Review of the Native Title Act 1993

AIATSIS Native Title Conference, Living with Native Title from the Bush to the Sea, Coffs Harbour NSW, June 2014

I would like to acknowledge the traditional owners of the bush and the sea, the Gumbaynggirr people, and pay my respects to their elders past and present; and to the elders of other Aboriginal peoples and Torres Strait Islanders present today.  My name is Lee Godden, the Commissioner leading the Australian Law Reform Commission Inquiry into the Native Title Act; with me are my colleagues who are part of the Inquiry Team, Justine Clarke, Julie MacKenzie, and Robyn Gilbert. I will provide an over view of the Inquiry, while my colleagues will participate in the question time at the end of this session.  As a Commonwealth statutory agency with a remit of law reform,[1] you may feel that the ALRC is a huge, faceless bureaucracy—well, we four ARE the entire Native Title Inquiry Team, and now we are not faceless. We hope that you will talk to us about the Inquiry when you see us around the conference. If you would like to meet with us we have a meeting room and contact details for the ALRC are at the end of this power-point.

Before speaking about the Inquiry directly, I have a Coffs Harbour story that exemplifies for me some of the significant issues that our Inquiry touches upon.  Members of my family live in Coffs Harbour so I visit often. Last summer I was walking along the Coffs Creek board walk among the mangroves, and there were two Aboriginal boys standing in the creek at the edge of the boardwalk— the tide was out. The older one scooped up plastic bottles and other rubbish from the mangroves and said to the younger— “you know we must always look after the beach and the creek”.  

The ALRC’s first consultation document for the Inquiry is a 70-page Issues Paper of admittedly highly technical and complex legal issues. In that paper, we have only managed to touch the surface of a relationship to country that was embodied in the actions of those two boys in Coffs Creek.  The limitations that a construct of native title imposes upon Aboriginal peoples and Torres Strait Islanders is acknowledged, but the Inquiry provides an opportunity to understand, and potentially to address, some of the difficulties that have arisen with the native title system. We have a summary of the Inquiry (about 4 pages) on our website if that is helpful.

Terms of Reference for the Native Title Inquiry

The ALRC Inquiry does not cover all of the Native Title Act (NTA); the Inquiry has a focus on two, albeit very important, areas.

1. Connection requirements relating to the recognition and scope of native title rights and interests, including, but not limited to whether there should be:
   • ​ a presumption of continuity of acknowledgment and observance of traditional laws and customs and connection;
   •  clarification of the meaning of ‘traditional’ to allow for the evolution and adaptation of culture and recognition of ‘native title rights and interests’;
   • clarification that ‘native title rights and interests’ can include rights and interests of a commercial nature;
   • confirmation that ‘connection with the land and waters’ does not require physical occupation or continued or recent use; and
   • empowerment of courts to disregard substantial interruption or change in continuity of acknowledgment and observance of traditional laws and customs where it is in the interests of justice to do so.
2. ​Any barriers imposed by the Act’s authorisation and joinder provisions to claimants’, potential claimants’ and respondents’ access to justice.

Connection requirements—The ALRC Inquiry is directed to consider connection requirements as part of the wider issue of recognition and scope of native title rights and interests. The particular options for reform in respect of connection requirements that the ALRC were asked to consider will be outlined shortly.

Authorisation and Joinder—The second area for the Inquiry relates firstly to the people involved in the native title application process; how applicants are chosen and their powers to act in respect of a claim, and secondly to legal procedures around who is able to apply to the court to join a legal action for a native title claim and the rules that the court uses to decide these matters.

The Inquiry process

It may be useful to let you know where the ALRC is in the Inquiry process, and how our Inquiry relates to Commonwealth government procedures in the future.

Our Terms of Reference were settled in August 2013. On 3 August 2013, the then Attorney-General of Australia, the Hon Mark Dreyfus QC MP, requested that the ALRC conduct an Inquiry into, and report on, the Commonwealth native title laws and legal frameworks. Under the governing legislation, the ALRC are an independent authority, and this independent status sets the framework for our Inquiry.

We have undertaken an initial round of research and consultations across the country, which produced the Issues Paper in March 2014. A copy of the Issues Paper—and the questions that we asked people to respond to—is available on the ALRC website.

Formal submissions have closed for the Issues Paper, and we are now reviewing submissions—we are about halfway through the Inquiry. The ALRC has received almost 40 submissions and we are grateful to those who gave considerable time and expertise to preparing those submissions.

