Can native title reforms deliver on Australian government’s vision?

On 6 June this year, the Australian attorney-general announced plans for further reform to the Native Title Act. Key proposals in the announcement are: (i) legislating “good faith” criteria in the “right to negotiate” process; (ii) clarifying the tax treatment of payments from native title agreements; (iii) introducing legislative change to enable prior extinguishment to be overlooked in parks and reserves; and (iv) expanding the scope of the indigenous land use agreement (ILUA) provisions.

Good faith and tax

The announcement suggests an expansion of the obligations of proponents and the Australian states under the right to negotiate. It remains to be seen how the government intends to do this. However, setting out explicit criteria will inevitably provide more prescription and raise the hurdle for proponents and the states.

The announcement does not suggest the government is proposing some of the more radical amendments that the earlier Greens Bill – (the Native Title Amendment (Reform) Bill (No. 1) 2012 – advocated. The proposal of the Australian Greens (a political party) included reversing the onus of proof in relation to the existence of native title and providing that a party may not apply to the National Native Title Tribunal for a determination that a mining lease should be granted until that party has first demonstrated that good faith negotiations have taken place.