The legal framework for native title claims are complex. Identifying and assessing the evidence for proving native title is an involved process that can often result in lengthy timeframes for determinations.

To reduce this complexity, the Government announced a review of the Native Title Act 1993 on 3 August 2013, the year marking its twentieth anniversary. The then Attorney-General, Mr Mark Dreyfus QC, and the Minister for Families, Community Services and Indigenous Affairs, the Hon. Jenny Macklin MP, announced terms of reference for an Australian Law Reform Commission (ALRC) inquiry into specific areas of native title law, following the release of draft terms of reference for public consultation in June 2013.

The two specific areas to be considered were:

  • connection requirements, and
  • authorisation and joinder provisions of the Native Title Act 1993 (these provisions can significantly affect the timely and effective resolution of native title claims).

The Law Council has now responded to the second consultation document, a Discussion Paper released by the ALRC, where the ALRC made a number of proposals and asked a series of questions on the definition of Native Title, connection requirements, and authorisation provisions contained in the Native Title Act.

Currently, claimants bear the persuasive burden of proving continuous connection with land and waters. A presumption of continuity reduces the burden on claimants to establish the elements necessary to prove the existence of native title, and places some of that burden on state and territory respondents. A presumption of continuity is rebuttable by evidence to the contrary. The ALRC did not propose that there be a presumption of continuity. Instead it proposed a number of amendments to the definition of native title to reduce the technicality and complexity of establishing native title rights and interests. However, the Law Council submitted that a presumption of continuity, rebuttable by evidence to the contrary, would significantly reduce the time and cost of native title proceedings. The Law Council noted that a presumption of continuity could not apply to overlapping claims.

In the Discussion Paper, the ALRC asked whether a system for the training and certification of legal professionals acting in native title matters should be developed. The Law Council strongly opposed any further regulation of lawyers. Legal practitioners are already subject to comprehensive regulation from a range of sources, including statute, regulations, statutory rules, professional conduct rules and supervision by the court. The Law Council made a detailed submission in response to the Deloitte Access Economics Review of Native Title Organisations on this issue in October 2013.

The Law Council does not oppose a voluntary accreditation scheme but considers that such a voluntary accreditation scheme for native title lawyers is not feasible for a number of reasons including the smaller number of legal practitioners operating in the native title area.

The ALRC is expected to report by March 2015.

Read the full Law Council submission to the Review of the Native Title Act Discussion Paper.