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Focus: Native Title – December 2005

Making native title more workable

In brief: A package of measures designed to improve the performance of the native title system established under the Native Title Act was released by the Federal Government on 7 September. This package is aimed at identifying and implementing improvements to processes for the recognition of native title and the resolution of disputes over land that may be subject to native title. Senior Associate Robyn Glindemann and Lawyer Alex Brown outline the proposals.

Claims resolution review
Overview

The Claims Resolution Review has been established by the Federal Government to consider the native title resolution process. In particular, the Claims Resolution Review will examine the roles of the National Native Title Tribunal (NNTT) and the Federal Court, as well as consider measures for the more efficient management of native title claims within the existing framework of the Native Title Act 1993 (Cth) (the Native Title Act). The Claims Resolution Review is being undertaken by Graham Hiley, QC, and Dr Ken Levy, RFO, and is overseen by a steering committee consisting of a member of the NNTT, the Registrar of the Federal Court, an officer of the Attorney-General's Department and an officer of the Office of Indigenous Policy Coordination in the Department of Immigration and Multicultural and Indigenous Affairs.

Status

A report about the Claims Resolution Review is to be presented to the Attorney-General by the end of March 2006. Read AAR's submission to the Attorney-General.

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Prescribed bodies corporate
Overview

The Native Title Act provides for the establishment of prescribed bodies corporate (PBCs) to hold in trust or manage the determined native title rights and interests on behalf of native title holders. Once the relevant PBC is established by the native title holder, and approved by the Federal Court, it is entered onto the National Native Title Register as a registered native title body corporate. PBCs are a key element of the native title system and are designed to provide a structure through which native title holders are able to exercise their native title rights and to discharge their land management obligations. Significantly, as the number of native title determinations grows, the role of PBCs in managing native title rights and interests is likely to become increasingly important to the operation of the native title system as a whole.

However, only 38 PBCs have been established, despite 53 determinations of native title being made to date. In addition, concerns have been raised about the functioning of certain PBCs. The proposed review of PBCs aims, therefore, to identify the needs and functions of PBCs as well as the appropriateness of the current governance model for PBCs (taking into account the effect of the Corporations (Aboriginal and Torres Strait Islander) Bill 2005 (Cth)).

Status

Officers from the Attorney-General's Department and the Office of Indigenous Policy Coordination have met with numerous stakeholders in relation to the reform of PBCs and will continue to consult throughout December 2005.

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Native Title Representative Bodies
Overview

Native Title Representative Bodies (NTRBs) are bodies recognised under the Native Title Act for the purpose of representing and assisting in the processing of native title matters on behalf of indigenous peoples. The chief function of NTRBs is to provide support to native title holders to enable them to make various applications under the Native Title Act. NTRBs also have a role in the negotiation of Indigenous Land Use Agreements (ILUAs), which are voluntary agreements in respect of the use and management of land or waters made between one or more native title groups and others with interests in the area (such as miners, pastoralists and governments).

Under the reforms proposed by the Federal Government:

  • eligibility for recognition as an NTRB will be extended to organisations incorporated under the Corporations Act 2001 (Cth) (ie ordinary companies, rather than the current requirement that the organisation be incorporated under the Aboriginal Corporations and Associations Act 1976 (Cth));
  • NTRB recognition will be amended for a fixed term of up to six years, as opposed to the current system under which NTRBs are recognised indefinitely;
  • a simplified process will be introduced to allow the Minister to withdraw recognition of an NTRB that is not performing its statutory functions satisfactorily, or has serious financial irregularities and to appoint a replacement; and
  • funding will be made available on a 'multi-year' basis, rather than for a single year. This measure will assist NTRBs with their strategic planning.

The changes proposed in respect of NTRBs are designed to enhance the quality of service afforded to claimants and ensure a focus on outcomes.

Status

Written submissions in respect of the proposed reforms to NTRBs close on 7 February 2006. The Parliamentary Joint Committee on Native Title, and the Aboriginal and Torres Strait Islander Land Fund will then hold public hearings.

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Technical amendments to the Native Title Act
Overview

While the Federal Government's view is that the Native Title Act strikes an 'appropriate balance between the rights and interests of stakeholders', a number of 'fine tuning' amendments have been proposed in order to fix predominantly procedural issues. Importantly, no fundamental alterations of the native title system have been proposed.

A discussion paper setting out the Government's preliminary views on possible amendments was released on 22 November 2005.

Areas identified as suitable for amendment include:

  • adjusting the application of the registration test in specific circumstances so as to allow claimants to amend and remove deficiencies in a claim;
  • altering the information requirements for compensation applications according to the circumstances leading up to an application;
  • removing ambiguities and providing greater flexibility in provisions relating to ILUAs and the right to negotiate;
  • clarifying notice requirements in regard to future act provisions, and restricting the use of information gained by the NNTT in the course of assisting parties to apply for, or object to, an ILUA;
  • allowing non-native title parties to request an independent hearing under the section 24MD(6B) procedure;
  • setting out the information to be included in the NNTT's register of native title claims (the Register), and the conditions under which claims are to be removed from the Register; and
  • rectifying various anomalies and oversights inherent in the current legislation.
Status

Written comments in respect of the discussion paper close on 31 January 2006. Exposure draft legislation is also expected to be released for comment early in 2006.

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Financial assistance program
Overview

Under the current guidelines, financial assistance is available to persons not only in native title litigation cases in the Federal Court, High Court, or state and territory Supreme Courts but also for the purpose of obtaining legal advice, pursuing mediation in the NNTT or equivalent state or territory body, and in relation to agreements and disputes. The Federal Government is now of the view that it is no longer necessary for non-claimant parties to litigate all stages of a native title matter. Accordingly, the Federal Government has drafted new guidelines designed to emphasise agreement-making over litigation. The draft guidelines:

  • describe the scope and type of assistance available to parties;
  • clarify obligations to repay the Commonwealth in certain circumstances;
  • direct financial assistance more specifically to parties without financial resources; and
  • update costs and accountability requirements.
Status

Written submissions on the proposed Financial Assistance Program Guidelines close on 10 February 2006.

State and territory consultation
Overview

While the Federal Government has an overarching responsibility for the Native Title Act, the states and territories are charged with day-to-day responsibility for land management, and as such are the first respondent to the majority of native title claims. The Federal Government is now seeking to greater enhance the interaction between the various governments, as well as other stakeholders in the native title system through extensive consultation.

Native Title Ministers met in September 2005 to promote transparent practices and renew commitments for governments to work together for better outcomes. The Federal Government is committed to maintaining open relationships with all stakeholders through the Native Title Consultative Forum. Convened three times a year by the Attorney-General's Department, this forum will provide an opportunity for stakeholders to share experiences and discuss challenges facing the native title system.

Can we help?

We will continue to monitor these changes and keep you informed of any changes. In the meantime, if we can help you with a submission on these matters or with any other native title issue, please contact us

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