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van Hattem, Peter --- "Indigenous Land Use Agreements under the Amended Native Title Act 1993" [1998] MurdochUeJlLaw 20; (1998) 5(3) Murdoch University Electronic Journal of Law
Frames Version
Indigenous Land Use Agreements Under The Amended Native Title Act
Author: |
Peter van Hattem
Partner, Freehill, Hollingdale & Page (Barristers & Solicitors)
|
Issue: |
Volume 5, Number 3 (September 1998)
|
Contents
-
The Native Title Amendment Act 1998 will amend the Native Title Act 1993
substantially when its various provisions come into effect.[1]
This paper addresses the provisions relating to indigenous land use agreements,
and their practical application.
-
The Native Title Act presently classifies all future acts[2]
as either permissible future acts[3]
(which are generally valid,[4]
with some exceptions[5])
or impermissible future acts[6]
(which are generally invalid to the extent that they affect native title,[7]
again with some exceptions[8]).
-
A future act which would otherwise be "impermissible" becomes "permissible"
if it is authorised by an agreement between native title
holders and the
Commonwealth, a State or a Territory under section 21.[9]
While superficially a worthwhile provision, section 21 is fraught with
difficulties, and remains largely unused. For example:
(a) Before an approved determination of native title[10]
has been made, there is no way of knowing with any acceptable degree of
confidence who the native title holders are. It might later
transpire that
the people signing the agreement are not the native title holders. Consequently,
an agreement entered into before
an approved determination has been made
simply can not be relied upon as satisfying the requirements of s.21.
(b) Even if the identity of the native title holders is known,
before an approved determination has been made there is no body corporate,
and the native title rights are held communally by the common law holders.
There is no statutory or common law basis for one or more
of the common
law holders to enter into an agreement on behalf of the others, particularly
those who lack legal capacity due to age
or mental infirmity. This is a
further reason why an agreement entered into before an approved determination
has been made can not
be relied upon.
(c) Section 21 is confined in its scope to agreements with government.
There is no provision for agreements under s.21 between native title holders
and developers. Although a practice has emerged by which "ancillary" agreements
are made between native
title claimants and developers in the context of
the right to negotiate procedures, this has not been followed in the case
of section 21 agreements.[11]
(d) Although an agreement under s.21 converts an impermissible
future act into a permissible future act, it does not obviate the need
to comply with the right to negotiate
procedures in the case of mining
and petroleum titles, and compulsory acquisitions for third party grant.[12]
-
For these reasons, and possibly others, section 21 has largely been unworkable.
-
The Amendment Act was an opportunity to address these problems. The result,
hopefully, is a comprehensive and workable statutory
regime for binding
agreements to be made which permit development, while safeguarding the
interests of aboriginal people, and avoiding
the cost, delay and adverse
relationship consequences of arbitration and litigation.
-
The Amended Native Title Act retains the concept of future acts,
but removes the further (and at times confusing) classifications of permissible
and impermissible
future acts. Under the Amended Native Title Act, all
future acts[13]
are invalid to the extent that they affect native title[14]
unless covered by a provision of Part 2, Division 3. Those provisions exhaustively
list the future acts which, having regard to matters such as their purpose,[15]
effect,[16]
applicable procedures,[17]
and so on, are valid despite their effect on native title.
-
The provisions apply in the order in which they appear in the Act, so that
a future act covered by one provision is not covered by
a subsequent provision.[18]
The provision which takes precedence over all others is section 24EB, which
deals with the effect of registered indigenous land use agreements on future
acts. To the extent that a future act is covered
by a registered indigenous
land use agreement under section 24EB, it is not covered by any of the
other future act validity provisions.[19]
Indigenous land use agreements therefore give rise to an ability to "contract
out" of the future act provisions and the right to
negotiate procedures.
-
The indigenous land use agreement provisions of the Amended Native Title
Act are principally contained in Part 2 (native title), Division 3 (future
acts and native title), Subdivisions B to E inclusive.
-
There are 3 types of indigenous land use agreement, described in
Subdivisions B,C and D. These are (a) body corporate agreements,
(b) area
agreements, and (c) alternative procedure agreements.
-
Each of those Subdivisions provides for a particular type of agreement,
its coverage, registration, and other matters. The effect
of registration
is provided for in Subdivision E.
