A key point of contention appears to be the view that tenure research should take place early on in a native title proceeding. The premise is that early disclosure by governments of tenure information could reduce the geographic extent of a claim, or narrow the focus of evidence, or lead to native title claimants pursuing other remedies for recognition of their traditional interests. In an ideal world, all of these scenarios might be possible. But there are a number of critical factors that are regularly overlooked when this approach is advocated. First, it is not necessary to undertake a full historical tenure search and analysis for a claim before a claimant group is in a position to consider the best way to progress its interests. In a great many cases, a fairly accurate assessment about extinguishment can be made on the basis of a current tenure analysis alone. In most cases, contemporary tenure will provide an indication or guide as to where native title might or might not be capable of existing. In many cases, there may also be land and mining tenure histories for parts of a claim area which can also be taken into account. The discussion over recent years about tenure analysis has also side-stepped any suggestion that native title claimants should file less speculative native title claims. After 20 years of the Native Title Act, we ought to be beyond the stage of ambit claims based on generic definitions about where native title rights might exist. Instead of simply demanding the State spend more time and money to narrow a claim, I would prefer to see some sign that applicants are making reasonable efforts to refine their claims. Certainly, if a claim has been in the court system for a decade or more, there has been ample time for claimants and representative bodies to review their claim statements and refine the claim where necessary.
A key point of contention appears to be the view that tenure research should take place early on in a native title proceeding. The premise is that early disclosure by governments of tenure information could reduce the geographic extent of a claim, or narrow the focus of evidence, or lead to native title claimants pursuing other remedies for recognition of their traditional interests. In an ideal world, all of these scenarios might be possible. But there are a number of critical factors that are regularly overlooked when this approach is advocated. First, it is not necessary to undertake a full historical tenure search and analysis for a claim before a claimant group is in a position to consider the best way to progress its interests. In a great many cases, a fairly accurate assessment about extinguishment can be made on the basis of a current tenure analysis alone. In most cases, contemporary tenure will provide an indication or guide as to where native title might or might not be capable of existing. In many cases, there may also be land and mining tenure histories for parts of a claim area which can also be taken into account. The discussion over recent years about tenure analysis has also side-stepped any suggestion that native title claimants should file less speculative native title claims. After 20 years of the Native Title Act, we ought to be beyond the stage of ambit claims based on generic definitions about where native title rights might exist. Instead of simply demanding the State spend more time and money to narrow a claim, I would prefer to see some sign that applicants are making reasonable efforts to refine their claims. Certainly, if a claim has been in the court system for a decade or more, there has been ample time for claimants and representative bodies to review their claim statements and refine the claim where necessary.