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 native.title@ag.gov.au
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?
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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
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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