11.1 Section 84 of the Native Title Act sets out party and joinder provisions. These provisions specify who is a party to native title proceedings, who may join native title proceedings, in what circumstances they may join, and when they may be dismissed.
11.2 A determination of native title rights and interests by the Federal Court takes effect in rem. This means that the Court’s determination of native title rights and interests is enforceable not only against the parties to the application for a determination, but against all persons holding interests in the claim area and their successors in title. Given the legal finality of a determination, it is important that all persons who may be affected by, or have a relevant interest in, a determination in the proceedings have an opportunity to be involved. At the same time, it is important that proceedings are not unduly long, complicated or burdensome on the Court and on other parties.
11.3 The Terms of Reference for the Inquiry ask the ALRC to consider any barriers to access to justice for claimants, potential claimants and respondents, imposed by the joinder provisions of the Native Title Act. In this chapter, the ALRC asks several questions and proposes several reforms designed to reduce burdens that may limit access to justice, while also ensuring that a wide range of interests are adequately represented in native title proceedings. The ALRC also makes two proposals about allowing appeals from joinder and dismissal decisions, and two proposals regarding the Commonwealth’s participation in proceedings.