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Issues paper No.3

An overview of the agreements provisions in the Native Title Act

Ed Wensing FAPI MPIA
December 1998

ALGA gratefully acknowledges the permission of the Centre for Aboriginal Economic Policy Research at the Australian National University for permission to use excerpts from Discussion Paper No. 163/1998 titled Indigenous land use agreements: the opportunities, challenges and policy implications of the amended Native Title Act in the preparation of this paper.

Introduction

In June 1998, the Australian Local Government Association in conjunction with the Aboriginal and Torres Strait Islander Commission released a guide to developing agreements between local government and Indigenous Australians, titled Working out Agreements.

Part 5.3 of the guide is a discussion about specific purpose agreements, including the role for agreements in the native title context. On page 89, the guide states:

One area in which the need for a formal and legally binding agreement may be necessary is in relation to native title. Agreements in relation to native title can be made under the Native Title Act 1993 (Cth) or outside it.

Since that time, the Native Title Act 1993 (Cth) has been amended, including the provisions relating to agreements. While it is still possible to make agreements about native title matters outside of the Native Title Act 1993 (Cth), the provisions in the Act relating to agreements have been considerably strengthened.

The purpose of this paper is twofold:

• to update Part 5.3 of the guide to Working out Agreements in relation to native title matters
• to provide a brief overview of the provisions in the Native Title Act 1993 (Cth) relating to agreements

The Centre for Aboriginal and Economic Policy Research (CAEPR) at the Australian National University has prepared a Discussion Paper, titled Indigenous Land Use Agreements: the opportunities, challenges and policy implications of the amended Native Title Act which provides an excellent discussion of the opportunities and challenges arising from the provisions relating to ILUAs. For a more detailed analysis of the advantages and disadvantages of Indigenous Land Use Agreements or ILUAs, Councils are urged to obtain a copy of the CAEPR Discussion Paper. (Contact details are provided below.)

The role for Agreements

Some of the more significant and less controversial amendments to the Native Title Act 1993 (Cth) include provisions that strengthen the role of negotiated local and regional agreements in resolving native title matters.

Native title is subject to the laws of the Commonwealth and state or territory, including town planning schemes, health and building by-laws and environmental protection legislation, and subject to private rights validly granted under Commonwealth and state or territory laws. However, the Native Title Act 1993 (Cth) is silent on vital questions about the practical ways in which native title can be exercised and enjoyed on the ground. This means that these matters will often need to be determined by agreements setting out the principles and the rules for managing the relationship between native title, public laws and private rights.

The status of local or regional agreements in the Native Title Act 1993 (Cth) between native title holders or claimants and any other parties, including local councils, have been strengthened by providing flexibility, certainty and mechanisms for enforcement. The contractual status of Indigenous Land Use Agreements (ILUAs) have been strengthened and the amended Act sets out procedures for their negotiation and registration with the National Native Title Tribunal or an equivalent state or territory body. These amendments were widely supported by all the major stakeholders.

The amendments mean that agreements about the use of land between Indigenous peoples and other interest holders remains the most important way of resolving applications for a determination of native title. Where agreement can be reached or a where a determination is made, agreements remain the most important way of managing how the rights and interests of native title holders and other rights and interests may continue to co-exist. It is precisely in respect to resolving these practical aspects of co-existence and the diversity of land interests involved, that ILUAs have much to offer.

In general, native title groups can negotiate ILUAs for any kind of lawful arrangement, including compulsory grants of freehold land or other interests. ILUAs can provide economic certainty and cultural protection at a local or regional scale without the need to deal with unresolved issues, such as whether native title is permanently or temporarily extinguished or impaired by certain acts. ILUAs can also be used to ensure that certain types of future acts are valid without the need to agree that native title exists, or that such acts are possibly invalid and may affect native title.

Agreements are therefore an important consideration in responding to native title matters.

Practical advice on how to go about developing, implementing and reviewing such agreements is available in ALGAs guide to Working out Agreements.

An overview of the provisions relating to Indigenous Land Use Agreements (ILUAs)

The Native Title Act 1993 (Cth) provides for three different types of ILUAs, relating to whether or not there has been a determination that native title exists, and the kind of subject matter or issues to be dealt with:

• body corporate agreements
• area agreements
• alternative procedure agreements

The type of ILUA that parties choose to enter into depends on whether there are determined native title holders for the area in question, and whether there is to be any extinguishment of native title rights and interests by surrender to a government under the agreement. Alternative procedure agreements cannot be used where native title holders surrender their native title rights and interests.

