Recommendation 11–6 The Australian Government should consider developing principles governing the circumstances in which the Commonwealth should either:
(a) become a party to a native title proceeding under s 84 of the Native Title Act 1993 (Cth); or
(b) seek intervener status under s 84A of the Native Title Act 1993 (Cth).
11.135 The ALRC recommends that consideration be given to the development of principles setting out the circumstances in which the Commonwealth will either become a party to, or seek intervener status in, native title proceedings.
11.136 The Commonwealth may become a party to proceedings or join proceedings under the party provisions of s 84. The Commonwealth may also seek intervener status in proceedings under s 84A. The role of an intervener is generally to represent the intervener’s own legal interests in proceedings that may affect those interests, without being a party to proceedings. In native title proceedings, the Commonwealth may intervene where consideration is given to the construction and interpretation of the Native Title Act. The Commonwealth, as a party or an intervener, may also be able to take a role in ensuring that negotiations are carried out in a manner consistent with the policy goals underlying the Native Title Act.
11.137 The development of principles setting out the circumstances in which the Commonwealth would seek to participate or intervene in native title proceedings may provide greater certainty for all parties about the likelihood of Commonwealth involvement in native title proceedings.
11.138 Stakeholders who commented on this proposal were supportive. The NNTC noted that an ‘indication from the Commonwealth when it would seek to participate or intervene in native title proceedings would provide greater certainty to other parties’. QSNTS submitted that the ‘Commonwealth [Attorney-General] is the custodian of the NTA and should be actively involved’.
11.139 Consideration might also be given as to whether the Commonwealth might elect to be involved only in parts of native title proceedings that deal with specific aspects of s 225 of the Native Title Act.
Levy v Victoria (1997) 189 CLR 579, 601–602 (Brennan CJ).
Western Australia v Strickland  FCA 652 (18 May 2000).
Minerals Council of Australia, Submission 65; Law Council of Australia, Submission 64; YamatjiMarlpa Aboriginal Corporation, Submission 62; National Native Title Council, Submission 57; Queensland South Native Title Services, Submission 55; A Frith and M Tehan, Submission 52; The Chamber of Minerals and Energy of Western Australia, Submission 49; Central Desert Native Title Service, Submission 48; Native Title Services Victoria, Submission 45; Law Society of Western Australia, Submission 41.
National Native Title Council, Submission 57.
Queensland South Native Title Services, Submission 55.