Connection to Country: Review of the Native Title Act 1993 (Cth) (ALRC Report 126) was formally launched in Sydney on 29 June 2015.
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Launch of Connection to Country: Review of the Native Title Act 1993 (Cth) (ALRC Report 126), 29 June 2015, Professor Rosalind Croucher, President, Australian Law Reform Commission
Introduction and welcome
Good morning and welcome to this important event. I am Professor Rosalind Croucher, President of the Australian Law Reform Commission, and it is my very great privilege to commence the proceedings.
I warmly welcome:
- Senator the Hon Arthur Sinodinos AO, on behalf of the Attorney-General, Sen the Hon George Brandis QC, who will launch the report at the end of our proceedings
- members of the Advisory Committee for the inquiry—Dr Valerie Cooms, [Professor] the Hon Paul Finn, Graeme Neate AM, Raelene Webb QC (President of the National Native Title Tribunal), Associate Professor Maureen Tehan, Dr Jonathan Fulcher
- Warren Mundine, Chairman of the Prime Minister’s Indigenous Advisory Council
- ALRC colleagues – the Native Title team, and
- all of you here today who assisted us so willingly and well in the inquiry
In the presence of such eminent guests may I begin by acknowledging the Gadigal people of the Eora nation, who are the traditional owners and custodians of the land on which we meet—and I pay my respects to their elders, both past and present and acknowledge Indigenous guests attending today. To begin the proceedings I invite Uncle Ray Davidson, Gadigal elder, to provide a ‘welcome to country’.
[Welcome to Country – Uncle Ray Davidson]
And now to the occasion of today—
This is our 40th year as an institutional law reform commission and it is indeed a very special occasion to launch the Australian Law Reform Commission’s 126th report, Connection to Country: Review of the Native Title Act 1993 (Cth) on the eve of NAIDOC week.
We commenced the inquiry in August 2013, 20 years after the passage of the Native Title Act. For the ALRC it was an occasion also to acknowledge the early work undertaken under by the ALRC into the recognition of Aboriginal Customary Laws, completed in 1986. That was a mammoth nine-year inquiry, the ALRC’s 31st report—running to 1,098 pages. It remains one of our most-visited reports on the ALRC website. It has been visited by 85,831 unique users 194,804 times. And, since 2010 it is the 4th most downloaded of all our reports – 5,526 times, counting just our website alone.
This kind of interest, continuing now almost 30 years after the report was completed, also signifies a dimension of importance of the ALRC’s work and impact, even where specific recommendations may not yet find their way into specific legislative action. I describe it as like a pebble in the pond—with ripples of impact. And, significantly, the reflections in that report were ones we returned to in the Native Title inquiry.
I was delighted that the Attorney-General chose to table our Native Title report in Reconciliation Week, on 4 June, the day following Mabo Day. I am also delighted that the Attorney has asked Senator Sinodinos to attend on his behalf today to launch the report.
The law reform Project—Connection to Country
The central focus of the inquiry was on ‘connection to country’. It was a law reform project but it was tackling an issue which is so transcending, so fundamental for Indigenous peoples of Australia. Where Mabo ‘recognised’ the continued existence of native title, the Native Title Act translated this into law and, since 1993, judges, legal practitioners, anthropologists—and native title claimants—have had to prove the connection that is at the heart of native title as a matter of law.
We were asked to look at aspects of the Native Title Act concerning connection and the authorisation and joinder provisions. What lawyers understand and what the act defines as native title are different from what Indigenous people may understand and desire as land justice. But native title, and the Native Title Act, its definitions and procedural workings, are also hugely significant in the history of Australia. But we do understand that it is only part of a much bigger story. I mention in this wider context:
- the current discussions about constitutional recognition,
- the Government’s ongoing commitment to closing the gap, and
- the forum initiated by Mick Gooda, the Aboriginal and Torres Strait Islander Social Justice Commissioner, into Indigenous property rights
The ALRC inquiry involved many people, all over the country. Lee took her team far and wide and was welcomed everywhere she, and they, went. In developing a reform response we talk to a lot of people. We listen to a lot of people. And a lot of people put in submissions.
It was an extensive, and extremely respectful engagement—162 consultations; 72 submissions.
