Native Title Legislation Amendment Act 2021 (Cth)

Native Title Legislation Amendment Act 2021 No. 6, 2021 An Act to amend the law relating to native title, and for related purposes Contents 1 Short title 2 Commencement 3 Schedules Schedule 1—Role of the applicant Part 1—Authorisation Native Title Act 1993 Part 2—Applicant decision making Native Title Act 1993 Part 3—Replacement of applicant Native Title Act 1993 Schedule 2—Indigenous land use agreements Part 1—Body corporate agreements and area agreements Native Title Act 1993 Part 2—Deregistration and amendment Native Title Act 1993 Schedule 3—Historical extinguishment Part 1—Park areas Division 1—Amendments commencing on Proclamation Native Title Act 1993 Division 2—Amendments commencing immediately after Part 2 of Schedule 4 Native Title Act 1993 Part 2—Pastoral leases held by native title claimants Native Title Act 1993 Schedule 4—Allowing a registered native title body corporate to bring a compensation application Part 1—Amendments commencing on Proclamation Native Title Act 1993 Part 2—Amendments commencing immediately after Part 1 of Schedule 1 Native Title Act 1993 Schedule 5—Intervention and consent determinations Part 1—Intervention in proceedings Native Title Act 1993 Part 2—Consent determinations Native Title Act 1993 Schedule 6—Other procedural changes Part 1—Objections Native Title Act 1993 Part 2—Section 31 agreements Native Title Act 1993 Part 3—Evaluation Native Title Act 1993 Schedule 7—National Native Title Tribunal Native Title Act 1993 Schedule 8—Registered native title bodies corporate Part 1—Requirements for constitutions Corporations (Aboriginal and Torres Strait Islander) Act 2006 Part 2—Refusal of membership Corporations (Aboriginal and Torres Strait Islander) Act 2006 Part 3—Registrar oversight Corporations (Aboriginal and Torres Strait Islander) Act 2006 Part 4—Courts Corporations (Aboriginal and Torres Strait Islander) Act 2006 Schedule 9—Just terms compensation and validation Native Title Legislation Amendment Act 2021 No. 6, 2021 An Act to amend the law relating to native title, and for related purposes [Assented to 16 February 2021] The Parliament of Australia enacts: 1 Short title This Act is the Native Title Legislation Amendment Act 2021. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provisions Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 16 February 2021 2. Schedule 1, Part 1 A single day to be fixed by Proclamation. 25 March 2021 However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. (F2021N00045) 3. Schedule 1, Parts 2 and 3 The day after the end of the period of 6 months beginning on the day the provisions covered by table item 2 commence. 25 September 2021 4. Schedule 2 At the same time as the provisions covered by table item 2. 25 March 2021 5. Schedule 3, Part 1, Division 1 At the same time as the provisions covered by table item 2. 25 March 2021 6. Schedule 3, Part 1, Division 2 Immediately after the commencement of the provisions covered by table item 9. 25 March 2021 7. Schedule 3, Part 2 At the same time as the provisions covered by table item 2. 25 March 2021 8. Schedule 4, Part 1 At the same time as the provisions covered by table item 2. 25 March 2021 9. Schedule 4, Part 2 Immediately after the commencement of the provisions covered by table item 2. 25 March 2021 10. Schedules 5, 6, 7 and 8 At the same time as the provisions covered by table item 2. 25 March 2021 11. Schedule 9 The day after this Act receives the Royal Assent. 17 February 2021 Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. 3 Schedules Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Role of the applicant Part 1—Authorisation Native Title Act 1993 1 After subparagraph 24CG(3)(b)(ii) (after the note) Insert: (iii) any conditions under section 251BA on the authority that relate to the making of the agreement have been satisfied; 2 Subparagraph 24CH(2)(d)(i) Omit "paragraphs 203BE(5)(a) and (b)", substitute "paragraph 203BE(5)(a), (b) or (c)". 3 Subsection 24CI(1) Omit "paragraphs 203BE(5)(a) and (b)", substitute "paragraph 203BE(5)(a), (b) or (c)". 4 Paragraph 24CK(2)(c) Omit "paragraphs 203BE(5)(a) and (b)", substitute "paragraph 203BE(5)(a), (b) or (c)". 