The guiding principles for the Inquiry

1.78       In examining what, if any, changes could be made to Commonwealth native title laws and legal frameworks, the Terms of Reference direct the ALRC to be guided by the Preamble and objects of the Native Title Act.

Preamble and objects of the Act

1.79       The Preamble lists relevant matters for the Parliament of Australia in enacting the law—as it is the ‘moral foundation’ for the Act.^[55] The Preamble captures the Commonwealth Parliament’s intention to

ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.^[56]

1.80       The Preamble also identifies that the intention was for the law to take effect according to its terms and be a special law for the descendants of the original inhabitants of Australia … for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders.^[57]

1.81       The recommendations in this Report are intended to promote an interpretation of native title consistent with the beneficial purpose of the Native Title Act. This entails an approach that gives the statute a ‘fair, large and liberal’ construction.

1.82       The objects of the Native Title Act include the provision of measures forthe recognition and protection of native title, as well as reinforcing the fundamental schema of native title imported from Mabo [No 2].^[58]

1.83       The Law Council of Western Australia noted:

The NTA as originally enacted was intended to be of a more beneficial kind consistent with the Mabo decision as the preamble suggests, rather than one which facilitates the extinguishment of those rights.^[59]

1.84       The ALRC Inquiry also was informed by five guiding principles.

Principle 1: Acknowledging the importance of the recognition of native title

1.85       The principle that reform should adhere to the importance of the recognition and protection of native title received support in many submissions.^[60] The practical significance of native title is captured by the South Australian Government:

Recognition of native title is significant for the individual native title holders, the native title holding body and the broader Australian community. It will usually also give rise to an entitlement to compensation for some past extinguishment, to exclusive rights in some areas, and to statutory procedural rights, including the ‘right to negotiate’.^[61]

1.86       Some stakeholders commented that ‘recognition’ is no longer a barrier to achieving outcomes under the Act.^[62] The Chamber of Minerals and Energy of Western Australian questioned the assumption that ‘the system established under the NTA for the recognition of native title has somehow failed or is “unduly limiting”’. ^[63]

1.87       By contrast, there may be very practical constraints introduced by a requirement that laws and customs constituting connection should be substantially uninterrupted. As Warren Mundine, Chair of the Prime Minister’s Indigenous Advisory Council, said:

The requirement of a continuous connection with the land can discourage Indigenous people from moving away from their traditional lands (for example to obtain work) for fear this will prejudice their native title rights.^[64]

Principle 2: Acknowledging interests in the native title system

1.88       The ALRC considers that reform should acknowledge the range of interests in achieving native title determinations that support relationships between stakeholders.^[65]It is inherent in the nature of native title rights and interests in land and waters that a claim will interact with many other interests.^[66]

1.89       This guiding principle also allowed consideration of a wider range of groups—Aboriginal and Torres Strait Islander communities, governments at all levels, the courts, industry and commerce, and community organisations that may be involved in the native title system.

1.90       The interests involved in any native title determination can include overlapping claims or disputed claims by Aboriginal or Torres Strait Islander peoples. Particular issues of access to justice arise for native title claimants and potential claimants.

1.91       ‘Co-existence’ captures the idea that there are complex interrelationships between native title holders and the wider community.^[67] Agreement-making has built relationships between all stakeholders in the native title system.^[68] Relevant industry groups acknowledged the importance of fostering relationships. Telstra noted that, at the date of its submission, it was a party to almost 200 native title claims:

Telstra participates in a high volume of native title claim applications made under the NTA and considered by the Federal Court of Australia. Telstra’s participation is as a respondent party who has rights and interests in the area of the claim that may be affected by a determination of native title. Telstra participates to protect its rights and not in opposition to or in defence of the claim.^[69]

1.92       It would be unrealistic, however, to expect that all conflict has been resolved since the Native Title Act was enacted.^[70] Further, the objectives of stakeholders within the native title system are not necessarily congruent.^[71] As the Association of Mineral Exploration Companies stated:

The NTA is of course concerned with more than simply the recognition and protection of native title. It is in effect a compromise between the recognition and protection of native title rights and interests and the provision of certainty to the wider community, which holds or may seek to acquire or exercise non-native title rights.^[72]

1.93       The ALRC notes that acknowledging all interests within the native title system will require balance and proportionate responses. The Native Title Act is to give precedence to conciliation and negotiation of native title determinations where possible.^[73] Chapter 3 outlines the growing emphasis upon consent determination and settlements.