An inquiry such as this requires many thank yous.
First, I must single out the wonderful work of the ALRC team: Commissioner Lee Godden, who poured her heart and soul into her work; the legal officers of the ALRC—Justine Clarke, Robyn Gilbert, Dr Julie McKenzie, Judith Bonner and Dr Steven Robertson; the production team, under the leadership of ALRC Executive Director Sabina Wynn with Tina O’Brien once again providing key support as Project Coordinator and typesetting everything under the sun; Trisha Manning, designed the cover; and Marie-Claire Muir—our one-woman website ‘team’.
Our part-time Commissioner: the Hon Justice Nye Perram of the Federal Court of Australia.
We convened a very high level Advisory Committee to help us throughout the inquiry. A number of the Committee have joined us here today, including Dr Valerie Cooms, Quandamooka and former CEO of Queensland South Native Title Services. Val has kindly agreed to say a few words in honour of this occasion. She will be followed by Commissioner Lee Godden to explain to you the conclusions that are contained in the report.
And a huge vote of thanks to all those with whom we consulted, all over the country; and to those who put in submissions. The depth of engagement reflected in this process of consultation is the hallmark of best practice law reform and the ability of governments to implement them.
Everyone here today has played a part.
Thank you all!
Dr Valerie Cooms
Dr Cooms, a fulltime member of the National Native Title Tribunal, has extensive experience leading Indigenous affairs organisations in the community and government sectors. She was a Director of Indigenous Business Australia and from 2003 to 2008, she was Chief Executive Officer of the Queensland South Native Title Services.
Dr Cooms is the Chairperson of the Quandamooka Yoolooburabee Aboriginal Corporation, the prescribed body corporate for Queensland’s Quandamooka people.
Dr Cooms’s PhD is in political history from the Australian National University and she is an Adjunct Professor at Griffith University and University of the Sunshine Coast.
Now on her CV is her role on the Advisory Committee for the Native Title inquiry.
Professor Lee Godden
Professor Lee Godden joined the ALRC from the Melbourne Law School, to which she was appointed in 2002 and where she was Director of the Centre for Resources, Energy and Environmental Law. She has had a distinguished University teaching and research career spanning more than 20 years. Lee’s doctoral thesis at Griffith University was on the intersections between property law, native title and environmental law. Needless to say, Professor Godden has a long list of publications on native title and resources law.
It was a great pleasure to work with Lee over the period of this inquiry and to benefit from her great experience and knowledge so necessary for this important work.
Launch of Connection to Country: Review of the Native Title Act 1993 (Cth), ALRC Report 126, 29 June 2015, Professor Lee Godden, Commissioner leading the Native TItle Inquiry
I would like to acknowledge the traditional owners of the land and waters on which we meet today—the Gadigal peoples of the Eora nation, but also all the traditional owners across Australia —those groups who have had native title recognised, claimants still in negotiation, and those yet to begin the native title claims process, as well as Aboriginal and Torres Strait Islander peoples who have sought redress and settlement beyond the Native Title Act. Can I also acknowledge that connection to country and the relationship with traditional land and waters for Aboriginal and Torres Strait Islander peoples is not one only mandated and defined by a Commonwealth statute, but is a relationship that lives in and is expressed through traditional law and custom.
Also, I endorse the words of welcome by the ALRC President Professor Croucher, to our guests, to those who have acted in the capacity of guiding and contributing to the report in various ways, and to all in the ALRC as a whole but the Native Title team specifically, who were so willing, so prepared to meet challenges—boundaries were pushed—and many of whom worked, at times, so long , in this complex and demanding area of law, with its cross cultural dimensions and significant ramifications for all Australians.
To Senator, the Hon Arthur Sinodinos, representing the Attorney-General, it is pleasing to see the importance that is attached to a native title law reform report by the government, and I look forward to hearing his indigenous policy outline. Native title law will remain vital to many policy initiatives for Aboriginal and Torres Strait Islander peoples. Now rightly, many look ahead to the next phase of native title—one grounded in the post claims environment which seeks to further develop long-term economic and cultural suitability for Indigenous Australians and to build autonomy and choice for Aboriginal and Torres Strait Islander peoples.