5 Paragraph 62(1)(a) Repeal the paragraph, substitute: (a) must be accompanied by an affidavit sworn by the applicant stating the matters mentioned in subsection (1A); and 6 After subsection 62(1) Insert: (1A) For the purposes of paragraph (1)(a), the matters are: (a) that the applicant believes that the native title rights and interests claimed by the native title claim group have not been extinguished in relation to any part of the area covered by the application; and (b) that the applicant believes that none of the area covered by the application is also covered by an approved determination of native title; and (c) that the applicant believes that all of the statements made in the application are true; and (d) that the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it; and (e) the details of the process of decision‑making complied with in authorising the applicant to make the application and to deal with matters arising in relation to it; and (f) if there are no conditions under section 251BA on the authority that relate to the making of the application—that there are no such conditions; and (g) if there are any conditions under section 251BA on the authority that relate to the making of the application: (i) that the conditions have been satisfied; and (ii) how the conditions have been satisfied. Note: Section 251B states what it means for the applicant to be authorised by all the persons in the native title claim group. 7 After paragraph 62(2)(h) Insert: ; (i) if there are any conditions under section 251BA on the authority of the applicant to make the application and to deal with matters arising in relation to it—details of the conditions. 8 Paragraph 62(3)(a) Repeal the paragraph, substitute: (a) must be accompanied by an affidavit sworn by the applicant stating the matters mentioned in subsection (4); and 9 At the end of section 62 Add: (4) For the purposes of paragraph (3)(a), the matters are: (a) that the applicant believes that native title rights and interests exist or have existed in relation to the area; and (b) that the applicant believes that all of the statements made in the application are true; and (c) that the applicant is authorised by all the persons in the compensation claim group to make the application and to deal with matters arising in relation to it; and (d) the details of the process of decision‑making complied with in authorising the applicant to make the application and to deal with matters arising in relation to it; and (e) if there are no conditions under section 251BA on the authority that relate to the making of the application—that there are no such conditions; and (f) if there are any conditions under section 251BA on the authority that relate to the making of the application: (i) that the conditions have been satisfied; and (ii) how the conditions have been satisfied. Note: Section 251B states what it means for the applicant to be authorised by all the persons in the compensation claim group. 10 Section 62A Before "In the", insert "(1)". 11 At the end of section 62A Add: (2) Subsection (1) is subject to any conditions under section 251BA on the authority of the applicant. 12 After section 62A Insert: 62B General law duties Any obligation of the applicant under this Act does not relieve the applicant, or detract, from any other duty of the applicant at common law or in equity to persons in the native title claim group or compensation claim group. 13 After paragraph 186(1)(g) Insert: ; (h) whether or not there are any conditions under section 251BA on the authority of the applicant. 14 Paragraph 190C(4)(b) Repeal the paragraph, substitute: (b) the requirements mentioned in subsection (4AA) are met. 15 Subsection 190C(4) (note) Repeal the note. 16 After subsection 190C(4) Insert: (4AA) For the purposes of paragraph (4)(b), the requirements are: (a) the applicant is a member of the native title claim group and is authorised to make the application, and deal with matters arising in relation to it, by all the other persons in the native title claim group; and (b) either: (i) there are no conditions under section 251BA on the authority that relate to the making of the application; or (ii) any conditions under section 251BA on the authority that relate to the making of the application have been satisfied. Note: The word authorise is defined in section 251B. 17 Paragraph 190C(5)(a) Omit "a statement to the effect that the requirement set out in paragraph (4)(b) has", substitute "statements to the effect that the requirements mentioned in subsection (4AA) have". 18 Paragraph 190C(5)(b) Omit "it has been met", substitute "they have been met (other than in relation to subparagraph (4AA)(b)(i))". 19 After paragraph 203BE(2)(a) Insert: (aa) any conditions under section 251BA on the authority that relate to the making of the application have been satisfied; and 20 Paragraph 203BE(4)(a) After "paragraphs (2)(a)", insert ", (aa)". 21 After paragraph 203BE(5)(b) Insert: ; and (c) any conditions under section 251BA on the authority that relate to the making of the agreement have been satisfied. 22 Paragraph 203BE(6)(a) Omit "and (b)", substitute ", (b) and (c)". 