Native Title Amendment (Indigenous Land Use Agreements) Act 2017 (Cth)

The Native Title Amendment (Indigenous Land Use Agreements) Act 2017 (Cth) amended the Native Title Act 1993 (Cth) (the NTA) to counter the Full Federal Court's decision in McGlade v Native Title Register & Ors [2017] FCAFC 10 (McGlade).

Its primary objective, as outlined in the Explanatory Memorandum to the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017, was to:

• resolve the uncertain legal status of area Indigenous Land Use Agreements (area ILUAs) that had, on the previous authority of QGC Pty Ltd v Bygrave [2010] FCA 101 (Bygrave), been entered into the National Native Title Tribunal's Register of Indigenous Land Use Agreements without the signature of all members of a registered native title claimant group (RNTC);
• enable registration of area ILUAs which have been made but not yet registered; and
• ensure that in the future, area ILUAs can be registered without requiring every member of the RNTC to be a party.
  

Prior to Bygrave, and after McGlade, the position was that all members of an RNTC were required to sign an area ILUA.

The amendments allow a native title claim group to decide who from the RNTC will be a party to an area ILUA on their behalf. The group can nominate one or more of the RNTC members or otherwise decide that a simple majority of them need to sign.

Litigation Background

Prior to the Bygrave decision in 2010, the position was that all members of an RNTC were required to sign an area ILUA before it could be entered into the National Native Title Tribunal's Register of Indigenous Land Use Agreements.

The position adopted in Bygrave was that an area ILUA signed by at least one member of the RNTC, as representative of the native title claim group, was registrable. This was decided on the basis that the NTA defines an RNTC as a singular entity.

The McGlade decision, handed down on 2 February 2017, overturned Bygrave. The Full Court in McGlade agreed that an RNTC was defined as a singular entity. However, the Court found that, under s 24CD (Parties to area agreements), the reference to 'all persons in the native title group' in s 24CD(1) and the reference to 'registered native title claimants' (plural) in s 24CD(2)(a) indicated that the intention of the NTA was that every individual member of the RNTC was required to be a party to an area ILUA.

Legislative Process

The Native Title Amendment (Indigenous Land Use Agreements) Act 2017 (Cth) addressed the uncertain status of more than one hundred area ILUAs made between the Bygrave and McGlade decisions. However, its passage into law was marked by controversy and unusually rushed.

The Statement of Compatibility with Human Rights, included in the Explanatory Memorandum, concluded that the Bill was compatible with human rights because it promotes "the right to enjoy and benefit from culture and the right to self-determination". More specifically, at [14] - [15], that the amendments will "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... native title groups [will have] 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."

House of Representatives

The Bill was introduced into the House of Representatives on 15 February 2017. The next day, it was read for a second time, debated, and passed by that chamber. Linda Burney MP, and other members of the Opposition and the Australian Greens argued that the timing for the debate of the Bill in the House did not allow for appropriate scrutiny or for stakeholder consultation. Adam Bandt, member for the Australian Greens, argued that the reason for the rush was the Government's push to build the Adani coal mine and its willingness to "ride roughshod over Aboriginal and Torres Strait Islanders" (House of Representatives Hansard).

Senate

The following Senate Inquiry process allowed only two weeks to respond to the issues. The Report of the Senate Legal and Constitutional Affairs Committee recommended that the Senate pass the Bill (with minor amendments) and noted that key concerns raised were: lack of consultation; potential deficiencies in the reliance on majority decision making; possible increased complexity of the processes to remove certain applicants from an RNTC; retrospective application of the Bill; and possible unintended consequences (Report).

The Australian Greens' dissenting report noted the lack of support for the amendments from among various submissions to the Senate Inquiry (see Report), including:

• the National Congress of Australia's First People (the Congress) said, "[w]e strongly oppose both nominating representatives, as well as the simple majority requirement in the proposed amendment to s 24CD(2)(a). No Aboriginal or Torres Strait Islander person should have their native title rights violated by an ILUA they do not agree to. Allowing in ILUAs where a potentially large proportion of the native title claim group disagrees is unjust and compromises our native title rights". The Congress recommended mediation as an alternative dispute resolution process where the native title claim group is unable to choose who should make up the RNTC or where not all members of an RNTC agree to sign an area ILUA, This, the Congress said, "respects our rights to self-determination while also accounting for the complexity of native title rights and the importance of our connection to the land";
• leading native title lawyer, Greg McIntyre SC, argued that some decisions, such as the surrender of native title, are so significant that they should require the unanimous support of those affected;
  
• the Law Council of Australia said that given the legally binding effects of registration and the non-trivial matters which may be the subject of an ILUA, the amendments make it possible for people who are members of the native title claim group to be bound by an agreement that they have not had actual notice of or are a party to. The requirement that all the people who comprise the RNTC be a party to an ILUA is a safeguard that should be carefully considered before removing. The provision to remove a person from the RNTC under s 66B of the NTA is a costly exercise but the advantage of the s 66B process is that the person is made accountable to the community for their refusal to sign an ILUA and if they are genuinely acting outside their mandate they would be removed;
• the Northern Land Council said that it had always viewed Bygrave as bad law which should not be applied. And further, that "the effect of the proposed change is to dilute the primacy of traditional decision making and make it optional. This may lead to undue pressure being placed on elders and senior people within a native title claim group to forgo their intramural rights to ensure the primacy of the maintenance of traditional law and custom especially in relation to the protection of cultural matters";
• the Cape York land Council, the Balkanu Cape York Development Corporation, and the Cape York Institute for Policy and Leadership jointly said, " [t]he fact that these current ILUAS that are implicated in the wake of the McGlade decision concern the interests of governments and industry, explains the alacrity with which law reform is sought... the interests of native title holders under ILUAS are also implicated, but this should not mean that we blindly rush into supporting blanket validation and not seeking a fair balance from law reform"; and
  
• the Law Council, also on the matter of retrospectively validating ILUAs affected by McGlade, said that if a person had not agreed to sign an ILUA for reasons which legitimately addressed the native title rights and interests of the native title claim group, then it should not be assumed, without investigation, that the majority decision of the RNTC was correct.
  

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