Principle 3: Timely and just resolution

1.94       The ALRC considers that reform should promote timely and practical outcomes for parties to a native title determination through effective claims resolution. These concerns must be balanced by attention to the integrity of the processes and outcomes. There was general stakeholder support for this principle, although AIATSIS noted:

The paramount ‘integrity’ of the system in this context lies in ensuring that measures to improve the timeliness of matters will at least do no harm. An appropriate policy rationale applies considerations of efficiency, only in the context of a focus first on ‘just’ and then on ‘timely’.^[74]

1.95       Promoting the timely and effective resolution of native title claims was relevant to many stakeholders in the system.^[75]

1.96       The North Queensland Land Council directed attention to building capacity for all parties to successfully engage.^[76] Adherence to international best practice built on human rights standards for negotiation and consultation was identified as another important factor.^[77] The balance between timely and practical outcomes, and procedural and substantive integrity, assumes particular significance as native title moves into the ‘next phase’. Attention is shifting to governance of native title.^[78] The Australian Human Rights Commission explained:

The Commission also considers it appropriate that any suggested amendments that relate to benefits obtained from either determinations of native title or Indigenous Land Use Agreements (ILUAs), also take into consideration the need to build good governance capacity within the native title system. This is particularly important to enable PBCs to manage native title benefits into the future.^[79]

Principle 4: Consistency with international law

1.97       The ALRC considers reform to the Native Title Act should reflect Australia’s international obligations in respect of Aboriginal peoples and Torres Strait Islanders and have regard to the standards in the United Nations Declaration on the Rights of Indigenous Peoples.

1.98       The National Congress of Australia’s First Peoples supported the view that ALRC recommendations should be consistent with Australia’s international obligations, while stating:

we are cognisant that despite repeated calls from UN treaty bodies for the Act to be amended to reduce the high evidentiary requirements that prevent many Aboriginal and Torres Strait Islander Peoples from regaining control of their traditional lands, successive Australian governments have failed to move beyond piecemeal amendments.^[80]

1.99       The National Congress also called for the Native Title Act to comply with ‘the international human rights obligations of Australia, acknowledge the Declaration and insert a requirement to have regard to specific principles embodied in the Declaration into the objects of the Act’.^[81]

1.100   Within Australia, the Aboriginal and Torres Strait Islander Social Justice Commissioner has advocated a ‘principled approach’ to implementing the Declaration.^[82] Chapter 2 provides a more detailed discussion of international law relevant to native title.

1.101   Standards, such as free, prior and informed consent, have important practical ramifications for how native title will interact with the Australian community. As Bryan Wyatt notes:

Success on projects, or at least a smooth process from inception to conclusion, depends for a large part on how you build relationships with people along the way. It is critical that you engage Aboriginal people early in the piece. People are keen to be involved—they are very determined to protect their country and sacred sites, but they do not want to stifle development. People want to participate—it’s as simple as that.^[83]

Principle 5: Supporting sustainable futures

1.102   The ALRC considers reform should promote sustainable, long-term social, economic and cultural development for Aboriginal and Torres Strait Islander peoples.

1.103   Many submissions supported this principle.^[84] Some caveats were raised about the capacity of the Native Title Act, in itself, to deliver effective social, economic and cultural development.^[85] Other submissions emphasised the need for economic development to occur in a culturally appropriate way:

The Aboriginal and Torres Strait Islander Social Justice Commissioner encourages that outcomes sought be measurable, highlighting the critical importance of economic development occurring in a way that supports and respects Aboriginal and Torres Strait Islander peoples’ culture and identity.^[86]

1.104   Submissions emphasised that ‘recognition and protection of native title under the NTA is a starting point but not a complete answer to the social and economic issues which may face native title holders’.^[87]

1.105   Several submissions identified wide variation in native title outcomes.^[88] The Kimberley Land Council noted that the Native Title Act ‘is not a panacea for all of the wrongs of dispossession and colonisation, but is one important device in addressing these wrongs’. ^[89]

1.106   The need for a longer-term perspective was stressed with calls for more attention to be paid to mechanisms by which native title groups can sustainably and effectively manage their determined native title rights and interests.^[90]

1.107   There are expectations that native title can achieve effective economic and cultural outcomes for Aboriginal and Torres Strait Islander peoples in coming years.^[91] The identification of native title with sustainable future outcomes suggests that critical components, such as the underpinning rights and governance structures, will be important for long-term development for Aboriginal and Torres Strait Islander peoples.^[92]