-
An indigenous land use agreement must relate to an area.[20]
An agreement will probably not satisfy Subdivisions B, C or D if the area
covered is not clearly defined. It should be possible to
say with certainty
whether a defined parcel of land is covered by the agreement.
-
Consequently, agreements should be drafted with care to ensure that
the area covered is defined with precision, and any land where
native title
has been extinguished is excluded.
-
To be an indigenous land use agreement, an agreement must be about one
or more specified matters in relation to an area. The matters
specified
vary, depending on the type of agreement, but there are some common elements:
the doing of particular future acts, or future acts included in
classes - for example, the grant of a particular mining lease; the
grant
of all prospecting and exploration licences; or the grant of all tenements
applied for by a particular company; etc; particular
future acts, or future
acts included in classes, that have already been done - for example, validation
of acts done after 1993 which
are not otherwise validated; withdrawing,
amending, or varying applications for determinations of native title, or
of compensation;
the relationship between native title rights and interests
and other rights and interests; the manner of exercise of native title
rights and interests and other rights and interests; compensation for any
act affecting native title; any other matter concerning
native title rights
and interests.
-
The Amended Native Title Act does not impose any general limits on
the conditions which can be included in indigenous land use agreements.
It does not authorise
conditions which contravene any law.[21]
Presumably, this includes State and Territory laws, so that the payment
of royalty based compensation for mining, prohibited under
the Mining Act
1978 (WA), could not be included in an indigenous land use agreement.[22]
-
Each type of indigenous land use agreement has special requirements as
to who must be a party. Beyond the minimum requirements, any
person may
be a party to an indigenous land use agreement. Representative bodies for
the area covered are entitled to be informed
about proposed agreements,
but there is generally no requirement that they be parties.
Differences
-
The differences between the different types of agreement concern the nature
of the area covered by the agreement (specifically, whether
there has been
an approved determination of native title over the whole of the area),
who the parties are, what the agreement can
effectively do, and registration
requirements and procedures.
Body
corporate agreements - Subdivision B
-
There must be one or more registered native title bodies corporate in relation
to the whole of the area covered by the agreement.[23]
An agreement may cover all or part of the area in respect of which a body
corporate is registered, and 2 or more bodies corporate
may join in an
agreement in respect of all or part of their respective areas. However,
an agreement will not satisfy the area coverage
criteria of Subdivision
B if any part of the area is not the subject of an approved determination
that native title exists.[24]
-
There is no upper or outer limit on who may be a party to a body corporate
agreement, but there are certain minimum requirements.
All of the registered
bodies corporate in relation to the area must be parties to the agreement.[25]
-
If the agreement provides for the surrender of native title to the Crown,
then the Commonwealth, a State or a Territory must be a
party.
-
Beyond those minimum requirements, any person may be a party to the agreement.
Representative bodies for the area covered are entitled
to be informed
about proposed agreements, but there is no requirement that they be parties.
-
An indigenous land use agreement under Subdivision B must be about one
or more of the matters listed in section 24BB. The matters
include, in
addition to matters common to all indigenous land use agreements, the following:
changing the effects of intermediate period acts - for example,
providing for total, partial or non extinguishment in a way inconsistent
with s.22B; the surrender of native title rights to the Crown.
-
A body corporate agreement can not be registered unless all of the parties
agree.26
Any party may apply to the Registrar for the agreement to be registered.
The application must be in writing, and must be accompanied
by a copy of
the agreement.
-
The Registrar must give notice of the agreement to Commonwealth and
State/Territory ministers, relevant representative bodies, local
government
bodies, and the general public.[27]
There is then a waiting period of 1 month, during which:
any party can advise the Registrar that the party does not wish
the agreement to be registered; and
any representative body for the area covered by the agreement
can notify the Registrar that it was not informed of the registered
body
corporate's intention to enter into the agreement.
-
If a party opposes registration, or if the Registrar is satisfied
that a relevant representative body was not informed, the Registrar
must
not Registrar the agreement.[28]
In any other case, the Registrar must register the agreement. There is
no provision whereby any other person can object to registration.
-
Area agreements are possible where there has not been an approved determination
of native title in respect of the whole of the area
covered by the agreement.
