The scope of the Inquiry
1.14 The ALRC examined four areas of the Native Title Act. Broadly, these areas included: the legal requirements for recognising native title rights and interests; the nature and content (scope) of native title rights and interests; the Act’s provisions for authorisation of an applicant; and the Act’s provisions governing when persons become parties to an application for a determination of native title. The ALRC also considered ancillary aspects of these areas, such as expert evidence and connection reports.
1.15 Connection requirements relate to how native title is established and proved under the Native Title Act. ‘Connection’ is not specifically defined in the legislation but the term appears in s 223(1)(b) of theAct. More generally, it refers to s 223 which defines native title and to s 255 which sets out what is required for a determination of native title. Section 61 governs the originating process for an application for a determination of native title. Connection requirements relate to both the factual matters relevant to Aboriginal peoples’ and Torres Strait Islanders’ laws and customs, as well as the legal rules that govern how native title is proved. This legal architecture owes much to Mabo [No 2].
1.16 Aboriginal peoples or Torres Strait Islanders may bring an application for a determination of native title rights and interests (a claim) under the Native Title Act. Section 223 of theAct defines native title:
(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.
1.17 In regard to connection, the ALRC was asked to consider the following four options for reform:
a presumption of continuity of acknowledgment and observance of traditional laws and customs and connection;
clarification of the meaning of ‘traditional’ to allow for the evolution and adaptation of culture and recognition of ‘native title rights and interests’;
confirmation that ‘connection with the land and waters’ does not require physical occupation or continued or recent use; and
empowerment of courts to disregard substantial interruption or change in continuity of acknowledgment and observance of traditional laws and customs where it is in the interests of justice to do so.
Nature and content of native title
1.18 The nature and content (scope) of native title rights and interests is determined by reference to the factual circumstances of each native title claim. The court in making a determination of native title must set out
(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b) the nature and extent of the native title rights and interests in relation to the determination area; and
(c) the nature and extent of any other interests in relation to the determination area; and
(d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act).
1.19 The ALRC was asked to consider the scope of native title rights and interests, and it considered this question generally, as well as specifically, in relation to examining whether there should be clarification that ‘native title rights and interests’ can include rights and interests of a commercial nature.
1.20 The Terms of Reference indicated that the ALRC could also consider any other improvements to the law and legal frameworks for connection requirements.
1.21 In the native title claim process, it is necessary to identify which Aboriginal peoples or Torres Strait Islanders are the native title claimants, and the claimants must validly authorise persons in the group (the ‘applicant’) to bring an application for a determination (claim). Authorisation forms an initial step in bringing an application for a determination (claim) under the Native Title Act. The Act establishes a process for authorisation in s 251B. The applicant can deal with matters arising in relation to the claim. In a successful claim, the court determines who holds native title. The ALRC was asked to consider any potential barriers to access to justice.
1.22 There is an important meeting point between the law concerning ‘connection and recognition of native title’ and questions of claim group membership.
It is a matter of simple justice that native title determinations should be made only in favour of the traditional owners of each area of land … Just as importantly, the ongoing demands of governance and decision-making in relation to native title lands require a clear and shared understanding of how different groups and subgroups fit together. These two considerations highlight the paramount importance of identifying the ‘right people for country’.
Parties and joinder
1.23 Native title intersects with many other interests in the Australian community. The Native Title Act contains provisions that set out the persons and organisations that are parties to a native title claim. The applicant is always a party. Relevant state and territory governments and, at times, the Commonwealth government, are respondents to a native title claim. Other persons holding interests in the claim area, such as a mining lease, may also be a party.
1.24 Most persons become parties at the initial notification stage of a claim. Other persons whose interests are affected by a native title determination may seek to become a party after this stage. Aboriginal peoples or Torres Strait Islanders, as well as other persons affected by a native title determination, may seek joinder. Joinder raises issues about potential barriers to access to justice, and the good ordering and productive relationships between all participants—Indigenous and non-Indigenous—within the native title system.
1.25 The ALRC was asked to consider any barriers to access to justice imposed by the Act’s joinder provisions for claimants, potential claimants and respondents.
Claims resolution and legal frameworks
1.26 The Native Title Act is a detailed statute that is underpinned by a multifaceted institutional and decision-making structure. The Federal Court and National Native Title Tribunal play an important role. Legal frameworks include the practices of parties to native title determinations, such as the preparation of connection reports, together with policy and administrative guidelines integral to the operation of the Native Title Act in respect of connection requirements, authorisation and joinder. Many institutions and professionals, such as anthropologists and historians, will be involved at various stages of a native title claim.
1.27 The Native Title Act intersects with other Commonwealth, state and territory legislation, including resource and land management laws. The Terms of Reference ask the ALRC to consider other legislation, case law and other relevant matters, concerning the operation of the native title system.
1.28 There have been many reviews, consultations and proposed amendments to the Native Title Act.The outcomes have been a modest series of largely technical and procedural amendments to the Act, since 1997. Since 2011 a number of amendments to the Native Title Act have been proposed. In 2011, the Native Title Amendment (Reform) Bill was introduced into the Federal Senate. The 2011 Bill was revised following an Inquiry by the Senate Standing Committee on Legal and Constitutional Affairs, and reintroduced as the Native Title Amendment (Reform) Bill (No 1) 2012. This Bill lapsed. At the time of writing, the Native Title Amendment (Reform) Bill 2014 (Cth) was before the Senate of the Federal Parliament. The content of this Bill is substantially the same as that of the lapsed 2012 Bill.
Native Title Act 1993 (Cth) s 223(1)(b).
Mabo v Queensland [No 2] (1992) 175 CLR 1.
Native Title Act 1993 (Cth) ss 223(2), 225.
Ibid s 225.
Ibid s 62(1)(iv).
Ibid s 225.
Nick Duff, ‘What’s Needed to Prove Native Title? Finding Flexibility Within the Law on Connection’ (Research Discussion Paper 35, AIATSIS, June 2014) 17.
Association of Mining and Exploration Companies, Submission 19.
See, eg, Federal Court of Australia Act 1976 (Cth).
Nick Duff, ‘Reforming the Native Title Act: Baby Steps or Dancing the Running Man?’ (2013) 17 Australian Indigenous Law Reporter 56, 56.
Aboriginal and Torres Strait Islander Social Justice Commissioner, ‘Social Justice and Native Title Report’ (Australian Human Rights Commission, 2013) 78; Duff, above n 12, 58–61.