Clarifying the scope of native title rights and interests

Recommendation 8–1               Without limiting s 223(1) of the Native Title Act 1993 (Cth), this recommendation is intended to give effect to the principle of a broadly defined native title right as recognised in Akiba v Commonwealth (2013) 250 CLR 209 and Western Australia v Brown (2014) 306 ALR 168; to reflect that a native title right can be exercised for any purpose (including commercial purposes); and to provide a non-exhaustive list of native title rights and interests.

Section 223(2) of the Native Title Act 1993 (Cth)should be repealed and substituted with a subsection that provides:

          Without limiting subsection (1), native title rights and interests in that subsection:

          (a)      may comprise a right that may be exercised for any purpose, including commercial or non-commercial purposes; and

          (b)     may include, but are not limited to, hunting, gathering, fishing, and trading rights and interests.

8.49       Recommendation 8–1 addresses the Terms of Reference which ask whether there should be ‘clarification that “native title rights and interests” can include rights and interests of a commercial nature’. The ALRC recommends repeal of the current s 223(2) of the Native Title Act and adoption of a new subsection, without limiting the operation of s 223(1) and s 211 of the Native Title Act.

8.50       Section 223(1) is the substantive provision which defines native title and the manner in which native title rights and interests are recognised. The ALRC has retained the original intent of s 223(2) as not limiting the operation of s 223(1).[80] The ALRC considers that native title rights and interests will continue to be recognised pursuant to the substantive provision, and in conjunction with s 225 of the Native Title Act. The intention is that s 223(2) continues its clarifying or illustrative function.

8.51       The ALRC considers that s 223(2) should be updated to accord with key principles from the case law. Accordingly, the recommendation draws upon the principles from Akiba HCA, in which the High Court sets out general propositions about the nature and content of native title rights and interests of wider application, although it examines a specific native title right.

8.52       The recommended s 223(2)(a) adopts language that reflects the concept of a widely-framed right that may be exercised for any purpose (commercial and non-commercial), while allowing for future application of the principles to specific claims, and for determinations to turn on the evidence adduced.

8.53       The recommended s 223(2)(b) is to continue to provide an indicative, non-exhaustive listing of native title rights and interests but also to clarify that native title rights and interests are not confined to the usufructuary rights currently listed in s 223(2). The list includes a native title right to trade in order to clarify the law on this point.

Commercial native title rights

8.54       There was a spectrum of views expressed as to whether clarification of the statute was necessary following the decision in Akiba HCA and the subsequent decision of the High Court in Brown.[81] A range of stakeholders supported the position that native title rights and interests can be exercised for commercial benefit.[82] Some stakeholders stated that the current s 223 is ‘out of step with jurisprudence concerning the nature and articulation of native title rights’.[83]Further, some noted that such a clarification would align with the the United Nations Declaration on the Rights of Indigenous Peoples (‘UNDRIP’).[84]

8.55       Other stakeholders viewed amendment to the Native Title Act as unnecessary,[85] as the case law provides sufficient guidance,[86] and they considered that recognition of commercial rights will depend on the evidence.[87] Some considered that development of the case law was preferable.[88] Stakeholders suggested the ALRC should ‘not unduly limit the interpretation of those rights by future courts’.[89] The Western Australian Government contended that ‘the law in relation to commercial rights is not settled’.[90]

8.56       The Chamber of Minerals and Energy of Western Australia (‘CME’) and the MCA submitted that the impacts of any change must be clearly understood and quantified.[91] Some stakeholders indicated that statutory clarification may itself cause uncertainty and ambiguity requiring further interpretation by the courts,[92] and that amending the Act, ‘could lead to further litigation and testing in court. This will negatively impact upon the expediency of claim determinations and create uncertainty within the system’.[93]CME noted:

The current legislative framework and case law recognises native title rights and interests of a commercial nature can exist, depending on the facts and circumstances of each case. There is a significant risk any amendment may introduce uncertainty into the NTA, and result in unintended consequences.[94]

8.57       The National Farmers’ Federation (‘NFF’) expressed the view that ‘the premise of the ALRC’s argument for statutory confirmation is the unwillingness of state respondents to consistently accept that native title can include rights and interests of a commercial nature’.[95] The ALRC acknowledges that a state has a ‘legitimate interest’ in testing claimant applications and the relevant evidence brought to prove native title, including by litigation. The recommended amendment does not preclude evaluation of the evidence for commercial native title rights on a case by case basis.

