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The Department of Home Affairs has issued its draft guidance “Modern Slavery Act 2018: Draft Guidance for Reporting Entities” (Draft Guidance) for the new Modern Slavery Act 2018 (Cth) (the Act).
The much awaited High Court native title decision in the State of WA v Alexander Brown & Ors (Brown Decision) was handed down on 12 March 2014.1 The High Court unanimously held that 2 mineral leases granted in 1966 and 1974 under the Mount Goldsworthy State Agreement did not extinguish the native title rights and interests held by the Ngarla People in the land the subject of those mineral leases, even where there had been a town and open pit on the land. The Court said that when the exercise of native title rights and interests prevent a leaseholder from exercising a specific right the exercise of that right will prevail, but only until the leaseholder ceases to exercise that right (including by rehabilitating a pit or vacating a town).
The majority of leaseholders under similar State Agreements will be affected by this decision, as well as any tenement holders with similar leases granted before the Racial Discrimination Act 1975 (Cth) and theNative Title Act 1993 (Cth). The decision is broad enough to also impact the holders of any interest which does not grant the right to exclude ‘any and everyone from access to the land, for any reason or no reason’2 .
The High Court found that the mineral leases are not inconsistent with the coexistence of native title rights and interests over the land due to the fact that:
The Brown Decision results in practical uncertainty in the mining industry (particularly for those with State Agreement tenure granted prior to the Racial Discrimination Act 1975 (Cth) and the Native Title Act 1993(Cth)) as miners and native title holders will now be required to determine how they will regulate their co-existing rights over the same land.
History of the claim
The initial application by Alexander Brown and others (on behalf of the Ngarla People) for native title determinations in respect of this land was first head by the Federal Court in 2007. At first instance, the Federal Court found that the claimed native title rights and interests had been extinguished in the area where the mine, town and the associated works had been constructed on the mineral leases (Developed Areas). The leases were similar to the form of mineral leases then provided by the Mining Act 1904 (WA) and were granted prior to the enactment of both the Racial Discrimination Act 1975 (Cth) and the Native Title Act 1993 (Cth).
On appeal to the Full Court of the Federal Court, Greenwood and Barker JJ found by a 2 to one majority that the effect of the exercise of the rights under the mineral leases in respect of the Developed Areas was merely to suspend native title rights, rather than to extinguish them and therefore upheld the appeal by the native title holders.
By special leave, the State appealed to the High Court against the orders of the Full Court submitting that:
|1.|| HCA 8|
|2.|| HCA 8 at 13 |
|3.||Wik Peoples v Queensland (1996) 187 CLR 1|
|4.||Western Australia v Ward (2002) 213 CLR 1|
By Christine Lovitt, Fionn Bowd and Emma McLeod
The amendments to the Native Title Act 1993 (Cth) which were proposed by our previous Government have been reawakened, including offshore recognition, and are now being put forward once again in the form of the Native Title Amendment (Reform) Bill 2014(2014 Bill).
In summary, these changes are favourable to native title parties and would place greater obligations on project proponents, such as the obligation to negotiate in good faith. The changes would also expand the right to negotiate to offshore areas, which was not previously the case.
If implemented the 2014 Bill will see the following changes to the Native Title Act 1993 (Cth):
Right to negotiate process
Applications for a determination
Commercial rights and interests
Leave was granted for Senator Siewart who has re-introduced the 2014 Bill to continue her remarks on the next sitting day, being Monday 17 March 2014. We will track the progress of this Bill and will provide regular updates.
History of the Bill
As you may be aware, the Native Title Amendment (Reform) Bill (No. 1) 2012 (2012 Bill) was introduced into the Senate in February 2012. This Bill then lapsed on 12 November 2013 following the election of the Coalition.
The 2014 Bill is on identical terms to the 2012 Bill. It was introduced into the Senate and received its second reading speech on 4 March 2014.