The MCA supports amendments to the Native Title Act 1993 (Cth) (NTA) proposed in the Discussion Paper that would:

  • Reduce delays in the resolution of claims
  • Ensure that the native title system delivers practical, timely and flexible outcomes for all parties
  • Improve resource efficiency in what is a resource-constrained environment
  • Make the native title determination process simpler and easier for all parties.

The MCA would welcome changes to the native title system where they can provide certainty in the determination process for claimants. However, the reforms proposed by the ALRC seek to alter the legal basis for the existence and recognition of native title. Of most concern, some major recommendations proposed run contrary to the precedents established under common law by the Mabo decision. Accordingly, the MCA considers that any reform should focus on practical measures to improve procedural efficiency.

We note with concern also that the draft recommendations in the Discussion Paper are not linked to empirical evidence that has identified the substantive barriers to the processing of claims. In our view, many of the proposed amendments are unlikely to deliver an improved system, and could instead result in increased complexity and instability in the native title system.

For example, the following criteria need to be first considered by the ALRC more broadly to inform change to the NTA:

  • Will these reforms adequately address the underlying issues to the framework for claims progression within reason?
  • Will these reforms create unintended consequences elsewhere in the native title system?
  • Will these reforms deliver a more streamlined system for native title claimants?

While the native title system’s administrative processes may benefit from some revision, the case for many of the proposed amendments to the NTA in the Discussion Paper is unclear. The ALRC’s own analysis suggests that significant progress has and is being made in native title and there is flexibility in the law as it currently stands.

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