On 7 June 2013, the Attorney announced a public consultation on
the draft terms of reference for that inquiry. The deadline for
submissions in relation to the draft terms of reference is close of
business on 28 June 2013.
The draft terms of reference ask the Commission to inquire into
(and report on) the following two issues that can significantly
affect the timely and effective resolution of native title
connection requirements relating to the recognition and scope
of native title rights and interests; and
the identification of barriers, if any, imposed by the
NTA's authorisation and joinder provisions to claimants',
and potential claimants':
access to justice, and
access to and protection of native title rights and
The issue of "connection" remains a fundamental factor
contributing to the duration and complexity of native title cases.
Many consider that the burden upon native title claimants to prove
a continuing connection (predating European settlement) with the
land and waters in relation to which they claim native title is too
onerous. Conversely, however, any amendment of the provisions of
the NTA defining the requirements of connection would fundamentally
alter how native title is determined and would have significant
implications for all those dealing with native title issues.
The NTA has complex provisions relating to the authorisation by
native title claim groups of representatives to (on their behalf)
make native title claims and deal with matters arising in relation
to such claims. These authorised representatives (ultimately known
as "registered native title claimants") are responsible
for progressing native title claims through both the National
Native Title Tribunal and the Federal Court, as well as for
representing their claim groups in "Right to Negotiate"
negotiations with energy and resources project proponents.
However, divisions within native title claim groups can lead to
contests as to who can lay claim to have been properly authorised
in this way, and such divisions and contests can be the cause of
significant delay and complication – to both the
determination of native title claims and negotiations with
proponents. Proponents in particular should keep a close watch on
these developments as any changes could have significant
implications for the way in which they need to conduct required
negotiations with registered native title claimants.
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 bulletin.
Persons listed may not be admitted in all states and
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Because of the high costs, royal commissions should only be convened to address issues of substantial public importance.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).