-
There is no upper or outer limit on who may be a party to an area agreement,
but there are certain minimum requirements. All persons
in the native title
group in relation to the area must be parties to the agreement.[29]
The native title group consists of all registered native title claimants,
and all registered native title bodies corporate, for the
area covered
by the agreement. If for any part of the area there is neither, the native
title group also includes an unregistered
claimant or a representative
body, or both.[30]
-
If the agreement provides for the surrender of native title to the
Crown, then the Commonwealth, a State or a Territory must be
a party.
-
An indigenous land use agreement under Subdivision C must be about one
or more of the matters listed in section 24CB. The matters
include, in
addition to matters common to all indigenous land use agreements and those
listed above in relation to body corporate
agreements, any matter concerning
access rights conferred by Subdivision Q over pastoral leases.
Registration
-
As with body corporate agreements, an area agreement can not be registered
unless all of the parties agree.[31]
Any party may apply to the Registrar for the agreement to be registered.
The application must be in writing, and must be accompanied
by a copy of
the agreement. In addition, the application must either:
have been certified by all representative bodies for the area,[32]
or
include a statement to the effect that all reasonable efforts
have been made to identify the native title holders, and those identified
have authorised the agreement.
The Registrar has extensive notice obligations.
If the agreement has been certified, any person claiming to hold native
title may object to registration. If the agreement has not
been certified,
there is no provision for objection. However, in either case, the Registrar
must not register an area agreement unless
certain conditions are satisfied.[33]
-
Alternative procedure agreements are possible where there has not been
an approved determination of native title in respect of the
whole of the
area covered by the agreement. In addition, there must be at least one
registered native title body corporate in relation
to part of the area,
or a representative body for the whole area.[34]
-
All registered native title bodies corporate and all representative bodies
for the area must be parties, and there must be at least
one government
party. If any of the area covered is within the jurisdictional limits of
a State or Territory, that State or Territory
must be a party. If any of
the area covered is outside the jurisdictional limits of a State or Territory,
the Commonwealth must be
a party.[35]
-
The subject matter of an alternative procedures agreement is similar to
that of an area agreement, but it must not provide for the
extinguishment
of any native title rights or interests.[36]
In addition, it may provide a framework for the making of other agreements
about matters relating to native title rights and interests.[37]
-
As with body corporate agreements and area agreements, an alternative procedures
agreement can not be registered unless all of the
parties agree.[38]
Any party may apply to the Registrar for the agreement to be registered.
The application must be in writing, and must be accompanied
by a copy of
the agreement.
-
The Registrar has extensive notice obligations.
-
Any person claiming to hold native title may object to registration. The
Registrar must not register an area agreement unless at
least one of the
conditions listed in section 24DL is satisfied.
-
The Register of Indigenous Land Use Agreements is established under Part
8A.[39] Although
parts of the register may be kept confidential,[40]
it is generally available for public inspection.[41]
It is maintained by the Native Title Registrar, although that function
may be delegated to a State body or office holder,[42]
such as the Registrar of Titles.
-
The register must contain the following details of registered indigenous
land use agreements:
a description of the area covered; the name and contact address
of each party; any period of operation of the agreement; any statements
in the agreement concerning the doing of particular acts or classes of
acts, validation of acts, and the surrender of native title.
-
Details of agreements may be removed from the register in certain
circumstances, such as expiry of the agreement.[43]
The Federal Court may order removal if satisfied that a party would not
have entered into the agreement but for fraud, undue influence
or duress.[44]
-
As a matter of common law, an agreement is only legally enforceable if
it meets the requirements of a contract, and only binds the
parties, that
is, those who have entered into the agreement either directly or through
their authorised agents.
-
In addition to its effect at common law, an indigenous land use agreement
which has been registered has effect, while it remains
registered, as if:
it were a contract among the parties, even if it doesn't satisfy
the common law requirements of a contract, and
all holders of native title in the area covered by the agreement,
who are not parties, were bound in the same way as native title
group or
the registered native title bodies corporate.[45]
Effect
of registration on proposed acts
-
Section 24EB provides for the validation of certain future acts which affect
native title in an area covered by a registered agreement,
if the agreement
includes a statement to the effect that the parties consent to the doing
of the act, or a class of acts including
the act. There are further formal
requirements if the agreement is intended to take the act outside the right
to negotiate procedures,
or if the future act is the surrender of native
title to the Crown.