CAEPR has identified a number of primary differences and common elements between each type of agreement.

The primary differences are the:

• subject matter of the agreements
• identity of the parties
• procedures for registering the concluded agreement
• procedures for objecting to the registration of an agreement
• notification requirements

The common elements include:

• an agreement can be given by native title groups for any consideration (including the freehold grant of land or other interests) and subject to any conditions
• any persons may request assistance from the National Native Title Tribunal in making agreements, not just actual or potential native title holders
• an application for registration of each type can be made in writing by any of the parties to the Registrar of ILUAs, but it must be with the agreement of all parties and accompanied by a copy of the ILUA and any other prescribed documentation
• the Registrar must remove the details of an ILUA from the Register (thereby removing its force of contract) when the Federal Court, on application by a party was induced to enter the agreement by reason of fraud, undue influence or duress by another person

Some of the more important rules that apply to ILUAs include:

• future acts done in accordance with a registered ILUA are valid and its terms are intended to take precedence over any other provisions in the amendment Act that deal with the validity of future acts (for example, an ILUA can allow some activities to proceed without going through the right to negotiate)
• an ILUA must be made with the authority of the relevant native title parties (this may include all registered native title bodies corporate, registered native title claimants and representative bodies for the area affected by the ILUA)
• native title holders must inform a representative body before entering into a body corporate or area agreement
• before the Native Title Registrar can register an ILUA, the proposed ILUA must be publicised so that all native title holders in the area have an opportunity to participate in the agreement. A range of other bodies, including Local Government must also be notified and given the opportunity to comment
• once an ILUA is registered, it binds all native title holders in the area covered by the agreement

While the application and scope of each of the different types of agreements varies according to the circumstances for any particular area, they are able to deal with a wide range of matters including:

• the doing of future activities
• native title applications to the Federal Court
• the relationship between native title and non-native title rights and interests, including actions in relation to compensation
• how native title and non-native title rights are to be exercised
• the extinguishment of native title rights and interests by surrendering those rights and interests to the Commonwealth or to a state or territory
• access rights for registered native title claimants to non-exclusive agricultural and pastoral leases
• frameworks for the making of other agreements about native title
• any other matter concerning the native title rights and interests in relation to an area

In brief, ILUAs can be used to incorporate native title into land and water management arrangements that enable the lawful use of land and waters by all spheres of government, including local government, and by people engaged in mining, pastoral, fishing, forestry, tourism, or other activities on land or waters where native title may exist.

The content, duration and implementation of ILUAs are entirely at the discretion of the parties involved. Parties are not obliged to develop an agreement, nor are they obliged to have it registered. An unregistered agreement can have effect as a common law contract.

The key characteristics of the three types of ILUAs are discussed below.

1. Body Corporate Agreement

For a Body Corporate Agreement to be made there must be registered native title bodies corporate for the whole of the area which is the subject of the agreement. This type of agreement can be about:

• the doing of future acts (singly, multiply or in classes)
• dealing with future acts that have already been done (including validating them) other than intermediate period acts
• changing the effect on native title of a validated intermediate period act
• withdrawing, amending or varying native title claim applications
• the relationship between native title and other rights
• the manner of exercise of native title and other rights and interests
• extinguishing native title by surrender to the relevant government
• compensation for past. Intermediate period or future acts
• any other matter concerning native title rights and interests

Body Corporate Agreements can only be made if there are one or more registered native title bodies corporate which hold native title to, or have been appointed to act for, the native title holders in relation to the whole of the area to be covered by an agreement. In which case the registered body corporate can make such an agreement with any other person. Governments must be a party if the agreement provides for extinguishment of native title rights by surrender, for validation of an invalid future act, or for the changed effect on native title of an intermediate period act, and may be a party otherwise.

The procedural requirements for these agreements reflect the fact that both the existence of native title has been demonstrated and the holders identified. Accordingly, for the agreement to be registered:

• any party must apply to the Registrar of ILUAs within the National Native Title Tribunal for its registration, if all other parties agree
• the Registrar must notify the public and certain persons if they are not parties; for example, all relevant governments, including local government, and the native title representative body
• there follows a cooling-off period of one month during which any party may advise it does not want the agreement registered; otherwise it will be registered

If there is a Native Title Representative Body (NTRB) for the area, the NTRB must be notified and may be consulted by the Body Corporate. The Registrar must not register the agreement if an NTRB for any area covered by an agreement advises the Registrar within one month of notice that it was not notified of the agreement by the Body Corporate and the Registrar is satisfied that the notification requirement was not complied with.

