10.112 Before a claim can be authorised, the claim group must be identified. The native title claim group is all the persons ‘who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed’. In the case of a compensation claim, the claim group is ‘all the persons … who claim to be entitled to the compensation’. The application for a native title determination or compensation must either name the members of the claim group or ‘otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons’. The same specificity is not required for a determination, which may name the group that holds the native title rights and interests, and leave the identification of individual members of the group to be determined by the registered native title body corporate.
10.113 Reasons a claim group may have difficulty determining its membership include:
the registration test requirement for a specific claim group description is not consistent with the complex nature of Aboriginal and Torres Strait Islander societies;
the impact of colonisation has disrupted the social organisation of Aboriginal and Torres Strait Islander groups;
in some areas there is uncertainty as to the status of people with a historical connection to land; and
the time pressure imposed by the hasty lodgement of claims in response to a future act notification.
10.114 Stakeholders agreed that these matters contribute to difficulties identifying the claim group—and to subsequent disputes. Those disputes often result in litigation, and in particular, challenges to the authorisation of an applicant. Disputes, while inevitable in human interactions, can cause great pain within communities. Delays caused by these disputes create a barrier to access to justice. Uncertainty around claim group composition also creates difficulties for third parties who are proposing future acts.
10.115 These difficulties do not necessarily indicate a problem with the law or legal frameworks, but may be symptoms of the very difficult factual and philosophical problems associated with translating Indigenous people’s relationships with each other and with land into the western legal system. As Tony McAvoy and Valerie Cooms observed, the Native Title Act
continues to force Indigenous people to fit their own concepts of land tenure into an imposed non-Indigenous conceptualisation of what their societies and traditional laws and customs should be.
10.116 One submission suggested that a group who has lodged a claim in haste in response to a proposed future act should be able to amend the claim without requiring re-authorisation and registration. The ALRC has not proceeded to make such a recommendation, because the authorisation and registration processes (including the notification provisions) serve important functions in the native title system, even where they cause expense and delay. Accordingly, the following discussion focuses on options for improved dispute resolution rather than on amendments to the Native Title Act. These are intended to advance the timely and just resolution of claims, as indicated by the guiding principles for this Inquiry.
Current options for dispute resolution
10.117 Representative bodies have statutory responsibility for dispute resolution, including assisting in promoting agreement between its constituents about native title matters. In performing these functions, the representative body may seek the assistance of the NNTT. The North Queensland Land Council reported that it has used this provision of the Native Title Act on two occasions and has found it to be very useful.
10.118 In some cases, allowing time in the court processes for research to be completed and for the group to consider the results of the research may prevent disputes from occurring.
Options for reform
10.119 Where the representative body has made a decision that is not in the interests of some native title claimants or potential claimants, it is placed in a position of perceived conflict. One suggestion is for the representative body to fund independent mediation, or independent legal representation, for the dissatisfied party. Cape York Land Council suggested that additional funding to representative bodies for the purpose of engaging mediators or legal representation might assist.
10.120 Alternatively, the Law Society of Western Australia said it would be preferable
for dispute resolution processes to be adopted which are independent of NTRBs entirely (for example, a referral to an independent, accredited mediator), and which are the subject of independent government funding, rather than compelling individual ‘constituents’ to pursue costly and difficult relief in the courts if the NTRB process is unsatisfactory or not considered sufficiently independent.
10.121 Just Us Lawyers made a similar suggestion, calling for a ‘panel of ex-Federal Court judges, assisted by qualified Indigenous mediators’ to be resourced by representative bodies. They suggested that the outcome of mediations should be confirmed by court orders to ensure that outcomes are enforceable.
