Leader appointed to Native Title Inquiry

Professor Lee Godden has been appointed to lead the Australian Law Reform Commission’s Inquiry into Native Title in Australia. The Attorney-General Mark Dreyfus QC and Minister for Families, Community Services and Indigenous Affairs Jenny Macklin announced terms of reference for the inquiry in August, following the release of draft terms of reference for public consultation.

The Native Title Act 1993 is a important piece of legislation that recognises the rights and interests of Aboriginal and Torres Strait Islander people to their land that come from traditional laws and customs.

The Act, which was based upon the famous 1992 Mabo case [Mabo and Others v Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1], has had a profound impact in Australia and been influential in advancing reconciliation.

The inquiry will cover two main areas:

• Connection requirements - The statutory provisions that recognise the rights and interests that comprise native title in the Australian legal system
• Authorisation and joinder provisions of the Native Title Act 1993 - These provisions are more procedural and deal with details regarding standing to bring a native title claim or participate in agreement-making, and joining an action. These provisions can significantly affect the timely and effective resolution of native title claims).

According to professor Godden, “When it comes to the first question of what is recognised as native title, the Inquiry will deal with the evidence as to what is needed to substantiate a claim. It will also consider the evolution of the concept of native title in Australia, a development we’ve seen in other jurisdictions – most notably in Canada.

“It’s a key question that needs to be re-examined even 20 years after the original adoption of the Native Title Act. So while in one way the issues are narrow technical questions of law, they can have broad significance.”
Professor Godden’s established interest in native title law goes back to the landmark Mabo case and the introduction of the Native Title Act 1993. Her PhD thesis, which she started not long after that time, studied the connection between property, native title and environmental law.

The report and final recommendations are due in March 2015.

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