Participation and joinder of the Commonwealth

Proposal 11–7          The Australian Government should consider developing principles governing the circumstances in which the Commonwealth should either:

(a)           become a party to a native title proceeding under s 84; or

(b)           seek intervener status under s 84A.

11.59   The Commonwealth may become a party to proceedings or join proceedings under the party provisions of s 84, particularly when the Commonwealth has interests within the claim area and when the claim area includes an offshore component.[56] The Commonwealth may also seek intervener status in proceedings under s 84A of the Native Title Act. The role of an intervener is generally to represent the intervener’s own legal interests in proceedings that may affect those interests, without being a party to proceedings.[57] In native title proceedings, the Commonwealth, as a party or an intervener, may also be able to take a role in ensuring that negotiations are carried out in a manner consistent with the policy goals underlying the Native Title Act.

11.60   The development of principles setting out the circumstances in which the Commonwealth would seek to participate or intervene in native title proceedings may provide greater certainty for all parties about the likelihood of Commonwealth involvement in native title proceedings.

11.61   Consideration might be given to whether the Commonwealth might elect to be involved only in parts of native title proceedings that deal with specific aspects of s 225 of the Native Title Act. The Commonwealth could elect, for example, to limit its participation to representing the Commonwealth’s interests in a claim area.