Cost and delay

3.61       Concerns about cost and delay have been prominent in discussion of the Native Title Act with the claims process identified by many commentators as a significant factor contributing to cost and delay. In 2012, Brian Wyatt, CEO of the National Native Title Council, said that ‘we are tired and weary of our old people dying before decisions are made on the native title’.[80] Also in 2012, John Catlin, Executive Director, Native Title Unit, West Australian Department of Premier and Cabinet, noted that ‘the failure of the Act to deliver timely and effective outcomes is undeniable’.[81]

3.62       The Productivity Commission recently noted concerns that the ‘negotiation process in land subject to a native title claim can be lengthy and complex and can often involve multiple parties, which in turn can lead to significant delays in gaining access to land’.[82] 

3.63       Despite the increase in the rate of determinations made by the Federal Court since 2011, stakeholders continue to report that they consider the native title system to be too slow and expensive.[83]

3.64       Traditional Owner, Gumbaynggirr man and Garby Elder, Anthony Clarence Perkins, commented after the determination over his land at Red Rock Beach:

I never thought it would have an ending, I’ll be honest. It’s been going a long while. To me we may say it’s taking too long to be awarded native title to our property or country or whatever areas. But again we’ve got to look at the fact that there’s a lot to be done in the process. We’ve been sort of disconnected for lots of years, and we’ve got to pull all the information back before we can go forward, and that sometimes frustrates a lot of people. But to us it’s a step in the right direction.[84]

3.65       The Gumbaynggirr People’s claim took 17 years.[85] These very long time frames are not confined to NSW. In September 2014, the Kokatha claim in South Australia was finalised, by consent, after an 18-year proceeding.[86]

3.66       Stakeholders representing the minerals sector also emphasised the importance of timely and expeditious resolution of native title claims, and certainty for the wider community.[87] As the Chamber of Minerals and Energy said,

of primary interest to the sector is the expeditious resolution of native title claims to deliver certainty, confirm the validity of non-native title interests, and define the native title holders.[88]

3.67       Some stakeholders considered that the primary goal of this Inquiry should be to address delays in determinations and suggested that more research is needed to identify the causes of ‘the native title claim backlog’.[89] While certainty and timeliness are two guiding principles, the recognition and protection of native title is the central object of the Native Title Act and of this Inquiry.[90] As the Minerals Council of Australia suggests, reducing time frames may well be addressed via administrative reform.[91] The Federal Court case management processes have clearly produced results. However, if native title is not sufficiently recognised and protected at law, the only response can be statutory change.

Timeliness and just outcomes

3.68       Just, sustainable and effective outcomes may take time to achieve.[92] AIATSIS cautioned against an excessive focus on timeliness, suggesting that the integrity of the process requires justice to be prioritised ahead of timeliness.[93] Concerns were raised in 2008 by the then Social Justice Commissioner, Dr Tom Calma, regarding the priority given to efficiency, rather than the recognition and protection of native title.[94] Again in 2012, the Social Justice Commissioner, Mick Gooda, commented on a ‘silent disregard for the fundamental inequalities in the native title system in favour of more efficient outcomes in the rush to finalise settlement of native title’.[95]

3.69       Graeme Neate, former NNTT President, noted that ‘broader settlements’—settlements that include grants of land, joint management arrangements, or employment and economic opportunities—take longer to negotiate than a ‘bare determination’, but ‘might be much more satisfactory for all the parties’.[96]

3.70       Claimants value an efficient process, but they also need time to make decisions about their claim group composition, the appropriate boundaries of their claim, and the rights and interests held under traditional laws and customs.[97] Each group is new to the system and must learn about native title processes and how to work within those processes.

3.71       Daniel O’Dea, a former Member of the NNTT, pointed out that compromising a claim is particularly stressful for claimants, and can be ‘highly complex, emotional and confronting’:

Such decisions will often not only involve conflict or disagreement amongst the group, but require time and discussion within a group to consider the complex matters before proper decisions can be made … these things need to be worked through internally, carefully and, consequently, slowly.[98]

3.72       Rushing these decisions can result in conflict emerging at a later stage of the process, in challenges to the authorisation of the applicant, late joinder of Indigenous respondents, or disputes within the prescribed body corporate.