2. Area Agreement

Area Agreements can be made in any situation other than where there are registered native title bodies corporate for the whole area subject to the proposed agreement (in which case the agreement would properly be a Bodies Corporate Agreement). This type of agreement has considerable flexibility in terms of content, parties, and area to be covered by the agreement, including land or waters where native title has not yet been determined.

Parties to an Area Agreement must include a newly defined class of persons referred to as the native title group. This group includes, where they exist, all registered native title claimants and registered native title bodies corporate for an area to which the agreement relates, any other person who claims to hold common law native title rights and interests but does not have a registered claim, and the relevant Native Title Representative Body.

If there are no registered native title claimants or registered bodies corporate for the area, then the native title group. will comprise of the Native Title Representative Body for the area and/or any person who has a common law claim to native title in relation to the area.

Government must be a party if the agreement provides for extinguishment by surrender, for validation of an invalid future act, or for the changed effect on native title of an intermediate period act, and may be a party otherwise. Any other person may also be a party, including local government.

For an Area Agreement to be registered:

• any party may apply to the Registrar of ILUAs within the Tribunal for its registration, if all other parties agree
• the Registrar must notify the public and certain persons if they are not parties. For example, the relevant governments and the Native Title Representative Body
• there follows a three-month period to allow for objections and new native title claims to be registered

There are additional requirements for registration of Area Agreements given the expanded range of native title interests who may potentially be a party. In particular, the application for registration must state that it has been made with the authority of all actual or potential native title holders for the area. The ways in which these additional requirements can be met are set out in the Native Title Act 1993 (Cth) and are also explained in CAEPRs Discussion Paper.

The aims of the additional registration procedures for this type of ILUA are to:

• obtain a comprehensive inclusion of all native title rights and interests in relation to the area
• provide added certainty for other parties that all the right native title persons have been identified
• reduce the possibility of vexatious claims and disputes

Accordingly, any potential native title holder who wishes to object to this type of agreement is expected to appropriately express their objection by exercising their right to lodge a native title claim which would have to pass the new threshold test for acceptance and registration of native title claims. They would then have to become parties to the agreement for it to be registered. If they choose not to become a party and continue to maintain their objection, then the agreement cannot be registered.

3. Alternative Procedure Agreement

Alternative procedure agreements can be made in any situation other than where there are registered native title bodies corporate for the whole area subject to the proposed agreement, in which case the agreement would properly be a bodies corporate agreement.

An Alternative Procedure Agreement can be made about the same wide range of matters as an Area Agreement, with four important variations and exceptions:

• it may similarly provide for the validation of invalid future acts (other than intermediate period acts), but cannot provide by way of validation conditions for the extinguishment of native title
• it may additionally be used to provide a framework for other agreements about native title rights and interests
• because it is not a requirement that native title holders are parties, it must not provide for extinguishment of native title
• as a consequence, it may not be used to provide for the changing effect on native title of intermediate period acts

Parties to this type of agreement include a differently defined native title group than for Area Agreements. For an Alternative Procedure Agreement, the native title group includes:

• all registered native title bodies corporate, where they exist
• all Native Title Representative Bodies in relation to the area covered by the agreement
• every relevant government must be a party
• any native title claimant or other person claiming to hold native title to the area subject to the proposed agreement may be a party
• any other person may be a party, including Local Government

For an Alternative Procedure Agreement to be registered:

• any party may apply to the Registrar of ILUAs within the National Native Title Tribunal for registration if all other parties agree
• the Registrar must notify the public and certain persons if they are not parties. For example, the relevant governments, local government and the native title representative body
• there follows a three-month period to allow for objections and new native title claims to be registered

Similarly to the other types of agreements, there are provisions for objection to the registration of this type of agreement. There are three conditions, at least one of which must be met. If none of the conditions are met, the agreement cannot be registered. The National Native Title Tribunal may hold an inquiry into whether it would be fair and reasonable to register the agreement, having regard to a number of factors. Any party to such an inquiry may appeal the Registrars decision in the Federal Court.

The effect of registration

The effects of registration are significant.