8.58       In the ALRC’s view, however, clarifying the law as recommended should encourage the timely and just resolution of determinations.[96] Some submissions indicated that this may be an expected outcome from reforming the law.[97] A number of stakeholders expressed their support for ensuring more timely resolution through statutory clarification.[98]

Although there is case law to suggest that the purpose for which a holder of a right may have for exercising that right is not an incident of the right, the practical reality is that without clarification, it is likely that the State will continue to require non-commercial qualifications on non-exclusive native title rights and interests.[99]

8.59       The ALRC considers that the reform should assist in reducing any uncertainties about the current state of the law and thereby ensure that all parties negotiate and proceed on a clear understanding of the law. Recommendation 8–1 seeks to assist certainty in the law—particularly in relation to connection reports and consent determinations.[100]

A ‘broadly defined’ native title right: refining the principles

8.60       The High Court’s reasons for decision in Akiba HCA explain the distinction between concepts such as a right, the exercise of a right for any purpose, and an incident and an activity. Since Akiba HCA,the law is clear that native title rights and interests may be broadly defined. They define ‘a relationship between native title holders and the land or waters to which the right or interest relates’.[101]

8.61       In Akiba FCA, the primary judge made a determination of native title that included ‘the right to access resources and to take for any purpose resources in the native title areas’.[102] No issue was taken on appeal as to the characterisation of the right in broad terms.[103] The specific question on appeal to the High Court concerned extinguishment.

8.62       The primary judge had accepted that ‘an activity carried on in exercising a native title right might be treated as a distinct “incident” of the right for extinguishment purposes when the activity had a discrete and understood purpose’.[104] The Full Federal Court in Commonwealth v Akiba[105] also referred to ‘the orthodox approach to the issue of extinguishment whereby one looks to see whether the activity which constitutes the relevant incident of native title is consistent with competent legislation relating to that activity’.[106]

8.63       All justices in the High Court agreed that the right to take resources for any purpose was the relevant right in order to determine extinguishment in that case.[107] The right was described as ‘broadly defined’.[108] French CJ and Crennan J said that such a right may be exercised ‘for commercial or non-commercial purposes’, but the ‘sectioning of the native title right into lesser rights or “incidents”’ was unnecessary.[109] They distinguished between a right and its exercise for a particular purpose,[110] and indicated that only the former is relevant for the purpose of extinguishment. This approach is consistent with the statutory non-extinguishment principle, where a restriction on the exercise of a native title right does not affect the existence of the right.[111]

8.64       Similarly, Hayne, Kiefel and Bell JJ said that:

The relevant native title right that was found to exist was a right to access and to take resources from the identified waters for any purpose. It was wrong to single out taking those resources for sale or trade as an ‘incident’ of the right that had been identified. The purpose which the holder of that right may have had for exercising the right on a particular occasion was not an incident of the right; it was simply a circumstance attending its exercise.[112]

8.65       French CJ and Crennan J stated that it is possible that a native title right could be limited by purpose if it was so limited by the traditional laws and customs that give rise to the right.[113]

8.66       In light of this jurisprudence, several models could be adopted to clarify that native title rights and interests may include rights and interests of a commercial nature—consistent with the retention of native title doctrine. The ALRC proposed one model in the Discussion Paper, outlining a new s 223(2) of the Native Title Act to provide that native title rights and interests ‘comprise rights in relation to any purpose’.[114]

8.67       There was some support for the suggested wording,[115] but some significant queries were raised.[116] The ALRC, after further consultation and in light of extensive submissions, adopted the current Recommendation 8–1 to better meet the reform objectives outlined in Chapter 1.

8.68       Some stakeholders raised whether revision to s 223(2) should be qualified to make clear that native title rights and interests are rights and interests ‘in relation to land or waters’.[117] The ALRC notes the position taken by the majority of the Full Federal Court in Western Australia v Ward (‘Ward FFC’) and affirmed in the High Court, to the effect that native title rights and interests must be in relation to land and waters.[118] The ALRC considers therefore that re-stating this qualification ‘in relation to land and waters’ is unnecessary, as the recommended textual changes to s 223(2) specify that subsection (2) is not to be interpreted as limiting the operation of s 223(1).


