Review of the Native Title Act 1993 Discussion Paper (DP 82)
Monday 27 October 2014 @ 10.15 a.m. | Legal Research
The Australian Law Reform Commission (ALRC) released a Discussion Paper on the 23 October 2014, Review of the Native Title Act 1993 (DP 82). The paper contains a range of proposals and questions around connection requirements for the recognition and scope of native title rights and interests; authorisation and joinder provisions. The ALRC is currently seeking feedback on these proposals.
The Discussion Paper
The discussion paper released refers to the ALRC for inquiry and report for two specific areas of the legal framework for native title. Firstly, the connection requirement relating to the recognition and scope of native title rights and interests including but not limited to:
- a presumption of continuity of acknowledgement and observance of traditional laws and customs and connection
- clarification of the meaning of ‘traditional’ to allow for the evolution and adaptation of culture and recognition of 'native title rights and interests'
- clarification that ‘native title rights and interests’ can include rights and interests of a commercial nature
- confirmation that ‘connection with the land and waters’ does not require physical occupation or continued or recent use, and
- empowerment of courts to disregard substantial interruption or change in continuity of acknowledgement and observance of traditional laws and customs where it is in the interests of justice to do so.
Secondly, the ALRC would review any barriers imposed by the Act’s authorisation and joinder provisions to any claimant’s and respondent’s access to justice.
Why is Reform Needed?
The discussion paper highlights the complexity of the current legal framework in determining native title as the main reason for the inquiry. Under the current act, Aboriginal and Torres Strait Islander people must establish a number of requirements that do not currently appear in any definition in the Act. The Native Title Act 1993 (Cth) adds further complexity to the situation by requiring an involved process for identifying and assessing the evidence for proving native title. It is hoped that reform would achieve a more focused approach to identifying the core elements in the definition of native title.
The current approach towards the ‘connection requirement’ of native title, that is the requirement that Aboriginal and Torres Strait Islanders demonstrate that their laws and customs have been continuously acknowledged in the claimed area since before European settlement, imposes undue difficulties and could result in long time frames for determination. Reform is thus needed to address this issue by reducing complexity but at the same time ensuring the claims process facilitates long-term sustainable outcomes for Aboriginal and Torres Strait Islander peoples.
Connection Requirement
As illustrated above, the connection requirement relates to how native title is established and proven under the Native Title Act 1993 (Cth). The current law does not provide a definition for ‘connection’ despite its appearance in the Act under s 223(1)(b). It operates as a term of general usage referring to the provision in s 223 defining native title and other similar sections.
Consequently, the ALRC has been called upon to provide a more focused understanding of the terminology. Options to be considered for reform include:
- a presumption of continuity of acknowledgment and observance of traditional laws and customs and connection;
- clarification of the meaning of ‘traditional’ to allow for the evolution and adaptation of culture and recognition of ‘native title rights and interests’;
- clarification that ‘native title rights and interests’ can include rights and interests of a commercial nature;
- confirmation that ‘connection with the land and waters’ does not require physical occupation or continued or recent use; and
- empowerment of courts to disregard substantial interruption or change in continuity of acknowledgment and observance of traditional laws and customs where it is in the interests of justice to do so.
Final submissions on the paper are due 18 December 2014.
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