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This is a Bill, not an Act. For current law, see the Acts databases.
2013-2014
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Native Title Amendment (Reform) Bill
2014
No. , 2014
(Senator Siewert)
A Bill for an Act to amend the Native Title Act 1993
to further the interests of Aboriginal peoples and
Torres Strait Islanders, and for related purposes
No. , 2014
Native Title Amendment (Reform) Bill 2014
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedule(s) ........................................................................................ 2
4
Object ................................................................................................. 2
Schedule 1--Amendment of the Native Title Act 1993
3
No. , 2014
Native Title Amendment (Reform) Bill 2014
1
A Bill for an Act to amend the Native Title Act 1993
1
to further the interests of Aboriginal peoples and
2
Torres Strait Islanders, and for related purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act may be cited as the Native Title Amendment (Reform) Act
6
2014.
7
2 Commencement
8
This Act commences on the day after this Act receives the Royal
9
Assent.
10
2
Native Title Amendment (Reform) Bill 2014
No. , 2014
3 Schedule(s)
1
Each Act that is specified in a Schedule to this Act is amended or
2
repealed as set out in the applicable items in the Schedule
3
concerned, and any other item in a Schedule to this Act has effect
4
according to its terms.
5
4 Object
6
The object of this Act is to implement reforms to the Native Title
7
Act 1993 to improve the effectiveness of the native title system for
8
Aboriginal peoples and Torres Strait Islanders.
9
Amendment of the Native Title Act 1993 Schedule 1
No. , 2014
Native Title Amendment (Reform) Bill 2014
3
Schedule 1
--
Amendment of the Native Title
1
Act 1993
2
3
1 At the end of subsection 13(5)
4
Add:
5
; or (c) that the determination relates to an area in relation to which
6
paragraphs 47C(1)(b) and (c) apply; or
7
(d) that the determination relates to an area in relation to which
8
the agreement required by paragraph 47D(1)(b) has been
9
given.
10
Note:
Sections 47C and 47D provide for extinguishment of native title rights
11
and interests in relation to certain areas to be disregarded.
12
2 Subsection 26(3)
13
Repeal the subsection.
14
3 Paragraph 31(1)(b)
15
Repeal the paragraph, substitute:
16
(b) the negotiation parties must, for a period of at least 6 months
17
starting on the notification day, negotiate in good faith using
18
all reasonable efforts to come to an agreement about:
19
(i) the doing of the act; or
20
(ii) the conditions under which each of the native title
21
parties might agree to the doing of the act.
22
4 After subsection 31(1)
23
Insert:
24
(1A) For the purposes of paragraph (1)(b), negotiate in good faith using
25
all reasonable efforts includes but is not limited to the following:
26
(a) attending, and actively participating in, meetings at
27
reasonable times including, where reasonably practicable, at
28
a location where most of the members of the native title
29
parties reside, if so requested by them;
30
(b) disclosing relevant information (other than confidential or
31
commercially sensitive information) in a timely manner;
32
(c) making reasonable offers and counter-offers;
33
Schedule 1 Amendment of the Native Title Act 1993
4
Native Title Amendment (Reform) Bill 2014
No. , 2014
(d) demonstrably giving genuine consideration to proposals
1
made by other negotiation parties;
2
(e) responding to proposals made by other negotiation parties in
3
a reasonable, timely and detailed manner, including
4
providing reasons for the relevant response;
5
(f) refraining from capricious or unfair conduct that undermines
6
the beneficial nature of the right to negotiate.
7
(1B) It is not necessary that a negotiation party engage in misleading,
8
deceptive or unsatisfactory conduct in order to be found to have
9
failed to negotiate in good faith.
10
(1C) In determining whether or not a negotiation party has negotiated in
11
good faith using all reasonable efforts, the arbitral body must have
12
regard to the financial resources of the negotiation party and, if the
13
negotiation party is a native title party, any demands imposed on
14
the native title party in relation to cultural and religious practices.
15
5 Subsection 31(2) (heading)
16
Repeal the heading, substitute:
17
Negotiation in good faith using all reasonable efforts
18
6 Subsection 31(2)
19
After "good faith", insert "using all reasonable efforts".
20
7 After subsection 31(2)
21
Insert:
22
(2A) In any proceeding in which the application of paragraph (1)(b) is
23
raised, the party asserting that it has negotiated in good faith using
24
all reasonable efforts has the onus of proving that it has done so.