8.69       The ALRC acknowledges that the evidential basis for establishing the content of native title rights and interests is crucial. The Northern Territory Government emphasised that ‘whether native title rights and interests are determined to include commercial rights is a matter for the Court to determine on the evidence of each case’.[119]

8.70       The statement in the recommended s 223(2) will allow flexible application to factual circumstances. The specific native title right determined at first instance in Akiba FCA—the right to access resources and to take for any purposes resources in the determination areas—was fact specific. The ALRC’s recommendation builds on Akiba HCA but is designed to allow for various factual bases across Australia, as the Native Title Act is a statute of general application.

8.71       Determinations will still turn on findings based on the evidence adduced. Stakeholders acknowledged this requirement.[120] The recommendation will retain emphasis on the content of the right being derived from Aboriginal peoplesand Torres Strait Islanders’ traditional laws and customs.

8.72       CDNTS noted:

Whether such an amendment makes any real impact in practice is another matter, as it is still up to the native title claim group to assert the particular right and provide evidence as to its existence under traditional law and custom.[121]

8.73       The ALRC notes that the need to establish evidence of the exercise of the right under laws and customs should not require an approach where recognition of native title rights requires the native title claimant to prove in excessive detail, the exercise of the rights.

8.74       The value of statutory clarification was highlighted by the Cape York Land Council (‘CYLC’):

There is evidence that groups across Cape York were involved in trade and barter at the time of sovereignty, but because of the development of case law and Queensland native title determination precedents limiting the exercise of rights to non-commercial uses, that evidence has not been routinely prepared and commercial rights have not been routinely pursued.[122]

8.75       On balance, the ALRC considers that statutory clarification is warranted, as the exposition of the law is still evolving—with relatively few Federal Court first instance decisions on point,[123] in addition to the High Court jurisprudence.

Commercial and non-commercial purposes

8.76       In Akiba HCA and in Brown,[124] the High Court distinguished between a right and its exercise—albeit in the context of discussing extinguishment of native title. In Akiba HCA, the High Court stated that the ‘right so framed could be exercised in a variety of ways, including by taking fish for commercial or trading purposes’.[125] In Brown, the High Court stated:

The nature and content of a right is not ascertained by reference to the way it has been, or will be, exercised. That is why the plurality in Ward said that consideration of the way in which a right has been exercised is relevant only in so far as it assists the correct identification of the nature and content of the right.[126]

8.77       Recommendation 8–1 states that a right may comprise a right that may be exercised for any purpose—including commercial and non-commercial purposes. The intention is to incorporate the principles from Akiba HCA and Brown, which confirm that it is not necessary to provide evidence of the numerous ways in which a right might be exercised in order to confirm the existence of the right.

8.78       On this point, AIATSIS submitted that:

By this construct, reclaiming or reinvigorating an aspect of traditional law and custom does not mean it previously ceased to be available as a right. The inquiry should be about the existence of the right, not the existence of the modes of its exercise.[127]

8.79       A number of stakeholders supported an explicit amendment that would ensure that native title rights could be exercised for commercial purposes.[128]

The NTA must be taken to recognise the existence of broadly stated rights which may be exercised in particular ways or for particular purposes without listing every way in which, or every activity by which, a right may be exercised, for example, the right to take and use resources without specifying how that right is to be, or may be, exercised.[129]

8.80       Just Us Lawyers said, ‘if native title is to contribute to the improving of Indigenous peoples’ lives, it is vital that they be entitled to derive a commercial benefit from the exercise of such rights’.[130]

8.81       The South Australian Government noted that ‘the current s 223(2) is explicitly unbounded’.[131] The Northern Territory Government said that, where rights are non-exclusive, ‘it will be preferable to express the rights and interests by reference to the activities that may be conducted, as of right, on or in relation to, the relevant land or waters’.[132]

8.82       Stakeholders noted a risk of conflating native title rights with uses.[133] The ALRC has sought to avoid the nomenclature of ‘uses’ but instead has adopted ‘purpose’. In turn, the Association of Mining and Exploration Companies (‘AMEC’) pointed to a possible confusion over right and purpose. It submitted that,

rights and interests ‘of a commercial nature’ defines a category of native title rights by reference to their purpose. This contrasts to the accepted conceptualisation of native title as a ‘bundle of rights’ which are primarily defined by their content rather than their purpose.[134]

8.83       To avoid such confusion, the ALRC considers that any new s 223(2) should specifically provide that native title rights and interests may comprise a right that may be exercised for any purpose—including commercial or non-commercial purposes.

