Key changes in the Native Title Act

Key points

• The Native Title Legislation Amendment Act 2021 (the Amendment Act) amended the Native Title Act 1993 (Cth) (Native Title Act) and the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act).
• The Amendment Act introduced measures to improve and strengthen the operation of the native title system including measures addressing native title claims resolution, agreement-making, Indigenous decision-making and dispute resolution processes.
• Particular changes made by the Amendment Act included: 
  • changes to how native title applicants can act and make decisions, and their relationship to the broader native title claim group
  • allowing historical extinguishment of native title in areas of national and state parks to be disregarded where the relevant parties agree
  • improving the accountability, transparency and governance of Registered Native Title Bodies Corporate (RNTBCs), with a particular focus on membership and improved dispute resolution pathways.
• The Amendment Act also confirmed the validity of section 31 agreements following the decision in McGlade v Native Title Registrar & Ors [2017] FCAFC 10 (McGlade).
• This information should be read together with the fact sheet, Information for PBCs on changes to native title laws and obligations, available on the National Indigenous Australians Agency’s website.

Overview

It has been more than 30 years since the High Court of Australia's historic decision in Mabo v Queensland (No 2) [1992] HCA 23 which, together with the Native Title Act, established Australia’s framework for native title. The system has matured over this time, with a significant number of native title claims now determined and native title agreements made.

The Amendment Act sought to strengthen the native title system by implementing a range of improvements to ensure the ongoing effectiveness of native title claims resolution and agreement making, and the sustainable management of native title land. In particular, the Amendment Act amended the Native Title Act and the CATSI Act to:

• give greater flexibility to native title claim groups to set their internal processes
• streamline and improve native title claims resolution and agreement-making
• allow historical extinguishment over areas of national and state parks to be disregarded where the parties agree
• increase the transparency and accountability of RNTBCs
• create new pathways to address native title-related disputes arising following a native title determination.

The Amendment Act also validated ‘section 31 agreements' which may have been affected by the decision in McGlade v Native Title Registrar & Ors [2017] FCAFC 10 (McGlade).

Outline of the Amendment Act

Role of the applicant (see Schedule 1 of the Amendment Act)

The applicant is the person or group of people authorised by a native title claim group to handle a native title claim on their behalf. The applicant can also have a role in representing the native title claim group in making agreements around areas where native title has been claimed.

The Amendment Act amended the Native Title Act to provide greater flexibility to claim groups around developing their own internal decision-making structures. The changes also sought to ensure the applicant is accountable to the broader claim group. To achieve this, the Amendment Act amended the Native Title Act to:

• allow the applicant to act by majority and make this the default position (the claim group can displace this default position by imposing alternative conditions on the applicant)
• allow the claim group to impose conditions on the authority of the applicant, and to require those conditions to be recorded on the Register of Native Title Claims (for example, a condition to require the applicant to get approval from the claim group before agreeing to a consent determination or discontinuing a claim)
• clarify the duties of the applicant to the claim group
• simplify the process for a claim group to replace individual members of the applicant in circumstances where a member either passes away, or is no longer able to perform their duties, including through pre agreed succession planning arrangements.

Indigenous Land Use Agreements (see Schedule 2 of the Amendment Act)

The Native Title Act sets out processes for native title groups to negotiate agreements with other parties in relation to the use of land and waters. A key agreement-making mechanism under the Native Title Act is an agreement known as an Indigenous Land Use Agreement (ILUA). ILUAs can allow for ‘future acts', such as mining or grazing, to be done on land or waters in exchange for compensation to native title groups.

In relation to ILUAs, the Amendment Act amended the Native Title Act to:

• allow ‘body corporate' ILUAs to cover specific areas where native title has been extinguished but where native title has otherwise generally been determined to exist
• allow minor amendments to be made to an ILUA without requiring a new registration process
• clarify that the removal of an ILUA from the Register of ILUAs does not affect the validity of acts agreed to have been done under that ILUA.

Disregarding historical extinguishment in areas of national, state or territory parks (see Schedule 3 of the Amendment Act)

In some circumstances, the Native Title Act allows the historical extinguishment of native title to be disregarded so that native title can be recognised. The Amendment Act extended the areas in which historical extinguishment can be disregarded to include areas of national, state or territory parks where there is agreement with the relevant government party. This is a significant measure that will expand the areas where native title can be recognised.

Allowing an RNTBC to bring a compensation application (see Schedule 4 of the Amendment Act)

The Amendment Act amended the Native Title Act to allow an RNTBC (the corporation established by native title holders following a determination of native title) to bring a compensation application over areas where native title has been extinguished within the boundary of their determination area. For further information about these changes, please refer to the factsheet, Information for PBCs on changes to native title laws and obligations, available on the National Indigenous Australians Agency’s website.

Other technical amendments (see Schedules 5 and 6 of the Amendment Act)

The Amendment Act made a number of technical amendments. These amendments included clarifying the role of the Commonwealth minister as intervener in native title proceedings, and the procedural requirements for the Federal Court to make determinations with the consent of the parties (Schedule 5).

The Amendment Act also clarified the role of the government party in the negotiation of section 31 agreements, and the objections procedures under the future acts regime (Schedule 6). The changes also required the Native Title Registrar to create and maintain a public record of section 31 agreements (Schedule 6).

National Native Title Tribunal (see Schedule 7 of the Amendment Act)

The Amendment Act amended the Native Title Act to allow the National Native Title Tribunal to provide assistance to RNTBCs and other native title holders, if requested. This change aims to support the early resolution and management of disputes which may arise after a native title determination.

Registered Native Title Bodies Corporate (see Schedule 8 of the Amendment Act)

The effective management of native title rights and interests relies on the sustainable operation of RNTBCs. The Amendment Act amended the CATSI Act to improve the accountability, transparency and governance of RNTBCs, with a particular focus on membership and improved dispute resolution pathways. For further information about these changes to the CATSI Act, please refer to the factsheet, Information for PBCs on changes to native title laws and obligations, available on the National Indigenous Australians Agency’s website.

Validation of ‘Section 31 Agreements' (see Schedule 9 of the Amendment Act)

‘Section 31 agreements' are a particular kind of native title agreement which can relate to the grant of mining and exploration tenements over land which may be subject to native title. The Amendment Act confirmed the validity of section 31 agreements potentially affected by the implications of the McGlade Federal Court decision. The changes in the Amendment Act validated section 31 agreements that were entered into prior to 17 February 2021, if at least one member of each relevant native title party was a party to the agreement.