Reforms to Native Title: Government Releases Options Paper

Monday 4 December 2017 @ 10.21 a.m. | Judiciary, Legal Profession & Procedure | Legal Research

On Wednesday, 29 November 2017, the federal Attorney-General, Senator George Brandis and the Minister for Indigenous Affairs, Senator Nigel Scullion issued a Media Release announcing the release of an options paper intended to consider how the native title system can be improved to ". . . better support all stakeholders involved with native title". 

Purpose of the Options Paper

The options paper is to consider reforms to the Native Title Act 1993 (Cth) (the Native Title Act) to make the native title system operate more effectively for all Australians. The option paper includes recommendations from a range of reviews, including the:

  • Australian Law Reform Commission’s report on Connection to Country: Review of the Native Title Act 1993 (Cth),
  • Council of Australian Government’s Investigation into Land Administration and Use, and
  • Office of the Registrar of Indigenous Corporations’ Technical Review of the Corporations (Aboriginal and Torres Strait Islander) Act 2006.

The options paper is said to have been developed by the Government engaging extensively with "key stakeholders", which the Media Release says, includes the states and territories who were consulted at a "Native Title Ministers’ Meeting" on 13 October 2017.

Key Matters to be Considered

Autonomy and Simplicity: The options paper considers how native title holders can be given greater autonomy to resolve claims more simply. Providing claim groups with greater authority to make decisions, and more options to resolve internal disputes, is a key focus of this aspect.

Operation of Indigenous Bodies: The options paper contains a number of proposals designed to improve the operation of Indigenous representative bodies which play a vital role in representing native title holders. 

Reduction of Regulatory Burden and Cost: While claims resolution continues to be a priority for the Government, as more claims are determined, the focus of the system must shift to how native title holders can make agreements with other parties and resolve disputes. That is why a number of the proposals relate to reducing the regulatory burden and cost of the process so that native title holders have greater flexibility in making decisions about their land and water. 

The introduction to the options papers indicates that, the government has decided the options on which to consult, by considering the ongoing development of the case law to ensure any resulting legislative changes meet current needs:

"In deciding which options to consult on, the Government has taken into account the ongoing development of the case law and the broader native title system, with a view to ensuring that any legislative change meets the current needs of the system. Therefore this paper focuses on improvements to claims resolution, agreement-making and dispute resolution processes, rather than proposing significant changes to the key concepts of the law (including on connection and the content of native title)."

The aim is also to build on the amendments made by Native Title Amendment (Indigenous Land Use Agreements) Act 2017 which were enacted to resolve the uncertainty created by the Full Federal Court decision in McGlade v Native Title Registrar & Ors [2017] FCAFC 10 and its effects in regard to area Indigenous Land Use Agreements (ILUAs). In this respect the options paper also includes various proposals raised by State and Territory governments.

Following from the Options Paper Consultation

After the options paper consultation is complete, the Government has indicated that it will develop an exposure draft Bill for further public comment. The Government has indicated that it expects that the exposure draft Bill will be released in early 2018. 

As well the Government has announced it has also tasked an "Expert Technical Advisory Group" comprising native title, State and Territory government, Commonwealth, and industry representatives to provide technical assistance on how to implement certain amendments to the Act. 

Feedback and Contribution

The Government has announced that submissions close on Thursday, 25 January 2018, and said:

"The Government is committed to wide consultation on native title reform and stakeholders are encouraged to provide feedback on the options paper by 25 January 2018. . . . These proposals are further evidence of the Turnbull Government’s commitment to improving the native title system."

For details on how to make submissions click here.

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