1.54 In undertaking the Inquiry, the ALRC sought evidence as to whether the current native title system is meeting its objectives, whether specified options for reform would improve the operation of the system, and whether alternative reform options should be implemented. In particular, the ALRC sought evidence as to whether the reforms recommended in this Report would: advance the recognition and protection of native title; acknowledge the range of interests in the native title system; encourage timely and just resolution of claims; be consistent with international law; and support sustainable futures.
1.55 Law reform recommendations must be built on an appropriate conceptual framework and a strong evidence base. The Native Title Act is Commonwealth legislation that operates across Australia and the ALRC undertook extensive consultation with parties involved in the native title system around the country.
1.56 Under the provisions of the Australian Law Reform Commission Act 1996 (Cth), the ALRC ‘may inform itself in any way it thinks fit’ for the purposes of reviewing or considering anything that is the subject of an inquiry. While the process for each law reform reference may differ according to the scope of the inquiry, the complexity of the laws under review, and the timeframe in which the inquiry must be completed, the ALRC usually works within an established framework, outlined in detail on the ALRC website.
1.57 The Terms of Reference for this Inquiry directed the ALRC to consult with relevant stakeholders. Two consultation documents were produced to facilitate consultations and stakeholder input throughout the Inquiry. An Issues Paper was released on 20 March 2014 and a Discussion Paper on 23 October 2014. The Discussion Paper put forward 24 proposals and 24 questions to assist with the consultation process.
1.58 A major aspect of building the evidence base for law reform is consultation. Widespread community consultation is a hallmark of best practice law reform. Two national rounds of consultation meetings were conducted following the release of each of the consultation documents. This Inquiry has analysed evidence from 162 consultations, including consultations with Commonwealth, state, territory and local governments, departments and agencies; with judges and registrars from the Federal Court of Australia; with Indigenous leaders and traditional owners; with Indigenous organisations, including Native Title Representative Bodies, Native Title Service Providers, Prescribed Bodies Corporate and Land Councils; with industry including peak bodies representing the agriculture, pastoral, fisheries, and minerals and energy resources industries; with the National Native Title Tribunal; and with a number of anthropologists and academics. A full list of consultations is included at the end of the Report.
1.59 The ALRC’s consultation process was greatly strengthened by the willingness of Indigenous leaders, traditional owners and Indigenous organisations to offer insights into the native title claims process, informed by their experience in representing Aboriginal and Torres Strait Islander communities across Australia. The perspectives on connection to country and traditional laws and customs that they shared with the ALRC were invaluable in building a greater understanding of native title from the position of those people deeply affected by the Native Title Act. The consultations also were important in revealing connection as a dynamic and lived experience for Aboriginal and Torres Strait Islander peoples.
1.60 Evidence has also been obtained from 72 thoughtful submissions. These submissions are publicly available on the ALRC website. The ALRC acknowledges the considerable amount of work involved in preparing submissions which can have a significant impact on organisations with limited resources—the input of several pastoral and fishing industry groups is relevant in this regard. In addition, the ALRC notes that its Inquiry placed yet another request for information and consultation upon already overstretched claimants, native title professionals, and court and tribunal personnel.
1.61 The ALRC also appreciates the insights that were offered into the native title claims process by many current and former members of the Federal Court who generously gave of their time and expertise to the Inquiry. The ALRC acknowledges the profound contribution made by judges of the High Court and Federal Court to the development of native title jurisprudence over the 20 years since the Native Title Act was enacted.
1.62 The ALRC in this manner substantiated recommendations for reform from the many observations of participants in the system—this is at the heart of this Inquiry. The ALRC is grateful for the contribution of all those who participated in consultations and provided submissions. Evidence on the workings of the native title system has also been obtained from published commentary, from previous reports, reviews and inquiries regarding the native title system.
1.63 The ALRC has closely examined the Native Title Act itself, associated regulations, and court judgments. The National Native Title Tribunal and the Federal Court Registrar also provided useful statistical data which is discussed in Chapter 3.
1.64 The recommendations for reform made in this Report have been tested by consulting with the most senior and experienced actors within the system, and seeking their views on the likely outcomes of the proposals made. These recommendations are informed by the views of experts and stakeholders, and are based on an independent assessment of the likely outcomes of those reforms.
1.65 Specific expertise is also obtained in ALRC inquiries through the establishment of Advisory Committees and the appointment by the Attorney-General of part-time Commissioners. In this Inquiry, the ALRC was able to call upon the expertise of the Hon Justice Nye Perram of the Federal Court of Australia as a part-time Commissioner.
1.66 Members of the Advisory Committee are listed at the beginning of the Report. Three meetings of the Advisory Committee were held in Sydney: on 6 February 2014, 14 August 2014 and 5 February 2015. While the ultimate responsibility in each inquiry remains with the Commissioners of the ALRC, the Advisory Committee assists in the identification of key issues, provides quality assurance in the research and consultation effort, and provides invaluable feedback during the development of reform proposals. The ALRC acknowledges the significant contribution made by the Advisory Committee in this Inquiry and expresses its gratitude to members for voluntarily providing their time and expertise.
