Senate Committee Reports on Native Title Amendment (Indigenous Land Use Agreements) Bill 2017

Recently we reported on the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 (Cth) (the Bill) (see  Government Introduces Bill To Counter Recent FCAFC Decision on Indigenous Land Use Agreements) and, on 16 February 2017, the Senate referred an inquiry into the Bill's provisions to the Senate Legal and Constitutional Affairs Legislation Committee (the Committee) for inquiry and report by 17 March 2017. The committee tabled an interim report on 17 March 2017, and was given an extension of time to table its final report by 20 March 2017 with an overall recommendation that the Bill be passed.

Background to the Bill

As previously reported, the Bill was a response to the decision of the Full Federal Court in McGlade v Native Title Registrar & Ors [2017] FCAFC 10 (McGlade) which found that Indigenous Land Use Agreements (ILUAs, as they are known) may not be valid unless they are signed by all members of a registered native title claimant (RNTC) overturning QGC Pty Ltd v Bygrave and Others (No 2) (2010) 189 FCR 412; [2010] FCA 1019, which had found that it was not necessary for all members to sign. 

The Bill's primary objectives were stated in the explanatory materials as being:

• confirming 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 RNTC;
• enabling the registration of agreements which have been made but have not yet been registered on the Register of Indigenous Land Use Agreements, and
• ensuring that in the future, area ILUAs can be registered without requiring every member of the RNTC to be a party to the agreement.

Reason for Referral to the Committee

The Committees report states the Senate Selection of Bills Committee recommended that the Bill be referred to the committee for the following reasons:

• the recognition and protection of native title is important to Indigenous Australians and the broader Australian community;
• it is appropriate and responsible for the Senate to properly examine the impact of proposed amendments to native title law; and
• to allow the committee to seek "Stakeholder views on the Bill".

The Committee's View

The Committee reported that it had:

The above proposition became clearn not only from the evidence given to the Committee by the various primary and agricultural industry sectors, but also from the evidence as expressed by traditional land owners looking for assurance about current agreements, as well as agreements that are yet to be negotiated, agreed and registered.

The Committee heard evidence that the ramifications of McGlade were far-reaching; for example, in Queensland alone, 12 agreements "currently face an uncertain future", with many others also potentially requiring lengthy and arduous re-negotiation processes.

The Committee noted the amendments made by the Bill secured existing agreements registered on or before 2 February 2017, but which did not comply with McGlade; giving certainty to some groups of traditional owners, and other stakeholders and communities who have invested their time, efforts and goodwill to reach agreements in good faith.

There was concern expressed by the Committee that an onerous administrative burden was placed on various native title holders by having to proceed through the re-registration process once again. Specifically the Committee indicated that the Commonwealth Government should " . . . consider further amendments to ensure that the provisions for the 'right to negotiate in the future' under section 31 of the Native Title Act 1993 (Cth) cannot be invalidated in a similar process to the McGlade determination".

Further, in terms of amending the Native Title Act 1993 (Cth), the committee suggested the Commonwealth government should examine the proposals to amend the Act: ". . . so that where ILUAs involve particularly significant consequences for native title holders (such as the surrender of native title rights), then the minority viewpoint is given due consideration, perhaps through a higher threshold for decision-making".

The Committee also noted that the Bill contained proposed amendments to sections 251A and 251B of the Native Title Act 1993 (Cth), recommended by the Australian Law Reform Commission (ALRC) in 2015, dealing with matters outside the effects of the McGlade decision. The Committee considered that the Commonwealth should set out in the Explanatory Memorandum to the Bill ". . . why these are included as part of the bill and why they are required to be implemented urgently while other related amendments recommended by the ALRC are not". The Committee considered that without explanation the amendments referred to should be deferred until such time as a Bill dealing with all of the important recommendations of the 2015 ALRC report is able to be considered by the Parliament. This would then allow the McGlade amendments to be urgently addressed to give certainty to all parties to registered and proposed ILUAs, including traditional land owners, communities and other stakeholders.

The Committee formed the view that the inclusion of Item 11 (Validating applications for registration made on or before 2 February 2017) of the Bill has raised doubts "as to its impact on the Bill" and so the committee suggested that Item 11 be withdrawn from the Bill, and be considered in a later separate Bill.

The Committee noted the evidence indicating that further consideration of other legislative amendments was needed, and was of the view, this process should not delay amendments proposed by the Bill to provide certainty to stakeholders following the McGlade decision.

The Committee's Recommendations

The Committee made two recommendations as follows:

• Subject to paragraph 2.75, that proposed amendments to sections 251A and 251B of the Native Title Act 1993 (Cth) be removed from the current Bill and dealt with in any later Bill involving Government proposals arising from the ALRC report Connection to Country: Review of the Native Title Act 1993, and that Item 11 of the Bill be also removed for later consideration; and
• That the Senate pass the bill.

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Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 and explanatory materials as reported in the TimeBase LawOne Service.

Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 [Provisions] - Reference

Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 [Provisions] - Report