Issue 1 | 3 October 2013. View original format.
In August 2013, the ALRC received a reference for an inquiry into Commonwealth native title laws and legal frameworks. It is an honour to lead the review of the Native Title Act 1993, ably supported by the team at the ALRC. My appointment is a chance to further develop ideas around law reform building upon my long involvement in native title and related research at Melbourne Law School.
The Native Title Act 1993 was a brand new piece of legislation at a Commonwealth level that built on the 1992 Mabo case. The Act has been in operation now for 20 years. It is a complex law with much significance for Indigenous Australians and the broader Australian community. Now is an opportune time to review key aspects, although not all parts of the Native Title Act are covered by the Terms of Reference. Specifically, this Inquiry has been asked to address two major issues:
- connection requirements relating to the recognition and scope of native title rights and interests; and
- any barriers to access to justice posed by the authorisation and joinder provisions.
While these two issues refer to technical legal terms under the legislation, they have practical meaning. Connection requirements relate to the legal criteria and evidence that the legal system uses to recognise the rights and interests of Aboriginal and Torres Strait Islander peoples. To establish that they have native title, Indigenous People must show that they are a group which has continued to acknowledge traditional laws and observe traditional customs. Rights and interests that are claimed must be possessed under traditional laws and customs, by which the group maintains a connection with land and waters. Claimants must bring sufficient evidence to prove that they meet the above requirements to succeed in a native title claim.
Authorisation refers to the process, described in the Native Title Act, which is used to establish which members of an Indigenous community have the authority to make decisions in relation to native title claims and other matters. Joinder refers to the legal process by which the Court allows new parties to become involved in legal action about a native title claim.
In the early phase of the Inquiry, the ALRC needs to identify the scope of the legal questions in relation to the two issues covered by the Terms of Reference. We have begun consultations as part of the scoping exercise. Many in the Indigenous community and representative organisations; in the legal profession; in industry; and in the broader community will bring a particular perspective about the operation of the law. It is important that we reach as many people as possible in order to understand the various ways in which the connection, authorisation and joinder issues affect people.
In relation to the two broad areas of the Inquiry we are asked to consider changes to improve the Commonwealth laws. Any potential changes to native title law will require very careful consideration and wide stakeholder engagement. A perennial challenge for law reform is how to bring change while balancing matters of public interest and concern. To inform this process, we are seeking views from across Australia. The best way you can contribute to the Inquiry is through the submission process. We welcome widespread participation throughout the Inquiry, in our consultations and the submission process.
Commissioner for the Inquiry
Initial research and consultations are underway and will continue into mid December. We are planning to release an Issues Paper in early 2014. The Issues Paper will provide an overview of issues surrounding the Inquiry and will ask questions that have arisen through our first stage of research and consultations. When we release the Issues Paper we will call for submissions from the public.
Following the Issues Paper we will begin another round of consultations with individuals, groups and organisations around Australia.
We expect to release a Discussion Paper around September 2014. This will provide a detailed account of ALRC research to that point, including a summary of consultations and submissions received so far. The Discussion Paper will also include draft proposals for reform. We will call for submissions again, this time asking for feedback on the proposals in the Discussion Paper.
Face to face consultations with key stakeholders affected by the native title system will continue throughout the Inquiry.
- More about the ALRC law reform process
Community consultation lies at the heart of the ALRC’s process and it is important that we hear from a wide range of people and organisations. The main opportunity for people to get involved is through making submissions to the Issues and Discussion Papers. We encourage you to:
- Make a submission—we’ll let you know via this enews when submissions open.
- Follow our work and talk to us on Twitter. (We use #NativeTitle for tweets related to this Inquiry.)
- Encourage others to get involved and subscribe to this e-news.