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Native title review finds process slow, resource intensive and inflexible Native title review finds process slow, resource intensive and inflexible
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A major review of Australian native title has found the process is unduly onerous, complex and technical and called for amendments to streamline proof requirements.A major review of Australian native title has found the process is unduly onerous, complex and technical and called for amendments to streamline proof requirements.
The review was carried out more than two years by the Australian Law Reform Commission and will be formally launched on Monday. The review was carried out over almost two years by the Australian Law Reform Commission and will be formally launched on Monday.
It stated that the native title system was “highly resource intensive” with costs borne by a range of public and private institutions, but most acutely by Aboriginal and Torres Strait Islander people. Such costs are sometimes compounded by the long timeframes for native title claim resolutions.It stated that the native title system was “highly resource intensive” with costs borne by a range of public and private institutions, but most acutely by Aboriginal and Torres Strait Islander people. Such costs are sometimes compounded by the long timeframes for native title claim resolutions.
According to a Guardian Australia analysis, while the mean time it took for a native title application to be determined was six and a half years, the average length varied between states and territories, and by the outcome of the determination.According to a Guardian Australia analysis, while the mean time it took for a native title application to be determined was six and a half years, the average length varied between states and territories, and by the outcome of the determination.
For example, successful claims in New South Wales, where the determination found that native title either exists, or exists in part, were among the longest in Australia. These claims take an average of 16.5 and 10.8 years respectively.For example, successful claims in New South Wales, where the determination found that native title either exists, or exists in part, were among the longest in Australia. These claims take an average of 16.5 and 10.8 years respectively.
And unsuccessful claims take a short time in comparison, with an average length of one and a half years.And unsuccessful claims take a short time in comparison, with an average length of one and a half years.
Conversely, in Western Australia, it is unsuccessful claims that take the longest.Conversely, in Western Australia, it is unsuccessful claims that take the longest.
NSW is also particularly notable for having the lowest success rate for native title applications, with 89.6% of determinations finding that no native title exists, out of a total of 48 claims.NSW is also particularly notable for having the lowest success rate for native title applications, with 89.6% of determinations finding that no native title exists, out of a total of 48 claims.
Victoria has the next highest proportion of unsuccessful native title claims, at 42.9%.Victoria has the next highest proportion of unsuccessful native title claims, at 42.9%.
Rosalind Croucher, the president of the Australian Law Reform Commission, said “20-odd years of case law” had seen extra bits added to the native title requirements of proof. These “slow things down, like barnacles on a boat”.Rosalind Croucher, the president of the Australian Law Reform Commission, said “20-odd years of case law” had seen extra bits added to the native title requirements of proof. These “slow things down, like barnacles on a boat”.
While lengthy periods were not inherently bad, she said, and were sometimes an inevitable and necessary part of the negotiation process, it was of concern if such periods were the result of additional and unnecessary requirements that are getting in the way of proving native title.While lengthy periods were not inherently bad, she said, and were sometimes an inevitable and necessary part of the negotiation process, it was of concern if such periods were the result of additional and unnecessary requirements that are getting in the way of proving native title.
The report found a requirement for applicants to prove their laws had been passed from generation to generation was particularly stringent and should be removed – especially when viewed in light of Australia’s history of dislocation, forced removal of people from their lands and prohibitions on the exercise of cultural practices.The report found a requirement for applicants to prove their laws had been passed from generation to generation was particularly stringent and should be removed – especially when viewed in light of Australia’s history of dislocation, forced removal of people from their lands and prohibitions on the exercise of cultural practices.
The law does not adequately acknowledge how the relationship of Aboriginal and Torres Strait Islander people to their land and waters can and do adapt to changing circumstances. “The influence of European settlement makes that inevitable,” it stated.The law does not adequately acknowledge how the relationship of Aboriginal and Torres Strait Islander people to their land and waters can and do adapt to changing circumstances. “The influence of European settlement makes that inevitable,” it stated.
So while the Native Title Act should remain focused on the acknowledgement of traditional laws and customs, it should also be “flexibly applied”, the report said, to allow for the evolution and development of such laws and customs.So while the Native Title Act should remain focused on the acknowledgement of traditional laws and customs, it should also be “flexibly applied”, the report said, to allow for the evolution and development of such laws and customs.
Related: 'We’ve got to tell them all our secrets' – how the Barkandji won a landmark battle for Indigenous AustraliansRelated: 'We’ve got to tell them all our secrets' – how the Barkandji won a landmark battle for Indigenous Australians
Any undue burden of proof placed on applicants sat “in tension” with the object of the act, the report stated, and instead stakeholders should rely more on inference in certain circumstances.Any undue burden of proof placed on applicants sat “in tension” with the object of the act, the report stated, and instead stakeholders should rely more on inference in certain circumstances.