A final report will be provided to the Commonwealth Government in March 2015, which is then tabled in Federal Parliament. The ALRC play no further role, once the report is handed over. However, the ALRC has a reasonably strong record in having its recommendations implemented – even if there are sometimes long time-frames to the adoption. As a side note, the most cited ALRC report remains the Inquiry into Recognition of Aboriginal Customary Laws undertaken over 9 years and finalised in 1986.

Native title claims—what are the difficulties?

I turn now to the current Inquiry, and to the areas that we are examining. First, in relation to connection requirements: the term ‘connection requirements’ is a shorthand concept for many complex ideas around the recognition, proof and the scope of native title rights and interests. The ALRC Issues Paper sought to identify major issues and difficulties with these processes. The native title system is widely acknowledged to be complex, lengthy and difficult for all parties.[2] Our Terms of Reference identified five potential options for reform but was less precise about the actual problems that were to be addressed. For that reason we have asked open questions at the start of the Issues Paper to help us further identify what are the problems associated with connection and recognition of native title. We have outlined some difficulties, but we are interested in hearing from you about other connection issues with the native title claim process. The Terms of Reference also asked the ALRC to consider in relation to connection, authorisation and joinder what, if any, changes could be made to improve the operation of Commonwealth native title laws and legal frameworks.

Further, the Inquiry is aware that there are inter-linkages between connection requirements and identifying the native title claimants, who are chosen to form the native title applicant (authorisation) and then rules around joinder.

Before turning to discuss the five options for reform in relation to connection, I want to draw attention to one other aspect in understanding native title claims— that is the question of data or evidence.

Data on native title: trends and effects

To provide a platform for evaluation of how the relevant provisions of the Native Title Act are functioning, it is important for the ALRC to gather as much information as possible. This will assist the ALRC to better understand from a range of perspectives, what is working well and what difficulties there are around connection requirements, authorisation, and joinder in the native title system. Some examples of the questions to gain these insights are:

• Is there evidence that native title claims are taking a longer time to resolve than in the past? If so, what factors are relevant to such delays?
•  What evidence is there, if any, that overlapping claims and disputes affect connection requirements, authorisation and joinder procedures?
• Do financial and capacity constraints continue to pose a barrier for claimants, potential claimants, and respondents in relation to native title determinations?
• Is there sufficient expertise available to undertake the necessary reports and other procedures in relation to connection requirements?
• What institutional and administrative constraints exist for claimants, potential claimants or respondents?

Often, there will be very different views from stakeholders about trends and problems with the native title system; accordingly the ALRC seeks to canvass a wide range of responses. For example, there are many perspectives on whether there are extensive delays in the resolution of native title determinations and possible causes of any such delay.[3]

The question of the length of time taken to achieve native title determinations is often cited as a basis for considering reforms to the Native Title Act. A recent determination in Western Australia, which occurred after some 18 years since the lodging of the claim illustrates some of the difficulties,[4] but the factors contributing to the length of time are many! Indeed, exactly what causes long time frames for the resolution of claims is harder to pin down. There is some data available about native title determinations, but it is very generic. The National Native Title Tribunal and Courts, for example, do not collate data at the level of identifying factors contributing to the time taken for resolution in each case. Submissions to the Issues Paper suggest a variety of reasons.[5]

As the ALRC moves to the next stage of the Inquiry we will evaluate information from submissions and many other sources.  Under the Terms of Reference the ALRC is directed to have regard to the Preamble and objects of the NTA. In addition, the Issues Paper identifies a series of guiding principles to frame the Inquiry. We have asked for comment on the appropriateness and scope of the principles. These principles provide a framework for our consideration of discrete areas of the Inquiry.

Connection requirements: options for reform

Connection requirements for the recognition and scope of native title rights and interests raise a number of interwoven challenges. Proof of a native title claim is a complex process. Section 223 of the Native Title Act defines the native title rights and interests that are the subject of a determination of native title under s 225 of the Act. In s 223(1), the term ‘native title or native title rights and interests’ means:

the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a)    the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b)       the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c)       the rights and interests are recognised by the common law of Australia.

