31 October, 2012

 

Legal News & Analysis – Asia Pacific – Australia – Native Title

  

Native Title Act reform

 
On 20 September 2012, the Commonwealth Government released, for comment, the exposure draft of the Native Title Amendment Bill 2012 (Bill). The Bill proposes substantive amendments to the Native Title Act 1993 (Cth) (NTA) and, if passed, may have a direct impact on proponents establishing or operating mining, energy and infrastructure projects in Australia.
 
The key amendments relate to:
 
  • Right to Negotiate: the amendments codify what constitutes ‘good faith’ negotiations and extend the minimum negotiation period from 6 to 8 months; 
  • Historical Extinguishment: the amendments include provisions to enable the historical extinguishment of native title in national parks and nature reserves to be disregarded in certain circumstances; and
  • ILUAs: clarifying and changing some aspects of the processes for the authorisation, registration and amendment of indigenous land use agreements (ILUAs).
 
A summary of these proposed reforms and implications are set out below.
 
Please contact our experts to further discuss the impact of the proposed changes.
 
Right to negotiate
 
What are the changes?
 
Until now, what constitutes ‘good faith’ in the context of the NTA has been defined by reference to case law. The proposed amendments replace the obligation to negotiate in ‘good faith’ with an obligation on all parties to use all ‘reasonable efforts’ to:
 
  • reach agreement; and
  • establish productive, responsive and communicative relationships between the negotiation parties (collectively referred to as the ‘good faith negotiation requirements’).
 
In deciding whether a party has negotiated in accordance with the good faith requirements, regard is to be had to a list of matters, including whether a party has:
 
  • attended and participated in meetings at reasonable times, made reasonable offers and counter-offers; and
  • refrained from capricious or unfair conduct and undermined negotiation.
 
Importantly, the amendments clarify that a negotiation party is not required to:
 
  • make concessions during negotiations; or
  • reach agreement on terms that are to be included in an agreement.
 
Whilst parties’ experiences of the right to negotiate will vary, there is a significant body of law and consequently practice that has been developed around how a party meets their ‘good faith’ obligations. This practice varies between proponents and native title parties and is largely relationship driven. We expect that as a result of the proposed amendments:
 
  • there will be a heightened level of rigour around how parties now approach negotiations in the context of the right to negotiate. This will likely manifest itself in the form of more structured processes, such as the widespread use of negotiation protocols; and
  • parties will take a more holistic approach to negotiations to ensure that engagement between the parties on matters outside of the negotiations are not (for example) construed as undermining a right to negotiate process.
 
In relation to the extension of the negotiation period, whilst not all negotiations are referred to the arbitral body after 6 months, it will be necessary for all proponents to factor into their project timelines an additional 2 months for managing the right to negotiate.
 
Disregarding extinguishment in parks and reserves
 
The Bill allows for the extinguishment of native title to be disregarded in relation to certain national parks and nature reserves and public works within them by introducing a new section 47C that applies in the context of a native title claim or a revised native title determination application.
 
The new section 47C applies only where the relevant State government and native title claimants agree that prior extinguishment is to be disregarded. Importantly, other respondent parties to a claim are not required to be a party to such an agreement. Third party interests are canvassed only as part of a public notification and opportunity to comment process.
 
The immediate and practical implications will likely be:
 
  • where a proponent is deciding whether or not to join as a party to a native title claim, the assessment will need to include parks and reserves within the claim area where a proponent has interests (but where native title has been extinguished); and
  • where project proponents require the use of land that is presently a park or reserve and where native title has been assessed as being extinguished, it is advisable to maintain a watching brief in relation to whether or not extinguishment of native title will ultimately be disregarded and whether it will have any impact on project timing.
 
ILUA reform
 
The proposed amendments to the ILUA provisions of the NTA operate to:
 
  • clarify the land that may be covered by a ‘body corporate’ ILUA; 
  • make changes to the objection processes for ‘area agreements’; 
  • provide a process whereby certain amendments to ILUAs do not require the ILUA to be re-tested for registration; and
  • clarify who needs to authorise an ‘area agreement’.
 
Body corporate ILUAs
 
The amendments clarify that a body corporate ILUA (one entered into where native title has been determined to exist) can also cover land where native title has been extinguished. This will remove the need for ‘Swiss-cheese’ style body corporate ILUAs.
 
Objections to registration
 
The amendments:
 
  • reduce the notice period for objections from 3 months to 1 month;
  • permit the lodgement of objections against the registration of un-certified ILUAs; and
  • allow the Tribunal to provide documents to objectors in some circumstances. Proponents should take this into account when considering what information to include the agreements and other materials submitted with an ILUA registration application.
 
Amendments to ILUAs
 
There has to date been a level of uncertainty in relation to the extent to which an ILUA can be amended before it is required to be re-tested for registration. The proposed amendments provide for the Registrar to be notified of amendments and permit the Registrar to decide whether or not the proposed amendments require re-testing for registration.
 
Authorisation
 
The definition of ‘authorising the making of indigenous land use agreements’ in section 251A is proposed to be amended to clarify that persons who ‘may hold native title’ is a reference to persons who can establish ‘a prima facie case’ that they may hold native title. For unclaimed areas covered by ILUAs this may raise a number of practical implications as to how persons can demonstrate a ‘prima facie case’.

 

 

For further information, please contact:

 

William Oxby, Partner, Ashurst

[email protected]

 

 

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