Why reform is needed

Since the introduction of the Native Title Act, native title determinations and agreement-making have become, in many contexts, ‘a way of doing business’.[11] To sustain and build relationships around native title within the Australian community requires an approach that can accommodate the many interests involved. As Justice Barker, writing extra-curially, notes there is a need for

constructive change to a system that is often characterised by formulaic approaches to dispute resolution, slowness and expense in arriving at outcomes; outcomes which sometimes are considered of limited or no utility by some indigenous groups and frustrate other parties.[12]

Reforms to connection requirements, authorisation and joinder are important to ensure that native title law and legal frameworks achieve efficiencies, but that the law has some flexibility consistent with the beneficial purposes of the Act.

The native title system is highly resource intensive. Costs are borne by a range of governments, public institutions, industry, and private persons—and most acutely by Aboriginal and Torres Strait Islander peoples. These costs may be compounded by long time frames for the resolution of native title claims and determinations. On the other hand, the growing number of native title determinations across Australia is a positive trend—facilitating the conciliation and negotiation objectives of the Act and containing costs. Nonetheless, the law relating to connection requirements remains complex to navigate for all parties, and variable in its outcomes for Aboriginal and Torres Strait Islander peoples across Australia.[13]

Major constraints in proving native title increase transaction costs for all in the system; reduce the basis for ‘full’ recognition of rights; and confine the scope of native title rights and interests. Accordingly, the Inquiry sought to reconcile requirements for orderly interaction in the native title system, with the principles of equality and non-discrimination that are stated in the Act. The ALRC has focused on ensuring that the existing native title system is efficient, fair and equitable and that the recommendations in the Report are directed to that end.

Reforming the law on connection, authorisation and joinder

Moving from the general systemic considerations, the ALRC directed its attention to the consideration of the substantive aspects of the law. Given the breadth of interests involved, it is perhaps inevitable that native title law is complex and technical. The technicality of law may be viewed as necessary, rather than simply counterproductive, but technicality should not impede the achievement of broader legislative purposes.

In this light, the ‘laws and customs’ model for recognising and determining native title fulfils the important function of recognising native title, but it contributes to a complex legal test for connection in the Native Title Act that calls for considered reform. In addition, statutory construction of s 223 of the Native Title Act has expanded the requirements for proof of native title beyond the elements contained in the actual definition in the Act.[14]

The ALRC’s recommendations retain the framework of native title derived from Mabo [No 2] but address entrenched difficulties in the proof of native title. The recommendations are directed to a specific range of connection requirements in order that the ‘test’ for proving native title better accords with the Preamble and guiding objectives of the Native Title Act.

A significant contemporary challenge in native title law is the question of change and adaptation in indigenous communities. The extent to which traditional laws and customs can evolve or adapt is set against a system of proof that requires ‘tradition’ and a continuous connection to a pre-sovereign past as the basis for entitlement.

Further, as the ALRC’s Report demonstrates, there has been a longstanding pre-occupation in the Australian legal system and its colonial forebears with determining the factual existence and legal character of Aboriginal peoples and Torres Strait Islanders’ traditional laws and customs. This has led to an emphasis on gathering a large amount of evidence to support connection. In turn, this requires considerable time and effort in assessing this evidence. The recommendations in Chapter 5 acknowledge that linking between the pre-sovereign laws and customs and their modern counterpart is necessary, but the targeted recommendations are directed to reducing the impact of those requirements where they have introduced more stringency than may be evident from the text of the definition of native title in s 223(1) of the Act.

The current legal model can be contrasted with the growing acknowledgment in practice that Aboriginal and Torres Strait Islander peoples and their relationships with land and waters, can and do adapt to changing circumstances—the influence of European settlement makes that inevitable.[15] It is also important to see native title as an important component of the future for Aboriginal and Torres Strait Islander peoples.

Nonetheless, this Inquiry has not disturbed the basic proposition that native title rights and interests that are recognised must be possessed under laws and customs with origins in the pre-sovereign period. That proposition is now fundamental to the Native Title Act and its judicial interpretation. The ALRC’s Inquiry has engaged with the question of the degree of permissible evolution and development of laws and customs. The Terms of Reference for this Inquiry required such reflection.

The authorisation process is often costly, and at times protracted and disputed. Reforms must ensure the authorisation process is robust, transparent, and able to reduce potential conflict and build governance capacity in the claim group. The authorisation provisions of the Act are intendedto ensure that the application is made with the consent of the claim group.[16] The group is also given the power to remove and replace an applicant, thus contributing to the ongoing legitimacy of the applicant.

The party and joinder provisions in the Native Title Act raise a number of issues around the balance of interests in the native title system. Such factors may influence how readily a native title determination is reached, whether the proceedings are lengthy, and if they involve administrative burdens for the parties and the institutions administering the native title claims process.

As a practical matter of access to justice, third parties, whose interests may be affected by a native title determination, are provided with an opportunity to be involved in the proceedings through the party and joinder provisions. There is a potential for there to be a large number of parties to a native title claim. Once a person becomes a party, that person will be required to participate in proceedings, often at some time and cost, and in most circumstances, that person’s consent is necessary for a consent determination.

Different considerations apply to claimants and potential claimants as respondent parties. There may be a mix of reasons for claimants or potential claimants to seek to join native title proceedings. The existence of overlapping claims or disaffection within claim groups may precipitate applications for joinder. Other Aboriginal and Torres Strait Islander peoples may seek to assert their own claims to land and waters, and see the courts as an avenue for redress. The issues that lead to claimant and potential claimant applications often are symptomatic of wider disputes arising in the claims process. Other measures for resolution would be preferable to joinder, but access to justice remains an important value.

The ALRC Inquiry found the current law and procedure is generally effective in allowing adequate representation of respondent interests. The existing law administered by the Federal Court will be the most appropriate way to balance the considerations arising in joinder applications. The ALRC, however, has made some targeted recommendations.