NATIVE TITLE AMENDMENT BILL 2012

i Native Title Amendment Bill 2012 No. , 2012

Contents

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

3 Schedule(s)

........................................................................................

Schedule 1--Historical extinguishment

Native Title Act 1993

Schedule 2--Negotiations

Native Title Act 1993

Schedule 3--Indigenous land use agreements

Native Title Act 1993

Schedule 4--Minor technical amendments

Native Title Act 1993

Native Title Amendment Bill 2012 No. , 2012 1

A Bill for an Act to amend the Native Title Act 1993,

and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Native Title Amendment Act 2012.

2 Commencement

This Act commences on the day this Act receives the Royal

Assent.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

Historical extinguishment Schedule 1

Native Title Amendment Bill 2012 No. , 2012 3

Schedule 1--Historical extinguishment

Native Title Act 1993

1 At the end of subsection 13(5)

Add:

; or (c) that the determination relates to an area in relation to which

the agreement required by paragraph 47C(1)(c) has been

given.

Note:

Section 47C provides for extinguishment of native title rights and

interests in relation to certain areas such as national parks etc. to be

disregarded.

2 At the end of Division 4 of Part 2

Add:

47C National parks etc. covered by native title applications

When section applies

(1) This section applies if:

(a) a claimant application or a revised native title determination

application is made in relation to an area that is, or is part of,

a park area (see subsection (2)); and

(b) none of sections 47, 47A and 47B applies to the application;

and

agreement area) that is in an onshore place, and comprises

the whole or a part of the park area, is agreed to in writing

by:

(i) any registered native title body corporate concerned or

the applicant for any native title claim group concerned,

or, if there is no such body corporate or claim group, all

the representative Aboriginal/Torres Strait Islander

bodies for the agreement area; and

(ii) whichever of the Commonwealth, the State or the

Territory by or under whose law the park area was set

aside, or the interest over the relevant area was granted

or vested, as mentioned in subsection (2).

Schedule 1 Historical extinguishment

4 Native Title Amendment Bill 2012 No. , 2012

Meaning of park area

(2)

park area means an area (such as a national, State or Territory

park):

(a) that is set aside; or

(b) over which an interest is granted or vested;

by or under a law of the Commonwealth, a State or a Territory for

the purpose of, or purposes that include, preserving the natural

environment of the area, whether that setting aside, granting or

vesting resulted from a dedication, reservation, proclamation,

condition, declaration, vesting in trustees or otherwise.

Public works

(3) An agreement referred to in paragraph (1)(c) may include a

statement by the Commonwealth, or the State or Territory

concerned, that it agrees that the extinguishing effect of any of its

relevant public works (see subsection (10)) in the agreement area is

to be disregarded.

(4) If the agreement area contains one or more relevant public works,

the application may also be the subject of an agreement in writing

between:

(a) any registered native title body corporate concerned or the

applicant for any native title claim group concerned, or if

there is no such body corporate or claim group, all the

representative Aboriginal/Torres Strait Islander bodies for the

agreement area; and

(b) the Commonwealth, the State or the Territory to which the

relevant public work relates (see subsection (10));

that any extinguishment of native title by the construction or

establishment of the relevant public work is to be disregarded.

Notice and time for comment

(5) Before making an agreement for the purposes of paragraph (1)(c)

or subsection (4), the Commonwealth, or the State or Territory

concerned, must:

(a) arrange for reasonable notification of the proposed agreement

in the State or Territory in which the agreement area is

located, whether on the internet, in a newspaper circulating

Historical extinguishment Schedule 1

Native Title Amendment Bill 2012 No. , 2012 5

generally in the State or Territory, on the radio or otherwise;

and

(b) give interested persons an opportunity to comment on the

proposed agreement.

The period for comment must be at least 2 months.

(6) An agreement for the purposes of paragraph (1)(c) or

subsection (4) must not be made before the end of the period for

comment.