However without an equitable, fair and efficient basis of operation for the proof of native title claims that accords with human rights standards and international best practice; a robust scope for native title rights and interests that are recognised—including those of a commercial nature—a streamlined and capacity-building authorisation process, and effective and feasible joinder provisions for parties that allows a streamlined approach to ‘connection’ within the Native Title Act, many of these aspirations for the post claims native title future may be compromised. It underscores the importance of the law reform recommendations for the Native Title Act that are contained in the report launched today.
Now, to those recommendations.
Law reform recommendations
Basically the recommendations fall into four areas.
First is the group of recommendations dealing with the central legal test in the Native Title Act for proving native title. That test is set out in s 223 of the Act—in short hand form—known as establishing continuity of connection. Section 225 outlines the requirements for determining the native title rights and interests for each claim. The connection requirements in the legislation are largely drawn from the Mabo [No 2] decision but have been further elaborated by the Courts over time. Yet native title and indigenous rights to land and waters have a history much longer than Mabo or the NTA—the report gives historical background to better understand how current difficulties with proof of native title arose, to indicate the extent of more recent ‘additional’ connection and continuity requirements, and what other models might have been adopted. The report provides an important overview of how native title currently operates and provides a snapshot of native title in different states and territories. The regional diversity in native title outcomes is remarkable. The report, in its focus on the law around indigenous rights and title in Canada and New Zealand, highlights both the initial shared jurisprudence in Commonwealth countries but also how other jurisdictions have addressed questions, such as the challenge of change in indigenous communities, given the impacts of colonisation and settlement, while still requiring maintenance of law and custom.
Reforming the test for proving native title
After extensive consultation, the ALRC found that the legal requirements for Aboriginal and Torres Strait Islander peoples to establish native title are complex, technical and pose significant practical difficulties in bringing evidence of connection and in assessing connection. The requirement that claimants prove that their laws have been acknowledged, substantially uninterrupted by each generation, since sovereignty, imposes a considerable burden. Many stakeholders noted the injustice of these requirements, in light of the history of dislocation, forced removal of people from their lands, and prohibitions on the exercise of cultural practices.
Accordingly, the ALRC recommends that the basis of native title, as set out in Mabo, and as reflected in the statutory definition of native title, should be preserved—that is, native title rights and interests are those possessed under traditional laws and customs that have their origins in the laws and customs acknowledged and observed at sovereignty. Section 223 of the Native Title Act, however, should be amended to clarify that:
- traditional laws and customs may adapt, evolve or otherwise develop;
- acknowledgment of traditional laws and observance of customs need not have continued substantially uninterrupted since sovereignty—
- nor is acknowledgement required by each generation since sovereignty;
- it is not necessary to demonstrate that a society, united by acknowledgment of traditional laws and customs, has continued since sovereignty; and
- native title rights and interests may be acquired by succession.
These proposed amendments if adopted will streamline proof requirements to focus on the essential elements of native title, while providing flexibility of interpretation around concepts such as ‘adaptation’, ‘society’ and ‘substantially uninterrupted acknowledgment of laws and customs’. Such amendments will ensure the law is given a ‘fair, large and liberal’ interpretation, appropriate for beneficial legislation.
Presumption and evidence
The collection and assessment of connection evidence is a significant contributor to cost and delay in the native title system, although not the only contributor. Reducing technicality in the definition of native title will reduce the resources and time required. Claimants will still have to establish that they are the ‘right people for country’, with rights and interests possessed under laws and customs that have their origins in laws and customs acknowledged and observed at sovereignty. This remains a significant evidentiary challenge in light of the disruption caused by over 200 years of settlement. The ALRC considered whether a presumption of continuity is feasible, but concluded that amending the definition is a better approach. The ALRC also recommends that the Act should provide that the Court may draw inferences from contemporary evidence that the claimed rights and interests are possessed under traditional laws and customs (see chapter 7).