25
8 Paragraph 31(4)(b)
26
After "good faith", insert "using all reasonable efforts".
27
9 Subsection 35(1)
28
Omit "Any", substitute "Subject to subsection (1A), any".
29
Amendment of the Native Title Act 1993 Schedule 1
No. , 2014
Native Title Amendment (Reform) Bill 2014
5
10 After subsection 35(1)
1
Insert:
2
(1A) A negotiation party may not apply to the arbitral body under
3
subsection (1) unless the negotiation party has negotiated in good
4
faith using all reasonable efforts, in accordance with section 31.
5
11 Subsection 36(2) (heading)
6
Repeal the heading, substitute:
7
Determination not to be made where failure to negotiate in good
8
faith using all reasonable efforts
9
12 Subsection 36(2)
10
After "good faith", insert "using all reasonable efforts".
11
13 At the end of Division 4 of Part 2
12
Add:
13
47C National, State or Territory park areas covered by claimant
14
application
15
When section applies
16
(1) This section applies if:
17
(a) an application under section 61 is made in relation to an area;
18
and
19
(b) when the application is made, the area is, or is part of, an area
20
(such as a national, State or Territory park):
21
(i) that is set aside; or
22
(ii) in which an interest is granted or vested;
23
by or under a law of the Commonwealth, a State or a
24
Territory for the purpose of preserving the natural
25
environment of the area, whether that setting aside, granting
26
or vesting resulted from a dedication, reservation,
27
proclamation, condition, vesting in trustees or otherwise; and
28
(c) when the application is made, one or more members of the
29
native title claim group occupy the area.
30
Schedule 1 Amendment of the Native Title Act 1993
6
Native Title Amendment (Reform) Bill 2014
No. , 2014
Prior extinguishment to be disregarded
1
(2) For all purposes under this Act in relation to the application, any
2
extinguishment of the native title rights and interests in relation to
3
the area by any of the following acts must be disregarded:
4
(a) the setting aside, granting or vesting mentioned in
5
paragraph (1)(b);
6
(b) the creation of any other prior interest in relation to the area.
7
Effect of determination
8
(3) If the determination on the application is that the native title claim
9
group holds the native title rights and interests claimed:
10
(a) the determination does not affect:
11
(i) the validity of the creation of any prior interest in
12
relation to the area; or
13
(ii) any interest of the Crown in any capacity, or of any
14
statutory authority, in any public works on the land or
15
waters concerned; and
16
(b) the non-extinguishment principle applies to the creation of
17
any prior interest in relation to the area.
18
47D Agreements to disregard prior extinguishment
19
When section applies
20
(1) This section applies if:
21
(a) an application under section 61 is made in relation to an area;
22
and
23
(b) before a determination on the application is made, there is an
24
agreement in writing between the applicant and the
25
Government party that the extinguishment of native title
26
rights or interests by a prior act affecting native title in
27
relation to the area, or any part of the area, covered by the
28
application be disregarded.
29
Prior extinguishment to be disregarded
30
(2) For all purposes under this Act in relation to the application, any
31
extinguishment of the native title rights and interests by any of the
32
following acts must be disregarded:
33
Amendment of the Native Title Act 1993 Schedule 1
No. , 2014
Native Title Amendment (Reform) Bill 2014
7
(a) the prior act itself;
1
(b) the creation of any other interest in relation to the area as a
2
result of the prior act;
3
(c) the doing of any act by virtue of holding the interest.
4
Effect of determination
5
(3) If the determination on the application is that the native title claim
6
group holds the native title rights and interests claimed:
7
(a) the determination does not affect:
8
(i) the validity of the creation of any prior interest in
9
relation to the area; or
10
(ii) any interest of the Crown in any capacity, or of any
11
statutory authority, in any public works on the land or
12
waters concerned; and
13
(b) the non-extinguishment principle applies to the creation of
14
any prior interest in relation to the area.