-
Generally, an act covered by a registered agreement is valid.[46]
The non-extinguishment principle applies unless the agreement contains
a statement to the effect that the surrender of native title
to the Crown
is intended to extinguish the native title rights and interests.[47]
The implication is that native title can not be extinguished under an indigenous
land use agreement except by surrender to the Crown.
-
There are restrictions on compensation claims under the Amended Native
Title Act in relation to future acts covered by registered agreements.
The restrictions vary depending on the type of agreement concerned.[48]
Effect
of registration on acts which have previously been done
-
Registered indigenous land use agreements can provide for the validation
of future acts, and can vary the effects of statutory validation
of intermediate
period acts, if certain formal requirements are met,[49]
and if the government responsible for the act is a party.[50]
If the act covered by the agreement is attributable[51]
to the Commonwealth, it is valid, and is taken always to have been valid.[52]
If the act covered by the agreement is attributable to a State or Territory,
the registered agreement will not validate the act unless
the State or
Territory passes a law to that effect. The State/Territory law may provide
that the act is valid, and is taken always
to have been valid.[53]
-
Validation of a future act pursuant to a registered agreement will
generally attract the non-extinguishment principle. The sole
exception
is surrender to the Crown, which will result in extinguishment if there
is a statement in the agreement to that effect.[54]
[1] s.2 of the
Amendment Act provides for the various groups of amendments to take effect
when proclaimed, or within 9 or 12 months after
Assent (27 July 1998) if
not proclaimed by then. Under the transitional provisions in schedule 5
of the Amendment Act, some of those
amendments will be retroactive to 23
December 1996 ( the date of the Wik decision).
[2] s.233.
[3] s.235.
[4] s.23(2).
[5] s.28.
[6] s.236.
[7] s.22.
[8] ss.24
and 25.
[9] s.235(8)(c).
[10] s.13(3).
[11]Probably
because it does not address the other difficulties, which could only be
satisfactorily addressed by legislation.
[12] ss.26
and 28.pp
[13]By definition,
all future acts affect native title - see ss.233, 227.
[14] s.24OA.
This section provides for partial invalidity. Compare s.24AA(2), which
appears to provide for total invalidity. Section 24AA(2)
appears to be
intended as an overview of the future act provisions, and will probably
not be interpreted as "providing otherwise"
as an exception to s.24OA.
[15]For
example, s.24HA, covering future acts relating to the management of water
and airspace.
[16]For
example, s.24LA, covering low impact future acts.
[17]For
example, s.28, covering future acts which satisfy the right to negotiate
procedures.
[18] s.24AB(2).
[19] s.24AB(1).
[20] ss.24BB,
24CB and 24DB.
[21] ss.24BE,
24CE and 24 DF.
[22]Compare
s.33, which expressly permits future act agreements under the right to
negotiate procedures to include royalty based payments.
[23] s.24BC.
[24]Where
there is an approved determination that native title exists, there must
be an entry to that effect on the National Native Title
Register under
s.193, and a registered native title body corporate which either holds
the native title on trust under s.56, or performs
certain functions in
relation to it under s.57.
[25] s.24BD(1).
[26] ss.24BG(1),
24BI(2)
[27] s.24BH(1).
[28] s.24BI(2)
and (3)
[29] s.24BD(1).
[30] s.24CD(2)
and (3).
[31] ss.24CG(1).
[32]A
representative body must not certify an area agreement unless it is of
the opinion that all reasonable efforts have been made to
identify the
native title holders, and those identified have authorised the agreement
- see s.202(8).
[33] ss.24CK
and 24CL.
[34] s.24DD.
[35] s.24DE(1)
and (3).
[36] s.24DC.
[37] s.24DB(e).
[38] ss.24DH(1).
[39] ss.199A
to 199F.
[40] s.199E.
Details required to be entered on the register under s.199B(1) must be
available to the public.
[41] s.199D.
[42] s.199F.
[43] s.199C.
[44] s.199C(2).
[45] s.24EA.
[46] s.24EB(2).
[47] s.24EB(3).
[48] ss.24EB(4)-(7).
[49] s.24EBA(1)(a).
[50] s.24EBA(1)(b).
In some cases, where a non-government person is liable to pay compensation,
that person must also be a party to the
agreement - s.24EBA(1)(c).
[51] s.239.
[52] s.24EBA(2).
[53] s.24EBA(3).
[54] s.24EBA(5).
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