While there are no specific recommendations, chapter 6 remains significant in examining many concepts associated with native title, such as the definition of connection in s 223 of the Act. In this respect, the ALRC examined whether statutory amendment was necessary to confirm that physical occupation or recent and continued use of land and waters was necessary. While concluding the case law was clear on this particular point, there were recommendations to provide consistency with other areas, such as the registration test. In its discussion paper, the ALRC canvassed views about potential changes to key definitions; e.g. the removal of ‘traditional’ from s 223. The majority of stakeholder views, indigenous and non-indigenous, did not support such a change, and so the ALRC did not formulate recommendations, but its analysis of key concepts may set a path for future consideration. Chapter 6 also sets out the ALRC’s assessment of several ‘options for reform’ identified in the Terms of Reference. For example, the ALRC recommended direct amendment of the Act rather than ‘empowering the Courts to disregard substantial interruption’ as it concluded empowerment of courts was an uncertain measure.
Native title rights and interests for commercial purposes
The second group of recommendations relate to the scope (nature and content) of native title rights and interests. The ALRC recognises that the case law here is evolving. Recommendations are designed to clarify case law, but to still allow development of the law on a factual, case by case basis. The recommendations take as a starting point, the High Court’s position in Akiba. Accordingly, the ALRC recommends that s 223 (2) of the Native Title Act should be amended to confirm the principle of a broadly framed native title right that may be exercised for commercial purposes. Secondly, the ALRC recommends the inclusion of a right to trade in a non-exclusive, representative list of native title rights and interests in s 223. The recommendations here are designed to work in tandem with recommendations from the first group that emphasise that traditional laws and customs may adapt, evolve and develop. The recommendations are not intended to limit the operation of s 223(1) or s 211 of the Act. The ALRC also did not recommend statutory definition of commercial purposes (or economic activities). The ALRC recognises the important role that these specific recommendations may play in securing economic and cultural sustainability for Aboriginal and Torres Strait Islander peoples. Without a solid foundation for native title rights and interests many next steps for Aboriginal and Torres Strait Islander peoples will not be possible.
The third group of recommendations are in respect of the authorisation provisions of the Native Title Act—which largely are working reasonably well. An application for a determination of native title (or compensation) can only be made by the applicant—that is the person or persons authorised by the claim group. The applicant has particular powers in respect of the claim under the Act but the group has the power to remove and replace an applicant a means of ensuring ongoing legitimacy. Thus authorisation plays an important role in group decision-making and governance. Authorisation can be a source of conflict in claimant groups but also a means of building decision making and governance. Suggested measures were designed to reduce what can at times be an expensive and extensive process.
In this light, the ALRC has recommended some changes to allow native title claim groups to limit the authority of the applicant, to deal with situations where members of the applicant may no longer be able or willing to act; and to provide for a statutory duty to the effect that the applicant must not obtain a benefit at the expense of the wider group. These recommendations are intended to support claim groups as they develop their own governance structures, work within the requirements of Australian law and negotiate with third parties. The recommendations also should enhance the transparency of authorisation processes for third parties.
The ‘party’ provisions dealing with measures by which people become parties to, or subsequently seek joinder to an application for a determination of native title are the fourth group of recommendations. Native Title is different to many other areas of law as there are potentially large numbers of people involved in a claims process. Largely, the joinder provisions did not attract significant criticism during consultations—although many submissions by native title representative bodies noted that a power imbalance that occurs between native title claimants and the potentially large numbers of respondents to a native title claim. The ALRC has discussed issues around the role of the Crown in native title proceedings. Further, there were some innovative models suggested for third party participation around connection, such as a secondary joinder portal. The ALRC has recommended some changes to improve access to justice—for example, for appeal by leave of Court in respect of joinder and dismissal decisions in the Federal Court—with other measures designed to reduce costs and to streamline procedures.
Other measures and avenues
The ALRC did not make comprehensive recommendations about the native title claims process itself, but adopted targeted recommendations relevant to its Terms of Reference. Indicative measures related to expert evidence on connection, the generation and handling of connection materials, and principles for best practice connection report standards.
The ALRC notes that native title is not the only path to land justice and reconciliation between Aboriginal and Torres Strait Islander people and non-Indigenous Australia. Both in Australia and in comparable jurisdictions, progress is being made via settlements that encompass land, compensation for dispossession, and economic development opportunities. This does not detract though from the need for a robust native title system.
