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Commonwealth Attorney-General Phillip Ruddock
7 September 2005
With the Commonwealth gaining a one-seat majority in the Senate, the upper house of the national Parliament, at the 2004 election, speculation built through 2005 over possible changes to the Native Title Act 1993 (Cth). The legislation has not been substantially amended since the controversial ‘Ten Point Plan’ amendments of 1998, which were found to be racially discriminatory by the UN’s CERD Committee. A statement about land tenure from the government-appointed National Indigenous Council on 16 June 2005 fuelled a public debate, already underway, over the relationship between communal title to land, Indigenous economic development and inadequate housing in remote communities. The Federal Council of the Liberal Party passed a motion on 26 June urging a return to those parts of the Government’s Ten Point Plan ‘to reinstate all proposals either excluded during negotiations with Senator Harradine or defeated on the floor of the Senate’.
By September 2005, when the federal Attorney-General Philip Ruddock announced that changes would be made to the native title regime on a broad range of fronts, considerable apprehension had developed amongst Indigenous land organisations about the government’s plans.
The announcement, on 7 September 2005, indicated that there would be six elements to the Government’s package. They are outlined in the Government’s document entitled ‘Practical Reforms to Deliver Better Outcomes in Native Title’:
In seeking to improve all key elements of the system, the Government recognises that arrangements for Government assistance to native title claimants (through NTRBs and other service providers) will need to be reviewed.
The proposed reforms will provide new tools for the Government to use to improve the performance of NTRBs. Such a review will take into account the effect of any changes on the other elements of the native title system, and will involve further consultation with key stakeholders.
An announcement about NTRB reform will be made by Senator Vanstone later this year.
A wide range of non-claimant parties (eg pastoralists, miners, local government and industry peak bodies) participate extensively in native title claims. However, given that the fundamentals of native title are settled, it is not necessary for non-claimant parties to litigate all stages of a legal matter where the law is not in dispute or their interests are already protected under the Native Title Act.
The Government will consider how the guidelines for Australian Government funding to respondents in native title claims can be focussed more strongly on agreement-making over litigation.
As with the other elements, any reforms to the existing arrangements for assistance to respondents will be directed towards securing improved performance from all elements of the system, and promoting agreement-making wherever possible.
As part of this process, there will be further consultation with key stakeholders.
Any reforms to assistance arrangements for respondents resulting from the Government’s consideration will be announced later in the year.
The Government believes that the Native Title Act, as amended in 1998, achieves an appropriate balance between the rights and interests of all stakeholders within the native title system. Accordingly, the Government is not seeking to make amendments which would significantly alter this balance. The Government is, however, concerned to ensure that the processes for recognising and protecting native title work in an effective and efficient manner to bring about real and lasting native title outcomes for all parties.
To achieve this, the Government is proposing a series of ‘fine-tuning’ amendments to fix those predominantly procedural issues identified by stakeholders in their practical day to day dealings with the Act.
The Australian Government is not proposing to wind back native title, but is seeking to make the system more effective.
Adjustments to the existing regime would address issues which have emerged through the practical application of the Native Title Act, and assist in removing impediments for the system. For example, areas of possible amendment which have been identified are:
• adjusting the application of the registration test in specific circumstances to encourage claimants if they wish to amend claims to decrease the area claimed and remove deficiencies in the claim;
• adjusting the information requirements for compensation applications according to the circumstances leading to the application;
• removing ambiguities and providing greater flexibility in the provisions relating to Indigenous Land Use Agreements and the right to negotiate;
• addressing issues which have emerged in future act notifications, including timing of notices;
• clarifying the information to be included in the NNTT’s Register of native title claims, and the conditions under which claims are to be removed from the Register; and
• other changes to tidy up identified anomalies.
As noted above, the proposed amendments will fine-tune the operation of the native title system, with a view to achieving better outcomes for all parties.
No. The Government believes that the Native Title Act, as amended in 1998, achieves an appropriate balance between the rights and interests of all stakeholders within the native title system. The proposed technical amendments will be aimed at improving processes in that system, not fundamentally altering it.
No. Native title rights and interests are recognised by the common law and will continue to evolve through the common law. The Government is not seeking to change the nature of native title rights and interests.
The Government believes that the right to negotiate provisions, as amended in 1998, are appropriately balanced and workable. Whilst the Government is prepared to consider technical changes to the right to negotiate process, it does not believe that significant changes are necessary.
No. The Government is not proposing to change the fundamental aspects of native title, including its communal nature.
The Government believes that the native title system is now more settled. The resolution of native title matters is gathering momentum, as is evidenced by the growing number of determinations and ILUAs. Whilst there is value in refining processes for the resolution of claims and future act matters, making fundamental changes in those areas would be likely to undermine the progress made since the 1998 amendments.
