The Australian Law Reform Commission (ALRC) today released an Issues Paper, Review of the Native Title Act (IP 45). Under the Terms of Reference for this Inquiry, the ALRC has been asked to consider what, if any, changes could be made to improve the operation of Commonwealth native title laws and legal frameworks concentrating on two key areas: ‘connection requirements relating to the recognition and scope of native title rights and interests; and any barriers imposed by the Act’s authorisation and joinder provisions to claimants’, potential claimants’ and respondents’ access to justice’.
In this Inquiry, the ALRC is generally investigating the requirements in s 223 of the Native Title Act and relevant case law that recognise native title, identify the nature and content of the native title rights and interests claimed, and which establish ‘connection’. Mabo (No 2) in 1992 first recognised native title, with the Native Title Act following in 1993. Concerns have been raised about whether connection requirements for establishing native title impose difficulties, particularly given the need for native title claimants to demonstrate that Aboriginal and Torres Strait Islander law and custom has been continuously acknowledged since before European settlement. The ALRC is asked specifically to inquire into five suggested options for reform, including—whether there should be a presumption of continuity; redefinition of key concepts such as ‘traditional’ and ‘physical occupation’; clarification that native title can include rights and interests of a commercial nature; and whether substantial interruption to connection might be disregarded in certain circumstances.
Commissioner for the Inquiry, Professor Lee Godden, stated, “It is a complex Act that operates in a contested environment. There are very diverse views in the community as to how it is operating, as to whether it is achieving the outcomes for Aboriginal and Torres Strait Islander people that were expected, and whether it is effectively managing the interests of all who are involved in native title determinations. Concerns have been raised about the length and difficulty of native title proceedings for the parties involved. The ALRC is considering authorisation and joinder provisions in the Act in this context.
Any examination of potential reform of the Act is challenging and the ALRC is seeking widespread community input to ensure that all interests in this important area of law are actively considered.”
The ALRC invites individuals and organisations to make submissions in response to specific questions, or to any of the background material and analysis contained in the Issues Paper. Submissions are due to the ALRC on 14 May 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/nativetitle-ip45-onlinesub
The ALRC is about to embark on a national round of consultations with the community, travelling to WA, South Australia, Queensland, Melbourne and the ACT. Commissioner Godden stated, “We are very keen to hear from anyone with an interest and a contribution to make in this area. The ALRC is aware of the other reviews that have been undertaken of the Act recently and that there are currently several other reviews looking into other parts of the Act, and we will take these into account as we consider our proposals for reform.”
The Issues Paper is available on the ALRC website at www.alrc.gov.au/publications/native-title-ip-45 and as an ebook, free of charge.
The ALRC plans to release a Discussion Paper in September 2014 and will provide its Final Report to the Attorney-General by the end of March 2015. Subscribe to the Native Title Inquiry e-news on the ALRC website.