Section 223 has been the subject of extensive judicial interpretation. Native title claimants must address a number of requirements to satisfy s 223 as interpreted by the Courts.[6]

The Terms of Reference direct the ALRC to consider five specific measures for reform, but the Inquiry can be more wide-ranging in its examination of suggested measures to improve the operation of the native title system. It should be stressed that these are options for reform that we are examining in terms of their respective advantages and disadvantages – the ALRC is yet to determine its final position with respect to any or all of these options. The Inquiry has received many high quality submissions on these matters that we are currently working through.

Presumption: Turning to the first option for reform, there have been a number of proposals put forward for a presumption of continuity in acknowledgment and observance of traditional laws and customs since pre-sovereignty that would potentially address difficulties for claimants in having to provide evidence of connection to the point of contact with Europeans. Generally speaking, a presumption—is a rule of evidence that affects how a fact in issue is proved. If adopted, a presumption of continuity could allow continuity to be presumed upon proof of basic facts.  Some commentators suggest that if a presumption was to be introduced into the NTA that it may have broader effects on the practices of parties to native title proceedings. The ALRC is considering whether to recommend the adoption of a presumption; submissions vary on its formulation and its effectiveness.[7]

Traditional: Central to the definition of native title (s223 NTA) is that native title rights and interests are possessed under ‘traditional’ laws and customs. Traditional laws and customs are those held to be acknowledged and observed at the time of the acquisition of British sovereignty. In turn, the designation of traditional raises queries about extent to which laws and customs can evolve and adapt and still be regarded as ‘traditional’. Case law, such as Yorta Yorta indicates that there is a requirement that traditional law and custom must link to a pre-sovereign society; thus claimants must establish the existence of a ‘normative society’.[8] The ALRC is considering whether to recommend setting a statutory definition of ‘traditional’ or whether it is preferable to allow case law to evolve on a case by case basis; submissions vary on the issue.[9]

Commercial native title rights and interests:  The High Court held in Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth (‘Akiba’) that native title rights and interests could comprise a right to access resources and take for any purpose resources in the native title claim area.[10] The right could be exercised for commercial or non-commercial purposes. Following the High Court’s approach in Akiba, a number of interconnected issues arise, for example, to what extent it is possible for native title rights and interests to evolve and adapt?[11] The ALRC is asked to consider the utility of potential amendment of NTA to confirm that native title includes commercial rights and interests.[12] This includes consideration of whether there should be an attempt to define ‘commercial’ particularly given the need for regard to the factual and evidentiary basis for determining commercial rights and interests.

Physical occupation and recent use: The ALRC has been asked to consider whether there should be confirmation that ‘connection with the land and waters’ does not require physical occupation or continued or recent use. While the High Court has said that ‘the connection which Aboriginal peoples have with country is essentially spiritual’,[13] some commentators suggest that the absence of physical occupation or recent use is still raised as a challenge to proving connection in some claims.[14] Further, occupation and use of land and waters is considered good evidence of connection, and of the particular rights and interests possessed. In this context, the ALRC is to examine the appropriateness of potential amendment of the NTA to confirm that occupation and continued/ recent use is not required or alternatively, whether it is preferable to allow the case law to apply and evolve.[15]

Substantial interruption:  Current case law requires that claimants must prove that acknowledgment of their traditional laws and observance of their traditional customs has continued ‘substantially uninterrupted’ by each generation since pre-sovereignty.[16] Such ‘continuous acknowledgement and observance’ is not an absolute standard, but nonetheless it can represent a high hurdle for indigenous people in proving native title.[17] The ALRC is asked to consider whether there should be ‘empowerment of courts to disregard substantial interruption or change in continuity of acknowledgment and observance of traditional laws and customs where it is in the interests of justice to do so’. There are two suggested components to any reform option: first is it appropriate to define ‘substantial interruption’;[18] and secondly should the courts be empowered to disregard ‘substantial interruption’? These issues attracted a diversity of opinion in the submissions to the Issues Paper.[19]

The ALRC will examine these proposed options for reform; together with other suggested measures in the Discussion Paper to be released around the end of September 2014.

Authorisation

We turn now to consider the other main area identified under the Terms of Reference for the Inquiry; examining barriers for claimants, potential claimants and respondents in respect of authorisation and joinder.