Following an open notification, comment and objection and registration process, these agreements will be legally binding on all the parties. An agreement, once registered, is taken to have contractual effect between the parties and also binds all native title holders for the area covered by the agreement, regardless of whether they are parties to the agreement. Actual and potential native title holders will have had the opportunity to object to its registration.

Registration of an agreement also ensures the validity under the Native Title Act 1993 (Cth) of future acts which it covers or authorises. The details of the agreement must include a statement of consent to the doing of the future acts in question (with or without conditions), and a statement specifying the right to negotiate is not intended to apply to those acts. If there is an agreed changed effect of suppression, surrender or extinguishment of native title, a statement to that effect must also be included.

There are also strict grounds upon which an ILUA can be removed from the Register (and thereby removing its statutory validation), and parties are dissuaded by penalty by an order of the Federal Court from inducing another party to enter into an agreement by undue fraud, influence, or duress. The Federal Court may make an order for compensation against the person who committed the fraud etc. and payable to the party who will suffer loss or damage as a result of the removal of an agreement from the Register.

Greater certainty is also provided to governments and resource developers by the fact that agreement by native title claimants and holders to future acts through an ILUA can be given for any consideration. The general principle being that those negotiated considerations are taken to be a final settlement of compensation for the future acts involved. Compensation is generally limited to what is in the agreement. If there is an adverse effect on the native title of someone who is later proved to have native title but was not entitled to any of the benefits of the agreement, that person may be able to get compensation under the Act. However, this exception does not apply to people whose interests were represented by a registered native title body corporate (for Body Corporate Agreements) or whose authority was obtained (for an Area Agreement) when the agreement was made.

Conclusion

The provisions in the Native Title Act 1993 (Cth) on ILUAs mean that agreements about the use of land between Indigenous peoples and other interest holders remain the most important way of resolving applications for a determination of native title, and for managing how the rights and interests of native title holders and other rights and interests may continue to co-exist.

It is important to note however, that the provisions dealing with ILUAs are not intended to cover the field of agreements relating to native title that can be made between actual or potential native title holders and other parties. The provisions do not prevent the Commonwealth, states or territories making agreements, or legislating for the making of agreements, with native title holders about acts which are not future acts for the purposes of the Native Title Act 1993 (Cth).

Agreements such as the Native Title Process Agreement between Redland Shire Council and the Quandamooka Land Council Aboriginal Corporation, and the Interim Agreement between the Shire of Broome and the Rubibi Working Group representing the native title claimants in the Broome area, can still be made. However, such agreements would not have the same legislative protection that ILUAs have under the Act.

Please note, this paper is intended for information only, and will be amended as necessary to correct any discrepancies. Please do not hesitate to contact ALGA if you have any further queries.

Prepared by:

Ed Wensing FAPI MPIA, Native Title Project Manager, Australian Local Government Association

Copies of the CAEPR Discussion Paper can be purchased for $6.00 each including postage and handling in Australia from:

Centre for Aboriginal Economic Policy Research 2nd Floor, J G
Crawford Building Faculty of Arts The Australian National University
CANBERRA ACT 2600
Telephone: 02 6279 8211
Facsimile: 02 6249 2789

References

• Aboriginal and Torres Strait Islander Commission (1998) Analysis of the Howard/Harradine Agreement. ATSIC, 5 July.
• Aboriginal and Torres Strait Islander Commission (1998) ATSIC Report on the Senate amendments to the Native Title Amendment Bill, ATSIC, May.
• Native Title Amendment Bill 1997, Explanatory Memorandum, The Parliament of the Commonwealth of Australia, Circulated by authority of the Prime Minister (April 1998).
• Native Title Amendment Bill 1997 (No. 2) Supplementary Explanatory Memorandum to Government amendments moved in July 1998.
• National Native Title Tribunal (1998) Native Title Act 1993 Act (No. 110 of 1993), Consolidated to include the Native Title Amendment Act 1998 (No. 97 of 1998) with revisions.
• Smith D E (1998) Indigenous land use agreements: the opportunities, challenges and policy implications of the amended Native Title Act, Centre for Aboriginal Economic Policy Research, ANU, Canberra. Discussion Paper No. 163/1998.
• The Native Title Amendment Bill 1997, Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Fund, Tenth Report. Parliament of the Commonwealth of Australia. Canberra.

Other Internet addresses that may be of assistance

• The High Court of Australia
• The Federal Court
• Department of Prime Minister and Cabinet
• The Aboriginal and Torres Strait Islander Commission
• The National Native Title Tribunal