Consultation and engagement
On a final note, I would like to thank the large number of people who contributed to the report—the report builds on the scholarship of many academics and members of the legal profession, including the Law Council, who willing gave of their time and expertise. We were very fortunate in being able to consult with members of the Federal Court and the National Native Title Tribunal on these sensitive matters, and with members of the judiciary. State Governments also made very fulsome consultations in many instances, and we appreciate the time and care involved. The members of NTRBs and NTSPs, despite suffering ‘reform fatigue’ gave us the benefit of their experience and expertise. We had the benefit also of the views of a myriad of Aboriginal and Torres Strait Islander peoples and organisations and from diverse industry organisations ranging from the Minerals Council to local fishing industry groups. Many groups such as Reconciliation Australia gave input, as well as members of the general community. Not all of this information could be directly referenced in the report, but it formed an important part of the thinking behind the report.
Against this rich fabric and the existing law the recommendations for law reform contained in the Connection to Country: Review of the Native Title Act 1993 (Cth) report were developed. We hope that like the previous ALRC report on Aboriginal Customary Law, the analysis will continue to be of relevance and significance for many years—paving the way for future reforms—but we are hopeful that unlike that earlier report, there may be some more immediate implementation of its recommendations.
The ALRC report, Connection to Country: Review of the Native Title Act 1993 (Cth) (ALRC Report 126), was released today.
This Report marks the first major review of ‘connection’ in native title claims—central to native title determinations—since the introduction of the Native Title Act. The Report also examines authorisation of persons bringing native title claims and joinder of parties, and includes 30 recommendations for reform.
Connection recommendations address barriers to the recognition of native title, for example by amending the definition of native title in the Act to clarify that:
- traditional laws and customs, under which native title rights and interests are possessed, may adapt, evolve or otherwise develop;
- acknowledgment of traditional laws and customs need not have continued substantially uninterrupted since sovereignty—nor is acknowledgement required by each generation;
- it is not necessary that a society, united by acknowledgment of traditional laws and customs, has continued since sovereignty; and succession of native title rights and interests may be recognised. (Recs 5-1 to 5-5)
The Commissioner leading the Inquiry, Professor Lee Godden, said: “The reforms refocus on the core elements of native title and introduce flexibility in the evidence required for connection.”
The ALRC has also addressed the capacity of native title to support Indigenous economic development, recommending, for example, that the Act explicitly acknowledge that, where the evidence supports it, a native title right can be exercised for any purpose, including commercial purposes (see Recs 8-1 to 8-2). Commissioner Godden said: “The Native Title Act has the capacity to improve the economic circumstances of Aboriginal and Torres Strait Islander peoples. The ALRC has focused on ensuring that the native title system is efficient, fair and equitable, and that the law has the flexibility to facilitate the beneficial purposes of the Act.”
Authorisation and joinder recommendations are designed to support durable and productive relationships between participants and balance the wide range of interests in the native title system. Recommendations seek to reduce costs, streamline procedures, and support effective decision-making structures. For example, the ALRC recommends simpler procedures to replace a member of the applicant, and that native title claim groups may choose their own decision-making procedures. Recommendations for joinder include that claimants and potential claimants may seek joinder, and the availability of appeals on joinder decisions.
During the Inquiry, the ALRC conducted 162 consultations around Australia and received 70 submissions. Commissioner Godden noted the significant public input to the inquiry: “The ALRC was assisted by the generous contribution of Indigenous leaders and organisations, Federal court judges, legal professionals, industry bodies, anthropologists and academics who afforded unparalleled access to information about how the Native Title Act claims system is operating—facilitating robust law reform.”
ALRC President Professor Rosalind Croucher AM thanked Professor Godden for leading the Inquiry. She said: “Professor Godden and the ALRC Inquiry Team, along with our expert Advisory Committee, ensured this complex Inquiry was informed by views from all participants in the native title process, and that the extensive jurisprudence of the High Court and the Federal Court was acknowledged, as native title law continues to evolve.”
The Report and a Summary Report are available in html, PDF or epub format via the ALRC website (www.alrc.gov.au/publications). A limited number of hard copies are available for purchase.
Media contact: Marie-Claire Muir (02) 8238 6305, email@example.com
Final Report available!
We are pleased to announce the release of the Final Report for this Inquiry Connection to Country: Review of the Native Title Act 1993 (Cth) (ALRC Report 126). The Report was tabled in Parliament today and is now available to the public.