Prior extinguishment to be disregarded

(7) For all purposes under this Act in relation to the application, any

extinguishment of the native title rights and interests in relation to

the agreement area by any of the following acts must be

disregarded:

(a) the setting aside, granting or vesting mentioned in

subsection (2);

(b) the creation of any other prior interest in relation to the

agreement area;

(c)

if:

(i) the agreement under paragraph (1)(c) includes a

statement of a kind mentioned in subsection (3); or

(ii) there is an agreement under subsection (4);

the construction or establishment of any relevant public

works that are the subject of the agreement concerned.

Note:

The applicant will still need to show the existence of any connection

with the land or waters concerned that may be required by the

common law concept of native title.

Effect of determination

(8) If the determination on the application is that native title rights and

interests exist in the agreement area:

(a) the determination does not affect:

(i) the validity of the setting aside, granting or vesting; or

(ii) the validity of the creation of any other prior interest in

relation to the agreement area; or

(iii) any interest of the Crown in any capacity, or of any

statutory authority, or any other person, in any public

Schedule 1 Historical extinguishment

6 Native Title Amendment Bill 2012 No. , 2012

works on the land or waters concerned, or access to

such public works; or

(iv) any existing public access to the agreement area; and

(b) the non-extinguishment principle applies to the setting aside,

granting or vesting or the creation of any other prior interest

in relation to the agreement area.

Exclusion of Crown ownership of natural resources

(9) For the purposes of this section, a reference to the creation of an

interest in relation to an area does not include a reference to the

creation of an interest that confirms ownership of natural resources

by, or confers ownership of natural resources on, the Crown in any

capacity.

Meaning of relevant public work

(10) In this section:

relevant public work, in relation to the Commonwealth, a State or

a Territory, means a public work:

(a) constructed or established directly by the Commonwealth,

the State or the Territory; or

(b) constructed or established by another person on behalf of the

Commonwealth, the State or the Territory.

3 Subsection 61A(4) (heading)

Omit "or 47B", substitute ", 47B or 47C".

4 Paragraphs 61A(4)(a) and (b)

Omit "or 47B", substitute ", 47B or 47C".

5 At the end of subsection 62(1) (before the note)

Add:

; and (d) if the operation of section 47C has been agreed to in writing

as mentioned in paragraph 47C(1)(c) in relation to the

application--must be accompanied by a copy of the

agreement, and if there is an agreement under subsection

47C(4), that agreement.

6 At the end of section 62

Historical extinguishment Schedule 1

Native Title Amendment Bill 2012 No. , 2012 7

Add:

Revised native title determination applications

(4) A revised native title determination application in relation to which

the operation of section 47C has been agreed to in writing as

mentioned in paragraph 47C(1)(c) must be accompanied by a copy

of the agreement and, if there is an agreement under subsection

47C(4), that agreement.

7 After paragraph 63(b)

Insert:

(ba) any copy of an agreement that accompanies the application

under paragraph 62(1)(d) or subsection 62(4); and

8 Subsection 64(2) (heading)

Repeal the heading, substitute:

Exceptions to subsection (1)

9 After subsection 64(2)

Insert:

(2A) In addition, subsection (1) does not prevent an amendment that

results in the inclusion of any area of land or waters that was not

covered by the original application, if the operation of section 47C

has been agreed to in writing as mentioned in paragraph 47C(1)(c)

in relation to the area after the making of the original application.

10 At the end of subsection 66A(1)

Add:

; and (f) if the inclusion of any area of land or waters that was not

covered by the original application occurs as mentioned in

subsection 64(2A)--give notice to each other person to

whom the Registrar would be obliged to give notice under

subsections 66(3) and (5) if the application as amended were

a new application, but to whom notice is not already required

to be given under paragraph (d) or (e).

11 Subsection 66A(1B)

After "paragraph", insert "(1)(f) or".

