12.73 The evidence used in native title proceedings provides information about the laws, customs, histories and cultures of Aboriginal and Torres Strait Islander peoples. This material is of significant value to claimants, and may be of a culturally sensitive, private or confidential nature.
12.74 In the Discussion Paper, the ALRC asked what processes, if any, were needed to handle this material in an appropriate way outside native title proceedings. This material may be of value to Aboriginal and Torres Strait Islander peoples outside proceedings, and for prescribed bodies corporate (PBCs) in identifying common law holders for the purposes of carrying out consultations required under the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth). The information may also be valuable to society generally, contributing to a stronger understanding of Aboriginal and Torres Strait Islander peoples and their history.
12.75 This information is generally not available to persons outside proceedings. Dr Paul Burke notes that this information ‘remains inaccessible … because it has been initiated within the legal context of native title and remains confidential’. Just Us Lawyers noted the value of archival information, and suggested that ‘archival information should be digitised, indexed and made searchable and available to claimants’ legal representatives’.
12.76 Many submissions acknowledged the importance of native title evidence being made available in certain circumstances, while cautioning that privacy, confidentiality and cultural sensitivities must be carefully considered. AIATSIS submitted:
The future of connection material has generated a range of activity and ongoing research by AIATSIS. The valuable information assets produced by native title research are disparately held in the institutional and personal archives of the thousands of native title claimants, anthropologists, lawyers, bureaucrats, historians and others who have been involved in preparing, writing and critiquing connection reports, affidavits, future act heritage surveys and the like. While AIATSIS welcomes this material into our collection, the [AIATSIS Native Title Research Unit] considers that the social and economic potential of these extraordinary assets will not be realised unless native title groups and their representatives are empowered to sustainably hold, manage and provide access to locally relevant information holdings.
12.77 The National Archives of Australia noted that records created by Commonwealth government agencies (including the Federal Court, the National Native Title Tribunal, several land councils and the Torres Strait Regional Authority) are Commonwealth records under the Archives Act 1983 (Cth). Under the Archives Act, these records become public after the expiration of the ‘open access period’.
12.78 QSNTS submitted that the appropriate archiving of connection material is
an important issue and QSNTS acknowledges that material collected and produced through the connection process should be archived for future generational use.
12.79 QSNTS submitted that ‘retention by the PBC is ideal but the capacity issues of PBCs to retain the material which requires expert handling and storage for the benefit of future generations is problematic’. AIATSIS may be a suitable organisation to store the information, but would need to be appropriately resourced to carry out this additional function.
12.80 Central Desert Native Title Services submitted that whether, and how, to store connection material should be a matter for each native title group to determine, and that a group may wish to have different types of information stored in different ways or for different purposes (such as for the transmission of law and custom or for public education).
12.81 Yamatji Marlpa questioned how much of the material used for establishing connection should be archived, noting that much of this material may be the property of the claim group or its individual members, and that such material should be returned to its rightful owners on the conclusion of the relevant proceedings.
12.82 The ALRC considers that further consideration of this issue is warranted. However, any requirements of general application—for example, that connection reports be made publically available—would be problematic, given the privacy, confidentiality and cultural issues that may arise. The ALRC agrees that any further use or archiving of connection materials should be at the discretion of claim groups and their members.
Australian Law Reform Commission, Review of the Native Title Act 1993, Discussion Paper No 82 (2014) Question 9–2.
Native Title Act 1993 (Cth) s 56. See also Ch 10.
Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) regs 8–10. See also Gumana v Northern Territory (2005) 141 FCR 457, –. The value of connection evidence to PBCs was also noted by the Yamatji Marlpa Aboriginal Corporation: Yamatji Marlpa Aboriginal Corporation, Submission 62.
P Burke, Submission 33.
Just Us Lawyers, Submission 2. See also AIATSIS, Submission 36.
See, eg, Queensland South Native Title Services, Submission 55.
AIATSIS, Submission 70.
At the time of writing, the open access period for this material is 21 years: Archives Act 1983 (Cth) s 3(7).
Queensland South Native Title Services, Submission 55.
Central Desert Native Title Service, Submission 48.
Yamatji Marlpa Aboriginal Corporation, Submission 62.