The Native Title Act is far-reaching and complex legislation which affects many people. The Act is Commonwealth legislation, but it operates across all state and territory jurisdictions. The extent to which native title is recognised, and may be recognised, varies across Australia due to historical factors. Parties in the native title system have ordered their practices and interactions with other parties and with native title institutions as the law has evolved over a 20 year period since the introduction of the Native Title Act. Stability and certainty are important matters.
Rigorous testing of connection requirements is also important to secure transparency for governments and third parties, to ensure the integrity of the claims system and to facilitate identification of the appropriate members of a claim group.
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 than may be evident from the current definition of native title in s 223(1). 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.
The Native Title Act is invested with many aspirations for the future of Australia’s Indigenous peoples. It has brought opportunities and challenges for the wider Australian society. Native title has the capacity to contribute to the improvement of the circumstances of Aboriginal and Torres Strait Islander peoples. If native title is to provide an effective platform for future development, then a prerequisite is ensuring an equitable process within the law governing connection requirements.
The need for a longer term perspective also was stressed to the ALRC during the Inquiry. There were calls for more attention to be paid to how native title groups can effectively manage their determined native title rights and interests. The authorisation recommendations are framed in that context.
In summary, the recommendations are intended to
address the complexities of proving native title and the amplified requirements for connection, relating to the definition in s 223 of the Native Title Act;
acknowledge that, while retention of a focus on traditional laws and customs is important, the law should be flexibly applied to allow evolution, adaptation and development of those laws and customs and succession to native title rights and interests;
expedite the claims process by removing ‘substantially uninterrupted continuity’ and the ‘normative society’ requirements as a strict necessity and refocusing on the core elements of the definition of native title;
facilitate the drawing of inferences of fact in defined circumstances, while recognising that the extent of evidence required to establish native title is in tension with the object of the Act to recognise and protect native title;
provide statutory reflection of the principles developed by the High Court that recognised that a native title right may be exercised for any purpose—commercial or non-commercial and to include a native title right to trade in a non exhaustive list of native title rights and interests;
strengthen the internal governance of the claim group by clarifying the functions, powers and duties of the applicant;
streamline the process of removing a member of an applicant who is unable or unwilling to act;
ensure access to justice for parties whose interests may be affected by a native title determination, while recognising the need for efficient and fair administration of justice; and
ensure that native title claims are resolved in a fair and efficient manner.
An Inquiry into connection requirements for recognising native title rights and interests; the scope of native title rights and interests; and the authorisation and joinder provisions of the Native Title Act raises matters of significance and sensitivity. For Aboriginal and Torres Strait Islander peoples, it engages questions about their traditional laws and customs and the nature of their relationship to traditional lands and waters. It canvasses matters that go to the founding of the Australian nation and the course of European settlement over 200 years. It touches upon the many interrelationships between Aboriginal and Torres Strait Islander peoples, who hold, and may hold native title rights and interests, and the Australian community. The Inquiry, under its Terms of Reference, was asked to reflect upon the question of the evolution and development of Aboriginal and Torres Strait Islander peoples’ laws and customs—a perspective that looks to the future.
The ALRC was assisted in its Inquiry by the generous contribution of the many people and organisations that are identified in the Report, who afforded unparalleled access to information about how the Native Title Act claims system is operating. The insights offered, including the strong divergence of views, provided a significant information resource for the Report. The ALRC acknowledges that the Report draws on the extensive and considered jurisprudence of the High Court and the Federal Court in its interpretation of the Act. The ALRC makes its contribution to native title law, in the knowledge of an evolving jurisprudence.