It was also recommended for amendment that native title rights could be exercised not only for non-commercial but commercial purposes as well, which would bring the act in line with a decision made in a landmark 2013 high court case, Akiba v commonwealth, Croucher said. A right to trade should also be included.It was also recommended for amendment that native title rights could be exercised not only for non-commercial but commercial purposes as well, which would bring the act in line with a decision made in a landmark 2013 high court case, Akiba v commonwealth, Croucher said. A right to trade should also be included.
Croucher added it was important to remember the central purpose of native title as an acknowledgment in “white man’s law” of pre-existing Indigenous rights and interests, which by definition came with certain limits.Croucher added it was important to remember the central purpose of native title as an acknowledgment in “white man’s law” of pre-existing Indigenous rights and interests, which by definition came with certain limits.
In contrast to property rights which are “newly crafted”, native title was a kind of translation of ancient Indigenous laws and customs and only “a slice of the broader social justice and land justice issues” – not some kind of universal panacea.In contrast to property rights which are “newly crafted”, native title was a kind of translation of ancient Indigenous laws and customs and only “a slice of the broader social justice and land justice issues” – not some kind of universal panacea.
“It’s very significant, symbolically and practically, in recognising Australia was not terra nullius,” Croucher said. “That’s the big symbolism of native title.“It’s very significant, symbolically and practically, in recognising Australia was not terra nullius,” Croucher said. “That’s the big symbolism of native title.
“But the act as a legal construct tries to put into ‘white man’s law’ concepts which are very significant for Indigenous people. So for us, as a law reform body, the native title act applies a very specific and legal lens, and to the extent that we can make that lens better focused, we have done so.”“But the act as a legal construct tries to put into ‘white man’s law’ concepts which are very significant for Indigenous people. So for us, as a law reform body, the native title act applies a very specific and legal lens, and to the extent that we can make that lens better focused, we have done so.”
The review draws on more than 150 consultations with government agencies, judicial officers, Indigenous leaders and traditional owners, Indigenous organisations and industry representatives.The review draws on more than 150 consultations with government agencies, judicial officers, Indigenous leaders and traditional owners, Indigenous organisations and industry representatives.
The attorney general, George Brandis, said the government was considering the recommendations as part of broader ongoing policy dialogue about the native title system, including discussions through the Council of Australian Governments investigation into Indigenous land administration and use.The attorney general, George Brandis, said the government was considering the recommendations as part of broader ongoing policy dialogue about the native title system, including discussions through the Council of Australian Governments investigation into Indigenous land administration and use.
“Consistent with the direction announced in the white paper on Developing Northern Australia launched last week,” Brandis said, “the government is exploring reforms which would enable native title holders who wish to use their native title to drive economic development in their communities to do so.”“Consistent with the direction announced in the white paper on Developing Northern Australia launched last week,” Brandis said, “the government is exploring reforms which would enable native title holders who wish to use their native title to drive economic development in their communities to do so.”
The longest-running native title claim in the history of NSW was recognised by the federal court on Thursday. The Yaegl people from the lower Clarence river in the northern region of the state first filed their claim in 1996.The longest-running native title claim in the history of NSW was recognised by the federal court on Thursday. The Yaegl people from the lower Clarence river in the northern region of the state first filed their claim in 1996.
The court acknowledged their right to camp, hunt, fish, gather, hold ceremonies and protect sites of significance in accordance with traditional law.The court acknowledged their right to camp, hunt, fish, gather, hold ceremonies and protect sites of significance in accordance with traditional law.
Yaegl man Billy Walker said his heart was “filled with relief and joy” as federal judge Jayne Jagot handed down the decision.Yaegl man Billy Walker said his heart was “filled with relief and joy” as federal judge Jayne Jagot handed down the decision.
He paid tribute to the many elders who had been involved in the claim and since passed away. “We have lost too many elders during this journey,” he said. “It should not take 19 years to finalise a native title claim.He paid tribute to the many elders who had been involved in the claim and since passed away. “We have lost too many elders during this journey,” he said. “It should not take 19 years to finalise a native title claim.
Eileen Mcleay, known by many as Aunty Nudie, called upon the NSW government to speed up the process. “No one is losing out when native title is recognised,” she said. “Our rights to fish, hunt, gather, camp and hold ceremony don’t take precedence if there is a conflict.”Eileen Mcleay, known by many as Aunty Nudie, called upon the NSW government to speed up the process. “No one is losing out when native title is recognised,” she said. “Our rights to fish, hunt, gather, camp and hold ceremony don’t take precedence if there is a conflict.”
She also said native title paved the way for their participation in the management of the land and water, including alongside government and business.She also said native title paved the way for their participation in the management of the land and water, including alongside government and business.
“It is very satisfying to get the proper recognition as traditional owners,” she said. “The claim areas always have and always will be Yaegl land. Recognition of native title shows everyone that we hold the knowledge about our country.”“It is very satisfying to get the proper recognition as traditional owners,” she said. “The claim areas always have and always will be Yaegl land. Recognition of native title shows everyone that we hold the knowledge about our country.”