Indigenous Law Bulletin
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by Jo-Anne Byrne.
Under the Native Title Act 1993 (Cth) (‘the Act’), the Native Title Registrar (‘the Registrar’)[a] is responsible for the registration of Indigenous Land Use Agreements (‘ILUAs’).
The Act provides for three types of ILUA: body corporate, area and alternative procedure agreements.[b] Certain types of agreements must be used in certain circumstances, must be about prescribed subject matters and between specified parties. The Act also outlines the process which the Registrar must follow in the registration of ILUAs.
The Native Title (Indigenous Land Use Agreements) Regulations 1998 (Cth) (‘the Regulations’) prescribe what information must be contained in, and documents attached to, an application for registration of an ILUA. Together, the Act and the Regulations provide an integrated set of criteria against which applications for registration must be considered.
This article highlights some of the issues that have been raised in considering applications which have been submitted to date.
Some types of ILUA can only be used in certain circumstances. For example, if there is a registered native title body(s) corporate for the entire area the subject of the agreement, it must be a body corporate agreement.[c] In other circumstances, there is more flexibility depending on the subject matter of the agreement and who must be party to it.
ILUAs must be about one or more of the matters prescribed in the Act[d] and certain types of ILUA cannot deal with particular subjects. For example, it is not possible to have an alternative procedure agreement that purports to extinguish native title.[e]
The correct persons and/or bodies must be party to the agreement.[f] Satisfaction of this requirement may take some time, particularly with area agreements. At the time of registration, all persons in the native title group must be parties to the agreement.[g] If there are registered native title claimants or registered native title bodies corporate for any of the area the subject of the agreement they define the native title group and therefore must be parties.[h]
Parties to area agreements in areas over which there are applications for determinations of native title may find that the persons or bodies who must be parties to the agreement have changed from the time the agreement is signed to the time it falls to be registered. This can happen as a consequence of applications passing or failing the registration test or claims being combined or the amendment of named applicants. Native title determinations may also lead to native title bodies corporate being registered in that period.
Obviously, the greater the time-lag between the signing of the agreement and its registration, the greater the opportunity for such events to occur. It is therefore extremely important for parties to be aware of what else is happening in relation to other native title matters in the area the subject of the agreement.
In certain circumstances, the Act is clear that the relevant government(s) must be a party, for example where native title is to be extinguished by surrender to government.[i] However, it would also appear that the State or Territory government(s) must be a party to an agreement that provides for the validation of an invalid future act attributable to the State or Territory.[j] In other circumstances they may be a party.
The Act provides that any party to an ILUA may, with the agreement of all other parties, apply in writing to the Registrar for the ILUA to be registered on the Register of Indigenous Land Use Agreements.[k] The application must be accompanied by a copy of the agreement and any other prescribed documents or information.[l] The documents and information are prescribed in the Regulations. Although most requirements are common to all three types of ILUA, there are some requirements which are specific to each type.
The Regulations require that applications for registration be accompanied by certain documents. For example, all applications must be accompanied by a statement by each party to the agreement, signed by or for the party, that the party agrees to the application being made. This statement must be provided in addition to any other statements contained in the agreement and the application[m] and could be obtained when the agreement itself is signed.
If the ILUA is an area agreement, the application must be accompanied by a copy of the certification by the representative body pursuant to s24CG(3)(a) or a statement of authorisation pursuant to s24CG(3)(b). Potential applicants should note that statements pursuant to s 24CG(3)(b) are required to include a further brief statement setting out the grounds on which the Registrar should be satisfied that the authorisation requirements have been met.[n] This statement should outline the steps taken to identify the native title holders and the process by which they authorised the making of the agreement.
