On 9 November 2011, the Senate Standing Committee on Legal and Constitutional Affairs released its report on the Native Title Amendment (Reform) Bill 2011.
The amendments proposed in the Bill were directed at addressing some of the barriers in making a case for a native title determination and some of the procedural issues in the future act regime. The amendments include:
• introducing a presumption of continued connection by the native title party which would apply in certain circumstances unless rebutted by other parties to the claim;
• changing the good faith negotiation provisions, including by requiring the party who is claiming to have negotiated in good faith to have to prove this in a future act determination; and
• allowing an arbitral body to make a future act determination subject to a condition that the grantee party shares a portion of its profits, income or output with the native title party.
After undertaking an inquiry into the Bill, which included a public hearing to discuss submissions received from various stakeholders, the Committee recommended that the Senate should not pass the Bill.
The Committee acknowledged that many stakeholders are dissatisfied with aspects of the native title system as it currently exists and recognised that reforms designed to expedite the native title system are desirable. It was concerned, however, about the drafting of the Bill and about taking a piecemeal approach to amending the Native Title Act 1993 (Cth). The Committee concluded that the Australian Government is cognisant of the need for evidence-based native title reform and endorsed the approach being taken by the Government.
The Committee is comprised of representatives of the Australian Labor Party, the Coalition and the Australian Greens. The Coalition Senators made some additional comments, separate to the Committee report, which confirmed that they did not support the Bill and noted their concern that the Bill will result in a significant shift in the balance of the Native Title Act 1993 (Cth) in favour of the native title holders and claimants.
The Australian Greens, who introduced the Bill, did not agree with the Committee report and released a separate report. This report noted that, while the proposed amendments were piecemeal, this was because no government had shown a willingness to engage in holistic reform of native title in the interests of traditional owners. The report acknowledged that the Bill would not address all the problems in the current native title system, but that the moderate changes it would make would have some significant beneficial outcomes to native title claimants.
The report can be accessed at http://www.aph.gov.au/senate/committee/legcon_ctte/native_title_three/report/report.pdf.