Decision-making process

Recommendation 10–1           Section 251B of the Native Title Act 1993 (Cth)requires a claim group to use a traditional decision-making process for authorising an applicant, if it has such a process. If it does not have such a process, it must use a decision-making process agreed to and adopted by the group.

Section 251B of the Native Title Act 1993 (Cth)should be amended to provide that a claim group may authorise an applicant either by a traditional decision-making process or a process agreed to and adopted by the group.

10.49   The process for authorising an applicant is set out in s 251B. If the claim group has a traditional decision-making process that must be complied with in relation to authorising ‘things of that kind’, the group must use that process to authorise an applicant. It may not choose to use a different process.

10.50   If a group does not have a traditional decision-making process for ‘authorising things of that kind’, it must use a process of decision making that has been agreed to and adopted by the group.[54]

10.51   The requirement to use a traditional decision-making process, where it exists, can create problems when it is unclear if such a process exists, and what it is.[55] The lack of clarity is sometimes a result of the community having been denied the opportunity to make decisions about their land for many generations.[56]

10.52   Where the group has a traditional decision-making process, it may not be one that is suited to making decisions in the native title context. Adapting the process for use in native title procedures can be complex and time consuming.[57] The group may wish to change the decision-making process to be more inclusive.[58]

10.53   Where the group does not have a traditional decision-making process, it may be reluctant to declare that fact, when seeking recognition of rights and interests ‘possessed under traditional laws and customs’.[59]

10.54   The ALRC recommends that the group should be able to choose its own decision-making process, without having to declare whether or not it has a traditional decision-making process for things of that kind. Section 251B should simply provide that a claim group may use a traditional decision-making process or a process of decision making agreed to and adopted by the group. The claim group would still be able to use its traditional decision-making process if it wished. If it did not have such a process, or preferred another process, it could use the other process.

10.55   Allowing the group to choose its own decision-making process promotes the autonomy of the group. It ‘maintains the ultimate authority of the claim group or native title holders’.[60]

10.56   For some groups, the process of choosing a decision-making process will always be a difficult one.[61] For example, the choice between one vote per family group (which can disempower members of large families) or one vote per adult (which can disempower members of small families), can be fraught.[62] As AIATSIS noted, there is logical circularity in employing a decision-making process to choose a decision-making process.[63] The ALRC considers that the proposed amendment will remove some, but not all, of the difficulties of choosing a decision-making process. An alternative approach might be to prescribe a decision-making process in the statute. This might remove difficulties for some groups but could create other problems—for example, in some groups, a decision reached by a majority vote rather than by a traditional decision-making process would not be regarded as legitimate, and could fuel disputes. Further, statutory prescription would not promote the autonomy of claim groups.

10.57   Stakeholders, including governments and representative bodies, agreed that claim groups should be able to choose their own decision-making process, including a traditional process.[64]

Recommendation 10–2           Section 251A of the Native Title Act 1993 (Cth) requires persons holding native title to use a traditional decision-making process for authorising an indigenous land use agreement (ILUA), if they have one. If they do not have one, they may use a decision-making process agreed to and adopted by the persons.

Section 251A of the Native Title Act 1993 (Cth) should be amended to provide that persons holding native title may authorise an ILUA either by a traditional decision-making process, or a decision-making process agreed to and adopted by the group.

10.58   Section 251A of the Native Title Act regarding the authorisation of ILUAs is similar to s 251B regarding the authorisation of an applicant. Section 251A provides that if there is a traditional decision-making process that must be complied with in relation to authorising things of that kind, persons holding native title must use that process to authorise an ILUA. If no such process exists, the persons must use a process agreed to and adopted by the group. Sections 251A and 251B are interpreted in a consistent way by the courts.[65]

10.59   The Terms of Reference for this Inquiry specify that the ALRC is to consider whether the Native Title Act’s authorisation provisions impose barriers to access to justice on claimants, potential claimants or respondents. A person who authorises an ILUA is known as a party, rather than a claimant, so these Terms of Reference do not direct the ALRC to consider the authorisation of ILUAs. However the ALRC considers that it is desirable for the two authorisation provisions to remain consistent. Many stakeholders agreed.[66]

Recommendation 10–3           Regulation 8 of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) provides that common law holders must use a traditional decision-making process in relation to giving consent for a native title decision, if they have one. If they do not have one, they must use a decision-making process agreed to and adopted by the common law holders.

Regulation 8 of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth)should be amended to provide that common law holders may give consent to a native title decision using either a traditional decision-making process or a decision-making process agreed on and adopted by them.

10.60   Several stakeholders pointed out that the Native Title (Prescribed Bodies Corporate) Regulations 1999 mirror the current approach in ss 251A and 251B by requiring common law holders to use a traditional decision-making process (if one exists) to give consent to a native title decision.[67] These stakeholders suggested that the regulations should continue to be consistent with ss 251A and 251B. The ALRC agrees. If ss 251A and 251B are amended, the Government should consider amending the regulations also.

Recommendation 10–4           Section 203BC(2) of the Native Title Act 1993 (Cth) provides that a native title holder or a person who may hold native title must use a traditional decision-making process to give consent to any general course of action that the representative body takes on their behalf, if they have one. If they do not have one, they must use a decision-making process agreed to and adopted by the group to which the person belongs.

Section 203BC(2) of the Native Title Act 1993 (Cth) should provide that a native title holder or a person who may hold native title may give consent to any general course of action that the representative body takes on their behalf using either a traditional decision-making process or a decision-making process agreed to and adopted by the group to which the person belongs.

10.61   Finally, s 203BC of the Native Title Act has equivalent provisions for the giving of consent by a native title holder or a person who may hold native title to ‘any general course of action that the representative body takes on their behalf’. If sections 251A and 251B are amended, the Government should consider amending this provision as well.