10.49 The authorisation of an applicant has the predominant purpose of ensuring that a claim is made with the authority of the claim group. It also creates an entity to perform the functions and responsibilities associated with that claim under the Act. However it also creates opportunities for the applicant to receive funds that are intended for the native title group. For example, the applicant must be a party to an area ILUA and is a negotiation party for future acts. Some state legislation also creates opportunities for an applicant to enter into an agreement on behalf of the group. The Act does not regulate how funds arising from these agreements are held or disbursed.
10.50 There are some concerns that funds are not always held for the benefit of the entire native title group, particularly when the applicant is represented by private agents rather than representative bodies. The ALRC has not consulted on this issue and does not express a view as to whether there are widespread problems with private agents or applicants dealing inappropriately with the proceeds of future act agreements.
10.51 While the draft Terms of Reference for this Inquiry included a reference to ‘access to and protection of native title rights and benefits’, the final Terms of Reference did not. Accordingly, the ALRC has not investigated this area in depth. However, two recent inquiries have looked at these issues.
10.52 The Taxation of Native Title and Traditional Owner Benefits and Governance Working Group (‘the Working Group’) considered ‘the adequacy of current arrangements for holding, managing and distributing (native title) benefits’. In 2013, the Working Group made recommendations to the Australian Government regarding the regulation of private agents, the establishment of a statutory trust, and amendments to the Native Title Act to clarify the ownership of benefits and the fiduciary duty of the applicant.
10.53 In 2014, the Review of the Roles and Functions of Native Title Organisations considered the role of private agents in the native title systems, and proposed a number of options for reform, including amendment of the Native Title Act to clarify the fiduciary duty of the applicant.
10.54 The ALRC has been directed to consider the Act’s authorisation provisions. Proposals have been made for changes to the authorisation provisions that are intended to support native title claim groups as they manage and protect benefits. However, the ALRC has not been directed to consider the important question of the protection of benefits more broadly. Further development of the options for reform outlined above (including statutory trusts, fiduciary duties, and the regulation of private agents) is not within the ALRC’s Terms of Reference.
Explanatory Memorandum, Native Title Amendment Bill 1997 (Cth) [25.16].
Native Title Act 1993 (Cth) ss 24CD(1), 24CD(2)(a), 253.
Ibid ss 30, 30A, 253.
See, eg, Aboriginal Cultural Heritage Act 2003 (Qld) ss 34, 35.
Native Title Services Victoria, Submission No 4 to Senate Standing Committee on Legal and Constitutional Affairs, Native Title Amendment Bill 2012 (2012); Australian Treasury, ‘Taxation of Native Title and Traditional Owner Benefits and Governance Working Group: Report to Government’(3 August 2013) 11; Dan O’Gorman, Submission to Deloitte Access Economics, Review of the Roles and Functions of Native Title Organisations 2014; Yamatji Marlpa, Submission to Deloitte Access Economics, Review of the Roles and Functions of Native Title Organisations 2014.
Australian Treasury, above n 59, 33.
Deloitte Access Economics, ‘Review of the Roles and Functions of Native Title Organisations’ (Australian Government, March 2014) 39–40.