Publications / Native Title
On 3 August 2013, the Rudd Government indicated support for recommendations from a Government working group relating to land-related payments received by native title holders and Indigenous communities from agreements under the Native Title Act 1993 (Cth) (NTA). These recommendations will be relevant for resource companies, pastoralists and any other organisations who are negotiating Indigenous land use agreements with traditional owners.
Significantly, on the same day, the Commonwealth Attorney-General referred Australia’s native title laws to the Australian Law Reform Commission (ALRC) for inquiry and report on connection requirements and barriers to access to justice arising out of the NTA’s authorisation and joinder provisions.
The use of native title payments
The Taxation of Native Title and Traditional Owner Benefits and Governance Working Group’s (Working Group) recommendations (set out in its report dated 1 July 2013 that the Government released on 3 August 2013) addresses Government concerns regarding how native title groups use payments received through Indigenous land use agreements and section 31 agreements under the NTA, many of which are with exploration and mining companies.
Along with recommending the creation of an Indigenous Community Development Corporation (ICDC) that Indigenous communities can use to invest land-related payments in long-term community development (an initiative the Minerals Council of Australia and the National Native Title Council jointly proposed in 2010), the Working Group recommends seeking clarification on the legal rights of native title holders to native title payments.
Addressing the Mandandanji judgment
The Working Group referred to the recent judgment in Mandandanji People v State of Queensland (No 2)  FCA 485 (Mandandanji) in which, as a result of a deficiency in authorisation of the Mandandanji People’s native title claim, Justice Rares ordered all monetary payments payable to the applicants to the claim to be paid to the Registrar of the Federal Court until the appointment of properly representative applicants.
To address the perceived inequity in the use by native title applicants of payments under NTA agreements in circumstances where the actual native title holding group has not yet been finally determined (as was the case in Mandandanji), the Working Group recommends not only that the NTA be amended to clarify that the native title holding community is the beneficial owner of payments, but that the named applicants have a fiduciary relationship with the native title holding group.
The Working Group’s other recommendations
To the same end, the Working Group recommends the regulation of private agents including solicitors and law firms involved in negotiating native title agreements, the establishment of a statutory trust to hold agreement funds where there is no other appropriate entity, and a process for the registration of section 31 future act agreements (similarly to Indigenous land use agreements required to be registered on the Register of Indigenous Land Use Agreements).
The ALRC inquiry
In referring the NTA to the ALRC, the Government asked it to investigate the connection requirements relating to the recognition and scope of native title rights and interests, including by looking at possible changes to the presumption of the continuity of connection, the meaning of ‘traditional’ to allow for the evolution and adaptation of culture, and clarification that native title rights and interests can include rights and interests of a commercial nature.
Commercial native title interests and Akiba
Notably, the Government made the referral 4 days before the High Court confirmed on 7 August 2013 the Torres Strait Regional Seas Claim Group’s rights to fish for commercial purposes in the Torres Strait. In Akiba v The Commonwealth  HCA 33, the High Court found the right was incidental to the right to take resources for any purpose in the Torres Strait native title claim area, a right the Federal Court determined existed in its consent judgment of 2 July 2010.
In doing so, the High Court found that successive Commonwealth and Queensland fishing laws that regulated commercial fishing in Queensland did not extinguish the native title right to take fish for any purpose (including commercially), and confirmed the distinction between the non-extinguishing effect of legislation regulating the exercise of a native title right in a particular way, and legislation inconsistent with the continued right and that extinguished it.
Access to justice
Notably the ALRC’s terms of reference have also changed since the first draft was released in June 2013: while addressing barriers to justice imposed by the NTA’s joinder provisions on claimants and potential claimants, the inquiry will also address barriers imposed on respondent parties (many of which are pastoralists and mining companies).
The Attorney-General has asked the ALRC to report back by March 2015, and given it wide scope to consult with and consider the views of relevant stakeholders and reports, including the Working Group’s. The Federal Government also indicated it provided in-principle support for all of the Working Group’s recommendations and would develop the recommendations further in consultation with stakeholders.
Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.