Schedule 1 Historical extinguishment

8 Native Title Amendment Bill 2012 No. , 2012

12 At the end of paragraph 190A(6A)(d)

Add:

; (vi) give effect to the operation of section 47C in relation to

the application as mentioned in subsection 64(2A).

13 Paragraph 190B(9)(c)

Omit "or 47B(2)", substitute ", 47B(2) or 47C(7)".

14 Application

(1)

The amendments made by this Schedule apply to a claimant application

or a revised native title determination application:

(a) that is made on or after the commencement of item 2; or

(b) that was made before the commencement of item 2, but has

not been determined as at that commencement.

(2)

To avoid doubt, the application may be amended to state that

section 47C applies to the whole or any part of the area covered by the

application.

15 Entitlement to "just terms" compensation

(1)

If, apart from this item, the application of any of the provisions of this

Act in any particular case would result in a paragraph 51(xxxi)

acquisition of property of a person other than on paragraph 51(xxxi) just

terms, the person is entitled to such compensation, or compensation in

addition to any otherwise provided by the Native Title Act 1993, from:

(a) if the compensation is in respect of a future act attributable to

a State or a Territory--the State or Territory; or

(b) in any other case--the Commonwealth;

as is necessary to ensure that the acquisition is made on paragraph

51(xxxi) just terms.

(2)

The Federal Court has jurisdiction with respect to matters arising under

subitem (1) and that jurisdiction is exclusive of the jurisdiction of all

other courts except the High Court.

Negotiations Schedule 2

Native Title Amendment Bill 2012 No. , 2012 9

Schedule 2--Negotiations

Native Title Act 1993

1 Subsection 24MD(2) (Note 1)

After "acquisitions", insert ", and if that Subdivision applies,

negotiation parties are required to act in accordance with the good faith

negotiation requirements (see section 31A)".

2 Paragraph 31(1)(b)

Omit "good faith", substitute "accordance with the good faith

negotiation requirements (see section 31A)".

3 At the end of subsection 31(1) (before the note)

Add:

; and (c) the negotiations must include consideration of the effect of

the doing of the act on the registered native title rights and

interests of the native title parties.

4 Subsection 31(2)

Omit "parties, this does not mean that the negotiation party has not

negotiated in good faith", substitute "parties in circumstances when it is

reasonable to do so, this does not mean that the negotiation party has

not negotiated in accordance with the good faith negotiation

requirements".

5 Paragraph 31(4)(b)

Omit "good faith", substitute "accordance with the good faith

negotiation requirements".

6 After section 31

Insert:

31A The good faith negotiation requirements

(1)

The

good faith negotiation requirements in relation to a proposed

agreement of a kind mentioned in paragraph 31(1)(b) in respect of

an act are that negotiation parties use all reasonable efforts to reach

agreement about the doing of the act.

Schedule 2 Negotiations

10 Native Title Amendment Bill 2012 No. , 2012

(2) Without limiting subsection (1), in deciding whether or not a

negotiation party has negotiated in accordance with the good faith

negotiation requirements, regard is to be had, where relevant, to:

(a) whether the negotiation party has done the following:

(i) attended, and participated in, meetings at reasonable

times;

(ii) disclosed relevant information (other than confidential

or commercially sensitive information) in a timely

manner;

(iii) made reasonable proposals and counter proposals;

(iv) responded to proposals made by other negotiation

parties for the agreement in a timely manner;

(v) given genuine consideration to the proposals of other

negotiation parties;

(vi) refrained from capricious or unfair conduct that

undermined negotiation;

(vii) recognised and negotiated with the other negotiation

parties or their representatives;

(viii) refrained from acting for an improper purpose in

relation to the negotiations; and

(b) any other matter the arbitral body considers relevant.

(3) The good faith negotiation requirements do not require a

negotiation party to reach agreement on the terms that are to be

included in an agreement.

7 Paragraph 35(1)(a)

Omit "6", substitute "8".

