3.6 The Terms of Reference for this Inquiry direct the ALRC to inquire into ‘connection requirements’, authorisation and joinder—areas principally related to the claims process. The claims process under the Native Title Act has some unique features that distinguish it from other litigation. This section of the Report presents a short overview of the claims process.
3.7 As discussed in Chapter 2, a determination of native title is a product of the interaction between the Australian legal system and traditional law and custom; it is that system’s way of recognising and protecting the immensely older relationship of Aboriginal and Torres Strait Islander peoples to this country.
3.8 This process is initiated when a native title claim group makes an application to the Federal Court for a determination of native title (a claim) under the Native Title Act.There are three types of application for a determination of native title which can be made under the Act: claimant, non-claimant and a revised native title determination application.
3.9 The Native Title Act prescribes the form and content of an application; for example, a claimant application must be accompanied by an affidavit sworn by the person or persons authorised by the native title claim group to make the application (the ‘applicant’). The details required in the affidavit are directly aimed at addressing the elements of native title set out in s 223(1) of the Act.
3.10 Once the application has been filed with the Court, a dual process commences, involving the Court on one hand and the National Native Title Tribunal (NNTT) on the other. A copy of the claim is given to the NNTT by the Court, and the NNTT notifies the public and specified persons of the claim. The Registrar of the NNTT applies the registration test—a consideration of whether a claim meets certain merit and procedural conditions. If these conditions are met, the claim must be registered. When a claimant application passes the registration test, the applicant acquires various procedural rights as a ‘registered native title claimant’.
3.11 Generally, the applicant and the relevant state or territory Minister will be parties to the proceedings. Other persons who have interests in the land or waters claimed may also become parties to the proceedings. Joinder of parties is discussed in Chapter 11. It is common for there to be a large number of parties.
3.12 Usually, the Court will then refer the application to mediation between the parties. The purpose of mediation is to assist the parties to reach agreement on matters including whether native title exists in the area claimed, who holds the native title, and the nature and extent of the native title rights and interests and of any other interests in the area.
3.13 The ultimate outcome, if the application is pursued, is a determination of native title. A determination that native title exists must identify the persons holding the native title rights, the nature and extent of the native title rights, the nature and extent of any other interests in the area, the relationship between the native title rights and the other interests, and whether the native title rights include the right to exclude others.
3.14 The Court may make a native title determination where the application is unopposed; where the parties have reached agreement (a ‘consent determination’); or as a result of a contested hearing.
See further Ch 2.
Native Title Act 1993 (Cth) ss 13(1); 61(1).
Ibid ss 61(1); 253. A revised native title determination application enables parties to apply for revision or revocation of an approved native title determination on certain grounds: Ibid s 13(5).
Native Title Act 1993 (Cth) ss 61(2)–(5), 62. See Ch 10 for further consideration of authorisation.
Ibid s 63.
Ibid s 66.
Ibid s 190A(6).
Ibid s 253; pt 2 div 3.
Ibid s 84. The state or territory Minister will be a party unless notice is given that the Minister does not want to be a party: Ibid s 84(4).
Native Title Act 1993 (Cth) ss 84(3), (5). See Ch 11 for more detail about parties to native title proceedings.
Ibid s 86B. However, the Court must order that there be no mediation if it considers that it would be: unnecessary; there is no likelihood that the parties will reach agreement; or the applicant has not provided sufficient detail about certain matters: Ibid s 86B(3).
Native Title Act 1993 (Cth) s 86A.
Ibid s 225.
Ibid s 86G.
Ibid ss 87, 87A.