24 Oct 2013

Native Title Act Inquiry kicks off!

by Mark Geritz, Tosin Aro, Patrick Cranley

The best way for people who would like a say in the future shape of the Native Title Act is to contribute through the ALRC's proposed submission process.

Following the release of the final terms of reference for its Inquiry into the Native Title Act 1993 (Cth) (NTA) in August, the Australian Law Reform Commission (ALRC) has now taken an important step to progress the Inquiry by setting out its approach and beginning consultations.

Under the terms of reference the ALRC has two major issues to address:

  1. "connection requirements",which relate to the need for Indigenous people seeking recognition of their native title rights and interests to be able to establish that such rights and interests are possessed under traditional laws and customs that they have continued to acknowledge and observe as a group - and by which they have maintained a connection with the claimed land and waters; and
  2. any barriers to access to justice posed by the NTA's:

a. "authorisation provisions", which set out the process by which Indigenous groups give authority to certain of their members to, on their behalf, make and progress native title claims and deal with related matters; and

b. "joinder provisions", being the legal process provided under the NTA for new parties to join native title claims.

The ALRC acknowledges that any potential changes to native title law will require very careful consideration and broad stakeholder engagement. It therefore wants its review to be as wide-reaching as possible and has already begun consultations with interested parties within the Indigenous community and their representative organisations, as well as those within the legal profession, industry and the community generally.

The best way for people who would like a say to contribute will be through the proposed submission process. We will provide an update once submissions open.

Next steps

For now, the ALRC plans to release, in early 2014, an Issues Paper that will provide an overview of the issues surrounding the Inquiry and ask questions that have arisen through the ALRC's first stage of research and consultations.

A secondary round of public consultations will take place after the release of the Issues Paper and then a Discussion Paper is expected to be released in or around September 2014. This Discussion Paper will, for the first time in the course of this Inquiry, contain concrete draft proposals for reform. Members of the public will have an opportunity to make submissions giving their feedback on the draft reform proposals after the release of the Discussion Paper.

We will provide further guidance about the scope of the Inquiry upon the expected release of the Issues Paper early in the New Year.


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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.