The LCA said it is similar to the exposure draft of the Native Title Legislation Amendment Bill 2018 (the exposure draft), since it was developed following public consultations on the options paper and the exposure draft.

A major priority of the new bill is to set straight the uncertainty around the 2017 Federal Court McGlade decision, which cast doubt over a vast number of section 31 agreements.

The LCA said: “The McGlade amendments set up a default position mirroring proposed section 24CD(2A) in relation to the execution of Indigenous Land Use Agreements (ILUAs). The operation of the default position concerning ILUAs does not take into account that minority groups may hold rights and interests according to traditional law and customs which constrain the capacity of the majority to make decisions interfering with or affecting those rights of the minority.”

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Previously, the McGlade decision found that these agreements were only valid if signed by every single representative in a claimant group – not just a majority – even if every signature couldn’t be obtained due to a representative being deceased.

Accordingly, the LCA suggests that the McGlade amendments be revisited in light of the above concerns and an attempt made to develop a more refined mechanism. 

“In the alternative, recognising that the government is likely seeking to achieve consistency with the provisions relating to ILUAs, perhaps a respectful means of achieving the legislative end is to provide that the amendments proposed only operate on authorisation processes undertaken after the amendments,” said the LCA.

This also leads to the section 31 agreements that are negotiated between industry and claimant groups to enable land access to industry.

The Amendment Bill aims to establish a register for section 31 agreements, validate all agreements affected by the McGlade decision and ensure future negotiations can be carried out on behalf of a claimant group majority.

Section 31 agreements usually commence operative effect from the moment of execution. A failure to provide notice, therefore, has the effect of allowing illegal proponents to allow a majority to permit activities that affect native title according to the LCA.

“Moreover, it would enable the majority to disregard the views and therefore disenfranchise a minority traditional owner,” said the LCA.

“To the extent that future acts not uncommonly happen on the land of a smaller subgroup, such traditional owners would not even be provided the opportunity to be heard, removing their rights to self-determination and informed consent.”

The LCA recommended that the bill be amended to provide for the creation of a register of section 31 agreements and ancillary agreements, with suitable information restrictions to prevent access by persons other than the parties to the agreement and the members of the relevant native title claim group.

Another major proposal is to revisit the proposed section 47C regarding historical extinguishment. Currently the proposed section 47C leaves the rights of native title parties at the discretion and goodwill of the government of the day. The LCA supports in principle for the proposed section but noted some concerns regarding the detail of its operation especially in regard to the situation which is more complicated in NSW.

“The proposed section 47C has the potential to have a beneficial operation in the state because it would remove the ‘Swiss cheese’ recognition of native title that currently occurs by reason of the fact that, in NSW, park areas do not extinguish native title, being dedications rather than vestings, but, within these areas, there may be historical leases or other interests that do,” the Law Council said. 

The problem the LCA sees is the interaction of proposed section 47C with Aboriginal land claims made under the Aboriginal Land Rights Act 1983 (NSW) (the NSW Act). Under proposed subsection 47C(3), the meaning of “park area” is broad enough to pick up land beyond national parks or state forests, such as land reserved under legislation for purposes that ‘include preserving the natural environment’, which is land that might also be claimable under the NSW Act, which means that two legislative regimes in theory can overlap.

The explicit agreement requirement under proposed paragraph 47C(1)(b) also raises another area of tension with the land rights administration. The LCA notes that, under the NSW Act, the state has a duty to determine Aboriginal land claims. 

“Currently, over 30,000 such claims remain outstanding, some claims taking decades to be determined,” the LCA said. 

“This creates a problem for the state as to how it can consent to enter a written agreement with one party when it has incomplete duties to determine a claim lodged by another party.”

The LCA has recommended the development of a more refined mechanism, which would have regard to the complex interaction between native title rights and land rights and ensure that the two regimes operate in harmony to maximise outcomes for Aboriginal people.

Overall, the LCA has commented it is generally supportive of reform measures that are designed to promote certainty and efficiency in native title decision-making, but submitted that “reform measures must not undermine these core principles or the human rights engaged by native title considerations, including, but not limited to, the right to self-determination.”

The bill has been referred to the Senate legal and constitutional affairs legislation committee for report by 28 February 2020.

Lawyers Weekly will continue to monitor the progress of the bill and will provide a further update once the committee report is released in early 2020.