28 June 2013

Native Title Unit

Attorney General’s Department

3-­‐5 National Circuit BARTON ACT 2600

Via Email:

Dear Sir or Madam

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

ABN 32 122 833 158

638 Queensberry Street North Melbourne 3051 PO Box 431

North Melbourne 3051

Tel: +613 9326 7822 Fax: +613 9326 4075


The National Native Title Council (NNTC) welcomes the opportunity to provide comment on the draft terms of reference to the Review of the Native Title Act 1993 (‘the Act’) by the Australian Law Reform Commission (the Inquiry).

The NNTC welcomes the Inquiry and supports the overall purpose to significantly affect the timely and effective resolutions of native title claims and to improve the operation of the native title system more broadly. The NNTC believes the Inquiry presents a significant opportunity to give serious consideration to introducing amendments to the Act that will better align the legislation with its intention as stipulated in the Preamble.

Under the draft terms of reference, it is proposed that the ALRC will inquire into and report on the

following two issues under the Act:

• 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 authorization and joinder

provisions to claimants’, and potential claimants’:

o Access to justice, and

o Access to and protection of native title rights and benefits.

In particular, the Government seeks responses to the following two questions:

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 issues that should be included in the terms of reference?

The NNTC wishes to provide the following comments in response to the draft terms of reference as well as provide support for those submissions provided by Native Title Representative Bodies and Service Providers from around Australia.

Connection Requirements

The NNTC is particularly pleased to see this matter included in the terms of reference. Whilst we acknowledge that the scope of the review intends to capture the proposal to introduce a rebuttable presumption of continuity of laws and customs and connection, the NNTC seeks this proposal to be explicitly listed in the terms of reference.

The NNTC has advocated for this amendment over several years and through many submissions and we believe that the adoption of a rebuttable presumption would help reduce the resource burden on the system (especially where continuity is undisputed), helping facilitate the expeditious resolution

of native title claims.

Moreover, by reversing the onus of proof, the evidential burden is placed more appropriately on the State, which, by virtue of its ‘corporate memory’, is in a better position to elucidate on how it colonized or asserted its sovereignty over a claim area. This has the additional benefit of placing responsibility for investigating connection and extinguishment in the lap of the one entity, potentially leading to a more comprehensive understanding of the evidence in a given case.1

Importantly, the NNTC believes that such an amendment may also result in positive behavioural changes and may also facilitate a paradigm shift in the way negotiations are conducted and in the quality and quantity of positive outcomes for claimants.2

The Australian Government has previously been criticised by the United Nations Committee on the Elimination of Racial Discrimination (CERD) for its approach to native title since the 1998 amendments. CERD significantly raised concerns about the high standard of proof required for the Courts to demonstrate continuous observance and acknowledgement of the laws and customs of Indigenous people, resulting in Traditional Owners not being able to obtain recognition of their relationship with their traditional lands.

These concerns have been consistently raised by CERD since the 1998 amendments to the Native Title Act, concerns that are shared by Native Title Representative Bodies and Service Providers around Australia. The NNTC believes that undertaking a full review into introducing a rebuttable presumption provision into the Act and would provide a significant opportunity to address the criticisms of CERD.

In this regard, the NNTC notes the work of the Parliamentary Joint Committee on Human Rights, established to examine legislation in accordance with the Human Rights (Parliamentary Scrutiny) Act

2011.

Importantly the Committee has concluded that it would be prudent to ‘seek clarification in relation to the omission from the [Native Title Amendment Bill 2012] of provisions addressing the burden of proof in relation to native title applications and whether the current burden of proof provisions in the Native Title Act 1993 are compatible with the right to self-­‐determination’.3

1 Smith, K., Minefields, Minor Amendments and Modest Changes: an outline of the inherent dangers in native title negotiations and the opportunities to sweep them away, Negotiating Native Title Forum, Melbourne, 19

February 2009

2 ibid

3 Parliamentary Joint Committee on Human Rights, Sixth Report of 2013: Bills introduced 18 – 21 March 2013;

Legislative Instruments registered with the Federal Register of Legislative Instruments 16 February – 19 April

Authorisation and Joinder

It is the view of the NNTC that the authorisation and joinder issues outlined in the scope of review are satisfactory, however, would therefore suggest that other, more important, issues be also included in the terms of reference as outlined below.

Additional Issues that should be Included

Extinguishment

The NNTC considers that the terms of reference should include a review of the operation of extinguishment under the Act. The current Native Title Amendment Bill 2012 includes a proposal to disregard historical extinguishment over parks and reserves, albeit with the requirement that this only occur when there is agreement in writing by both the relevant government and the applicant. The NNTC considers that there are other areas where historical extinguishment could also be disregarded and considers this to be a pervasive issue that impacts all parties across the system.

The NNTC therefore believes it would be valuable to have a body such as the Australian Law Reform Commission to look into opportunities to disregard historical extinguishment. We believe this would not only speed up and reduce the cost of historical tenure analysis but also satisfy the aims of the Inquiry being to affect the timely and effective resolution of native title claims.

UN Declaration on the Rights of Indigenous Peoples

The NNTC also believes that the terms of reference should make specific reference to the United Nations Declaration on the Rights of Indigenous Peoples. The Federal Government formalized Australia’s support for the Declaration in 2009 and this Inquiry provides a timely opportunity to ensure the principles contained in the Declaration are translated into the Act, being a statutory framework that has a fundamental impact on the rights of Indigenous peoples across Australia.

Future Act

A number of member organisations have raised concerns with the NNTC in relation to activities undertaken by various State Governments without taking particular regard to, or even with conscious disregard for, the future act processes contained within the Act. Presently the Act contains no provisions to either prevent or deter such activities.

It is therefore suggested the draft terms of reference be amended so as to encompass a review of the future act provisions of the Act with a view to preventing and deterring State or Territory Governments engaging in activities without following the full future act processes set out in the Act.

Other Matters

The NNTC acknowledges that the Inquiry should consider what, if any, changes could be made to the Act, having regard to a range of other matters including, but not limited to, any other relevant legislation, relevant case law, previous reports, reviews and inquiries. The NNTC wishes to ensure that the Inquiry should also have regard to the current Review of Native Title Organisations being undertaken by the Department of Families, Housing, Community Services and Indigenous Affairs and the tax treatment of native title payments including the Treasury Working Group looking into appropriate tax vehicles.

Representation

As a final point, it is understood that an Advisory Group or Expert Panel may be established to assist the Inquiry. If this is in fact the case, I strongly request that the NNTC be represented on that group with at least one, but if possible two representatives.

2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=humanrights_

ctte/ reports/2013/6_2013/index.htm [accessed 27 June 2013]

I trust you find these comments useful, however if you require any further information in relation to the content of this submission please do not hesitate to contact me on (03) 9326 7822 at your convenience.

Yours sincerely

Brian Wyatt

Chief Executive Officer