23 After section 251B Insert: 251BA Conditions on authority (1) The persons who authorise: (a) the making of an indigenous land use agreement under section 251A; or (b) a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, under section 251B; may impose conditions on the authority. (2) The conditions must be imposed: (a) where there is a process of decision‑making that, under the traditional laws and customs of the persons, must be complied with in relation to authorising things of that kind—in accordance with that process; or (b) where there is no such process—in accordance with a process of decision‑making agreed to and adopted, by the persons, in relation to authorising things of that kind. Note: Consequences of a failure to comply with a condition may include: (a) replacement of the applicant (see subparagraph 66B(1)(a)(iv)); and (b) a Federal Court order (see section 84D). (3) A person or persons authorised to make an application under section 61 must seek leave to amend the application to reflect any imposition, variation or revocation of conditions on the authority that occurs after the application is made. 24 Application and transitional provisions Area agreements (1) The amendments of Subdivision C of Division 3 of Part 2 and subsections 203BE(5) and (6) of the Native Title Act 1993 made by this Part apply in relation to any agreement in respect of which an application for registration is made after the commencement of this item if the authorisation of the making of the agreement occurs after that commencement. Claimant applications and compensation applications (2) The amendments of sections 62 and 190C and subsections 203BE(2) and (4) of the Native Title Act 1993 made by this Part apply in relation to any application made after the commencement of this item if the authorisation of the applicant occurs after that commencement. Conditions on authority (3) The amendments of sections 62A and 186 of the Native Title Act 1993 made by this Part apply in relation to any authority given after the commencement of this item. (4) Section 251BA of the Native Title Act 1993, as inserted by this Part, applies in relation to any authority given after the commencement of this item. Part 2—Applicant decision making Native Title Act 1993 25 Subsection 24CD(1) Omit "persons in", substitute "members of". 26 Paragraph 24CD(2)(a) Repeal the paragraph (not including the note), substitute: (a) all registered native title claimants in relation to land or waters in the area; and 27 After subsection 24CD(2) Insert: (2A) The requirement that all registered native title claimants in relation to land or waters in the area be parties to the agreement is satisfied if, for each of those registered native title claimants: (a) a majority of the persons who comprise the registered native title claimant are parties to the agreement, unless paragraph (b) applies; or (b) if conditions under section 251BA on the authority of the registered native title claimant provide for the persons who must become a party to the agreement—those persons are parties to the agreement. (2B) The persons in the majority must notify the other persons who comprise the registered native title claimant within a reasonable period after becoming parties to the agreement as mentioned in paragraph (2A)(a). A failure to comply with this subsection does not invalidate the agreement. 28 Subsection 24CD(7) Omit "person in", substitute "member of". 29 Subparagraph 24CG(3)(b)(ii) (note) Repeal the note. 30 At the end of subsection 24CG(3) Add: Note: The word authorise is defined in section 251A. 31 Subsection 24CL(2) Omit "persons". 32 Paragraph 24CL(2)(a) Omit "a registered native title claimant or". 33 After paragraph 24CL(2)(a) Insert: (aa) any applicant who is, at the end of the notice period, a registered native title claimant in relation to any of the land or waters in the area covered by the agreement; and 34 Paragraph 24CL(2)(b) Omit "any person", substitute "any applicant". 35 After subsection 24CL(2) Insert: (2A) The requirement that an applicant who is or becomes a registered native title claimant be a party to the agreement is satisfied if: (a) a majority of the persons who comprise the registered native title claimant are parties to the agreement, unless paragraph (b) applies; or (b) if conditions under section 251BA on the authority of the registered native title claimant provide for the persons who must become a party to the agreement—those persons are parties to the agreement. (2B) The persons in the majority must notify the other persons who comprise the registered native title claimant within a reasonable period after becoming parties to the agreement as mentioned in paragraph (2A)(a). A failure to comply with this subsection does not invalidate the agreement. 36 Subsection 24DE(1) Omit "persons in", substitute "members of". 37 Paragraph 24DE(4)(a) (note 1) Omit "persons whose names appear", substitute "named". 