Yes. The Government will undertake comprehensive consultations with stakeholders about the proposed technical amendments during the development of the Bill. This will include the public circulation of exposure draft legislation on possible technical amendments, for comment. The consultations will also provide an opportunity for interested parties to provide the Government with additional suggestions for amendment. Those suggestions will be taken into account in developing the final amendment Bill.
The National Native Title Tribunal and the Federal Court of Australia are central institutions in the native title system and play a pivotal role in the resolution of native title claims. Maximising the potential for claims to be resolved in a quicker and less resource-intensive manner will contribute to the overall effectiveness of the system. The Claims Resolution Review will consider ways that the NNTT and the Federal Court can work together more effectively to achieve tangible and sustainable outcomes for all parties.
Independent consultants will be engaged to conduct the Claims Resolution Review. The consultants will be overseen by a Steering Committee comprising a member of the NNTT, the Registrar of the Federal Court, an officer of the Attorney-General’s Department and an officer of the Office of Indigenous Policy Coordination in the Department of Immigration and Multicultural and Indigenous Affairs.
The Claims Resolution Review will commence in September 2005 and will report to the Attorney-General by the end of 2005 or early 2006.
The Review will involve appropriate consultations with native title stakeholders.
The Native Title Act provides for the establishment of Prescribed Bodies Corporate (PBCs) for each native title determination in order to hold in trust or manage the determined native title on behalf of the native title holders. PBCs are currently regulated by the Native Title Act, the Native Title (Prescribed Bodies Corporate) Regulations, and the Aboriginal Councils and Associations Act 1976 (the ACA Act).
While there have been 52 determinations that native title exists, to date only 38 PBCs have been established, and concerns have frequently been raised about the functioning of some PBCs. PBCs are a key element of the native title system, and need to operate effectively so that native title holders are able to utilise their native title rights and to discharge their land management obligations. As the number of native title determinations grows, the role of PBCs in managing native title rights and interests is likely to become increasingly important to the operation of the native title system as a whole.
No. Native title is a communal form of title and the fundamental principles of native title are not open to amendment. However, following a determination that native title exists, there needs to be effective structures in place to manage the native title rights and interests.
The Government is interested in exploring possible options for improving the way native title is managed to ensure that the needs of native title holders are met. This will also improve the ability of native title holders to utilise their native title rights and interests to derive economic or other significant benefits, to engage with proponents of development over land, and to discharge their land management obligations.
Yes. The Government will undertake consultation on the functions and governance model of PBCs with a range of stakeholders including existing PBCs, NTRBs, State and Territory governments and industry bodies. This consultation process will seek to identify the needs and functions of PBCs. It will also assess the appropriateness of the current governance model for PBCs. This will take into account the effect of the Corporations (Aboriginal and Torres Strait Islander) Bill 2005.
The consultations will be facilitated by a steering committee comprising the Office of Indigenous Policy Coordination, the Office of the Registrar of Aboriginal Corporations, and the Attorney-General’s Department.
Government parties are major players in the native title system and have a major impact on how the system operates. States and Territories have day-to-day responsibility for land management and are the first respondent to the majority of native title claims. The Australian Government has overarching responsibility for the Native Title Act. There is scope to improve the manner in which governments interact with each other and with other stakeholders in the native title system. The Australian Government believes that improved communication and transparency will have flow-on benefits for the system as a whole and will lead to faster and more affordable native title outcomes.
The Attorney-General is convening a meeting of all State and Territory ministers with responsibility for native title on 16 September 2005. Through this meeting, the Australian Government will promote the benefits of positive and transparent behaviours by other jurisdictions.
In addition to the Ministers’ Meeting, the Australian Government maintains open relationships with all stakeholders through the Native Title Consultative Forum convened three times a year by the Attorney-General’s Department. The Forum is comprised of representatives of the Australian Government, State and Territory governments, the Federal Court, the National Native Title Tribunal, Native Title Representative Bodies, peak industry bodies and the Human Rights and Equal Opportunity Commission. The Forum gives all stakeholders an opportunity to share experiences and discuss challenges and opportunities for the native title system.
The Australian Government will continue to play a leadership role in native title by promoting its objectives of resolving native title by agreement and achieving outcomes for all parties affected by native title as quickly as possible.
The full text of this announcement and other documents relating to the recent native title reforms announced by the Commonwealth Attorney-General are available online at <http://www.ag.gov.au/nativetitlesystemreform> .
The text of the ‘Native Title Ministers’ Meeting, 16 September 2005, Canberra Communiqué’, is extracted in this edition at p 95.
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2005/76.html