Native Title Services Victoria Ltd

ABN 27 lOS 885 149

642 Queensberry Street (PO Box 431) North Melboume VIC 3051 ph (03) 9321 5300 fax (03) 9326 4075 www.ntsv.com.au

28 June 2013

The Hon Mark Dreyfus QC MP Attorney-General

Attorney General's Department

By email:

Dear Attorney

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

Thank you for giving Native Title Services Victoria Ltd (NTSV) the opportunity to respond to the draft terms of reference for an Inquiry by the Australian Law Reform Commission (ALRC) into certain areas of the native title system ('the Inquiry').

NTSV welcomes the announcement of the Inquiry with the overarching objectives being to improve the timely and effective operation and resolution of native title and generate practical, timely and flexible outcomes for native title parties. NTSV considers that the Inquiry presents a significant opportunity for Government to introduce changes to the Native Title Act 1993 (Cth) ('the Act') that will better uphold the intent enunciated by the Preamble and deliver tangible and long-lasting outcomes for Indigenous Australians.

NTSV notes that in recent months it has been participating extensively in the Government's consultations on a suite of proposed amendments to the Act regarding:

• the authorisation and registration of Indigenous Land Use Agreements;

• the meaning of 'Good Faith' and the 'right to negotiate' provisions; and

• historical extinguishment.

NTSV has also contributed to the Government's consultations regarding the Tax Laws Amendment

(2012 Measures No. 6) Bill 2012 which, if passed, will clarify the tax treatment of native title payments.

This submission assumes that the Native Title Amendment Bill 2012 and the Tax Laws Amendment

(2012 Measures No.6) Bill 2012 will be passed before the election and, consequently, does not replicate our representations made through the course of their development and passage.

It is NTSV's view that the draft terms of reference broadly capture all of the key issues arising under the Act relating to connection, and authorisation and joinder.

However, to ensure that the key issues are unambiguously captured by the final terms of reference and to fully utilise the opportunities for further reform raised by the Inquiry, it is recommended that:

• the presumption of continuous connection be explicitly identified in the terms of reference as a key issue with respect to the connection requirements relating to the recognition and scope of native title rights and interests to be considered by the ALRC;

• additional issues of significance (discussed below) are added to the terms of reference; and

• an explicit reference to the United Nations Declaration on the Rights of Indigenous Peoples is made.

Connection requirements

As the Attorney-General's Department 'Scope of the Review' discusses, there have been numerous representations made by notable commentators and key stakeholders supporting the presumption of continuity of laws and customs and connection. The current 'burden of proof for native title claimants is not only a fundamental barrier to the recognition of their native title rights and interests but it is also the primary cause of the costly and protracted processes associated with demonstrating connection and reaching agreement.

Consequently, it is critical that amending the Act to allow for the presumption of continuity is considered to fall squarely within the remit of the Inquiry. Although this issue is raised in the 'Scope of the Review', it is NTSV's view that it is not sufficiently identified as a key issue in the terms of reference themselves.

Additional issues that should be included in the terms of reference

Role of non-government respondents in native title proceedings

NTSV notes that the draft terms of reference relating to the Act's joinder provisions only apply to claimants and potential claimants. It is NTSV's view that the terms of reference should also extend to joinder provisions as they relate to non-claimant, non-government respondent parties.

As native title law becomes increasingly settled, the effect of native title on existing rights and interests is more certain and there has been a shift from an adversarial to an agreement making environment. Given these developments, it is arguable as to whether non-government respondent parties ought to play such active roles in native title proceedings.

Currently, the joining of non-government parties as native title respondents means that they must ultimately agree to the terms of any consent determination, even those terms of a consent determination that have no bearing on the rights and interests of the respondent party. This can cause delays to negotiations and impose an administrative burden at the time of signing. It is arguable as to whether this power is commensurate with the impact of a native title determination on the interests of a non-government respondent.

In Victoria, for example, native title settlement negotiations (under the Traditional Owner Settlement Act 2010 (Vic)) are undertaken bilaterally between the State and Indigenous groups. The framework for settling native title in Victoria was developed against, among others, a principle of protecting third party interests. While it is the State's responsibility to consult with third parties throughout the process, they play no formal role in the negotiations and agreement making themselves. There is scope to inquire as to whether these or similar arrangements ought to be adopted in the native title process.

Accordingly, NTSV submits that the terms of reference be broadened to consider the joining of non­government respondent parties to native title claims, including:

• what interests (if any) are sufficient to permit a non-government party to be joined as a respondent;

• the extent and nature of involvement of non-government respondent parties in native title proceedings; and

• whether and in what circumstances the Court ought to be empowered to make orders for a consent determination notwithstanding the withholding of consent by a non-government respondent party.

Extinguishment

NTSV proposes that the terms of reference should also extend to a review of the operation of extinguishment under the Act. The Native Title Amendment Bill 2012 includes provisions that, if passed, would give parties, where they agree, the discretion to disregard historical extinguishment over parks and reserves. NTSV considers that this approach could reasonably apply to other forms of tenure and is consistent with the overarching objectives of the Inquiry.

Future act provisions

NTSV submits that the Inquiry presents an opportunity to review and clarify the Act's future act provisions so as to facilitate consistency of interpretation. NTSV has experienced difficulty in interpreting and applying these provisions, particularly s24KA (7), (8) and (9) relating to the procedural rights of registered native title claimants and holders.

The difficulty relates to the drafting of these provisions (not the extent of the rights) and it is NTSV's position that the Inquiry ought to consider the effect of the drafting and any unintended consequences, with a view to simplifying these provisions.

In addition, consideration ought also to be given to removing the limitation on the content of National Native Title Tribunal future act arbitration determinations contained in s38(2). While s38 appears to have been included in an attempt to encourage negotiated outcomes to future act matters, the experience of stakeholders involved in future act negotiations under the Act has indicated that the limitation contained in s38(2) operates to actually protract the future act approval process. Removal of this limitation contained in the subsection may overcome this shortcoming and also operate to ensure that the Act is more fully compliant with the requirements of the United Nations Declaration on the Rights of Indigenous Peoples.

Regard to the United Nations Declaration on the Rights of Indigenous Peoples

NTSV commends the Attorney-General's direction that the issues before the Inquiry are explored in light of the Preamble and the Objects of the Act but considers that the Inquiry should also be undertaken with regard to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

The Commonwealth Government has endorsed UNDRIP and in order for this to have tangible effect, it is critical that the Government considers any reform relating to Indigenous issues with regard to the principles espoused by UNDRIP.

Conclusion

Thank you again for seeking our views on the draft terms of reference for the Inquiry. I would be

very pleased to discuss our response in further detail should you or your department have any questions. Congratulations on initiating a very important Inquiry. NTSV looks forward to making further contributions to the Inquiry as it gets underway.