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.