8 Subsection 36(2)

Repeal the subsection, substitute:

Arbitral body not satisfied that negotiation not in accordance with

good faith negotiation requirements

(2) If a negotiation party asserts that another negotiation party (the

second negotiation party) did not negotiate in accordance with the

good faith negotiation requirements, the arbitral body must not

make the determination unless the second negotiation party

satisfies the arbitral body that the second negotiation party

Negotiations Schedule 2

Native Title Amendment Bill 2012 No. , 2012 11

negotiated in accordance with the good faith negotiation

requirements (see section 31A).

(2A) If the second negotiation party does not satisfy the arbitral body as

mentioned in subsection (2), the arbitral body may make an order

providing that the second negotiation party is not, despite any

provision of this Act, entitled to apply for a determination under

section 35 in relation to the act for the period specified in the order.

9 Subsection 190B(6) (note)

Omit "good faith", substitute "accordance with the good faith

negotiation requirements".

10 Paragraph 213A(3)(a)

Omit "good faith", substitute "accordance with the good faith

negotiation requirements".

11 Application

The amendments made by this Schedule apply to negotiations that

commence on or after 1 January 2013 and are still on foot on the day

this Act receives the Royal Assent.

Schedule 3 Indigenous land use agreements

12 Native Title Amendment Bill 2012 No. , 2012

Schedule 3--Indigenous land use agreements

Native Title Act 1993

1 Section 24BC

Before "The", insert "(1)".

2 At the end of section 24BC

Add:

(2)

If:

(a) an approved determination of native title has been made in

relation to the area; and

(b) the determination states that native title has been

extinguished in relation to the area, or part of the area, (the

extinguished area);

it is not necessary for there to be a registered native title body

corporate for the extinguished area in order to satisfy

subsection (1).

(3)

If:

(a) an approved determination of native title has not been made

in relation to the area; and

(b) if such a determination had been made, the determination

would have stated that native title had been extinguished in

relation to the area (the extinguished area);

it is not necessary for there to be a registered native title body

corporate for the extinguished area in order to satisfy

subsection (1).

3 After subsection 24CD(4)

Insert:

When a representative Aboriginal/Torres Strait Islander body is a

party

(4A) For the purposes of this section, a representative Aboriginal/Torres

Strait Islander body is a party to the agreement only if it enters into

the agreement.

Indigenous land use agreements Schedule 3

Native Title Amendment Bill 2012 No. , 2012 13

Note:

The agreement-making function of a representative body is set out in

section 203BH.

4 Subsection 24CH(1)

Omit "The", substitute "If the Registrar is satisfied that an indigenous

land use agreement that meets the requirements of sections 24CB to

24CE is in existence, the".

5 Paragraph 24CH(2)(d)

Repeal the paragraph, substitute:

(d) include a statement of a kind mentioned in subsection (5).

6 At the end of section 24CH

Add:

Statement

(5) If the application contained a statement as mentioned in paragraph

24CG(3)(b) (in summary, relating to identifying native title holders

and ensuring that they have authorised the making of the

agreement), and was not certified by representative

Aboriginal/Torres Strait Islander bodies for the area (see paragraph

24CG(3)(a)), the notice must include a statement that:

(a) any person claiming to hold native title in relation to any of

the land or waters in the area covered by the agreement may

wish to object against registration of the agreement on the

ground that the requirements of subparagraphs 24CG(3)(b)(i)

and (ii) were not met in relation to the agreement; and

(b) any such objection must be made in writing to the Registrar

within the period (the notice period) of one month beginning

on the notification day and must be in accordance with any

requirements determined as mentioned in subsection

24CI(1A).

7 Subsection 24CI(1)

Repeal the subsection, substitute:

Making objections

(1)

the

application:

Schedule 3 Indigenous land use agreements

14 Native Title Amendment Bill 2012 No. , 2012

(a) contained a statement that the requirements of subparagraphs

24CG(3)(b)(i) and (ii) have been met; and

(b) was not certified by representative Aboriginal/Torres Strait

Islander bodies for the area (see paragraph 24CG(3)(a));

any person claiming to hold native title in relation to any of the

land or waters in the area covered by the agreement may, in writing

to the Registrar given within the notice period, object against

registration of the agreement on the ground that the requirements

of those subparagraphs were not met in relation to the agreement.