38 At the end of section 24DE Add: (5) A registered native title claimant is taken to be a party to the agreement if: (a) a majority of the persons who comprise the registered native title claimant are parties to the agreement, unless paragraph (b) applies; or (b) if conditions under section 251BA on the authority of the registered native title claimant provide for the persons who must become a party to the agreement—those persons are parties to the agreement. (6) The persons in the majority must notify the other persons who comprise the registered native title claimant within a reasonable period after becoming parties to the agreement as mentioned in paragraph (5)(a). A failure to comply with this subsection does not invalidate the agreement. 39 Subparagraph 29(2)(b)(i) (note) Repeal the note, substitute: Note: A registered native title claimant is a person or group of persons whose name or names appear on the Register of Native Title Claims as the applicant in relation to a claim to hold native title: see the definition of registered native title claimant in section 253. 40 Paragraph 30(1)(a) Omit "person", substitute "applicant". 41 Subsection 30(2) Omit "A person ceases to be a native title party if the person", substitute "A registered native title claimant ceases to be a native title party if the registered native title claimant". 42 Subsection 30(4) Repeal the subsection, substitute: Replacing a native title party (4) If: (a) an applicant (the old applicant) in relation to a claimant application is a native title party; and (b) the old applicant is replaced as the applicant in relation to the claimant application by another applicant (the new applicant); and (c) the new applicant becomes a registered native title claimant; the new applicant also replaces the old applicant as the native title party. 43 After subsection 31(1B) Insert: Registered native title claimants (1C) The requirement that a native title party that is a registered native title claimant be a party to the agreement is satisfied if: (a) a majority of the persons who comprise the registered native title claimant are parties to the agreement, unless paragraph (b) applies; or (b) if conditions under section 251BA on the authority of the registered native title claimant provide for the persons who must become a party to the agreement—those persons are parties to the agreement. (1D) The persons in the majority must notify the other persons who comprise the registered native title claimant within a reasonable period after becoming parties to the agreement as mentioned in paragraph (1C)(a). A failure to comply with this subsection does not invalidate the agreement. 44 After section 62B Insert: 62C Acting where persons are jointly the applicant etc. (1) This section applies if: (a) an applicant makes a native title determination application or a compensation application; and (b) 2 or more persons (the authorised persons) are jointly the applicant; and (c) the applicant is required or permitted to do something under this Act, or for the purposes of this Act under another law of the Commonwealth; and (d) apart from this section, for the applicant to do the thing, all of the authorised persons would need to do the thing. Default rule—applicant may act by majority (2) The requirement mentioned in paragraph (1)(d) is satisfied if the thing is done by a majority of the authorised persons unless subsection (4) applies. (3) The authorised persons who do the thing must, within a reasonable period, notify the other authorised persons that the thing has been done. A failure to comply with this subsection does not invalidate the thing done. Default rule may be displaced (4) If conditions under section 251BA on the authority of the authorised persons provide for the applicant to do the thing in a particular way, the requirement mentioned in paragraph (1)(d) is satisfied if the thing is done in that way. Example: A condition may provide that all the authorised persons need to do something required by a provision of this Act. Rule covers applicant acting in any capacity (5) This section applies whether the provision imposing the requirement or giving the permission refers to the applicant as an applicant, a registered native title claimant, a native title party, a negotiation party, a party or otherwise. Deceased authorised persons (6) For the purposes of this section, the authorised persons include any who have died. However, subsection (3) does not require notice to be given to a person who has died. Note: The applicant may be replaced where an authorised person has died: see section 66B. 45 After subsection 87(1) Insert: When a registered native title claimant is taken to be a party to the agreement (1AA) The requirements that a party to the proceedings that is a registered native title claimant be a party to the agreement and sign the terms