10.122 Culturally appropriate dispute resolution services may not be currently available. In 2006, the AIATSIS Indigenous Facilitation and Mediation Project identified a need for a ‘national fully supported and accredited network of Indigenous facilitators, mediators, and negotiators’. The Federal Court of Australia’s Indigenous Dispute Resolution and Conflict Management Case Study Project also noted that, in many areas, timely, responsive and effective dispute management services are not available and that there is a need for a national Indigenous dispute management service. Such a service could not only address native title disputes but other family, neighbourhood or community disputes. Some disputes in the native title arena appear to be a continuation of conflict that began elsewhere, and so resolution of non-native title conflict could contribute to improved native title processes.
10.123 Concerns have been raised that, in some proceedings, the anthropologist has ‘the last word’ in defining the claim group, and there is no avenue for a potential claimant to refute the conclusions of an anthropologist’s report, beyond joinder as a respondent. Joinder as a respondent with the aim of addressing disputes about claim group composition is often not an effective measure and may introduce cost and delay into native title proceedings. An Indigenous dispute resolution process might offer a forum for exploring these issues.
10.124 The ALRC suggests that the Australian Government consider establishing a national Indigenous dispute management service.
Native Title Act 1993 (Cth) s 61(1).
Native Title Act 1993 (Cth) s 61(4).
Christos Mantziaris and David Martin, Native Title Corporations: A Legal and Anthropological Analysis (Federation Press, 2000) 70; Western Australia v Ward (2000) 99 FCR 316, ; Dale v Moses  FCAFC 82 (7 June 2007) . Where there is a dispute as to claim group membership, the Court will ordinarily deal with the question: Banjima v Western Australia (No 2)  FCA 868.
Australian Law Reform Commission, Review of the Native Title Act 1993, Issues Paper No 45 (2013)64–66.
AIATSIS, Submission 36; Law Society of Western Australia, Submission 9; Cape York Land Council, Submission 7.
See, eg, Davidson v Fesl  FCAFC 183 (2005); Weribone on behalf of the Mandandanji People v Queensland  FCA 255 (25 March 2013); Carr on behalf of the Wellington Valley Wiradjuri People v New South Wales  FCA 200 (11 March 2013).
Kimberley Land Council, Submission 30.
Toni Bauman, ‘Whose Benefits? Whose Rights? Negotiating Rights and Interests Amongst Indigenous Native Title Parties’ (2005) 3 Land, Rights, Laws: Issues of Native Title 1, 7.
Department of Justice, Victoria, Submission 15.
On the difficulties of translation, see Ch 1.
Tony McAvoy and Valerie Cooms, ‘Even as the Crow Flies It Is Still a Long Way: Implementation of the Queensland South Native Title Services Ltd Legal Services Strategic Plan’ (Native Title Research Monograph No 2/2008, AIATSIS, June 2008) 6.
Cape York Land Council, Submission 7.
Native Title Act 1993 (Cth) s 203BF.
Ibid s 203BK.
North Queensland Land Council, Submission 17.
A Frith and M Tehan, Submission 12.
Department of Justice, Victoria, Submission 15; Law Society of Western Australia, Submission 9; Cape York Land Council, Submission 7; Just Us Lawyers, Submission 2.
Just Us Lawyers, Submission 2.
Cape York Land Council, Submission 7.
Law Society of Western Australia, Submission 9.
Just Us Lawyers, Submission 2.
Toni Bauman, ‘Final Report of the Indigenous Facilitation and Mediation Project July 2003–June 2006: Research Findings, Recommendations and Implementation’ (AIATSIS, 2006) v.
Federal Court of Australia, Indigenous, Dispute Resolution and Conflict Management. Case Study Project, ‘Solid Work You Mob Are Doing’ (2009) xv–xvi.
Law Society of Western Australia, Submission 9; Graeme Neate, ‘“It’s the Constitution, It’s Mabo, It’s Justice, It’s Law, It’s the Vibe”: Reflections on Developments in Native Title since Mabo v Queensland [No 2]’ in Toni Bauman and Lydia Glick (eds), The Limits of Change: Mabo and Native Title 20 Years On (AIATSIS, 2012) 188, 206.
J Hill, Submission 37.
See also Ch 12, regarding the use of mediation and inquiries into matters including the composition of the claim group.