The application must contain certain information including the name and contact address of each party.[o] Parties should be aware that if the application is notified, the addresses will appear, as provided, in the public notices.[p]
The application must also contain other information depending on the actual terms of the agreement. For example, if the agreement provides that the right to negotiate is not intended to apply to an act, the application must contain a statement to that effect identifying each act to which Subdivision P of Division 3 of Part 2 of the Act is not intended to apply.[q] If the agreement provides that the parties consent to the doing of a particular future act or class of acts, the application must also provide a statement to that effect identifying the act or class of acts.[r] What is to be made of the distinction between these two requirements in terms of the particularity required? One view is that the fact of this distinction and the consistency with which it is maintained throughout the Act and Regulations, indicates the legislature’s intent that it should not be possible to use an ILUA to contract out of the right to negotiate for classes of future acts.
If there is a representative body for any of the area covered by a body corporate or area agreement and no representative body is a party to the agreement, the application must include a statement that a representative body for any of the area covered by the agreement has been informed of the parties’ intention to enter into the agreement.[s] This requirement can be easily overlooked and is difficult to rectify once the agreement has been signed.
The Regulations also require a statement briefly setting out the grounds on which the parties believe that the agreement is an ILUA and that it is the correct type of ILUA.[t] To date, applications have either simply made a statement that it does apply or repeated most of the information in the rest of the application. Something between these two approaches is arguably contemplated.
At the time of writing, the Registrar has received six applications for registration of an ILUA. Four are in notification: a certified area agreement in the Northern Territory, a certified area agreement in NSW and two authorised area agreements in Queensland. Two other agreements, an authorised area agreement in Victoria and a certified area agreement in Queensland, have also been submitted but, in the Registrar’s view, have not yet met the statutory requirements.
Some applicants have been unaware that the Regulations exist and have simply submitted the agreement alone for registration. It is not possible to consider an agreement for registration without the accompanying application. Other applications have been submitted without all the necessary attached documentation. This has caused unnecessary double handling and delay. In some instances, when the documentation has been forwarded, problems of inconsistency between the documents and statements in the application or the agreement itself have emerged necessitating further clarification, amendment and delay.
The Act and Regulations together provide a clear framework for what is required in an application and agreement. If these are methodically followed and adhered to, this should be a relatively straight-forward process.
However, parties should be aware that once an application is determined to comply with the Act and the Regulations, and is notified, any objections or impediments to registration must be resolved before the agreement can be registered.
This short paper has highlighted some of the areas of concern in the registration process but cannot address all of the issues that may arise. If parties have any doubts or concerns they should contact the National Native Title Tribunal on 1800 640 501.
Jo-Anne Byrne is a Legal Officer at the National Native Title Tribunal, Perth.
[a] Native Title Act 1993 (Cth) s 98.
[b] Ibid Part 2, Division 3, Subdivisions B, C & D.
[c] Above, n 1 s 24BC, s 24CC, s 24DD(1).
[d] Ibid s 24BB, s 24CB, s 24DB.
[f] Ibid s 24BD, s 24CD, s 24DE.
[g] Ibid s 24CD(1).
[h] Ibid s 24CD(2). If there are no registered native title claimants or registered native title bodies corporate s24CD(3) defines the native title group.
[i] Ibid s 24BD(2), s 24CD(5).
[j] Ibid s 24EBA(1) & (3).
[k] Ibid s 24BG(1), s 24CG(1), s 24DH(1).
[l] Ibid s24BG(2), s 24CG(2), s 24DH(2).
[m] Native Title (Indigenous Land Use Agreements) Regulations 1998 (Cth) reg 4(2)(a), 5(2)(a), 6(2)(a).
[n] Ibid reg 5(2)(d).
[o] Ibid reg 4(3)(a), 5(3)(a), 6(3)(a).
[p] Above, n 1 s 24BH(2), s 24CH(2), s 24DI(2).
[q] Above, n 13 reg 4(3)(g), 5(3)(g), 6(3)(g).
[r] Ibid reg 4(3)(f), 5(3)(f), 6(3)(f).
[s] Above, n 1 s 24BD(4), s 24CD(7).
[t] Above, n 13 reg 4(3)(l), 5(3)(l), 6(3)(l).
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URL: http://www.austlii.edu.au/au/journals/IndigLawB/1999/42.html