8.84       AIATSIS supported reform but pressed for a slightly different s 223(2) from that which the ALRC had proposed in the Discussion Paper. The model proposed by AIATSIS was in the following form:

Without limiting subsection (1) but to avoid doubt, native title rights and interests in that subsection comprise rights that may be exercised for any purpose including, but not limited to, personal, communal and economic purposes.[135]

8.85       The National Congress of Australia’s First Peoples considered excluding commercial native title rights would be ‘inconsistent’ with UNDRIP.[136] Several stakeholders saw native title rights exercised for commercial purposes as an important ‘mechanism’ to secure future economic development.[137]  Professor Jon Altman noted that allowing commercial exploitation of resources based on rights exercised under traditional laws and customs is particularly important for developing a ‘hybrid economy’ in remote parts of Australia.[138] 

8.86       Over the course of the Inquiry, the ALRC heard concerns of a general nature about clarifying the Act with respect to ‘commercial native title rights and interests’. Concerns about the impact on certain resources industries were raised.[139] The South Australian Government submitted that ‘[s]ome respondent interest holders are particularly concerned at the prospect of there being commercial native title rights over their area of interest’.[140] AMEC, for example, stated that it does not support the recognition of commercial rights in the definition of native title.[141]

8.87       The ALRC notes that any native title rights exercised for commercial purposes would remain subject to general law requirements for permits and licences and subject to relevant regulation.

8.88       The Western Australian Fishing Industry Council noted the need for careful consideration of natural resource management principles when any commercial native title rights and interest are considered. The Council submitted that

poorly defined ‘indigenous’ commercial fishing rights are discriminatory against indigenous participants, a dead end for development and corrosive of good resource management outcomes.[142]

8.89       Other stakeholders submitted that more than statutory reform is needed to deliver ‘real economic returns’ to Aboriginal and Torres Strait Islander peoples.[143] The Western Australian Government stated:

Recognition of native title alone does not guarantee that practical, social or economic opportunities will follow. While Western Australia supports amendments that deliver such opportunities, it does not support re-engineering native title legislation to provide access to those presently unable to demonstrate native title.[144]

8.90       Other stakeholders pointed to positive changes that also would be needed, including amending the future act regime in the Native Title Act;[145] and enacting a comprehensive broader land settlement framework.[146] Both the future act regime and the possibility of the enactment of a land settlement framework are outside the scope of this Inquiry.[147]

Indicative list of native title rights and interests

8.91       Recommendation 8–1 provides that a new s 223(2)(b) should be enacted to clarify that native title rights and interests may include, but are not limited to, hunting, gathering, fishing and trading rights and interests. Currently, s 223(2) states rights and interests includes hunting, gathering, or fishing, rights and interests. The ALRC recommends express inclusion of a right to trade in the list. A right to trade has been recognised in principle.[148]

8.92       Section 223(2) as enacted was intended to provide examples of native title rights and interests.[149] Recommendation 8–1 does not disturb that illustrative function. The inclusion of trading rights in this list indicates that native title rights and interests are not limited to the usufructuary rights that were initially identified in s 223(2).[150] The ALRC considers that the examples listed currently in s 223(2) may unnecessarily confine the scope of native title rights and interests that are recognised.

8.93       CDNTS contended that statutory confirmation of the law in Akiba HCA ‘may assist in shifting the perception of native title rights in the broader community from being primordial hunter-gatherer rights to being rights and interests that are to be taken seriously’.[151] Native Title Services Victoria (‘NTSV’) submitted that it ‘it would be beneficial to native title holders if the Act were capable of recognising the complex reality of [the] economy, placing a value on resources, trading in the access or use of the right itself’.[152] The ALRC heard concerns, however, particular to certain industries.[153]


8.94       Some stakeholders pointed to potential exclusions to the types of native title rights and interests. AMEC submitted that the ALRC’s proposed amendment to s 223(2) would not affect mineral ownership rights.[154] The MCA stated that

minerals ownership (and ownership of some other natural resources including some water rights) is vested in the Crown in Australia imposing limits on the extent to which commercial rights and interests are able to be recognised.[155]

