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Native Title Legislation Amendment Bill 2019 [Provisions]

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Native Title Legislation Amendment Bill 2019 [Provisions] The Senate Legal and Constitutional Affairs Legislation Committee Native Title Legislation Amendment Bill 2019 [Provisions] © Commonwealth of Australia 2020 ISBN 978-1-76093-100-1 (Printed Version) ISBN 978-1-76093-100-1 (HTML Version) This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License. The details of this licence are available on the Creative Commons website: http://creativecommons.org/licenses/by-nc-nd/3.0/au/. Printed by the Senate Printing Unit, Department of the Senate, Parliament House, Canberra. Members Chair Senator Amanda Stoker LP, QLD Deputy Chair Senator the Hon Kim Carr ALP, VIC Members Senator Claire Chandler LP, TAS Senator Anthony Chisholm (from 27.11.2019) ALP, QLD Senator the Hon Sarah Henderson LP, VIC Senator Nick McKim (until 12.11.2019) AG, TAS Substitute Members Senator Rachel Siewert to replace Senator Nick McKim (from 12.11.2019) AG, WA Senator Patrick Dodson to replace Senator Anthony Chisholm (from 27.11.2019) ALP, WA Participating Member Senator Dean Smith LP, WA Secretariat Sophie Dunstone, Committee Secretary Margie Morrison, Principal Research Officer Brooke Gay, Administrative Officer Suite S1.61 Telephone: (02) 6277 3560 Parliament House Fax: (02) 6277 5794 CANBERRA ACT 2600 Email: [email protected] iii Contents Members ............................................................................................................................................. iii Recommendation ............................................................................................................................. vii Chapter 1—Introduction .................................................................................................................... 1 Previous bill .......................................................................................................................................... 1 Conduct of the inquiry ........................................................................................................................ 1 Acknowledgement ............................................................................................................................... 2 Structure of this report ........................................................................................................................ 2 Purpose of the bill ................................................................................................................................ 2 Background to the bill ......................................................................................................................... 3 Overview of the bill ............................................................................................................................. 4 Consideration by other parliamentary committees ........................................................................ 5 Note on references ............................................................................................................................... 7 Chapter 2—Key issues........................................................................................................................ 9 Introduction .......................................................................................................................................... 9 Overview of evidence on the bill ...................................................................................................... 9 Schedule 1–Role of the applicant ..................................................................................................... 13 Schedule 2–Indigenous Land Use Agreements ............................................................................. 19 Schedule 3–Historical Extinguishment ........................................................................................... 20 Schedule 4–Allowing a registered native title body corporate to bring a compensation application. .............................................................................................................................. 27 Schedule 5–Intervention and consent determinations ................................................................. 28 Schedule 6–Other procedural changes ............................................................................................ 28 Schedule 7–National Native Title Tribunal .................................................................................... 31 Schedule 8–Registered native title bodies corporate..................................................................... 33 Schedule 9–Just terms compensation and validation ................................................................... 39 Chapter 3—Other issues raised with the committee .................................................................. 41 Further reform to the Native Title Act ............................................................................................ 41 Consultation process ......................................................................................................................... 43 Committee view ................................................................................................................................. 46 Minority Report by Labor Senators ............................................................................................... 49 v Australian Greens Dissenting Report ........................................................................................... 59 Appendix 1—Submissions, answers to questions on notice and media releases................. 65 Appendix 2—Public hearings ......................................................................................................... 67 vi Recommendation Recommendation 1 3.32 The committee recommends that the Senate pass the bill. vii Chapter 1 Introduction 1.1 On 17 October 2019, the Senate referred, contingent upon introduction in the House of Representatives, the provisions of the Native Title Legislation Amendment Bill 2019 (the bill) to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 28 February 2020.1 On 4 December 2019, the Senate granted an extension to report by 16 April 2020.2 On 26 March 2020, the Senate granted a further extension of time for reporting until 19 August 2020.3 1.2 The Senate referred the bill to the committee following a recommendation of the Selection of Bills Committee.4 In referring the bill for inquiry, the Selection of Bills Committee highlighted that the bill is a complex area of law and identified the 'need to consider cultural approaches to native title of different traditional owner groups'.5 Previous bill 1.3 Another bill, also called the Native Title Legislation Amendment Bill 2019 was introduced into the House of Representatives on 21 February 2019. That bill lapsed at dissolution of the House of Representatives on 11 April 2019. The previous bill was very similar to the bill subject to this inquiry. The only difference between the two versions of the bill is changes to the commencement dates for measures in schedule 8 due to the passage of time, and for which the National Indigenous Australians Agency has policy responsibility.6 Conduct of the inquiry 1.4 Details of the inquiry were advertised on the committee's webpage. The committee called for submissions to be received by 28 November 2019 and also wrote to a range of organisations inviting them to submit. The committee continued to accept submissions after the closing date. The committee received 27 submissions, which are listed at Appendix 1. 1 Journals of the Senate, No. 23, 17 October 2019, pp. 696-698. 2 Journals of the Senate, No. 34, 4 December 2019, p. 1088. 3 Journals of the Senate, No. 48, 8 April 2020, p. 1469. 4 Selection of Bills Committee, Report No. 7 of 2019, 17 October 2019, [p. 3]. 5 Selection of Bills Committee, Report No. 7 of 2019, 17 October 2019, Appendix 3. 6 Attorney-General's Department, Submission 6, p. 5. 1 2 1.5 The committee held three public hearings in Western Australia: Perth, Kalgoorlie and Broome. The witnesses who appeared at the hearings are listed at Appendix 2. 1.6 The public hearing scheduled to be held in Warburton on 11 March 2020 was unable to proceed due to COVID-19 travel restrictions to that area. The witnesses scheduled to appear in Warburton provided evidence to the committee via teleconference at the Kalgoorlie public hearing. 1.7 The committee scheduled a Canberra public hearing to take place in March 2020 to facilitate discussion on the bill and issues raised during the inquiry. The hearing was unable to proceed due to the COVID-19 situation and the committee subsequently submitted written questions on notice to a number of organisations. Answers to questions on notice received by the committee are listed at Appendix 1.1 Acknowledgement 1.8 The committee thanks all submitters and witnesses for their participation in this inquiry. Structure of this report 1.9 This report consists of three chapters: This chapter outlines the background and key provisions of the bill and provides administrative details relating to the inquiry. Chapter 2 examines the key issues relating to the bill raised in evidence; Chapter 3 examines broader issues raised with the committee and provides the committee's view and recommendation. Purpose of the bill 1.10 The bill, introduced into the House of Representatives on 17 October 2019 by the Attorney-General, the Hon Christian Porter MP, would
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