Chief Executive Level 5 Energy House 18-20 Cavanagh St DARWIN NT 0801
Postal address GPO Box 1680 Darwin NT 0801 Tel 08 8924 7286 Fax 08 8924 7044 Web www.nt.qov.au/dlp Our ref DDLPE2013/0050~0135
Native Title Unit Attorney-General's Department 3-5 National Circuit BARTON ACT 2600
via email to
[email protected]
To Whom It May Concern
AUSTRALIAN LAW REFORM COMMISSION REVIEW OF THE NATIVE TITLE ACT 1993 On 7 June 2013 the Commonwealth announced public consultation on draft terms of reference for an inquiry by the Australian Law Reform Commission (ALRC) into certain areas of the native title system. Under the draft terms of reference, it is proposed that the ALRC inquire into and report on the following two issues under the Native Title Act 1993 (the Act): 1. Connection requirements relating to the recognition and scope of native title rights and interests; and 2. The identification of barriers, if any, imposed by the Act's authorisation and joinder provisions to claimants' and potential claimants' (i) Access to justice; and (ii) Access to and protection of native title rights and benefits. The Commonwealth has sought the views of stakeholders, including, in particular, in relation to the following: 1. Do the draft terms of reference capture all of the key issues arising under the Act relating to connection, and authorisation and joinder? 2. Are there any additional native title issues that should be included in the terms of reference?
-2
Northern Territory Government Response The Northern Territory notes that the draft terms of reference include issues previously identified by stakeholders, including the Northern Territory, most recently in the context of consultations on the Native Title Amendment Bill 2012. In that regard, the Northern Territory agrees that the draft terms of reference capture the key issues identified by stakeholders. The Northern Territory supports any initiative that may enhance effectiveness of the native title system. However, because most of the proposed reforms are so long-standing in origin, many of the provisions are no longer necessary or useful; the issues have already been resolved through other means than legislative amendment. For instance, native title law has developed significantly through precedent cases, so that litigation is unnecessary and issues more readily negotiated. Processes agreed between native title representative bodies and government parties can resolve many of the problems that the proposed reforms seek to address in terms of bringing down the barriers claimants face and in reforming procedural issues. An example of this is the approach to provision of anthropological material and public works extinguishment agreed between the Northern Territory and the Northern and Central Land Councils, allowing faster and less resource-intensive resolution of native title claims affecting over 100 pastoral leases in the Northern Territory. With respect to the resolution of native title claims to pastoral leases in the Northern Territory, His Honour Justice Mansfield AM of the Federal Court has referred to the Northern Territory as "a trailblazer in Indigenous rights", applauding it for taking "a step which no other government has yet taken within Australia", and commending it for its "wisdom and foresight, and for its flexibility". Justice Mansfield expressed satisfaction about the Northern Territory being "so supportive in facilitating and adopting a means by which it can proceed now to a speedy recognition of native title claims" and declared that the "new approach will see cases such as these being resolved much more quickly than they have in the past". Different native title policy and legislative backdrops in each Australian jurisdiction will determine how effective reforms to the Act might be for that state or territory if passed into law. In Northern Territory circumstances, where a co-operative approach to dealing with native title has been implemented between the Northern Territory Government and representative bodies, it is unlikely that any of the proposed amendments will improve delivery of recognised native title rights. That is happening already, without need for legislative amendment.
DEPARTMENT OF LANDS, PLANNING AND THE ENVIRONMENT
www.nt.gov.au
-3
The Northern Territory is not alone in finding alternative mechanisms to resolve its native title backlog, and it has been working hard together with the states and the Commonwealth - and all other stakeholders - to overcome the challenges frustrating native title resolution. Thank you for the opportunity to comment.
f Executive De partment of Lands, Planning and the Environment 28 JUNE 2013
DEPARTMENT OF LANDS, PLANNING AND THE ENVIRONMENT
www.nt.gov.au
