 2019, dated 13 November 2019 and Scrutiny Digest
10 of 2019, dated 5 December 2019.

NOTES ON CLAUSES

    1. On page 75, after paragraph 343, insert:

The necessity and appropriateness of retrospectively validating section 31 agreements

344. Information obtained from the NNTT indicates that several thousand section 31
agreements have been made across the country. As with area ILUAs, stakeholders have
indicated that a practice often used for making section 31 agreements prior to McGlade was
to rely on the decision in QGC Pty Ltd v Bygrave and Others (No 2) (2010) 189 FCR 412
(Bygrave). Bygrave provided that if at least one member of the native title party (as the
'applicant' or 'registered native title claimant' is referred to in the context of section 31
agreements) was a party to the agreement, then the agreement was validly made.

345. This means there is likely a significant number of section 31 agreements where not
all members of the native title party have signed or entered into the agreement, and are
subsequently potentially affected by McGlade. The State of Western Australia, for example,
in its submission to the options paper for native title reform indicated it was aware of 306
mining leases, 11 land tenure grants, and 4 petroleum titles which had section 31 agreements
potentially affected by McGlade.1

346. Section 31 agreements underpin commercial operations and provide benefits for
affected native title groups. The uncertainty created by their potential invalidity poses a
significant risk to both those commercial operations and the benefits flowing to native title
groups. Potential challenges to section 31 agreements may also divert resources away from
finalising native title claims to litigate affected agreements and re-negotiate agreements that
are already significantly resource-intensive.

347. There is strong stakeholder support for the retrospective validation of section 31
agreements. The proposal to retrospectively validate section 31 agreements affected by the
McGlade decision was consulted on as part of the options paper and exposure draft
consultation processes. Those processes received 52 and 37 submissions respectively, and
the vast majority of those (from native title representative bodies, Indigenous groups,
governments and industry) favoured the retrospective validation of agreements.

348. The Expert Technical Advisory Group also extensively considered this proposal, and
agreed that section 31 agreements should be retrospectively validated, and that the validation
should apply to all agreements made up to the commencement of the Bill.




1Western Australian Government's submission on the Reforms to the Native Title Act 1993 (Cth)
Options Paper, January 2018.

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349. The validation provision in Schedule 9 substantially replicated the provision passed
on 14 June 2017 by the Australian Parliament in the Native Title Amendment (Indigenous
Land Use Agreements) Act 2017 (2017 Amendments) to confirm the validity of area ILUAs
affected by McGlade.

350. A key difference between the provisions in this Bill from the 2017 Amendments is
that they only validate section 31 agreements where at least one member of the relevant
native title party is a party to the agreement (the 2017 Amendments did not include this
requirement). Unlike ILUAs, there is no formal authorisation or registration process for
section 31 agreements. As such, it would be inappropriate to extend validation to an
agreement not signed by any of the members of the RNTC given the significant and binding
effect of these agreements once they are made.

351. This provision is also complemented by amendments in Schedule 6 of the Bill to
require the Native Title Registrar to create and maintain a public record of section 31
agreements. The public record would contain key details (such as the name of the parties and
a description of land over which the agreement applies) to increase the visibility and
transparency of these agreements, including by ensuring there is a central record of future
section 31 agreements.




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