The Report is available in HTML, PDF, and as an ebook.
- See media release >>
- See Final Report >>
- See Summary Report >>.
- Summary of recommendations (audio with transcript) >>
We’d like to thank everybody who has helped the ALRC in developing our recommendations, whether through consulting with us, making a submission, or simply by maintaining an interest in this Inquiry through your subscription to this enews.
The ALRC would especially like to thank Professor Lee Godden, as Commissioner in charge of the Inquiry, and members of the Advisory Committee, who willingly shared their knowledge, experience and insights with us throughout the inquiry.
What happens now?
As the Final Report is now tabled, this is the last enews we will send for this Inquiry.
The ALRC will formally launch the Report at its offices in Sydney at the end of June, providing an opportunity to present the Report and its recommendations to the community, and to recognise the contribution of everyone involved.
The ALRC’s recommendations do not automatically become law. The Australian Government decides whether to implement the recommendations, in whole or in part, and there is no set time frame in which the Government is required to respond. Implementation of ALRC recommendations is tracked and recorded each year in the ALRC’s Annual Report. We also provide updates about implementation in the ALRC Brief.
I am Lee Godden, the Australian Law Reform Commissioner who led the Review of the Commonwealth legislation – the Native Title Act 1993. Native Title holds much significance for Aboriginal and Torres Strait Islander peoples and it is important as the legal system’s recognition of traditional rights and interests in lands and waters.
The ALRC was asked to consider what if any changes should be made to the Act in relation to proof of native title, the scope of native title rights and interests, the authorisation of persons to bring claims under the Native Title Act and if there were barriers for claimants and respondents (that is third parties) when they seek joinder to a claim.
Reform to the Act is needed as there is considerable expense and time in resolving claims and in processes such as meetings for the authorisation of the applicant.
After much research, and over 160 consultations across Australia, the Report makes recommendations in four areas.
The ALRC recommends that the definition of native title in s223 of the Act, which is the legal test that determines the ‘connection requirements’ that claimants must satisfy, should be amended to refocus upon the core elements of the definition of native title.
There are five recommendations to amend the definition:
- That the definition should provide that traditional laws and customs may adapt, evolve or otherwise develop.
- to clarify that it is not necessary to establish that the acknowledgment of traditional laws and the observance of traditional customs have continued substantially uninterrupted since sovereignty.
- to clarify that it is not necessary to establish that traditional laws and customs have been acknowledged and observed by each generation since sovereignty.
- to clarify that it is not necessary to establish that a society united in and by its acknowledgment and observance of traditional laws and customs has continued in existence since sovereignty.
- The fifth proposed amendment is to allow the succession of native title rights and interests between groups.
In respect of evidence of native title – the ALRC recommends that the Act should provide guidance regarding when inferences may be drawn in the proof of native title rights and interests.
In regard to the scope of native title rights and interests the ALRC report makes two central recommendations to amend the native title Act to clarify that native title rights and interests
- may comprise a right that may be exercised for any purpose, including commercial or non-commercial purposes; and
- may include, but are not limited to, hunting, gathering, fishing, and trading rights and interests.
The authorisation process determines who will be the members of the applicant, and it is central to important decision-making processes within the claim group. Recommendations are made for amendments regarding the choice of a decision-making process, limits on the scope of the authority of the applicant, and the applicant’s capacity to act by majority. Recommendations are also made to address the situation where a member of the applicant dies or is unable to act, and where the authorisation provides for the replacement of a person with another specified person.
These recommendations are intended to support claim groups as they develop their
own governance structures, work within the requirements of Australian law and
negotiate with third parties.
Generally, the ALRC considers the joinder provisions are operating effectively. In most instances, the Federal Court’s existing discretion, in combination with robust case management, will be the most appropriate way to balance the considerations involved.
However, the ALRC makes several targeted recommendations—to allow respondent parties to elect to limit their involvement in proceedings to representing their own interests; to provide Aboriginal Land Councils in NSW with notice of native title proceedings; to clarify the law regarding joinder of claimants and potential claimants; and to clarify the law regarding dismissal of parties.
