Connection to Country: Review of the Native Title Act 1993 Discussion Paper Released

Tuesday 6 October 2015 @ 1.38 p.m. | Legal Research

In a previous TimeBase article, we reported on the upcoming reforms to the Native Title System. From a review that began in June 2013, the final report was released in August this year (2015).

Recap: Terms of Reference

According to the ALRC website, the terms of reference for the inquiry were Commonwealth native title laws and legal frameworks in relation to two specific areas, as follows

  • connection requirements relating to the recognition and scope of native title rights and interests, including but not limited to whether there should be:

    • 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.

  • any barriers imposed by the Act’s authorisation and joinder provisions to claimants’, potential claimants’ and respondents’ access to justice.

Why Reform is Needed

Native title is defined in s 223 of the Native Title Act as the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

a)     the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

b)     the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

c)      the rights and interests are recognised by the common law of Australia.

A determination of native title is a determination ‘whether or not native title exists’, and is made by the Court in accordance with s 225 of the Native Title Act.

According to the ALRC, reforms are needed due to the many interests involved:

"As a practical matter of access to justice, third parties, whose interests may be affected by a native title determination, are provided with an opportunity to be involved in the proceedings through the party and joinder provisions. There is a potential for there to be a large number of parties to a native title claim. Once a person becomes a party, that person will be required to participate in proceedings, often at some time and cost, and in most circumstances, that person’s consent is necessary for a consent determination."

Additionally, the ALRC made a comment on the costs:

"The native title system is highly resource intensive. Costs are borne by a range of governments, public institutions, industry, and private persons—and most acutely by Aboriginal and Torres Strait Islander peoples. These costs may be compounded by long time frames for the resolution of native title claims and determinations. On the other hand, the growing number of native title determinations across Australia is a positive trend—facilitating the conciliation and negotiation objectives of the Act and containing costs. Nonetheless, the law relating to connection requirements remains complex to navigate for all parties, and variable in its outcomes for Aboriginal and Torres Strait Islander peoples across Australia."

The Recommendations

The ALRC conducted 162 consultations and received 72 written submissions. The final report makes 30 recommendations relating to:

  • Traditional laws and customs;
  • Connection with land or waters;
  • Proof and evidence;
  • The nature and content of native title;
  • Authorisation;
  • Parties and Joinder; and
  • Promoting claims resolution

According to the ALRC Discussion Paper, the recommendations are intended to:

  • address the complexities of proving native title and the amplified requirements for connection, relating to the definition in s 223 of the Native Title Act;

  • acknowledge that, while retention of a focus on traditional laws and customs is important, the law should be flexibly applied to allow evolution, adaptation and development of those laws and customs and succession to native title rights and interests;

  • expedite the claims process by removing ‘substantially uninterrupted continuity’ and the ‘normative society’ requirements as a strict necessity and refocusing on the core elements of the definition of native title;

  • facilitate the drawing of inferences of fact in defined circumstances, while recognising that the extent of evidence required to establish native title is in tension with the object of the Act to recognise and protect native title;

  • provide statutory reflection of the principles developed by the High Court that recognised that a native title right may be exercised for any purpose—commercial or non-commercial and to include a native title right to trade in a non exhaustive list of native title rights and interests;

  • strengthen the internal governance of the claim group by clarifying the functions, powers and duties of the applicant;

  • streamline the process of removing a member of an applicant who is unable or unwilling to act;

  • ensure access to justice for parties whose interests may be affected by a native title determination, while recognising the need for efficient and fair administration of justice; and

  • ensure that native title claims are resolved in a fair and efficient manner.

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