Claim group membership

10.55   Before a claim can be authorised, the claim group must be identified. The native title claim group is all the persons ‘who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed’.[62] In the case of a compensation claim, the claim group is ‘all the persons… who claim to be entitled to the compensation’.[63] The application for a native title determination or compensation must either name the members of the claim group or ‘otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons’.[64] The same specificity is not required for a determination, which may name the group that holds the native title rights and interests, and leave the identification of individual members of the group to be determined by the registered native title body corporate.[65]

10.56   In the Issues Paper, the ALRC canvassed some of the reasons a claim group may have difficulty determining its membership. These included:

  • the registration test requirement for a specific claim group description is not consistent with the complex nature of Aboriginal and Torres Strait Islander societies;
  • the impact of colonisation has disrupted the social organisation of Aboriginal and Torres Strait Islander groups;
  • in some areas there is uncertainty as to the status of people with a historical connection to land; and
  • the time pressure imposed by the hasty lodgement of claims in response to a future act notification.[66]

10.57   Submissions agreed that the matters listed above contributed to difficulties identifying the claim group, and to subsequent disputes.[67] Those disputes often result in litigation, and in particular, challenges to the authorisation of an applicant.[68] Disputes, while inevitable in human interactions,[69] can cause great pain within communities.[70] Delays caused by these disputes create a barrier to access to justice.[71] Uncertainty around claim group composition also creates difficulties for third parties who are proposing future acts.

10.58   The ALRC’s preliminary view is that these difficulties do not indicate a problem with the law or legal frameworks, but are a symptom of the very difficult factual and philosophical problems associated with translating Indigenous people’s relationships with each other and with land into the western legal system.[72]

10.59   One submission suggested that a group who has lodged a claim in haste in response to a proposed future act should be able to amend the claim without requiring re-authorisation and registration.[73] The ALRC has not proceeded to make this proposal, because the authorisation and registration processes (including the notification provisions) serve important functions in the native title system, even where they cause expense and delay. Accordingly, the following discussion focuses on options for improved dispute resolution rather than on amendments to the Native Title Act.

Current options for dispute resolution

10.60   Representative bodies have statutory responsibility for dispute resolution, including assisting in promoting agreement between its constituents about native title matters.[74] In performing these functions, the representative body may seek the assistance of the National Native Title Tribunal.[75] The North Queensland Land Council reported that it has used this provision of the Native Title Act on two occasions and has found it to be very useful.[76]

10.61   In some cases, allowing time in the court processes for research to be completed and for the group to consider the results of the research may prevent disputes from occurring.[77]

Options for reform

10.62   Where the representative body has made a decision that is not in the interests of some native title claimants or potential claimants, it is placed in a position of perceived conflict.[78] It might be more effective for the representative body to fund independent mediation, or independent legal representation for the dissatisfied party.[79] Representative bodies are not sufficiently funded to fulfil all of their statutory duties[80] and additional funding for the purpose of engaging mediators or legal representation might assist.[81]

10.63   Alternatively, the Law Society of Western Australia said it would be preferable

for dispute resolution processes to be adopted which are independent of NTRBs entirely (for example, a referral to an independent, accredited mediator), and which are the subject of independent government funding, rather than compelling individual ‘constituents’ to pursue costly and difficult relief in the courts if the NTRB process is unsatisfactory or not considered sufficiently independent.[82]

10.64   Just Us Lawyers made a similar suggestion, calling for a ‘panel of ex-Federal Court judges, assisted by qualified Indigenous mediators’ to be resourced by representative bodies. They suggested that the outcome of mediations should be confirmed by Court orders to ensure that outcomes are enforceable.[83]

10.65   Culturally appropriate dispute resolution services may not be currently available. The AIATSIS Indigenous Facilitation and Mediation Project identified a need for a ‘national fully supported and accredited network of Indigenous facilitators, mediators, and negotiators’ in 2006.[84] The Federal Court of Australia’s Indigenous Dispute Resolution & Conflict Management Case Study Project also noted that, in many areas, timely, responsive and effective dispute management services are not available, and that there is a need for a national Indigenous dispute management service.[85] Such a service could not only address native title disputes but other family, neighbourhood or community disputes. Some disputes in the native title arena are in fact a continuation of conflict that began elsewhere, and so resolution of non-native title conflict could contribute to improved native title processes.[86]

10.66   Concerns have been raised that, in some proceedings, the anthropologist has ‘the last word’ in defining the claim group, and there is no avenue for a potential claimant to refute the conclusions of an anthropologist’s report, beyond joinder as a respondent.[87] An Indigenous dispute resolution process might offer a forum for exploring these issues.[88]

10.67   A proposal for the establishment and funding of a national Indigenous dispute management service would be outside the Inquiry’s Terms of Reference, which require a focus on the authorisation provisions of the Native Title Act. Instead, the ALRC suggests that the government consider establishing such a service.