Roxon's Unfinished Business


Commonwealth Attorney-General Nicola Roxon’s decision to step down leaves some unfinished business for her successor Mark Dreyfus, including proposed changes to the Native Title Act (NTA).

The Native Title Amendment Bill seeks to "streamline processes" for Indigenous Land Use Agreements, provides that in some circumstances parties may agree to disregard extinguishment, and sets out new provisions on "good faith" negotiation, with this last element likely to attract the most opposition.

The amendments do not go as far as Greens Senator Rachel Siewart’s private bill from earlier last year, which contains some similar provisions but also proposes changes to the very narrow requirements for recognition of native title and explicitly provides that rights may be commercial in nature.

The Government’s more conservative approach has disappointed some. Tracker managing editor Chris Graham has argued that "Labor’s reforms are not really reforms at all" but simply "fiddling at the edges".

Others, of course, have reacted quite differently. From Shadow Attorney-General George Brandis’ perspective, amendments are unnecessary, as "the existing arrangements for the determination and settlement of native title claims which have been in place in their current form since the early days of the Howard government … are working".

Brandis’ characterisation of the proposed good faith changes as having the potential to "significantly [rebalance]the negotiating position as between claimants and respondents, in particular by removing the obligation to negotiate in good faith which in our view would allow claimants to game the system", is instructive on two counts.

First, note the suspicion of any amendments which might actually benefit native title claimants, and the implication that such gains would be somehow illegitimate. Second, given the bill provides that all negotiation parties would still be obliged to negotiate in good faith, the Senator’s reference to a removal suggests that he has not yet read it very carefully.

The right to negotiate, and the requirement that negotiations be in good faith, are not widely understood, and it is worth setting out these proposed changes and why they matter.

Native title groups cannot veto activities on their claimed or determined land. Rather, with respect to certain acts, such as the grant of a mining lease, they have the right to negotiate. This right is burdened by limitations imposed by the NTA itself and the way in which it has been interpreted, but is one of the few things standing between native title parties and unfettered development, and provides a chance to influence both the direction that projects on their claimed land might take, and any compensation they might receive.

The NTA provides that where certain acts are proposed, all parties (the relevant government, the grantee party to whom the interest will be granted, and the native title group) must negotiate in good faith. The term good faith is undefined and negotiations need only take place within a six month period. After this time, any party may seek a determination from the National Native Title Tribunal (NNTT) that the act may be done; the NNTT can only make such a determination if satisfied that there has been good faith negotiation.

If a native title party alleges that a grantee (such as a mining company) or government party has failed to negotiate in good faith, it bears the onus of proof. If the NNTT is satisfied that there has been good faith negotiation, it can then make a determination as to whether "the act" can be done. If the NNTT is not so satisfied, parties are sent back to the negotiating table.

These rather minimal provisions are the NTA’s only mechanism for ensuring that native title parties have enjoyed their right to negotiate. Since the NTA commenced operation in 1993, however, parties have been found to have failed to negotiate in good faith only four times — and one of these was later overturned by the Full Federal Court in FMG Pilbara Ltd v Cox, a case cited in the Explanatory Memorandum to Roxon’s bill as demonstrating the need for amendments.

In seeking to rectify some flaws in the right to negotiate, the Bill does not define "good faith". Instead it states, echoing the NTA’s preamble, that parties must "use all reasonable efforts to reach agreement about the doing of the act", although it imposes no requirement to enter into an agreement.

The reasonableness of parties’ efforts is to be assessed in the context of each negotiation, and the bill also sets out non-exhaustive criteria which are to be considered in determining whether a party has negotiated in good faith — such as whether it has "given genuine consideration to the proposals of other negotiation parties" and "refrained from capricious or unfair conduct that undermined negotiations".

The bill states that negotiations "must include consideration of the effect of the doing of the act", and increases the negotiation period from six to eight months. Finally, it provides that where one party asserts that another has not negotiated in good faith, it is the party against whom the assertion is made which must satisfy the NNTT that it has so negotiated.

These changes represent an attempt to alter the playing field by requiring that all parties make more meaningful efforts to reach agreement. If they become law, any parties which have previously adopted a box-ticking, one-size-fits-all approach might have to re-evaluate their tactics and engage more closely with negotiating parties. The effect would be to strengthen the right to negotiate by providing a clearer, more rigorous standard against which negotiations can be evaluated. Given the importance of the right to negotiate to native title claimants and holders, this is arguably a step in the right direction.

For the Australian Minerals Council, the proposed amendments are a simply recipe for "increased contestability", higher costs, extended timeframes, and "uncertainty for stakeholders".

"Certainty" is a familiar term in native title negotiations and can often be read as "certainty that we will win".

It is also generally certain that the Coalition will resist attempts to address power disparities between native title parties and developers. Indeed, the Coalition’s opposition to the proposed changes is consistent with its traditional approach to native title — but it might be seen as curious by anyone who took Tony Abbott at his word on "Wild Rivers".

Recall that in 2010 the Opposition Leader condemned the Queensland Wild Rivers Act as "an attack on the rights of Aboriginal people" and the federal Coalition sought to amend the Act to require the consent of "the traditional owners of native title land" before any "wild rivers" declaration was made — an effective veto, extending far beyond anything proposed in the current bill.

Where is the federal Coalition’s commitment to stronger procedural rights for Aboriginal and Torres Strait Islander landholding groups now? Brandis’ remarks suggest it has been all but forgotten; he concluded: "We think the [native title]system that was arrived at in the late 1990s is significantly effective and we don’t think alteration … is warranted". In other words, the current balance — heavily weighted in favour government, pastoral and industry interests — is deemed appropriate, and attempts to change it will be opposed.

The NTA amendments are far from representing the only legislative battlefield in this election year, but if the Government holds its nerve, it will be one worth watching.

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