15
14 After section 61
16
Insert:
17
61AA Presumptions relating to applications
18
(1) This section applies to an application for a native title
19
determination brought under section 61 if all of the following
20
circumstances exist:
21
(a) the native title claim group defined in the application applies
22
for a determination of native title rights and interests where
23
the rights and interests are found to be possessed under laws
24
acknowledged and customs observed by the native title claim
25
group;
26
(b) the members of the native title claim group reasonably
27
believe the laws so acknowledged and the customs so
28
observed to be traditional;
29
(c) the members of the native title claim group, by the laws
30
acknowledged and the customs observed, have a connection
31
with the land or waters the subject of the application;
32
(d) the members of the native title claim group reasonably
33
believe that persons, from whom one or more of them is
34
descended, acknowledged traditional laws and observed
35
Schedule 1 Amendment of the Native Title Act 1993
8
Native Title Amendment (Reform) Bill 2014
No. , 2014
traditional customs at sovereignty by which those persons
1
had a connection with the land or waters the subject of the
2
application.
3
(2) If this section applies to an application, it must be presumed, in the
4
absence of proof to the contrary:
5
(a) that the laws acknowledged and customs observed by the
6
native title claim group are traditional laws acknowledged
7
and traditional customs observed at sovereignty; and
8
(b) that the native title claim group has a connection with the
9
land or waters by those traditional laws and traditional
10
customs; and
11
(c) if the native title rights and interests asserted are capable of
12
recognition by the common law--that the facts necessary for
13
the recognition of those rights and interests by the common
14
law are established.
15
61AB Continuing connection
16
A court may determine that subsection 223(1) has been satisfied,
17
despite finding that there has been:
18
(a) a substantial interruption in the acknowledgement of
19
traditional laws or the observance of traditional customs; or
20
(b) a significant change to traditional laws acknowledged or
21
traditional customs observed;
22
if the primary reason for the substantial interruption or the
23
significant change is the action of a State or a Territory or a person
24
or other party who is not an Aboriginal person or a Torres Strait
25
Islander.
26
15 Subsection 61A(4) (heading)
27
Repeal the heading, substitute:
28
Section not to apply in section 47, 47A, 47B, 47C or 47D cases
29
16 Paragraph 61A(4)(a)
30
Omit "or 47B", substitute ", 47B, 47C or 47D".
31
17 Paragraph 61A(4)(b)
32
Omit "or 47B", substitute ", 47B, 47C or 47D".
33
Amendment of the Native Title Act 1993 Schedule 1
No. , 2014
Native Title Amendment (Reform) Bill 2014
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18 After subsection 223(1)
1
Insert:
2
Traditional laws and customs
3
(1A) Without limiting subsection (1), traditional laws acknowledged in
4
that subsection includes such laws as remain identifiable through
5
time, regardless of whether there is a change in those laws or in the
6
manner in which they are acknowledged.
7
(1B) Without limiting subsection (1), traditional customs observed in
8
that subsection includes such customs as remain identifiable
9
through time, regardless of whether there is a change in those
10
customs or in the manner in which they are observed.
11
Connection
12
(1C) To avoid doubt, and without limiting subsection (1), it is not
13
necessary for a connection with the land or waters referred to in
14
paragraph (1)(b) to be a physical connection.
15
(1D) Nothing in subsection (1) requires:
16
(a) traditional laws to be acknowledged continuously; or
17
(b) traditional customs to be observed continuously; or
18
(c) a connection with the land or waters to be maintained
19
continuously.
20
19 Subsection 223(2)
21
Repeal the subsection, substitute:
22
Hunting, gathering and fishing rights and interests, rights to trade,
23
and other rights and interests of a commercial nature covered
24
(2) Without limiting subsection (1), rights and interests in that
25
subsection includes:
26
(a) hunting, gathering, or fishing, rights and interests; and
27
(b) the right to trade and other rights and interests of a
28
commercial nature.
29
20 Application of amendments
30
(1)
This item applies if:
31
Schedule 1 Amendment of the Native Title Act 1993
10
Native Title Amendment (Reform) Bill 2014
No. , 2014
(a) a claimant application; or
1
(b) a revised native title determination application;
2
made under the Native Title Act 1993 before the commencement of
3
item 8, has not been determined.
4
(2)
The amendments made by this Schedule apply in relation to the
5
application.
6
(3)
The application:
7
(a) may be amended to state that section 47C or 47D applies to
8
it; and
9
(b) if it is so amended--must, for the purposes of sections 63 and
10
66 of the Native Title Act 1993, be treated as if it were a new
11
application filed in the Federal Court under section 61 of that
12
Act, accompanied by:
13
(i) any affidavit under paragraph 62(1)(a) or (3)(a); and
14
(ii) any prescribed documents under paragraph 61(5)(d);
15
that accompanied the application when it was originally filed.
16
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