20 Jun 2013

Momentum for reform of the Native Title Act continues to gather

by Tosin Aro, Tim Nielsen

Any changes could have significant implications for the way proponents conduct required negotiations with registered native title claimants.

In part prompted by the imminent 20th anniversary of the Native Title Act 1993 (Cth) (NTA), the Federal Attorney-General, Mark Dreyfus QC, has referred certain specific areas of the native title system to the Australian Law Reform Commission for inquiry.

On 7 June 2013, the Attorney announced a public consultation on the draft terms of reference for that inquiry. The deadline for submissions in relation to the draft terms of reference is close of business on 28 June 2013.

The draft terms of reference ask the Commission to inquire into (and report on) the following two issues that can significantly affect the timely and effective resolution of native title claims:

1. connection requirements relating to the recognition and scope of native title rights and interests; and

2. the identification of barriers, if any, imposed by the NTA's authorisation and joinder provisions to claimants', and potential claimants':

  • access to justice, and
  • access to and protection of native title rights and benefits.

The issue of "connection" remains a fundamental factor contributing to the duration and complexity of native title cases. Many consider that the burden upon native title claimants to prove a continuing connection (predating European settlement) with the land and waters in relation to which they claim native title is too onerous. Conversely, however, any amendment of the provisions of the NTA defining the requirements of connection would fundamentally alter how native title is determined and would have significant implications for all those dealing with native title issues.

The NTA has complex provisions relating to the authorisation by native title claim groups of representatives to (on their behalf) make native title claims and deal with matters arising in relation to such claims. These authorised representatives (ultimately known as "registered native title claimants") are responsible for progressing native title claims through both the National Native Title Tribunal and the Federal Court, as well as for representing their claim groups in "Right to Negotiate" negotiations with energy and resources project proponents.

However, divisions within native title claim groups can lead to contests as to who can lay claim to have been properly authorised in this way, and such divisions and contests can be the cause of significant delay and complication – to both the determination of native title claims and negotiations with proponents. Proponents in particular should keep a close watch on these developments as any changes could have significant implications for the way in which they need to conduct required negotiations with registered native title claimants.

It is worth noting that the Commission's inquiry is separate to the proposed reforms contained in the Native Title Amendment Bill 2012 that is currently before the Parliament.

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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.