The ALRC recommends that the Federal Court Act 1976 (Cth) be amended to allow appeals from joinder and dismissal decisions in native title proceedings.
The Native Title Act is far-reaching and complex legislation which affects many people. The Act operates across the country. The extent to which native title is recognised, varies across Australia due to historical factors. Parties in the native title system have ordered their interactions with other parties and with native title system as the law has evolved over a 20 year period . Stability and certainty are important matters.
Rigorous testing of connection requirements also is important to ensure the integrity of the claims system. In that context, the ALRC’s recommendations for amendment to s 223(1) acknowledge that linking between the pre-sovereign laws and customs and their modern counterpart is necessary, but carefully targeted recommendations are directed to reducing the impact of the connection requirements where they have introduced more stringency.
The capacity for traditional laws to adapt, evolve and develop and that requirements for continued acknowledgment of laws and customs not be unduly onerous, is an important means of addressing the challenge of change in Aboriginal and Torres Strait Islander communities, while still reflecting the significance of the recognition of traditional connection to land and waters.
Submission deadline extended to Monday 19 January
The ALRC acknowledges how busy the end of year can be and has decided to extend our deadline for submissions. As we must finalise recommendations and present our final report by the end of March 2015, and we would like as much time as possible to consider your submissions, we welcome submissions before this date.
Last month, Professor Lee Godden, Commissioner leading the Inquiry, spoke with Sabina Wynn about some of the key proposals in the Discussion Paper.
Sabina Wynn (SW): Hello, I’m Sabina Wynn, Executive Director of the Australian Law Reform Commission, and I’m here with Professor Lee Godden, who is Commissioner in Charge of the ALRC’s Review of the Native Title Act.
Lee Godden (LW): Hello everyone.
SW: So, Lee, why is it important to review the Native Title Act at this time?
LG: The Native Title Act has been in operation for some 20 years and over that time we’ve seen a complexity of law develop. So it’s important that the claims process facilitates long-term sustainable outcomes for Aboriginal peoples and Torres Strait Islanders and that the claims process is robust and able to accommodate all of the interests in the Native Title system. Indeed the Government has asked us to address particular aspects of the Native Title Act: connection requirements, authorisation and joinder.
SW: We released an Issues Paper in March earlier this year. I believe we’ve done more than 100 consultations with people around the country and received very significant submissions. What have been some of the problems in those areas that have been identified during that consultation process?
LG: One of the key things that comes up very often from our consultations and those submissions is a concern with long time frames around native title claims. Now, long time frames are not in themselves a difficulty, unless there are problems in terms of, for example, elders dying before claims are resolved, or there are other difficulties. So we need to ensure that there is enough investment in the claims process for it to be working well but not to have overly long time frames. There are also issues around proper authorisation, and ensuring that ‘right people for country’ are those that are involved in the claims process, as well as ensuring that access to justice through the court process is effective.
SW: The Discussion Paper that we’ve just released has around 25 proposals for law reform, which we’re seeking the community’s feedback on. What do you think are some of the key proposals?
LG: The key proposals focus on the actual definition of native title itself in the Native Title Act. And if we strip back to what it involves, it involves the idea that to prove a native title claim there must be proof brought about traditional law and custom, how it’s acknowledged and observed over time, and that the law and custom establishes a connection with country, with the land and waters that are claimed.
SW: So, you’ve spoken there about a definition of native title rights and interests, why focus on that?
LG: The focus on the definition is important because it is the legal test that determines the way in which a claim proceeds and the way in which evidence is bought and ultimately there may be a consent determination between native title claimants, government and other industry partners, for example, and also there might be a litigated outcome where it goes to the court for a decision, so in each of those circumstances the actual legal test that is identified in s 223 is a very important aspect, so we’ve looked at reforms that are considering amendments to that definition. We have two tranches of reform proposals. Firstly ones that would keep intact the existing wording of 223, but adopt amending statements in order to clarify that certain requirements that have been added to the case law are not necessary. So, for example, we’re suggesting that the idea of a society, a normative society, is not a necessary requirement. One of the other key areas is to look at the definition of ‘traditional’. This is a very important aspect of the idea of native title. We are looking at proposals to amend the definition, to ensure that native title is understood as involving law and custom that can adapt and evolve. But we also have another proposal, in the alternative, we’re thinking about removal of ‘tradition’ from the definition of native title and its possible substitution.
