1.29 The Native Title Act is invested with many aspirations for the future of Australia’s Indigenous peoples. It has brought opportunities and challenges for the wider Australian society. The law regarding the recognition and scope of native title raises fundamental questions about the nature of native title within the Australian legal system. Authorisation procedures are of concern to claim group members and for third parties. The party and joinder provisions reflect a critical point in the interaction between Aboriginal people and Torres Strait Islanders, the courts and third parties in the native title claims process.
1.30 The Act has been in operation for 20 years. Since the introduction of the Act native title determinations and agreement-making have become, in many contexts, ‘a way of doing business’. To sustain and build relationships around native title within the Australian community requires an approach to law reform that can balance the many interests involved. As Justice Barker noted, 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.
1.31 There are diverse views about native title law. Mick Gooda, the Aboriginal and Torres Strait Islander Social Justice Commissioner, has said:
The process of recognising native title itself has also been frustrating from the start for Aboriginal and Torres Strait Islander peoples. While on the one hand, it brings hope and expectation of the return of country, on the other hand it can also be a process fraught with difficulties that opens up tensions and wounds around connections to country, family histories and community relationships. These instances of ‘lateral violence’ fragment our communities as we navigate the native title system and sadly diminish the unique opportunity native title can and should deliver to overcome disadvantage.
1.32 Other stakeholders stressed the need for certainty in the native title process while noting the importance of engaging with Aboriginal and Torres Strait Islander peoples. The Minerals Council of Australia, for example, stressed that the minerals industry
is committed to working with Indigenous communities within a framework of mutual benefit, which respects Indigenous rights and interests. It supports reforms that are consistent with these principles and which promote certainty and timely, equitable and efficient outcomes.
1.33 The growing number of native title determinations across Australia is a positive trend. The law relating to connection requirements, however, remains complex to navigate for all parties and variable in its outcomes across Australia.
1.34 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—for example, in the need for detailed evidence relating to connection to be brought by claimants.
1.35 Major constraints in the processes for proving native title increase transaction costs for all in the system, reduce the basis for ‘full’ recognition of rights and confine the scope for native title rights and interests to serve as a platform for the future development for Aboriginal and Torres Strait Islander peoples.
1.36 The ALRC considers that native title claims should not be unnecessarily prolonged. Long time frames have repercussions for the viability of current and future native title communities, and in terms of commercial certainty. Costs for the parties involved and, more generally, within the native title system can escalate. The Federal Court has instituted practice initiatives designed to ‘ensure where possible that resolution of native title cases is achieved more easily and delivered in a more timely, effective and efficient way’. Consultations and submissions revealed that the tighter timetable for claims resolution while beneficial in many respects may, at times, place pressure on parties in a time and resource intensive process.
1.37 Similarly, there is a need to reduce complexity and to facilitate focus on the core elements for proving native title. The Law Council of Australia submitted that
statutory interpretation of s 223(1) of the Native Title Act 1993 (Cth) should accord more closely with Aboriginal and Torres Strait Islander peoples’ understanding of ‘tradition’.
1.38 The reasons for the complexity and problems of proof in native title are examined in detail in the individual chapters assessing the options for reform identified under the Terms of Reference.
1.39 One of the difficult and compelling problems for this Inquiry into connection requirements is how to address the position of those persons who may ‘fall outside’ the native title system. During the Inquiry these issues surfaced at points around the issues of overlapping native title claims and the processes for determining claim group composition. A related dilemma is captured by the Law Council of Australia:
It is recognised that in many parts of Australia, native title has been extinguished, with little chance of being revived, due to the passage of time and dispossession of those who held a connection with their ancestral lands. It is a bitter irony for those groups that the heavy impact of European colonisation, particularly in the south-eastern and eastern parts of Australia, has left many of them without any claim to native title. This injustice was recognised at the time the Act was drafted and implemented, and was to be addressed through the creation of a statutory compensation fund, along with other measures.
1.40 The ALRC notes that the initial fund for land purchases for Aboriginal and Torres Strait Islander peoples is an important measure to support land equity. However, as Just Us Lawyers submitted, ‘the failure by successive Federal Governments to deliver Paul Keating’s “Social Justice Package” has meant that the void created by the inability of the NTA to deliver benefits to certain people has never been filled’. Commentators suggest that this fact has placed considerable strain on the native title claims process.
1.41 The Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS), in its submission to the Inquiry, noted:
Broader issues of intergenerational land justice exist outside the current native title framework and AIATSIS seeks to promote recommendations from this Review that lead to a redesigned legislative scheme, expanded to accommodate and ameliorate some of the existing situations of injustice.
1.42 Queensland South Native Title Services (QSNTS) advocated that native title should operate in conjunction with
an alternative settlements system to build on [native title] recognition status to achieve some real, tangible outcomes in tandem with the native title claims process—outcomes that are of value to and empowering for the traditional owners and, reciprocally, that can provide certainty to and a positive legacy for negotiating governments.
1.43 The ALRC sees merit in considering a wider range of legislative and policy options for addressing opportunities to promote the culturally appropriate social and economic development for Australia’s Aboriginal and Torres Strait Islander peoples. The Inquiry, however, is centrally concerned with the Native Title Act under its Terms of Reference. Moreover, it is imperative that attention is focused on ensuring that the existing system is efficient, fair and equitable and that reforms are directed to that end.
The question of change
1.44 The ALRC was asked to examine improvements to the practical operation of the native title system—requiring analysis of the effectiveness of proposals in terms of the systemic operation of native title laws and the many interests and areas affected.
