Efficient resolution of native title claims

12.3       The time and costs needed to resolve native title claims have been noted by commentators including Vance Hughston SC:

The major problem with the system for resolving native title claims is not hard to identify. It is the significant time and resources needed to resolve those native title claims which are opposed by government and other respondents. The problem is compounded by the limited physical capacity of most representative bodies, the scarcity of financial resources and the small number of experienced lawyers and anthropologists who are available to work on native title claims.[1]

12.4       The ALRC has also received submissions noting the time and costs in native title claims proceedings. In some cases, the factors leading to increased times and costs may be unavoidable. For example, the preparation of anthropological research will, by necessity, take a significant amount of time. Reducing the time taken to reach a determination does not, in itself, guarantee that justice is being achieved in the native title system. As noted by AIATSIS,

the timely resolution of matters is an important principle underpinning reform. However … that the ‘integrity’ of the native title system lies in ensuring that measures to improve the timeliness of matters will at least do no harm and that considerations of efficiency should focus first on ‘just’ and then on ‘timely’. [2]

12.5       In other cases, there may be mechanisms available to manage inefficiencies and ensure that a just outcome is achieved. For example, where conflicting expert evidence is adduced, the Federal Court may make directions for an expert conference to more efficiently identify the areas of disagreement between the parties.

12.6       In many cases, the necessary powers and policies are already in place. For example, there has been significant progress towards resolving native title claims through consent determinations. The Queensland Government noted that

as at 1 May 2014, 100 determinations of native title have been achieved in Queensland. 90 determinations recorded the existence of native title and, of these, 87 determinations were made by consent.[3]

12.7       Intensive case management also appears to have assisted in the resolution of native title claims. The Federal Court of Australia referred to the establishment, in 2010, of a priority list of claims, which

has had a significant effect on the rate of resolution of matters with the number of consent determinations jumping from 12 and 10 in 2009 and 2010 respectively to 35 in 2011.[4]

12.8       Given this, the ALRC considers it unnecessary to introduce legislative reforms to improve the claims resolution process. This chapter discusses various mechanisms that are in place in order to highlight emerging best practice.