3.73       The ALRC has adopted as a guiding principle that any proposed reforms should encourage timely and just resolution of native title applications.[99] The potential for changes to the Native Title Act to delay the resolution of native title claims has been taken seriously. However the value of timeliness must not be placed ahead of the fundamental requirement of justice.[100]

Reasons for lengthy processes

3.74       The ALRC has considered whether the requirements of s 223 of the Native Title Act (and associated case law concerning connection) unnecessarily prolong proceedings. The Western Australian Government has suggested that connection requirements ‘are not a significant contributor to delays in the resolution of native title claims’,[101] and the Chamber of Minerals and Energy of Western Australia has recommended that the ALRC should only make proposals for reform that are based on quantitative, clear and objective evidence.[102] The Minerals Council of Australia suggested that it would be useful to “commission further work to identify and understand the key constraints in the system, and test whether the proposed reforms addressed the constraints”.[103]

3.75       This Inquiry has identified multiple reasons for the slow pace of resolution of claims. It is well recognised that data on reasons for delay in court proceedings is difficult to obtain.[104] While the length of proceedings can be accurately identified, the reasons for the time taken will not usually be evident from court files. Research on this topic is largely based on qualitative techniques, particularly interviews with participants.[105] The ALRC has also relied on this type of evidence. There are limitations to the information that some participants can disclose, in light of the duty of confidentiality that legal representatives have to their clients. These difficulties are not unique to native title, but are encountered in many areas of civil law where confidential settlements are a frequent outcome.[106]

3.76       The ALRC is satisfied that there is sufficient publicly available information upon which to base recommendations, and does not consider that the collection of further statistical or other data would be necessary or useful. The effect of law reform can never be precisely modelled, as it is not possible to hold any variables constant or to perfectly predict the responses of human actors in the system.

3.77       Importantly, as the Federal Court submitted, the causes of delay have changed over time.[107] In the first 10 years of the Act, there were only 45 determinations of native title.[108] There was uncertainty about the requirements of the Act, and a number of test cases were decided by the High Court before parties could confidently negotiate consent agreements. The South Australian Government suggested that delays were ‘in large part reflective of the comparative newness of native title within the Australian legal system at the time the claims were lodged, the developing jurisprudence in this area, and the size and complexity of many of the claims’.[109]

3.78       The registration test and the requirement that a claim be made by an authorised applicant were not introduced until 1998. Prior to this, many overlapping claims were lodged, some without the consent of the claim groups, and some without strong factual foundations. The existence of these claims made resolving matters by consent very difficult.

3.79       It was also necessary for representative bodies, claim groups, expert witnesses, government parties and third party respondents to acquire skills and expertise in the area.[110] There were 223 determinations in the second 10 years of the Act.[111] There is now significantly more certainty around many aspects of the law,[112] and significantly more of the participants in the system have highly developed skills and expertise—although shortages remain in some areas.[113] The following matters (in no particular order) have been identified by stakeholders as present-day factors contributing to the length of proceedings.

  • Stakeholders from claimant, respondent and judicial perspectives indicated that capacity constraints in representative bodies were a significant source of delay.[114]

  • The collection, assessment and hearing of evidence in relation to connection take significant time and resources.[115]

  • There are concerns that one state government’s requirement for ‘specific’ evidence of connection in town and urban areas before settling a claim will require significant further resources and time to satisfy.[116]

  • Overlapping claims and intra-Indigenous disputes contribute to the time taken to resolve claims.[117]

  • The limited availability of appropriately qualified expert anthropologists contributed to the length and cost of proceedings.[118]

  • The analysis of tenure for the purpose of identifying areas where native title has been extinguished is expensive and time consuming.[119] Claimant representatives have called for earlier tenure analysis,[120] or a flexible approach[121] but report that government respondents consider it impractical to conduct tenure analysis until connection has been accepted, which adds to time frames.[122]

  • Three representative bodies were concerned about delays caused by the state indicating that its connection requirements have not been met, but not specifying what aspects of a connection report are unsatisfactory.[123] There are also concerns that the state respondent sometimes requires a litigation standard of proof to consent to a claim, where the Federal Court has said a lower standard is sufficient.[124]

  • Two representative bodies reported that delays were caused by state governments that insisted on an Indigenous Land Use Agreement[125] before entering into a consent determination.[126]

  • The right to negotiate may contribute to delay in two ways. First, because the Native Title Act gives significant procedural rights to groups with a registered claim, there may be a reduced incentive to speedily progress the claim,[127] particularly if there is a risk the claim will fail. Second, negotiating with proponents can absorb the claim group’s time, energy and resources, meaning they are unable to simultaneously undertake the work involved with the claim.