: Release of proposed amendments to the Native Title Act 1993 (Cth)

Release of proposed amendments to the Native Title Act 1993 (Cth)

Katie O'Bryan
Federal

On 21 September 2012 the Australian government released its exposure draft of legislative amendments aimed at improving the operation of the Native Title Act. According to the government’s media release, the amendments will:

  • clarify the requirement to negotiate in ‘good faith’;
  • enable parties to agree to disregard historical extinguishment of native title in areas such as parks and reserves; and
  • streamline processes for Indigenous Land Use Agreements.

Other related changes to the native title system include amendments to tax laws to clarify that native title payments are not subject to income tax, and the transfer of mediation and Indigenous Land Use Agreement negotiation from the National Native Title Tribunal to the Federal Court.

Attorney-General Nicola Roxon first announced the amendments in a keynote speech at the Native Title Conference in Townsville on 6 June 2012, coinciding with celebrations marking the 20th anniversary of the High Court’s historic Mabo decision.

Although the amendments are welcome, a number of other significant proposals for reform were not included. One such proposal was to reverse the onus of proof of native title, as suggested in 2008 by the now Chief Justice of the High Court, Robert French. This would basically mean that native title rights would be presumed to exist, and that respondents would have to prove their non-existence. Another proposal not contained in the Bill was a proposal put forward by Greens Federal Senator Rachel Siewert for the inclusion in the Act’s objectives of the key principles of the United Nations Declaration of the Rights of Indigenous Peoples, to which the Australian government gave support in April 2009. Senator Siewert included this reform in her private members Bill of 2011, and although it was not included in the revised version of her Bill introduced into the Senate in early 2012, the Greens remain committed to this proposal.

In her speech at the Townsville conference, the Attorney-General acknowledged that ‘there are people that have argued for more radical changes,’ but that the government prefers incremental change, as being a ‘strong but sensible approach’.

Further information and copies of documents relating to the proposed amendments to the Native Title Act can be found on the Attorney-General’s department website:

http://www.ag.gov.au/Indigenouslawandnativetitle/NativeTitle/Pages/Nativetitlereform.aspx.

A copy of French J’s (as he then was) 2008 speech is available at: No longer available

A copy of Senator Siewert’s private members Bills and explanatory memoranda can be found at http://www.comlaw.gov.au.

KATIE O’BRYAN is a former native title lawyer, and now PhD candidate at Monash University.

(2012) 37(4) AltLJ 284
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