Matters outside the Inquiry
1.67 In the course of this Inquiry, stakeholders have raised many issues broader than the Terms of Reference. Many matters concerned policy development for Aboriginal and Torres Strait Islander peoples in the fields of business development, health and welfare and social policy. The importance of simultaneously developing sustainable native title outcomes and policies designed to enhance Aboriginal and Torres Strait Islander peoples’ economic opportunities has been highlighted. Stakeholders, and many of those consulted, called for the development of native title law to be consistent with other indigenous policy settings. Some stakeholders stressed the need for an integrated approach to reform of the Native Title Act and that of cognate legislation.
1.68 Clearly, native title has a bearing on these matters, although many issues generating conflict in the native title sphere are not easily resolved through the legal process. The Terms of Reference, however, focus the Inquiry on the native title claims process under the Act.
1.69 This Inquiry raises matters of great significance and sensitivity for Aboriginal and Torres Strait Islander peoples. It engages questions about 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 impacts of European settlement. It touches upon the many interrelationships between Aboriginal and Torres Strait Islander peoples and the Australian community.
1.70 These are involved questions around which there is much law, scholarship, commentary and debate. This Inquiry proceeds against the backdrop of those challenges, but the brief in this Inquiry is guided by the Terms of Reference, as well as by the role and function of a law reform commission.
1.71 The overarching political relationship between the Australian nation and Aboriginal and Torres Strait Islander peoples and its future development are beyond the scope of this Inquiry. Native title can contribute, however, to strengthening the place of Aboriginal and Torres Strait Islander peoples within Australian society.
1.72 An important issue is the recognition of Aboriginal and Torres Strait Islander peoples in the Commonwealth Constitution. The ALRC notes theintroduction of the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 (Cth) and the process of review and report on constitutional recognition that has been instigated. That procedure is the proper forum in which to address broader questions of political and constitutional recognition.
Aboriginal and Torres Strait Islander laws and customs
1.73 The ALRC acknowledges that the Inquiry has examined only a narrow slice of the range of issues raised by connection to country for Aboriginal and Torres Strait Islander peoples. The Commission readily accepts that it has not dealt extensively with the content of Aboriginal and Torres Strait Islander peoples’ laws and customs, as that knowledge is most appropriately given by Aboriginal and Torres Strait Islander peoples themselves. The Commission does acknowledge the deep significance that traditional laws and customs have for Aboriginal and Torres Strait Islander peoples in constituting connection to traditional land and waters. It is not the role of the ALRC, however, to expound upon that law and custom.
The contribution of other disciplines
1.74 Consultations revealed that the work of many professionals was central to the operation of the native title system and the preparation of ‘connection reports’. The reports play an essential role in native title determinations in providing the factual material upon which connection is based and in identifying right people for country. Claimants, of course, bring their own knowledge to those questions.
1.75 The report has not canvassed in depth the contribution that other disciplines bring to connection requirements. It deals briefly with expert evidence in establishing connection requirements. The ALRC acknowledges that other disciplines bring much to the understanding of native title, but has not developed comprehensive recommendations in this field.
Other components of the native title system
1.76 The native title claims process necessarily interacts with other components of the Native Title Act. The Report canvasses the interaction of the claims process with other areas, such as the future acts regime, as necessary to an understanding of the relevant law, but not otherwise. This may have the effect of truncating consideration of issues, but is unavoidable given the scope of the Terms of Reference.
1.77 The ALRC heard in consultations, and stakeholders raised in submissions, that effective resourcing for parties and institutions within the native title system is of vital importance to timely and just resolution of native title claims. The ALRC acknowledges that law reform alone cannot achieve long-term practical improvements to the native title system. The ALRC, however, does not make any specific recommendations, but acknowledges the importance to all parties and people involved in the native title system of an adequately-resourced native title claims process.
Australian Law Reform Commission Act Cth (1996) s 38.
ALRC, Law Reform Process <https://www.alrc.gov.au/law-reform-process>.
For detail see Ch 3.
Jon C Altman, ‘Reforming the Native Title Act’ (Topical Issue 10, Centre for Aboriginal Economic Policy Research ANU, 2011).
Western Australian Government, Submission 20.
Expert Panel on Constitutional Recognition of Indigenous Australians, ‘Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel’ (Commonwealth of Australia, January 2012) <http://www.recognise.org.au/wp-content/uploads/shared/uploads/assets/3446_FaHCSIA_ICR_report_text_Bookmarked_PDF_12_Jan_v4.pdf>.
On 27 March 2014, the Minister for Indigenous Affairs appointed a Review Panel under the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 (Cth) to assess Australia’s readiness to support a referendum to recognise Indigenous Australians in the Australian Constitution.
As a result of this Act, the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples was established. This committee released a progress report in October 2014 and is expected to have completed its final report on or before 30 June 2015.
Paul Burke, Law’s Anthropology: From Ethnography to Expert Testimony in Native Title (ANU E Press, 2011).
AIATSIS, Submission 36.
Association of Mining and Exploration Companies, Submission 19.