15 Aug 2013

One more shot at reform of the Native Title Act

by Tosin Aro, Mark Geritz, Prue Warner

The ALRC's Native Title Inquiry is currently the only forum in which those who would like a say on the direction of native title reform can participate.

The Federal Attorney-General has released final terms of reference for the ALRC's recently announced Inquiry into the Commonwealth Native Title Act (NTA). With the calling of the election, this process potentially represents the last meaningful attempt of the current Government to set in train a process that might result in lasting reform of the Native Title Act and of native title law and practice.

Draft terms of reference had been announced by the Australian Law Reform Commission in early June, and the final terms of reference were released on 3 August 2013. They request the ALRC to investigate and review the following issues:

1. connection requirements relating to the recognition and scope of native title rights and interests (including, most notably, the longstanding issue of whether there should be imported into native title law rebuttable presumptions, in favour of native title claimants, of continuity of:

  • connection to country and
  • acknowledgement and observance of traditional laws and customs); and

2. any barriers imposed by the NTA’s authorisation and joinder provisions to claimants’, potential claimants’ and respondents’ access to justice.

The ALRC has been asked, in the course of its review, to consider a number of matters, including relevant case law and the practical operation of the NTA and other relevant legislation. In addition, widespread community consultation will be undertaken with a variety of stakeholders (including those representing governments at all levels, the Federal Court and National Native Title Tribunal, Indigenous groups and the agricultural, energy and resources and other relevant industries).

The ALRC's ultimate objective in carrying out its review will be to consider what, if any, changes could be made to improve the operation of Commonwealth native title laws and legal frameworks in relation to these two areas.

We briefly discussed in June some of the issues in the subjects of continuing connection to country and of the NTA’s complex authorisation and joinder provisions; some of the difficulties endemic to the second of these issues are apparent from the recent decisions of the Federal Court in Weribone (on behalf of the Mandandanji People) v Queensland [2013] FCA 255 and Weribone (on behalf of the Mandandanji People) v Queensland [2013] FCA 485.

These decisions demonstrated some of the practical consequences that can result when there is doubt as to a registered native title claimant's authority from its native title claim group. In this case, the primary such consequence was the making by Justice Rares of "transparency orders" that (among other things) would have had the effect of requiring to be paid into court all monies payable, by project proponents and others, to the registered native title claimant and other members of the claim group "because of the operation of the [NTA]". Proponents could also have found themselves having to verify (to the court and the claim group's solicitor) all payments made to members of the group stretching back over the last four years. (The orders have since been vacated.)

Any greater certainty that can be introduced into the practical operation of these provisions as result of the ALRC's inquiry would have to be welcomed both by Indigenous groups and by all those (including industry) who, from time to time as a result of the operation of the NTA, negotiate and transact with native title parties.

The first consultation paper for the inquiry is expected towards the end of November with the final report due to be provided to the Commonwealth Attorney-General by March 2015. Between now and then, the ALRC will publish a regular e-newsletter with news and updates throughout the inquiry.

All legislation that was awaiting assent when the Prime Minister called the election, on 5 August 2013, has now lapsed. This included those active bills that were directed towards the reform of the native title system (the Native Title Amendment Bill 2012 (Cth), the Native title Amendment (Reform) Bill 2011 (Cth) and the Native Title Amendment (Reform) Bill (No. 1) 2012 (Cth)).

The result is that, for now, the ALRC's Native Title Inquiry is the only forum in which those who would like a say on the direction of native title reform can participate. We will be keeping abreast of all developments, particularly with respect to how the ALRC's inquiry (and the native title reform process generally) might be affected after the electio on 7 September 2013.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.