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Amendments to Native Title Act give industry stability

Recent amendments to both the Native Title Act 1993 (Cth) and the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act) are intended to better resolve Native Title claims and provide stability for industry.

The Native Title Legislation Amendment Act 2020 addresses the problems caused by the McGlade decision as they relate to ‘right to negotiate’ agreements or section 31 agreements.

 

Ramifications of the McGlade decision

In McGlade v Native Title Registrar [2017] FCAFC10, the Federal Court held that an Indigenous Land Use Agreement (ILUA) cannot be registered if a single member of the registered native title claim (RTNC) withholds their consent to execute it. This is true even if all persons who hold native title within the ILUA area authorise the agreement.

The decision meant that:

  • ILUAs which were registered without the signatures of all RNTC members no longer met the requirements for ILUAs as defined under the Act.
  • In some cases, the person who had not signed the ILUA was deceased.
  • ILUAs which were lodged for registration without the signatures of all RNTC members could no longer be registered.

This has meant significant uncertainty for industry.

An unregistered ILUA:

  • Does not bind the persons who hold or claim to hold native title
  • Does not limit any claim to compensation to that agreed in the ILUA, potentially opening the door for native title groups to bring a future claim.
  • Means that a company seeking mining and/or exploration rights may not be able to rely on the consent of the claim group to do any acts that affect native title rights (‘future acts’).

Industry stakeholders have been concerned that McGlade also affects section 31 agreements.

A section 31 agreement is an agreement concerning the grant of mining and/or exploration rights over land that may be subject to native title.

If McGlade applies, existing section 31 agreements that are missing signatures may not be valid. It also raises doubt on the ability of parties to negotiate in good faith if one of the registered native title claimants has died.

Limitations of the 2017 amendments

The Native Title Amendment (Indigenous Land Use Agreements) Act 2017 (Cth) went some way to fixing the problem. It:

  • Reversed the impact of McGlade by retrospectively validating registered ILUAs
  • Allowed for the registration of some pending ILUAs.
  • Allows the native title claim group to determine who must be a party to future ILUAs, either by nominating specific persons or by requiring a majority of applicants.

However, it did not address the impact of the McGlade decision on section 31 agreements.

Native Title Legislation Amendment Act 2020

The new legislation:

  • Validates the mining and exploration agreements that the 2017 amendments didn’t cover. This gives industry certainty around the validity of section 31 agreements so it can move forward.
  • Establishes a new public list of future section 31 agreements to support meaningful transparency.
  • Provides Native Title claimants with greater flexibility in claim management and improved dispute resolution by allowing native title claimant groups to establish their own internal processes for how their claim is managed.
  • Establishes improved pathways for dispute resolution once a determination of native title is made.

Under the amendments, mining and exploration companies can move ahead with greater certainty and develop stronger partnerships with native title claim groups.

 

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