Podcast: Review of the Native Title Act – 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.