On 1 September 2009 the Native Title Amendment Act 2009 (Cth) commenced operation. The Act was a component of the Commonwealth Government's approach to encouraging more negotiated settlements of native title claims. The reason for this new approach was to contribute to the development of a more flexible system that produced broad benefits for Traditional Owners and increased certainty for stakeholders (National Native Title Tribunal, 2017). The amendments give the Federal Court greater powers to resolve native title claims by enhancing, among other things, the management of mediation and enabling native title proceedings to rely on new evidence rules. The amendments also allow the Court to make orders in relation to matters other than native title.
The procedural amendments made to the Native Title Act 1993 (Cth) (NTA) include:
- amending the power of the Court to be able to make orders in relation to matters other than native title. See Schedule 2 of the Native Title Amendment Act 2009;
- enabling the Federal Court to determine whether the Court, the National Native Title Tribunal, or another 'appropriate person or body' should mediate native title claims. See ss 86A-86E, ss 94B-94S of the NTA;
- enabling the Federal Court to direct the NNTT to hold a native title application inquiry or to refer certain native title issues to the NNTT for review. See ss 138B-138E of the NTA; and
- improving the operation of the NTA's Native Title Representative Body provisions in order to streamline the processes for the recognition of representative bodies and for the withdrawal of recognition, as well as the process for varying a
representative body's area. See NTA Part 11.
According to the Explanatory Memorandum accompanying the Amendment Bill:
giving one body control over the direction of each case, from start to end, means that the Court could more readily identify the opportunities available to resolve each claim (Commonwealth Parliament, 2009).
These amendments do not impact the burden of proof in the NTA for a claimant's ongoing connection to the land.