Framework for Review: Historical and International Perspectives
1.108 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
1.109 The operation of the native title system is affected by pre-existing land rights regimes and the differential impacts of colonisation and dispossession. Native title is not the only path to land justice, and Chapter 3 considers the role of the Land Account and the Indigenous Land Corporation, social justice responses and alternative settlements. The prevalence of consent determinations, and the increasing number of determinations since 2011 are positive trends, but concerns about cost and delay persist. Efficiency is important but just and sustainable outcomes may take time to achieve.
Defining Native Title
1.110 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
1.111 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. This 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
1.112 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 to better accord with Indigenous peoples’ views. The chapter discusses whether there should be ‘empowerment of courts to disregard substantial interruption or change in continuity of acknowledgment of traditional laws and customs’. This is assessed with questions regarding the revitalisation of traditional law and custom. The ALRC examines whether the reasons for displacement of Aboriginal or Torres Strait Islander peoples should be considered. The ALRC concludes that direct legislative amendment of the definition in s 223 better addresses this issue.
Proof and Evidence
1.113 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 such a presumption in light of its recommendations to amend the definition of native title in s 223 of the Native Title Act. However, the ALRC 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
1.114 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
1.115 Sound law reform is enhanced by a consideration of comparable law as it operates in other common law countries. 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.
1.116 Chapter 10 concerns the authorisation process within the native title system. The Native Title Act requires a group making an application for a native title determination, or for compensation for extinguishment or impairment of native title, to authorise an applicant. The authorisation provisions of the Native Title Act are intended to ensure that the application is made with the consent of the claim group. The recommendations in this chapter are intended to support claim groups as they develop their own governance structures, work within the requirements of Australian law and negotiate with third parties.
Parties and Joinder
1.117 Chapter 11 discusses party and joinder provisions under s 84 of the Native Title Act. These provisions specify who is a party to native title proceedings, who may join native title proceedings, in what circumstances they may join, and when they may be dismissed. The party and joinder provisions ensure that persons with interests affected by a native title determination are adequately represented in native title proceedings.
Promoting Claims Resolution
1.118 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.