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.