Authorisation involves the process which native title claimants must use to give permission for:

an application for a determination of native title to be made under the NTA on their behalf by ‘the applicant’; and to give the applicant the power to deal with matters arising in relation to that application for a determination (and for compensation). Authorisation is necessary for indigenous land use agreements as well. The NTA sets out how authorisation is to be given.[20]

Generally speaking, from the submissions there remains substantial support for the authorisation process. The National Native Title Council stated, ‘The process goes to the integrity of the NTA from an indigenous point of view.’[21] The Western Australian State Government noted that ‘… authorisation requirements for the bringing of native title and compensation claims are a vital component of the native title system that serve a democratic function for native title claimants, and provide certainty for other parties.’[22] Nonetheless, there is acknowledgment of difficulties with various parts of the process. For example, the National Native Title Council submission recognises that there are sometimes difficulties in identifying the claim group and that there are many complexities around authorisation.

The ALRC Issues paper has identified certain pressure points with the authorisation process and we would be interested in further information about the range of experience with the authorisation procedures. Some difficulties include:

• Identifying the claim group and deciding upon ‘the applicant’;
• Cost of authorisation proceedings;
• Resolving disputes within the claim group;
• Replacement of applicant members  e.g. where an applicant dies or is unable or unwilling to act;
• Defects in authorisation; and
• Concerns around the scope of authorisation—and consequently the powers of the applicant.

Many submissions were helpful in making detailed suggestions.[23] The ALRC notes the broad support for authorisation. The Inquiry will examine the range of suggestions to deal with identified problems in our draft proposals on this, and other matters covered by the Terms of Reference in the Discussion Paper at the end of September. Any such examination will be informed by consideration of recommendations arising from relevant Inquiries, such as the Taxation of Native Title and Traditional Owner Benefits and Governance Working Group Report.[24]

Joinder

As noted, joinder provisions relate to the court deciding who may be a party to a legal action in relation to a native title claim. Native title proceedings differ from many other types of legal proceedings. Unlike, for example, a contractual dispute, where the parties bound by a court’s decision are usually very limited in number, a native title determination is a ‘right in rem’; and as such is enforceable against the whole world.[25] Consequently, the Native Title Act provides mechanisms aimed at ensuring that persons who may be affected by or have a relevant interest in a determination in the proceedings, have an opportunity to be involved.

Basically, there are two ways to join the native title claim:

1. During the initial 3 month notification period. Persons who can join include people who claim to hold native title and people ‘whose interest, in relation to land and waters, may be affected by a determination in the proceedings’; and
2. At any time, if Court is satisfied: the person’s interests may be affected by a determination in the proceedings and it is in the interests of justice to do so.[26]

Native title proceedings are unique perhaps in the range of parties and interests that may be involved in an application for a determination.  For example, the ALRC have a submission from Telstra,[27] an organisation which routinely seeks to join native title determinations due to the circumstances of its national infrastructure. Typically it will often involve only a tiny area for a phone tower etc in a claim area, but these are located all over Australia.

There are a range of circumstances also where groups or individuals may seek to join relatively late in the proceedings. Late joinder may be triggered by situations that include:

1. Disputes within the claim group or between competing claim groups or peoples; and
2. Respondents—where a change in ownership of land and interests occurs within the claim area.

Late joinder of parties has been identified as one factor that may delay some native title determinations; especially as they near resolution. Again though, it should be emphasised that the situation is complex and delay may not be attributable to just one factor.[28] There is the countervailing consideration also for parties to be heard before determination of a native title claim. The ALRC will further examine factors giving rise to late joinder by a number of different groups in its Discussion Paper and outline draft proposals at that time.

Applications for a determination of native title typically involve a large number of respondents. The Crown (the legal entity representing state and territory governments) is always a respondent.  In the Issues Paper there is a question that asks whether, as the Crown grants interests to third parties (e.g. mining tenures), should the number of parties to a native title claim be limited; and if so, in what circumstances? Again these are matters the ALRC will carefully evaluate over coming months in preparation for our Discussion Paper. Overall, the ALRC will consider:

• Is the legal system responding appropriately or are there barriers in place?
• What principles should guide the courts regarding joinder?

Next steps

The ALRC Discussion Paper is to be released around the end of September; with a submission period closing before Christmas. The Discussion Paper will:

• Provide more detailed examination of connection requirements for the recognition and scope of native title rights and interests, authorisation, joinder, as necessary;
• Set out draft proposals in relation to these areas; and
• May request information as part of additional clarification of legal issues and of the practical operation of the native title system.

The ALRC Inquiry team will undertake another round of consultations; our contact details are on the PowerPoint slide. We look forward to meeting with people over the course of this conference and as the Inquiry moves forward.  

Thank you.