- 3.1 That the Australian Government adopt measures to improve mechanisms for
recognising traditional ownership.
- 3.2 That the Native Title Act be amended to provide for a shift in the
burden of proof to the respondent once the applicant has met the relevant
- 3.3 That the Native Title Act provide for presumptions in favour of native
title claimants, including a presumption of continuity in the acknowledgement
and observance of traditional law and custom and of the relevant society.
- 3.4 That the Native Title Act be amended to define ‘traditional’
more broadly than the meaning given at common law, such as to encompass laws,
customs and practices that remain identifiable over time.
- 3.5 That section 223 of the Native Title Act be amended to clarify that
claimants do not need to establish a physical connection with the relevant land
- 3.6 That the Native Title Act be amended to empower Courts to disregard an
interruption or change in the acknowledgement and observance of traditional laws
and customs where it is in the interests of justice to do so.
- 3.7 That the Australian Government fund a register of experts to help NTRBs
and native title parties access qualified, independent and professional advice
- 3.8 That the Australian Government consider introducing amendments to
sections 87 and 87A of the Native Title Act to either remove the
requirement that the Court must be satisfied that it is
‘appropriate’ to make the order sought or to provide greater
guidance as to when it will be ‘appropriate’ to grant the order.
- 3.9 That the Australian Government work with state and territory governments
to encourage more flexible approaches to connection evidence requirements.
- 3.10 That the Australian Government facilitate native title claimants having
the earliest possible access to relevant land tenure history information.
- 3.11 That the Australian, state and territory governments actively support
the creation of a comprehensive national database of land tenure
- 3.12 That the Australian Government consider options to amend the Native
Title Act to include stricter criteria on who can become a respondent to native
- 3.13 That section 84 of the Native Title Act be amended to require the
Court to regularly review the party list for all active native title proceedings
and, where appropriate, to require a party to show cause for its continued
- 3.14 That the Australian Government review section 213A of the Native
Title Act and the Attorney-General’s Guidelines on the Provision of
Financial Assistance by the Attorney-General under the Native Title Act 1993 to provide greater transparency in the respondent funding process.
- 3.15 That the Australian Government consider measures to strengthen
procedural rights and the future acts regime, including by:
- repealing section 26(3) of the Native Title Act
- amending section 24MD(2)(c) of the Native Title Act to revert to the
wording of the original section 23(3)
- reviewing time limits under the right to negotiate
- amending section 31 to require parties to have reached a certain stage
before they may apply for an arbitral body determination
- shifting the onus of proof onto the proponents of development to show their
- allowing arbitral bodies to impose royalty conditions.
- 3.16 That section 223 of the Native Title Act be amended to clarify
that native title can include rights and interests of a commercial nature.
- 3.17 That the Australian Government explore options, in consultation with
state and territory governments, Indigenous peoples and other interested
persons, to enable native title holders to exercise native title rights for a
- 3.18 That the Australian Government explore alternatives to the current
approach to extinguishment, such as allowing extinguishment to be disregarded in
a greater number of circumstances.
- 3.19 That section 86F of the Native Title Act be amended to clarify
that an adjournment should ordinarily be granted where an application is made
jointly by the claimant and the primary respondent unless the interests of
justice otherwise require, having regard to such factors as:
- the prospect of a negotiated outcome being reached
- the resources of the parties
- the interests of the other parties to the proceeding.
- 3.20 That the Australian Government:
- consider options for increasing access to agreements (while respecting
confidentiality, privacy obligations and the commercial in confidence content of
- support further research into ‘best practice’ or
- support further research into best practice negotiating
- 3.21 That, where appropriate and traditional owners agree, the Australian
Government promote a regional approach to agreement-making.
- 3.22 That the Australian Government work with native title parties to
identify and develop criteria to guide the evaluation and monitoring of
- 3.23 That the Australian Government ensure that NTRBs are sufficiently
resourced to access expert advice.
- 3.24 That the Australian Government provide further support to initiatives
to provide training and development opportunities for experts involved in the
native title system.