The Hon Dr Anthony Lynham MP

Queensland Government

Minister for Natural Resources, Mines and Energy

Ref CTS 00225/18

1 4 FEB 2018

The Honourable Christian Porter MP Attorney-General PO Box 6022 House of Representatives Parliament House CANBERRA ACT 2600

Dear Attorney-General

1 Will iam Street Brisbane

PO Box 15216 City East Queensland 4002 Australia

Telephone +617 371 9 7360 Emai l nrm@ministeri al.qld.gov.au www.dnrm.qld.gov.au www.dews.qld.qov.au

I am writing to provide you with Queensland's response to the Australian Government's Options paper - Proposed reforms to the Native Title Act 1993 (Cth).

Queensland, along with the other states and territories, has for a number of years promoted reforms to the Native Title system, in particular to remove or reduce transaction costs, for the benefit of all parties.

I am pleased to see that many of the reforms that were discussed at last year's October Native Title Ministers' Meeting are being progressed and look forward to when they will be incorporated into the Native Title Act 1993.

The issue of Native Title compensation, which was discussed at last year's Native Title Ministers' Meeting, is an outstanding issue that requires a consistent, fair and sustainable national response. While I acknowledge that this issue is outside of the scope of the current options paper, the Queensland Government wishes to discuss further with the Australian Government · the near future.

Enc

CC: native.title@ag.gov.au

QLD response:

Reform area Section 31 agreements

Authorisation and the application

Agreement-making and future acts

Reform to the Native Title Act 1993 (CTH) (NTA) options paper - November 2017

Response to questions Question 1: Should the Act be amended to confirm the validity of section 31 agreements made prior to the McG/ade

decision? Yes. Amendments to the Act would resolve any uncertainty that may have arisen from the McG/ade decision.

Question 2: What should be the role of the applicant in future section 31 agreements? Which of the three options, if any, do you prefer? Option 3 is preferred. The process should align with the process for making area ILUAs following the 2017 Amendments.

Question 3: Do you support the proposals to: a) allow claim groups to define the scope of the authority of the application, b) clarify that an applicant can act by majority unless the claim group specifies otherwise, c) allow the composition of the applicant to be changed without going through a section 668 reauthorisation process in prescribed circumstances, and/or d) impose a statutory duty on the members of the applicant to avoid obtaining a benefit at the expense of native title holders?

Each of the proposals is supported but further details are required.

Question 4: Do you support the creation of an alternative agreement-making mechanism? If so, what limitations would you seek to have applied to such an agreement? Queensland is supportive of proposals that would improve efficiency and reduce costs for all parties as this can impact of project delivery timeframes.

The ILUA process appears to be more suited to a pre-determination scenario where the holders of the native title are not legally determined. Post determination dealing with native title holders should be no more onerous than dealing with non­native title interest holders. Any issues with how the PBC (as trustee or agent) operates should be regulated in the appropriate legislation e.g CATSIA, not in the NTA.

Indigenous decision-making

Claims resolution and process

Question 5: Do you support the proposals set out in Attachment C to streamline exist ing agreement existing processes?

Queensland's detailed position on these proposals was set o.ut in Attachment C-Streamlining agreement-making were largely dealt with in the State arid Territories' consolid~ted .~osition in response to the Australian Government's request for advice on the unimplemented NTA reforms. Tliis was proviCled 28 July 2017 and is attached to this document.

In summary, Queensland supports all Proposals.

Question 6: a) Should there be a Register of 31 agreements? Queensland supports the creation of a register of 31 agreements, however the parties should have the opportunity to restrict access too commercially or cultural sensitive information. b) Should ILUAs - and other agreements made under the Act- be publicly accessible? Queensland supports making ILUAs and S.31 agreements publically available, however the parties should have the opportunity to restrict access to commercially or cultural sensitive information. Also, consideration could be given to having the Registrar advise the land t itles office of a registered agreement and requiring the land title office to record details of the agreement on the land title. Such details should be minimal, but sufficient to direct a person to obtain relevant details of the agreement from the Register of ILUAs/s.31 agreements.

The recording of the agreement on the land title wou ld not have the effect of a registered interest in land, but a notation only that an agreement is in place in re lation to the land.

Question 7: Should the Act and the PBC Regulations be amended to allow native tile claim groups and native title holders to determine their decision-making processes, rather than mandating the use of traditional decision-making where such a traditiona l process exists.

Queensland's detailed position on proposals set out in Attachment D- Indigenous decision-making were largely dealt with in the state and territories' consolidated position in response to the Australian Government's request for advice on the unimplemented NTA reforms. This was provided 28 July 2017 and is attached to this document.

In summary, Queensland supports all of the proposa ls. Question 8: Do you support the proposed amendments detailed in Attachment E to improve efficiency and effectiveness of claims resolution?

Post­determination and dispute management

Queensland's position on the proposals set out in Attachment E - Claims resolution and process were largely dealt with in the state and territories' consolidated position in response to the Australian Government's request for advice on the unimplemented NTA reforms. This was provided 28 July 2017 and is attached to this document.

In summary: • Proposals El, E2 and EG are not supported; • Proposals E3, E4 and ES (which is a new Proposal) are supported.

Question 9: Do you support the pro~osed amend merits in Attachment F to address post-determination native title related disputation? Queensland's position on the proposals set out.in Attachment F - Post-determination dispute management were largely dealt with in the state and territories' consolidated position in response to the Australian Government's request for advice on the unimplemented NTA reforms. This was provided 28 July 2017 and is attached to this document.

In summary all Proposals are supported, including FlO which is a new proposal.

State and territory Queensland's position on the proposals set out in Attachment G - State and territory proposals are: proposals

Queensland's position on the proposals set out in Attachment G - State and Territory proposals were largely dealt with in the state and territories' consolidated position in response to the Australian Government's request for advice on the unimplemented NTA reforms. This was provided 28 July 2017 and is attached to this document.

In summary all Proposals are supported.