8.95       In Ward HCA, in relation to the question of a native title right to minerals, and in contrast to the position in Yanner v Eaton, the High Court stated:

the vesting of property in minerals was no mere fiction expressing the importance of the power to preserve and exploit these resources. Vesting of property and minerals was the conversion of the radical title to land which was taken at sovereignty to full dominion over the substances in question.[156]

8.96       The recommendations for reform in this chapter do not seek to disturb the finding on extinguishment in Ward HCA. The Terms of Reference for this Inquiry precluded a wider investigation of the operation of the Native Title Act with respect to statutory minerals. For example, the Terms of Reference do not extend to consideration of extinguishment, the right to negotiate or the future act provisions necessary to a more comprehensive examination of the issues raised by the MCA.


8.97       While AMEC acknowledged that the ALRC’s proposed amendment to s 223(2) would not affect mineral ownership rights,[157] both it and the MCA expressed concern about surface resource rights, specifically water rights.[158]

8.98       The position with respect to the statutory vesting of water under state and territory laws is less settled than for minerals, and it turns on the particular terms under which the vesting is effected. In Ward FFC and Ward HCA the statutory vesting of water was considered in respect of the Rights in Water and Irrigation Act 1914 (WA). In Ward FFC, Beaumont and von Doussa JJ found that the relevant provision

is a clear example of a statutory provision where all that is vested in the Crown is only such powers of control and management as are necessary to enable the Crown to discharge the powers and functions arising under the Act. We do not consider that the mere vesting effected under s 4(1) evidenced an intention to extinguish native title rights.[159]

8.99       However, their Honours found the legislation placed restrictions on the diversion and use of water. These restrictions necessarily removed the exclusivity of the native title right to control the use and enjoyment of the water.[160] The High Court in Ward HCA affirmed this analysis.[161]

8.100   The Terms of Reference do not extend to comprehensive examination of the Native Title Act provisions governing extinguishment. Accordingly, the ALRC makes no recommendations in respect of the extinguishment of native title rights to water, but notes the capacity for non-exclusive native title rights to water to be determined.

8.101   Following Akiba HCA, a native title right to access and take resources that may be exercised for any purpose, may include water where established on the evidence. In Akiba FCA,the right found at first instance was to ‘access resources and to take for any purpose resources in those areas’.[162] Resources were held to include water.[163] Water use could also be considered as a necessary ancillary to the exercise of usufructuary rightsagain where established on the evidence.

8.102   Dr Sue Jackson and Professor Poh-Ling Tan submitted:

With respect to water, where the necessary connection and other requirements for native title are currently satisfied, the content of rights to water within a native title claim are generally regarded by the courts as usufructuary in character, and a number of native title determinations have recognized limited, non-exclusive and non-commercial rights to use water without the need for a licence. In a similar vein to the comments above, this narrow definition is having the effect of excluding Indigenous people from valuable markets and is counter to national Indigenous policy. Definitions and interpretations of native title that preclude commercial use will perpetuate and entrench Indigenous disadvantage and marginalization, thus we support the proposal that the definition in s 223 reflect the law in Akiba v Commonwealth.[164]

8.103   In Daniel v Western Australia a right to take water for drinking and domestic purposes was found as ‘it is a necessary incident to life in the exercise of other rights’, such as camping.[165] In consent determinations, native title rights and interests to take surface and subterranean water are typically confined to ‘personal, domestic and communal purposes’.[166]

8.104   The ALRC notes that if sustainable and culturally appropriate economic development is to occur in many regional and remote indigenous communities, water will be a critical component to that development. Professor Jon Altman contended that ‘in the interest of the efficient allocation of resources it would make sense to allocate a customary and tradeable commercial right in fresh water to native title groups’.[167] Jackson and Tan submitted that there is ‘a real risk that those indigenous groups whose rights are yet to be recognised through a determination may be locked out of a market approaching full allocation’.[168]

8.105   In light of the many considerations around native title rights and interests in water, the ALRC makes no specific recommendation. Recommendation 8–1 is not intended to limit the evolution of the law on a case by case basis, and as supported by requisite evidence. The ALRC sees merit in a broader review of native title rights in relation to water, in conjunction with state and territory governments and relevant Aboriginal and Torres Strait Islander organisations.