SW: Earlier you spoke about connection requirements. Why do connection requirements need a redefinition?
LG: Again, the idea of connection has become quite unclear in the case law that has interpreted s 223. So we think there’s a need to refocus on the key elements of the relationship that Aboriginal peoples and Torres Strait Islanders have with their land and waters, and the idea is to refocus, through a reworked definition of connection.
SW: Connection with country is important also for identifying who are the right people for country – are there proposals around authorisation?
LG: Yes there certainly are, because connection requirements determine the ‘what’. It’s very important that we also bring together the idea of who are the claimants, and to ensure that the process for bringing the claim and the powers that people have in relation to moving the claim forward are properly authorised and so we have a range of proposals about authorisation. One of the most important we think is the idea of identifying the scope of the authority of the applicant, and we have a number of proposals related to the idea that there should be identification of exactly which decisions an applicant can make in relation to the claim, and which decisions need to go back to the claim group.
SW: So, some very important and complex issues that we’re raising here and which we’re really hoping we’re going to hear from the community. Submissions are due to us on 18 December. While we’re waiting for people to put in their submissions and give us their feedback, what will the team be working on?
LG: The team will be undertaking further consultations. We’ve already been to Brisbane and Cairns and undertaken consultations in Sydney, but we will also go across to Western Australia, to Canberra, to Melbourne, and indeed across the country again, building up a picture about the feasibility of our proposals, gaining feedback. But again, of course, the submissions are very important to the process of working towards our final recommendations in the report.
SW: And that final report will be delivered to the Attorney-General in March 2015. Thanks very much Lee for going through that with us. And just a reminder to everybody that submissions are due to the ALRC on 18 December. You can email them, you can use our online submission form, you can call us – whatever way is easy for you to let us know what you think of these proposals. Thanks Lee.
LG: Thanks very much.
Issue 6 | 23 October 2014
Discussion Paper released
We’ve now released our second consultation document for this Inquiry, a Discussion Paper. Review of the Native Title Act 1993 (DP 82) 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 invites individuals and organisations to make submissions in response to the Discussion Paper by 18 December 2014. Submissions can be made in writing by post or by email or using the online submission form.
The ALRC will now undertake a further round of national consultations and will provide its Final Report to the Attorney-General by the end of March 2015.
The Australian Law Reform Commission has today released a Discussion Paper, 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 seeking feedback on these proposals.
Professor Lee Godden, Commissioner-in-charge of the Inquiry, said, “The ALRC has relied on more than 100 consultations with Indigenous organisations and individuals, industry, academics, state governments and many other people who are actively involved in the Native Title claims process and we are extremely grateful to everyone who has provided input into our thinking to date. Under the Terms of Reference for the Inquiry, we were to be guided by the Preamble and the Objects of the Native Title Act. In addition, the Inquiry has developed five guiding principles to underlie reforms: acknowledging the importance of the recognition of native title; acknowledging the many interests in the native title system; encouraging timely and just resolution of determinations; consistency with international law; and supporting sustainable futures. Our proposals seek to improve the operation of the Native Title Act within this principled framework.”
ALRC President, Professor Rosalind Croucher, said, “The Native Title Act is a key element in recognising the relationship of Indigenous people to land and waters. Reforms must also consider the impacts upon all participants in the native title system, as native title operates across many sectors in Australian society. In this context, the ALRC has had regard to the complexity of law, procedure and practice and the significant policy and economic context for native title. The challenge is to consider change in the native title system that advances the recognition and protection of native title, while ensuring that reforms support a robust and productive relationship between all participants.”
The ALRC will now undertake a further round of national consultations and will provide its Final Report to the Attorney-General by the end of March 2015.
The ALRC invites individuals and organisations to make submissions in response to the Discussion Paper by 18 December 2014. Submissions can be made in writing by post or by email or using the ALRC’s online submission form: www.alrc.gov.au/content/native-title-dp82-online-submission
Subscribe to the Native Title Inquiry enews on the ALRC website.
Media contact: Marie-Claire Muir (02) 8238 6305, firstname.lastname@example.org