of the agreement are satisfied if: (a) a majority of the persons who comprise the registered native title claimant are parties to the agreement and sign the terms, unless paragraph (b) applies; or (b) if conditions under section 251BA on the authority of the registered native title claimant provide for the persons who must become a party to the agreement and sign the terms—those persons are parties to the agreement and sign the terms. (1AB) The persons in the majority must notify the other persons who comprise the registered native title claimant within a reasonable period after becoming parties to the agreement and signing the terms, as mentioned in paragraph (1AA)(a). A failure to comply with this subsection does not invalidate the agreement or any signature. 46 Paragraph 87A(1)(c) Omit "following persons", substitute "following". 47 After subsection 87A(1) Insert: When a registered native title claimant is taken to be a party to the agreement (1A) The requirements that a registered native title claimant be a party to the agreement and sign the terms of the proposed determination are satisfied if: (a) a majority of the persons who comprise the registered native title claimant are parties to the agreement and sign the terms, unless paragraph (b) applies; or (b) if conditions under section 251BA on the authority of the registered native title claimant provide for the persons who must become a party to the agreement and sign the terms—those persons are parties to the agreement and sign the terms. (1B) The persons in the majority must notify the other persons who comprise the registered native title claimant within a reasonable period after becoming parties to the agreement and signing the terms, as mentioned in paragraph (1A)(a). A failure to comply with this subsection does not invalidate the agreement or any signature. 48 Paragraphs 190A(2)(h) and 190E(8)(h) Omit "person who is a". 49 Subsection 251A(1) Omit "(1)". 50 Subsection 251A(2) Repeal the subsection. 51 Subsection 251BA(2) (note) Omit "Note", substitute "Note 1". 52 At the end of subsection 251BA(2) Add: Note 2: Conditions that may be imposed include: (a) a requirement that something required to be done under this Act be done by the authorised persons unanimously, instead of by majority (see section 62C); and (b) a condition setting out what happens if an authorised person dies or is unable to act as an applicant because of physical or mental incapacity (see section 66B). 53 Section 253 (paragraph (a) of the definition of authorise) Omit "subsection 251A(1)", substitute "section 251A". 54 Section 253 (definition of registered native title claimant) After "a person or", insert "group of". 55 Application Indigenous land use agreements (1) The amendments of sections 24CD, 24CL, 24DE and 251A of the Native Title Act 1993 made by this Part apply in relation to any agreement in respect of which an application for registration is made after the commencement of this item. Registered native title claimants (2) The amendments of sections 29 and 30 and the definition of registered native title claimant in section 253 of the Native Title Act 1993 made by this Part apply in relation to any thing done after the commencement of this item by or in relation to any registered native title claimant or native title party: (a) whether the name or names of the registered native title claimant first appeared in an entry on the Register of Native Title Claims before or after that commencement; and (b) whether the native title party became a native title party before or after that commencement. Section 31 agreements (3) Subsections 31(1C) and (1D) of the Native Title Act 1993, as inserted by this Part, apply in relation to any agreement of the kind mentioned in paragraph 31(1)(b) of that Act made after the commencement of this item. General rule (4) Section 62C of the Native Title Act 1993, as inserted by this Part, applies in relation to any thing done after the commencement of this item. Consent determinations (5) Subsections 87(1AA) and (1AB) of the Native Title Act 1993, as inserted by this Part, apply in relation to any agreement the terms of which are filed with the Federal Court after the commencement of this item. (6) The amendments of section 87A of the Native Title Act 1993 made by this Part apply in relation to any proposed determination of native title a copy of the terms of which is filed with the Federal Court after the commencement of this item. Registration of claims (7) The amendments of subsections 190A(2) and 190E(8) of the Native Title Act 1993 made by this Part apply in relation to any claim, if a notice mentioned in those subsections is given after the commencement of this item. Part 3—Replacement of applicant Native Title Act 1993 56 Subsection 66B(1) (heading) Repeal the heading, substitute: Replacement in case of consent or absence of authority 57 Subparagraph 66B(1)(a)(ii) Repeal the subparagraph. 