27.05.2015
Introduction
Chapter 1 provides an introduction to the Inquiry and an overview of the scope of the Terms of Reference. It outlines why reform is needed to the Native Title Act, discusses the rationale for reform, and guiding principles. It gives an overview of the law reform process for developing the recommendations, including the extensive consultations that were undertaken across Australia.
Framework for Review: Historical and International Perspectives
Chapter 2 places the development of native title law in an historical context to provide an understanding of how difficulties with proof of native title evolved. It discusses recognition of native title in Mabo [No 2] and the Native Title Act, before considering how international law is relevant to native title.
Context for Reform
Chapter 3 places the operation of the native title system in a wider context. Outcomes in the states and territories are affected by different patterns of European settlement and pre-existing land rights regimes. The Federal Court’s management of its native title caseload is evolving, and increasing rates of consent determinations are a positive trend, but some concerns remain. Native title is not the only path to land justice, and this chapter briefly considers other responses.
Defining Native Title
Chapter 4 sets out the legal requirements to establish native title rights and interests commonly referred to as ‘connection requirements’. It outlines the definition of native title in s 223 of the Native Title Act, sets out major judicial statements on its interpretation, and provides an overview of the ALRC’s recommendations for reform of connection requirements.
Traditional Laws and Customs
Chapter 5 discusses the requirements of s 223 of the Native Title Act in more detail, focusing on the requirement to establish that native title rights are possessed under the ‘traditional laws acknowledged and traditional customs observed’ by the relevant Aboriginal peoples or Torres Strait Islanders. The chapter outlines how this requirement has been interpreted, focusing on the approach taken to the meaning of acknowledgment and observance of traditional laws and customs. The ALRC makes five key recommendations for reform of this aspect of the definition.
Connection with the Land or Waters
Chapter 6 discusses how connection to land and waters is proved and whether physical occupation or continued and recent use is required as part of that proof. The ALRC makes two recommendations in this area. The chapter examines the feasibility of reframing connection and if there should be ‘empowerment of courts to disregard substantial interruption or change in continuity of acknowledgment of traditional laws and customs’. It examines the potential for revitalisation of laws and customs, as well as examining whether the reasons for displacement of Aboriginal or Torres Strait Islander peoples should be part of the law governing connection requirements.
Proof and Evidence
Chapter 7 considers matters relating to the proof and evidence for native title. Central to this examination is whether there should be a presumption of continuity of acknowledgment and observance of traditional laws and customs and connection. The ALRC considers that it is not necessary to introduce a presumption in light of its other recommendations to amend s 223 of the Native Title Act but it does recommend that there be guidance in the Actregarding when inferences may be drawn in the proof of native title rights and interests.
The Nature and Content of Native Title
Chapter 8 discusses whether the Native Title Act should be clarified to provide that native title rights and interests ‘can include rights and interests of a commercial nature’. It sets out the nature and content of native title rights and interests before discussing the recommendations about ‘commercial native title’. Other sections examine whether ‘commercial purposes’ and ‘trading’ should be defined and if other types of interests, such as cultural knowledge, may constitute a native title right or interest.
Native Title: Comparisons with Common Law Jurisdictions
Chapter 9 provides an overview of legal frameworks and jurisprudence in Canada and New Zealand in relation to Indigenous peoples’ rights to land and waters. It analyses comparable developments in the common law jurisprudence relevant to native title.
Authorisation
Chapter 10 concerns the native title claim group’s authorisation of an applicant to make a claim. This chapter makes recommendations for reform regarding the claim group’s decision-making process, the scope of the applicant’s authority, the replacement of a member of the applicant, and the duty of the applicant to the group. The recommendations are intended to support groups as they develop their internal governance.
Parties and Joinder
Chapter 11 discusses party and joinder provisions under s 84 of the Native Title Act, which specify who is a party to native title proceedings, in what circumstances they may join, and when they may be dismissed. It analyses the role of the Crown as a primary respondent, the potential for large numbers of third party respondents, and late joinder. It outlines recommendations including in relation to claimants and potential claimants as respondents, and rights of appeal.
Promoting Claims Resolution
Chapter 12 considers the processes involved in native title claims resolution. It looks at the role of the Crown in native title applications; the use of expert evidence in native title proceedings; handling information generated as connection evidence; specialist training schemes; and the native title application inquiry process.