(1A) An objection must be in accordance with the requirements (if any)

determined by the Commonwealth Minister by legislative

instrument.

8 Section 24CJ

Omit all the words from and including "However, " to and including

"known".

9 Section 24CK

Repeal the section, substitute:

24CK Registration of area agreements certified by representative

bodies

(1) If the application for registration of the agreement was certified by

representative Aboriginal/Torres Strait Islander bodies for the area

(see paragraph 24CG(3)(a)), the Registrar must, subject to

subsection (2), register the agreement.

(2) If there is a registered native title body corporate in relation to any

land or waters in the area covered by the agreement, the Registrar

must not register the agreement unless that body corporate is a

party to the agreement.

10 Subsection 24CL(2)

Repeal the subsection, substitute:

First condition

(2) The first condition is that any person who, at the end of the notice

period, is a registered native title claimant or a registered native

title body corporate in relation to any of the land or waters in the

Indigenous land use agreements Schedule 3

Native Title Amendment Bill 2012 No. , 2012 15

area covered by the agreement, is a party to the agreement.

11 After paragraph 24CL(4)(b)

Insert:

and (c) any objections made in relation to the application under

section 24CI;

12 At the end of Subdivision E of Division 3 of Part 2

Add:

24ED Amended agreements

(1) If the details of an agreement are entered on the Register of

Indigenous Land Use Agreements, the agreement has effect, for the

purposes of this Act, as if the details included any amendments of

the agreement that:

(a) have been agreed to by the parties to the agreement; and

(b) have been notified to the Registrar in writing by the parties;

but only so far as the amendments:

inclusion of any area of land or waters not previously

covered by the agreement; or

(d) update a description identifying a party to the agreement,

including where a party has assigned or otherwise transferred

rights and liabilities under the agreement; or

(e) update administrative processes relating to the agreement; or

(f) do a thing specified by the Minister by legislative instrument

for the purposes of this paragraph.

(2) If the details of an agreement are entered on the Register of

Indigenous Land Use Agreements, the agreement has effect, for the

purposes of this Act, as if it did not include any amendments other

than those that have effect because of subsection (1).

Note:

An application for registration of such an agreement as amended could

be made under Subdivision B, C or D.

13 Section 251A

Before "For", insert "(1)".

Schedule 3 Indigenous land use agreements

16 Native Title Amendment Bill 2012 No. , 2012

14 Section 251A

Before "native title" (first occurring), insert "or who may hold".

15 Paragraphs 251A(a) and (b)

Omit "the common or group rights comprising".

16 At the end of section 251A

Add:

(2) In this section, a reference to persons who may hold native title is a

reference to persons who can establish a prima facie case that they

may hold native title.

(3) If an area covered by an indigenous land use agreement includes an

area (the designated area) for which there is neither a registered

native title body corporate nor a registered native title claimant,

this section requires the persons who hold or may hold the

common or group rights comprising the native title in the

designated area to authorise the making of the agreement, so far as

it affects the designated area, in accordance with paragraph (a) or

(b).

17 Application

(1)

The amendment made by item 12 of this Schedule applies to an

agreement if details of the agreement are on the Register of Indigenous

Land Use Agreements on or after the day this Act receives the Royal

Assent.

(2)

The amendments made by items 13 to 16 of this Schedule apply to the

authorisation of agreements on or after the day this Act receives the

Royal Assent.

(3)

The amendments made by the remaining items of this Schedule apply to

an agreement in respect of which an application for registration is made

on or after the day this Act receives the Royal Assent.

Commonwealth of Australia Bills

NATIVE TITLE AMENDMENT BILL 2012