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NATIVE TITLE CLAIMS RESOLUTION

Reforms to the System

The Australian Government has announced the first of its responses to a number of inquiries into the native title system.  The first announcement responds to a series of recommendations made by independent consultants, Mr Graham Hiley QC and Dr. Ken Levy.  A Bill amending the Native Title Act, 1993 to reflect the Government's decisions is expected to be put to Parliament towards the end of 2006.

In August 2006 the Government responded to 24 key recommendations coming out of the claims resolution review.  Some of the key responses are as follows:-

  1. Native Title Institutions - The Government has decided to retain the current structure of the Federal Court (which ultimately decides claims, particularly where the parties are unable to reach agreement) and the National Native Title Tribunal (which assists parties achieve agreed outcomes through mediation).  The Government will strengthen the NNTT's mediation role by excluding the Court from conducting its own mediation of issues while a claim is being mediated by the NNTT.  The Government has decided not to legislate to create a new Native Title Court.  However it recognises that the Chief Justice of the Federal Court may create a native title panel as part of the Court's structure.
  2. NNTT's Mediation Powers Enhanced - The NNTT is to be given additional powers to help make its mediations more effective.  They include powers to conduct formal reviews of materials provided by claimants or respondents about whether a particular claim group has sufficient connection to claim areas.  There will also be new powers to compel the attendance of parties at mediation and to require relevant documents to be tabled.
  3. Resolving Overlapping Claims - The Government has accepted recommendations for a new mechanism to assist in resolving overlapping claims.  The NNTT is to be given a new inquiry function enabling it to collect evidence and make non-binding recommendations about overlapping claims and other inter-indigenous and intra-indigenous issues.
  4. Other Outcomes - Other recommendations accepted by the Government include the following:-
  • A code of conduct will be developed for all parties involved in mediations and there will be a statutory requirement for all parties to mediate in good faith.
  • More emphasis is to be given to a regional approach to mediation.  The NNTT may report to the Court on regional mediation progress and produce regional mediation work plans.
  • Where a claim fails the registration test there will be a greater scope for the Court to simply dismiss the claim.
  • The Government agrees that the NNTT and all parties should be encouraged to make more use of existing legal mechanisms which enable preliminary decisions on issues of law and fact relevant to resolving a claim.
  • The NNTT will be able to ask the Court to remove a party which is unable to demonstrate a relevant interest in the claim.  Industry bodies may be joined to a claim where one or more of its members is entitled to be a party and wishes the industry body to represent them.  A respondent party's ability to participate in claim resolution issues may be limited to issues that are relevant to its interests.
  • The Court will be required to convene regular native title user group meetings, call-overs of all matters on a regional basis and the NNTT and the Court will be asked to actively seek new methods of improving communication with each other.

Other aspects of the Government's overall review of the native title system, include a proposal for technical amendments to the Native Title Act and an examination of how the Native Title Financial Assistance Scheme can be used to encourage agreement making.  MacDonnells Law will outline the Government's responses to those inquiries when they are announced.

For further information on this topic please contact one of our Indigenous Law team:-

  • Oliver Gilkerson - 3031 9714
  • Jenny  Humphris - 3031 9720
  • Andrew Kerr - 4030 0564
  • Leanne Hintz - 4030 0676

Indigenous Law Solutions is a newsletter intended only to provide general information about current legal issues and does not constitute, nor should it be used or treated as, professional or legal advice.  Readers should make their own enquiries or seek legal advice before making any decisions concerning their own interests.