Background

Native Title has two broad areas of implications for non-claimants.  The first relates to those who have interests in a claim area which would be affected by a recognition of native title.  They are able to join as a respondent party to the claim and may participate in the claims resolution process to ensure that their interests are recognised and protected. 

Secondly, those who propose activities on land or waters which would affect native title (both physical activities and tenure dealings), must comply with the Native Title Act, 1993 for the activities to be done validly.  Those activities are called future acts. 

Since the Native Title Act, 1993 commenced on 1 January 1994, there has only been one major round of reforms to the native title system.  That occurred in 1998 when the legislation was amended to implement the Australian Government's Ten Point Plan - itself largely a response to the High Court's decision in Wik Peoples v State of Queensland.  The finding in that case was that pastoral leases generally do not extinguish native title.  Accordingly, the focus of the 1998 reforms was on providing statutory clarification about where extinguishment will have occurred.

In contrast, the 2007 reforms focus in large part on the claims resolution process itself.  In Queensland alone there remain 170 unresolved claims.  Only 93 claims across the whole of Australia have been finally determined since the claims system was first established. 

The main objective of the reforms is to make the claims resolution process more effective and to encourage parties to resolve claims through agreement.

What do the Reforms Involve?

The reforms arise out of a review by the Government of 6 aspects of the native title system:-

• Claims resolution.
  
• Technical amendments (including to the future act regime).
  
• Functioning of Prescribed Bodies Corporate (corporations which may deal with native title on behalf of the native title holders).
  
• Functioning of Native Title Representative Bodies (usually Land Councils which assist native parties).
  
• Improving communications and transparency between the Australian Government and State and Territory Governments.
  
• The Native Title Financial Assistance Scheme.

The focus of the reforms is on changes to the claims resolution process.  Those changes are largely contained in the Native Title Amendment Bill 2006.  The Bill has been recommended by the Senate's Legal and Constitutional Affairs Committee and is expected to be passed by Parliament in March 2007.

Further amendments to the Native Title Act, 1993, particularly the technical amendments, will be the subject of a separate Bill.  That Bill is likely to be considered by Parliament later in 2007.

Changes to the Claims Resolution Process

The changes were developed following a review of the system by two independent consultants.  Some of the main changes will be as follows:-

• The Federal Court (which oversees the claims process and conducts trials of claims which are not resolved by agreement) and the National Native Title Tribunal (which mediates claims to try and secure agreement), will both retain their respective functions.  However, where a claim is in mediation the Federal Court will not be able to conduct parallel mediation processes. 
  
• Where a claim has been referred to the National Native Title Tribunal ("NNTT") for mediation, it will have greater powers to control and compel mediation.  The NNTT will be able to direct parties to attend mediation conferences and produce documents.
  
• There will be greater scope for agreed determinations over part of a claim area.  Claim areas where there is agreement may be separated (and finalised) from areas where there are sticking points.  The consent of minor parties may not be needed (although the agreement of local government parties will still be required).
  
• The NNTT will be empowered to conduct investigations into impediments and delays.  It will also have new powers to conduct enquiries to explore possible solutions to issues impeding mediation.
  
• All parties to claims will be subject to a general statutory obligation to act in good faith in native title mediations. 

Native Title Financial Assistance Scheme

The Government's changes to the Native Title Financial Assistance Scheme have mostly already been implemented.  Under this scheme less resourced respondents and groups of local governments may apply to the Commonwealth Attorney-General for a grant to assist their participation in mediation.  In relation to local governments, MacDonnells Law provides legal assistance in conjunction with a group representative from the Local Government Association of Queensland.

Some of the main changes to the Financial Assistance Scheme include the following:

• Group applications by respondent parties with the same or similar interests in the same claims are now necessary.
  
• Financial assistance grants are made in stages.  Each stage currently involves a six month period with progress reporting required at the end of each period.
  
• New Guidelines for the Scheme have been released.  They provide greater detail about the circumstances in which a grant may be made and how the grant system operates.

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 067

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