Australia: Making headway: Issues Paper released for Inquiry into Native Title Act reform

Key Points:

The proposed reforms to the Native Title Act will have wide-reaching impacts for traditional owners, as well as for government and industry.

The Australian Law Reform Commission's (ALRC's) Inquiry into the reform of the Native Title Act 1993 (Cth) (NTA) reached an important milestone with the release of an Issues Paper on 19 March 2014. As we have previously outlined, the main issues for the Inquiry are:

• the establishment by native title parties of "connection" to their traditional lands; and
• any barriers to access to justice caused by the twin issues of "authorisation", including authorisation by native title claim groups of their representatives, and of the joinder of new parties to native title claims.

Connection

The Issues Paper considers for possible reform a number of issues related to connection, including the following two key topics.

Presumption of continuity

At present, to be eligible to have native title over particular land or waters determined in their favour, native title claimants must be able to demonstrate that, by their traditional laws and customs, they have a connection with the land or waters. They must also be able to prove (from sovereignty to the present day) continuity in their acknowledgement and observance of those laws and customs, and the continued existence of the native title rights and interests said to derive from those laws and customs.

Demonstrating these elements is often time consuming and expensive. Further, with stories of Indigenous histories, law and culture mostly being passed between generations by oral tradition, many argue that these matters are difficult to establish.

As a result, the ALRC is asking whether it would be fairer were native title claimants to enjoy a presumption, albeit rebuttable, of continuity of connection and of observance of their traditional laws and customs, and if so, how that presumption should be formulated. This would effectively shift the onus of proving (or disproving) continuity of connection from the claimants themselves to respondents to native title claims (particularly State, Territory or Commonwealth as well as other respondents).

The ALRC recognises that this is a difficult issue, however, and is seeking views about how this principle might work in various scenarios; for example, where claims are made to the same land and waters, on a competing basis, by separate groups of Indigenous people.

Rights and interests of a commercial nature

An additional question into which the ALRC will be inquiring is whether the NTA should clarify that "native title rights and interests" can include rights and interests of a commercial nature. The tension arises because the NTA definition of native title rights and interests specifies that those rights and interests must be possessed under traditional laws and customs. However, the High Court has recently found that native title rights and interests can include a right to access resources, and to take those resources "for any purpose" (commercial or otherwise).

In light of recent case law, the ALRC is seeking submissions as to whether the NTA should be amended to make it clear, as is the case in various international jurisdictions, that native title can include native title rights and interests of a commercial nature.

Authorisation

The second major issue for consideration by the ALRC is the question of whether the current process by which an "applicant" is authorised to act on behalf of a native title claim group provides adequate access to justice for claimants and respondents.

Authorising and replacement the applicant

The process for conferring authority on an "applicant" for a native title claim typically requires:

• notice of an "authorisation meeting" being brought to the attention of the members of a claim group generally; and
• unless the claim group is bound to follow a particular traditional decision-making process, the members of the claim group who attend the meeting then resolving (in accordance with a decision making process agreed and adopted by the meeting attendees) to appoint particular individuals to (jointly) be their applicant.

This process also applies to the replacement of applicants (in accordance with the process in section 66B of the NTA).

In this respect, a significant issue with the native title process is that there can be a significant delay between a claim group resolving (at an authorisation meeting) to authorise a replacement applicant, and that change being implemented by an order of the Federal Court under the s.66B process. The consequence of this delay is that respondents to claims and other third parties can face a period during which there is genuine uncertainty as to which group of individuals should be considered to be properly authorised to represent their claim group.

In the case of resources and other project proponents, in particular, this can mean real uncertainty during this period as to: the group of individuals with whom they should be negotiating agreements, which group of individuals should execute any such agreements and whether they should be paying funds due under any such agreements or withholding payment until the new applicant is confirmed by the Federal Court.

Given these circumstances, the ALRC is seeking submissions with respect to whether any changes to section 66B are warranted.

Joinder

The NTA currently requires a party seeking to be joined as a respondent to a native title claim, after the "notification period" for that claim, first to identify an interest that may be affected by a determination in the matter, and then convince the Federal Court to exercise its discretion to grant the joinder. In exercising its discretion, the Court will consider the likelihood of delay being caused by the joinder, the likely duration of (and any potential prejudice associated with) any such delay and whether the joinder applicant's interest can be protected by an alternative method.

The ALRC is taking submissions on whether the current process adequately balances access to justice concerns for existing parties to a claim and for those who would seek to become respondents.

Next steps

Submissions on any of the above issues need to be made before 14 May 2014. Those whose businesses have exposure to the native title regime are encouraged to participate in this process. If you are considering doing so, feel free to give us a call first to discuss these issues in greater detail.

The ALRC proposes to release, in around September 2014, a discussion paper that canvasses the matters raised in submissions and sets out some concrete proposals for reform. We'll give you a further update on this reform process at that time.

You might also be interested in...

• Native Title Act Inquiry kicks off!

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 territories.