Key points:
- The Commonwealth Government has released discussion papers on optimising the benefits of native title agreements and minor amendments to the Native Title Act 1993 (Cth).
- Proposals of key relevance to the resources industry are those proposing:
- changes to the tax regime applying to native title payments, and the development of template agreements, or statutory minimum payments in native title agreements, and
- enabling the Federal Court to make determinations that cover matters beyond native title, and to introduce a semi-inquisitorial element to claim resolution.
- The Victorian Native Title Settlement Framework, if implemented, will provide a means for settlement of land claims outside the current native title claim process.
In December 2008, the Commonwealth Government released two discussion papers for comment in relation to:
- optimising benefits from native title agreements, and
- minor amendments to the Native Title Act 1993 (Cth) (NTA) with the aim of improving the operation of the native title claims resolution system.
These initiatives follow recent announcements by the government relating to its commitment to ‘close the gap between Indigenous and non-Indigenous Australia’.1 This note also summarises available information on the Victorian Native Title Settlement Framework. A report on the Victorian Native Title Settlement Framework is expected to be released in early 2009.
Discussion paper: Optimising benefits from native title agreements
On 8 December 2008, the Commonwealth Government released the discussion paper ‘Optimising benefits from native title agreements’.2
The paper presents a range of options relevant to optimising benefits that flow from native title agreements for intergenerational socioeconomic development and is intended to ‘build on’ the report of the Native Title Payments Working Group.3 The options presented are financial and non-financial, legislative and non-legislative and can be grouped into the following key areas:
- promoting increased transparency of agreement making and content: while acknowledging that some information is commercially sensitive and should be protected
- promoting improved workability of agreements: drafting agreements with long term implementation and flexibility in mind, including structures which are fit for purpose, and processes which are properly resourced
- promoting good practice:
- considering the development by traditional owners, industry and government of joint guidelines for agreement making
- promoting capacity building for all participants in the agreement making process to fulfil their roles in the agreement making and agreement implementation processes, and
- considering the appropriate balance in the roles of government and developments in providing infrastructure in remote Australia
- development of tax options for optimising benefits, including consideration of the development of a new form of trust vehicle, tax incentives and tax exemptions, and
- statutory schemes:
- a proposal for the design of a statutory scheme that ‘prescribes a minimum level of statutory benefits to be provided under native title agreements’ together with ‘off the shelf’ template agreements. The paper notes that some agreements would fall outside the scope of any template, and
- the paper also considers whether a regulatory and monitoring role could be performed by existing governmental agencies in relation to the implementation of agreements.
Commonwealth discussion paper: Proposed minor native title amendments
It is the policy of the Commonwealth Government to resolve native title claims ‘through negotiation and mediation, rather than litigation where possible’.4 In order to facilitate negotiated settlements to native title claims, the Commonwealth proposes to amend the NTA to give the Federal Court (court) a central role in managing all native title claims.5
On 23 December 2008, the Commonwealth issued a discussion paper proposing minor changes to the NTA with the aim of improving the operation of the native title claims resolution system. The changes are mostly technical in nature.
In summary, the discussion paper proposes amendments to the NTA to:
- enable the court to rely on a statement of facts agreed between the parties to expedite consent determinations of native title
- enable the court to make determinations that cover matters beyond native title
- apply provisions of the Evidence Amendment Act 2008 (Cth) which are relevant to the giving of evidence by Indigenous persons in native title matters. In particular, by modifying:
- the application of the hearsay rule to make it easier for a court to hear evidence of Indigenous traditional laws and customs as they relate to the existence or content of native title, and
- the law in relation to witnesses giving evidence in narrative form
- streamline the processes applying to recognition and re-recognition of Native Title Representative Bodies and their structure and process requirements, and
- enable the court to refer questions in native title proceedings to an appropriately qualified referee for inquiry and report.
The majority of the proposals are technical in nature and go to the conduct of native title claims. The two proposals of potentially substantive impact and interest to the resources industry are the proposals to enable the court to make determinations that cover matters beyond native title, and to include a semi-inquisitorial element to the determination of native title claims.
Victorian Native Title Settlement Framework
In March 2008, the Victorian Government and the Victorian Traditional Owner Land Justice Group announced the formation of a joint steering committee to develop a Victorian Native Title Settlement Framework to develop a new framework of state policy regarding native title rights and other land justice issues. It was envisaged that a new framework would allow traditional owners to negotiate acceptable agreements about matters such as ownership, management of and access to land by traditional owner groups, recognition of traditional owners, access to natural resources and strengthening culture either in the form of a native title claim settlement package or an alternative settlement outside the forum of native title proceedings under the NTA.
In January 2009, the media reported leaked details of the confidential draft report of the steering committee which indicated that the proposed framework may involve legal as well as policy reform.
The Victorian Premier and Cabinet are due to consider the steering committee’s final report early this year.
Endnotes
1 First 100 days: Achievements of the Rudd Government (February 2008)
2 Discussion paper: Optimising benefits from native title agreements
3 The Native Title Payments Working Group Paper
4 Discussion paper, page 3
5 The detail of this proposal has not yet been published
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