Legal obligations regarding native title litigation materials

The functions of a native title representative body (NTRB) include assisting native title groups to achieve native title determinations by the Federal Court. NTRBs do so, in part, by instructing employed solicitors, anthropologists and other staff to collect information from group members and from public sources so it can prepare witness statements, anthropological reports, and other evidence that will help groups in their claims.

This information is likely to include sensitive and confidential materials, such as historical records, genealogies, oral histories, and information on traditional practices and beliefs. In addition, NTRBs hold other documents, such as minutes of group meetings and documents received from the State and other parties.

This litigation material is often held on a solicitor’s file, so that it is subject to ‘legal professional privilege’ and can be kept confidential. However, most of the documents on the solicitor’s file are not owned by the solicitor or the NTRB, but by the individuals who provided the information or by the native title group.

This paper addresses the legal obligations of NTRBs and their employed solicitors in dealing with native title litigation materials after native title has been determined.