58 Subsection 66B(2) (heading) Repeal the heading. 59 After subsection 66B(2) Insert: Replacement in case of death or incapacity (2A) One or more members (the applying members) of the native title claim group in relation to a claimant application, or of the compensation claim group in relation to a compensation application, may apply to the Federal Court for an order under subsection (2B) if a person (the ceasing member) who is, either alone or jointly with one or more other persons (the continuing members), the current applicant for the claimant application or compensation application: (a) dies; or (b) is unable to act as an applicant because of physical or mental incapacity. (2B) The Court may order that the following persons replace the current applicant for the application: (a) if: (i) a member of the claim group is authorised by the claim group to make the application and to deal with matters arising in relation to it because of the death or incapacity of the ceasing member; and (ii) the authority of any continuing members continues despite the death or incapacity of the ceasing member; that member and any continuing members; (b) unless the authority of any continuing members ceases on the death or incapacity of the ceasing member—the continuing members; (c) if the applying members are authorised by the claim group to make the application and to deal with matters arising in relation to it—the applying members. Note: Section 251B states what it means for a person or persons to be authorised by all the persons in the claim group to deal with matters in relation to a claimant application or a compensation application. Replacement by more than one person (2C) If the Court orders under this section that the current applicant is replaced by more than one person, the persons are jointly the applicant. 60 Subsection 66B(3) Omit "the order", substitute "an order under this section". 61 Section 253 (definition of applicant) Omit "subsection 61(2)", substitute "subsections 61(2) and 66B(2C)". 62 Application The amendments of sections 66B and 253 of the Native Title Act 1993 made by this Part apply in relation to applications to the Federal Court under section 66B of that Act made after the commencement of this item, whether the death or incapacity occurred before or after that commencement. Schedule 2—Indigenous land use agreements Part 1—Body corporate agreements and area agreements Native Title Act 1993 1 Section 24BC Before "The", insert "(1)". 2 At the end of section 24BC Add: (2) If: (a) there is an approved determination of native title to the effect that native title does not exist in relation to part of the area; or (b) part of the area was expressly excluded from the area covered by an approved determination of native title because of subsection 61A(2) (restrictions on making of certain applications); it is not necessary for there to be a registered native title body corporate for that part of the area in order to satisfy subsection (1). 3 Subsection 24CH(1) Omit "The", substitute "If the Registrar is satisfied that an indigenous land use agreement that meets the requirements of sections 24CB to 24CE is in existence, the". 4 Application The amendments of sections 24BC and 24CH of the Native Title Act 1993 made by this Part apply in relation to any agreement in respect of which an application for registration is made after the commencement of this item. Part 2—Deregistration and amendment Native Title Act 1993 5 After subsection 24EB(2) Insert: (2A) To avoid doubt, removal of the details of an agreement from the Register of Indigenous Land Use Agreements does not affect the validity of a future act done while the details were on the Register. 6 At the end of section 24EBA Add: Removal of agreement from the Register (7) To avoid doubt, removal of the details of an agreement from the Register of Indigenous Land Use Agreements does not affect: (a) the validity of a future act validated by subsection (2) or a law of a State or Territory mentioned in subsection (3); or (b) the effects of an intermediate period act that have been changed under subsection (6). 7 At the end of Subdivision E of Division 3 of Part 2 Add: 24ED Amended agreements (1) If the details of an agreement are entered on the Register of Indigenous Land Use Agreements, the agreement has effect, for the purposes of this Act, as if the agreement included any amendments of the agreement that: (a) have been agreed to by the parties to the agreement; and (b) have been notified to the Registrar in writing by the parties; but only so far as the amendments: (c) update property descriptions, but not so as to result in the inclusion of a