The technical amendments relate in part to the way in which native title must be addressed in connection with tenure dealings, infrastructure projects and land development activities involving land (particularly non-freehold land) or waters where native title might continue to exist. 

Native Title Amendment (Technical Amendments) Bill 2007

The Bill was introduced into Parliament on 29 March 2007.  It has been referred to the Senate Legal and Constitutional Affairs Committee for review.  Submissions on the Bill can be made to the Committee by 20 April 2007.

Technical Amendments

The majority of the proposed amendments seek to clarify anomalies in the existing legislation and to remove ambiguities.  Some other amendments of a more substantive nature include the following:

• The scope of both Body Corporate ILUAs (those made after the final determination of a claim) and Area Agreement ILUAs (those made before a final determination) has been enlarged to include frameworks for the making of other agreements, processes and procedures about native title matters.
• It will no longer be necessary for the National Native Title Tribunal ("NNTT") to publicly notify Body Corporate ILUAs as part of the ILUA registration process.  Certain Government parties (including local governments) will however still need to be notified.
• The circumstances in which the applicant for a claim can be changed have been enlarged.  The applicant is the person or persons chosen by the claim group to make the claim on their behalf.  It will be possible to make an application to change the applicant if they are no longer authorised by the claim group to deal with matters arising from the claim or because an applicant has exceeded the authority given to them by the claim group. 
• The NNTT will be allowed to assist parties make an application for registration of an ILUA.
• The NNTT Registrar will have more flexibility in determining the content and issue of some notices relating to native title matters. 
• Native title claimants can seek a full (de novo) review by the NNTT Registrar if the original application failed the Registration Test.  The claimants can still request the Federal Court to review the original NNTT decision, but can only seek a de novo review once.
• More details of the claim authorisation process undertaken by native title claimants must be disclosed when an application is made. 
• Compensation payments to be made under the right to negotiate process may be secured by bank guarantee rather than held in trust.
• Parties who withdraw as a party to claims upon a reduction of a claim area because their interests are no longer within the amended claim area, will be notified by the NNTT should the area later be re-included in the claim.  They will have three months to lodge a Notice of Intention to Become a Party.
• The Federal Court will be given power to make an order determining native title over part of a claim area by consent.  Non-Government respondent parties will not be required to consent to the order unless they hold an interest in relation to the land or waters.  Local governments are included in the list of parties in section 87A that are still required to agree to all consent determinations.

Native Title Bodies Corporate

The Native Title Act 1993 establishes Prescribed Bodies Corporate ("PBC") which, in the final determination of a native title claim, can be ordered to hold the native title on trust for the claim group.  In other cases, a PBC may not be appointed as a trustee but can be registered by the NNTT and ordered to perform the functions of a Registered Native Title Body Corporate ("RNTBC") or agent PBC.  In that instance, the PBC can act as the agent for the claim group. 

Either way, there is a body corporate (rather than individuals) which Government, project proponents and other persons can deal with.

The Bill implements some of the recommendations of a Prescribed Bodies Corporate Report commissioned by the Australian Government.  For example:

• There will be greater flexibility for a claim group to replace a trust PBC or an agent PBC and one type can be replaced with another type.
• Where there is a PBC (ie after the determination of a claim), there will be new provisions enabling the PBC to charge other persons for the costs it incurs in negotiating a "right to negotiate" agreement, an ILUA and certain other types of agreements. 
• Where the claim group fails to nominate a PBC in conjunction with the determination of a claim, there are new arrangements which will enable the Court to appoint a default PBC.

Compliance

For major projects involving non-freehold land or waters, a native title due diligence assessment may be useful to find out whether native title is an issue and, if it is, to identify preferred compliance options under the Native Title Act 1993.  Reference should be made to the specific amendments when an assessment is made. 

MacDonnells Law is a leader in the field of native title compliance assessments for infrastructure and land development projects.  Please contact a member of our team if you would like more information on how to undertake a compliance assessment for your project. 

Oliver Gilkerson - 3031 9714

Jenny Humphris - 3031 9720

Andrew Kerr - 4030 0564