After the Acts of Union became law on 1 January the reason they are sometimes incorrectly referred to as a single Act of Unionthe unreformed House of Commons was composed of members, of whom represented England and Wales. There were two types of constituencies; counties and boroughs.
As Justice Barker, writing extra-curially, notes there is a need for constructive change to a system that is often characterised by formulaic approaches to dispute resolution, slowness and expense in arriving at outcomes; outcomes which sometimes are considered of limited or no utility by some indigenous groups and frustrate other parties.
The native title system is highly resource intensive. Costs are borne by a range of governments, public institutions, industry, and private persons—and most acutely by Aboriginal and Torres Strait Islander peoples.
These costs may be compounded by long time frames for the resolution of native title claims and determinations.
On the other hand, the growing number of native title determinations across Australia is a positive trend—facilitating the conciliation and negotiation objectives of the Act and containing costs.
Nonetheless, the law relating to connection requirements remains complex to navigate for all parties, and variable in its outcomes for Aboriginal and Torres Strait Islander peoples across Australia.
Accordingly, the Inquiry sought to reconcile requirements for orderly interaction in the native title system, with the principles of equality and non-discrimination that are stated in the Act.
The ALRC has focused on ensuring that the existing native title system is efficient, fair and equitable and that the recommendations in this Report are directed to that end. Reforming the law on connection, authorisation and joinder Moving from the general systemic considerations, the ALRC directed its attention to the consideration of the substantive aspects of the law.
Given the breadth of interests involved, it is perhaps inevitable that native title law is complex and technical. The technicality of law may be viewed as necessary, rather than simply counterproductive, but technicality should not impede the achievement of broader legislative purposes.
In addition, statutory construction of s of the Native Title Act has expanded the requirements for proof of native title beyond the elements contained in the actual definition in the Act. A significant contemporary challenge in native title law is the question of change and adaptation in indigenous communities.
This has led to an emphasis on gathering a large amount of evidence to support connection.
In turn, this requires considerable time and effort in assessing this evidence. The recommendations in Chapter 5 acknowledge that linking between the pre-sovereign laws and customs and their modern counterpart is necessary, but the targeted recommendations are directed to reducing the impact of those requirements where they have introduced more stringency than may be evident from the text of the definition of native title in s 1 of the Act.
The current legal model can be contrasted with the growing acknowledgment in practice that Aboriginal and Torres Strait Islander peoples and their relationships with land and waters, can and do adapt to changing circumstances—the influence of European settlement makes that inevitable.
Nonetheless, this Inquiry has not disturbed the basic proposition that native title rights and interests that are recognised must be possessed under laws and customs with origins in the pre-sovereign period.
That proposition is now fundamental to the Native Title Act and its judicial interpretation. The Terms of Reference for this Inquiry required such reflection. The authorisation process is often costly, and at times protracted and disputed.
Reforms must ensure the authorisation process is robust, transparent, and able to reduce potential conflict and build governance capacity in the claim group.
The authorisation provisions of the Act are intended to ensure that the application is made with the consent of the claim group. The party and joinder provisions in the Native Title Act raise a number of issues around the balance of interests in the native title system.
Such factors may influence how readily a native title determination is reached, whether the proceedings are lengthy, and if they involve administrative burdens for the parties and the institutions administering the native title claims process.
As a practical matter of access to justice, third parties, whose interests may be affected by a native title determination, are provided with an opportunity to be involved in the proceedings through the party and joinder provisions.
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