1.45 As French J noted, the Native Title Act is sketched upon a large ethical canvas, but also serves
the pragmatic requirements of an orderly interaction between the recognition of native title and the myriad laws and interests that have settled upon the land and waters of Australia since their progressive annexation by the British Crown.
1.46 This Inquiry sought to balance requirements for orderly interaction in the native title system, with the principles of equality and non-discrimination that are stated in the Act. Australia has obligations under international instruments that help shape its relationship with Aboriginal people and Torres Strait Islanders.
1.47 In line with the Terms of Reference, attention is directed to clarifying and refining the highly complex law around connection requirements centred on s 223 of the Act to ensure that claim resolution is not impeded. In examining improvements to native title law and legal frameworks, the ALRC has, necessarily, included an analysis of the interaction between the Native Title Act and its judicial interpretation. The recommendations take into account the development of native title law since the enactment of the Native Title Act and the degree of legal certainty achieved as a result of major native title litigation.
1.48 Parties in the native title system have ordered their practices and interactions with other parties and with native title institutions and organisations on this basis. Many submissions have stressed the importance of stability. Some caution was advised to avoid potential disruption, with some submissions advocating an incremental model of change within the Native Title Act.
1.49 The Australian Human Rights Commission, however, highlighted the need for an effective reform process as ‘reforms to both the Native Title Act and the native title system more generally have been ad hoc and only “tinkered around the edges”’. The ALRC, in turn, has limited Terms of Reference that do not allow comprehensive review of the Act.
1.50 The ALRC notes that there may be significant ‘reform fatigue’ in the native title sector, and that piecemeal reform to date has not dealt with many of the underlying inequities in the native title system.
1.51 Nonetheless, the ALRC does not propose that there should be comprehensive redefinition of native title under the Act. This may exacerbate the uncertainties experienced by all participants and prolong claims resolution. Nor does the ALRC suggest replacement of the current recognition-based process for native title determinations by a statutory land rights model. Instead, the underpinning model of native title and the claims process is retained, while seeking to refocus on the core elements of native title law to facilitate an effective determination process.
1.52 The ALRC’s recommendations therefore retain the basis of native title law adopted in Mabo [No 2] and then in the Native Title Act, but seek to redress some of the most egregious problems of proof. The Law Society of Western Australia submitted that the legislation as originally enacted reflected the beneficial purposes consistent with the decision in Mabo [No 2].In association, the ALRC seeks to secure robust and streamlined authorisation and joinder procedures.
1.53 The challenge for the ALRC was to consider reform in the native title system that advances the recognition and protection of native title in accordance with the Native Title Act, while ensuring that reforms support a robust and productive relationship between all participants.
Minerals Council of Australia, Submission to the Australian Attorney-General’s Department, Review of the Native Title Act 1993—Draft Terms of Reference, 2013; Association of Mining and Exploration Companies Inc, Submission to the Australian Attorney-General’s Department, Review of the Native Title Act 1993—Draft Terms of Reference, 2013; Aboriginal and Torres Strait Islander Social Justice Commissioner, ‘Native Title Report 2012’ (Australian Human Rights Commission, 2012).
Justice Barker, Alternative Pathways to Outcomes in Native Title Anthropology (12 February 2015) 1 <http://www.fedcourt.gov.au/publications/judges-speeches/justice-barker/barker-j-20150219>.
As quoted in Law Society of Western Australia, Submission 9.
Minerals Council of Australia, Submission 8.
See Queensland Government, Submission 28; Western Australian Government, Submission 20; South Australian Government, Submission 34. Note also that Victoria has developed the Traditional Owner Settlement Act 2010.
Law Council of Australia, Submission 35.
See Graeme Hiley and Ken Levy, ‘Native Title Claims Resolution Review’ (Report, Attorney-General’s Department, 31 March 2006).
Graeme Neate, ‘Resolving Native Title Issues: Travelling on Train Tracks or Roaming the Range?’ (Paper Presented at Native Title and Cultural Heritage Conference, Brisbane, 26 October 2009) 11.
AIATSIS pointed to the need for a mediated understanding of efficiency that allows access to resources and capacity building: AIATSIS, Submission 36.
‘Principle 3 should also include the aim of providing certainty for future land use in the areas of determined native title’: South Australian Government, Submission 34.
Federal Court of Australia, ‘Annual Report 2011–2012’ 13.
North Queensland Land Council, Submission 17.
Law Council of Australia, Submission 35.
Just Us Lawyers, Submission 2.
Western Australian Government, Submission 20; Law Society of Western Australia, Submission 9.
AIATSIS, Submission 36.
Queensland South Native Title Services, Submission 24.
Sampi v Western Australia  FCA 777 (10 June 2005) .
National Congress of Australia’s First Peoples, Submission 32.
See, eg, Western Australia v Ward (2002) 213 CLR 1; Commonwealth v Yarmirr (2001) 208 CLR 1; Wilson v Anderson (2002) 213 CLR 401; Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; Western Australia v Brown (2014) 306 ALR 168; Akiba v Commonwealth (2013) 250 CLR 209.
National Farmers’ Federation, Submission 14; Pastoralists and Graziers Association, Submission 3.
Northern Territory Government, Submission 31; Association of Mining and Exploration Companies, Submission 19.
Western Australian Government, Submission 20.
Australian Human Rights Commission, Submission 1.
Submissions to the Draft Terms of Reference <http://www.ag.gov.au/consultations/pages/AustralianLawReformCommissionnativetitleinquiry.aspx>.
Duff, above n 12.
Mabo v Queensland [No 2] (1992) 175 CLR 1, 2.
Law Society of Western Australia, Submission 9.
Native Title Act 1993 (Cth) s 10.