3.1 This chapter outlines the context for the ALRC’s recommendations for reform. It identifies some features of the native title system that have been particularly significant in the development of those recommendations. It also identifies some factors outside the native title system that influence the way the system works.
3.2 First, it outlines the claims process, and describes the outcomes of that process thus far. There have been 308 native title determinations, including 248 determinations that native title exists in at least part of the determination area. Of the 60 determinations that native title does not exist, 46 were by consent or unopposed. Only 14 followed litigation. State and territory outcomes vary, partly as a result of pre-existing land rights regimes, and the different impacts of colonisation and dispossession.
3.3 The native title system is still evolving, and in particular, the roles of the National Native Title Tribunal and the Federal Court under the Native Title Act 1993 (Cth)(‘Native Title Act’) have changed since 1994. The prevalence of consent determinations and the increasing number of determinations since 2011 is a positive trend, but is not sufficient evidence to conclude that the connection requirements of the Native Title Act provide for the appropriate recognition and protection of native title.
3.4 Delay and the cost of native title proceedings continue to be of significant concern for stakeholders. The reasons identified for delay include capacity constraints within representative bodies, the collection, assessment and hearing of evidence in relation to connection, overlapping claims, the limited availability of appropriately qualified experts, tenure analysis (in order to identify areas of extinguishment) and the exercise of the right to negotiate. Importantly, just outcomes take time to achieve and time must be allowed to develop sustainable and effective outcomes.
3.5 Finally, native title is not the only path to land justice. The role of the Land Account and the Indigenous Land Corporation, social justice responses and alternative settlements are considered in this chapter. Commonwealth–state financial arrangements may also have an impact.