Native Title Unit

OFFICE OF THE REGISTRAR FEDERAL COUFT OF AUSTRALIA PRINCIPAL REGISTRY LAW COURTS BUILDING QUEENS SQUARE SYDNEY NSW 2000 Pho n e: 61 2 9230 8237 Fax: 612 9223 1906 Email: [email protected]

19 June 2013

Native Title Unit Attorney-General's Department 3-5 National Circuit BARTON ACT 2600

By email: [email protected]

Dear Sir/Madam

Review of the Native Title Act 1993 by the Australian Law Reform Commission

Thank you for the opportunity to comment on the draft terms of reference for the proposed Australian Law Reform Commission review of the Native Title Act 1993 (the Act).

The native title jurisdiction represents one of the most important yet complex and challenging jurisdictions of the Court. As Chief Justice Allsop has noted, "the resolution and recognition according to law of the long-existing rights of the indigenous peoples of this country is not only important to them as litigants but al so for the nation as a whole."

The proposed review, appropriately in my view, seeks to balance the importance of practical and timely outcomes with the need to ensure that native title claims, like all matters before the Court, are resolved as efficiently and inexpensively as possible. While the draft terms of reference are said to be intended to capture all the issues relating to joinder that stakeholders may want considered, it is apparent from the scope of review document that the focus of inquiry is on joinder of indigenous parties.

It is the experience of the Court that the claims notification and joinder provisions of the Act in their application to both indigenous and non-indigenous prospective parties have the capacity to significantly delay the progress of claims and impose substantial administrative burdens on the Court, National Native Title Tribunal and the parties. For example, while the provisions relating to the joinder outside of the notification period were amended in 2007 to require not only that the applicant for joinder have an interest that may be affected by a determination but also that it be in the interests of justice that they be joined, no similar interests of justice requirement exists in relation to joinder during the notification period. This has frequently meant that parties whose interests the jurisprudence tells us are protected and who have no desire or capacity to participate in the resolution of the claim must be joined. Often these parties are dismissed when a claim approaches resolution without ever having actively participated despite Court orders that they do so. Delay and administrative burden are inevitable with seemingly little, if any, overall benefit. 2

In relation to notification, it is often the case that a new claim may be filed after considerable mediation or case management and just prior to the resolution of a matter to take advantage of the beneficial provisions of the Act under which prior extinguishment can be disregarded. The current provisions of the Act require notification of all new applications even in circumstances where those persons holding interests in the area are known and may have been actively involved in resolving the case. In these circumstances delay is inevitable.

I have taken the liberty of suggesting some amendments to the draft terms of reference for your consideration that have the effect of ensuring that the review captures issues related to both indigenous and non-indigenous joinder and notification.

Do not hesitate to contact me. You may also wish to discuss the issues above with Mr Ian Irving, our Native Title Registrar. He may be contacted on 02 9230 8887 or Ian.Irving(@ fedcourt.gov.au.

Yours sincerely

Warwick Soden Registrar & Chief Executive Australian Government Attorney-General’s Department

Draft Terms of Reference

REVIEW OF THE NATIVE TITLE ACT 1993

I, Mark Dreyfus QC MP, Attorney-General of Australia, having regard to:

• the 20 years of operation of the Native Title Act 1993 (the Act)

• the importance of native title to Indigenous Australians, including the capacity of native title to support Indigenous economic development and generate long-term benefits for Indigenous Australians

• the need to ensure that the native title system delivers practical, timely and flexible outcomes for native title parties; including through faster, better claims resolution

• significant and ongoing stakeholder concern about barriers to the recognition of native title, particularly with respect to the connection requirements in the Act, and

• delays to the resolution of claims and significant litigation relating to the authorisation and joinder provisions of the Act, and ( Deleted:

• delays to the resolution of claims relating to the joinder and notification of claims Formatted:Bullets and Numbering provisions of the Act.

REFER to the Australian Law Reform Commission for inquiry and report, pursuant to subsection 20(I) of' the Australian Law Reform Commission Act 1996, the native title ( Deleted:"o system in relation to three specific areas, as follows:

• connection requirements relating to the recognition and scope of native title rights and interests, and

• the identification of barriers, if any. imposed by the Act's authorisation and joinder provisions to claimants', and potential claimants': o access to justice, and o access to and protection of native title rights and benefits Formatted:Indent: Left: 2.01 l em • the requirements for joinder and the notification of claims provisions of the Act Formatted:Bullets and J Numbering

In relation to these issues and in light of the Preamble and Objects of the Act, I request ( Deleted: bo1h that the Commission consider what, if any, changes could be made to improve the operation of the native title system.

Scope of reference In performing its functions in relation to this reference, the Commission will consider:

(a) the Act and any other relevant legislation

(b) any relevant case law

(c) previous reports, reviews and inquiries regarding the native title system and the practical implementation of recommendations and findings

(d) opportunities presented by native title processes for Indigenous communities. through a range of native title and native title related outcomes (such as sustainable Indigenous economic development, heritage protection, employment and housing opportunities),and

(e) any other relevant matter concerning the operation of the native title system.

Consultation

In undertaking this reference, the Commission will identify and consult with key stakeholders, including:

(a) relevant Commonwealth, State, Territory and local Governments and agencies

(b) the Federal Court of Australia and the National Native Title Tribunal

(c) Indigenous groups, Native Title Representative Bodies and Prescribed Bodies Corporate

(d) industry, including the agriculture, pastoral, fisheries, minerals and energy resources industries, and

(e) any other relevant groups or individuals.

Dated [insert date] 2013

Mark Dreyfus QC MP Attorney-General