Review of the Native Title Act

The Native Title Act is currently the subject of a major review by the Australian Law Reform Commission.  The Terms of Reference for the Review focus on the critical areas of “connection”, authorisation of native title claims, and joinder (who can join or become a party to native title proceedings, and when).  The Commission is also investigating related issues, including whether the Native Title Act should be amended to recognise traditional rights and interests of a “commercial” nature.  The Commission released an Issues Paper in March 2014, which is available here.  Submissions on the Issues Paper have now closed, however a Discussion Paper is expected to be released in September 2014, with further public consultations on the Discussion Paper scheduled for October and November 2014.

What is being reviewed?

The Terms of Reference for the Review focus on the critical areas of “connection”, authorisation of native title claims, and joinder (who can join or become a party to native title proceedings, and when).  The Commission is also investigating whether native title rights and interests of a commercial nature should be recognised in the Native Title Act.  In the Issues Paper for the Review, the Commission has identified a number of questions relevant to each of these issues, including:

• Should a rebuttable ‘presumption of continuity’ be introduced into the Native Title Act?
• Should the Native Title Act be amended to include rights and interests of a commercial nature?
• Should the Native Title Act be amended to address difficulties in establishing the recognition of native title rights and interests where there has been a ‘substantial interruption’ to, or change in continuity of acknowledgment and observance of traditional laws and customs?
• What, if any, problems are there with the authorisation provisions for making applications under the Native Title Act?  In particular, in what ways do these problems amount to barriers to access to justice for claimants, potential claimants and respondents?
• In what circumstances should any party other than the applicant for a determination of native title and the Crown be involved or play a limited role in proceedings?

How does this affect you?

Native title proceedings are notoriously slow and expensive.  A major motivation behind the Review is to try to reduce both the time and money involved in the resolution of native title claims.  However, this has to be balanced against the need to ensure that all parties affected by a native title determination are adequately and appropriately involved and have their interests provided for.  The Review is considering the extent to which respondents should be involved in native title proceedings, what steps can be taken to streamline the process of establishing an uninterrupted traditional connection dating back to sovereignty, and whether the concept of traditional rights and interests in the Native Title Act should include commercial rights and interests.

There will be an opportunity to comment on the Commission’s findings and recommendations on these issues when it releases its Discussion Paper.

What happens next?

Submissions on the Issues Paper have now closed.

The Commission is expected to release a Discussion Paper in September 2014.  Public consultations on the Discussion Paper are scheduled for October and November 2014, with public submissions accepted until the end of November 2014.

Further information on the review can be found here.