Australian Law Reform Commission Journal Issue on Native Title
As noted by Professor David Weisbrot, ALRC President, in his Comment, the Commission has played an instrumental role in advancing the ideas of native title in Australia (based on Indigenous customary land tenure).
However, he writes that most observers feel that the framework developed for resolving native title disputes has developed many weaknesses:
"Mabo [ (1992) 175 CLR 1 ] and the subsequent Wik case established the basic common law principles, but the detailed laws and procedures for resolving Native Title claims are provided in highly complex legislation, particularly the Native Title Act 1993 (Cth) (NTA), which incorporates a mix of tribunal processes and Federal Court adjudication. While it is theoretically possible for native title disputes to be settled quickly and cooperatively, the combination of procedural and evidential complexity, high stakes, multiple parties, uncertainty of outcome, and a winner-take-all approach means that most cases are heavily litigated, go on for years, cost a fortune in legal and other costs—and often result in crushing disappointment, since claimants bear the onus of proof in difficult circumstances. "The issue presents 17 articles by the Chief Justice of Australia, the Indigenous Affairs Minister of Australia, native rights activists and Australian aboriginal law specialists.
"In this edition, Tom Calma, the Aboriginal and Torres Strait Islander Social Justice Commissioner and Race Discrimination Commissioner at the Australian Human Rights Commission, provides a superb overview of what he describes as the ‘failing framework’ of native title in Australia— and, unfortunately, few would seriously argue with that characterisation."