Trading rights and interests

8.106   In Yarmirr v Northern Territory, the Federal Court suggested that the right to trade ‘was not a right or interest in relation to the waters or land’.[169] Subsequently, in Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group, the Full Federal Court stated:

The right to trade is a right relating to the use of the resources of the land. It defines a purpose for which those resources can be taken and applied. It is difficult to see on what basis it would not be a right in relation to the land.[170]

8.107   A number of stakeholders supported the express inclusion of ‘trade’ in s 223(2).[171]CYLC submitted:

It would appear logical that if native title rights and interests were traditionally exercised in a manner which involved trade or barter, then rights and interests of a commercial nature should be afforded to native title claimants. Regulatory regimes would still address matters such as sustainability, safety and protection of the environment.[172]

8.108   The NNTC submitted that ‘[i]t is common to recognise non-commercial rights to share and exchange “traditional” resources’.[173] ‘Commercial’ has, however, been linked to rights to take resources for trade or exchange:

Before settlement, commercial native title activity was conducted in a moneyless society, and over time the activity has acceptably changed and modified to include sea and land based native title resources and products produced from natural resources being taken in a different manner and being sold for money.[174]

8.109   Some submissions referred to anthropological and historical evidence of trade in various parts of Australia,[175] including international trade.[176]

[Dale] Kerwin, amongst others, has detailed extensive trade, including in pituri, ochre, furs, stone, shells, songs and stories, and notes the significance of market places/trade centres as being central to large ceremonial gatherings.[177]

8.110   AIATSIS noted that ‘much of the discussion on commercial rights has tended to concentrate on fishing and water rights. However, this ignores the large body of research on terrestrial trade and commercial activity’. It submitted that ‘[t]here is, in reality, no point to be made in distinguishing between marine and terrestrial rights’.[178]

8.111   The NNTC referred to early consent determinations in the Torres Strait which included a native title right to engage in trade in the natural resources of the determination area.[179]

8.112   By contrast, the Western Australian Government expressed concern lest the right, as found in Akiba HCA, is ‘conflated with a native title “right to trade”’. It submitted that it was ‘not aware of any instance where the Court has made a determination of a native title right to trade where a right claimed in that form has been put in issue’.[180]

8.113   While acknowledging the need for evidence in each claim to determine a native title right to trade, the ALRC recommends express inclusion of the right to trade in s 223(2) to assist clarity on the point of law.

Commercial activities and economic rights and interests

8.114   In the Discussion Paper, the ALRC proposed amending s 223(2) of the Native Title Act to include commercial activities in the non-exhaustive list of native title rights and interests.[181] The ALRC no longer recommends the inclusion of commercial activities in the list in s 223(2).

8.115   Some stakeholders suggested any new s 223(2) should refer to ‘economic rights and interests’ or ‘economic purposes’. The Australian Human Rights Commission supported amendments ‘to clarify that native title rights and interests can include commercial or economic rights and interests’, to advance the economic development of Aboriginal and Torres Strait Islander peoples and to comply with international law.[182] The UNDRIP refers to the right of Indigenous peoples to ‘engage freely in all their traditional and other economic activities’.[183] 

8.116   The Victorian Government noted that in the Traditional Owner Settlement Act 2010 (Vic), the list of traditional owner rights that may be included in an agreement includes ‘the maintenance of a distinctive spiritual, material and economic relationship with the land and the natural resources on or depending on the land’.[184] The Indigenous Land Corporation indicated that ‘economic’ represents ‘a broader scope of activities enabling Indigenous economic development’.[185]

8.117   The ALRC considers that ‘economic purposes’ or ‘economic activities’ may more effectively capture the range of activities that may be encompassed by native title rights and interests. However, as the ALRC did not consult on such a proposal, it makes no specific recommendation for adoption of the term ‘economic’ rather than commercial.

Usufructs, commercial purposes and consent determinations

8.118   Since Commonwealth v Yarmirr and Ward HCA, native title consent determinations have typically included a right to take resources, such as fishing and hunting for non-commercial purposes.[186]In Akiba HCA, the High Court affirmed that the designation of native title rights and interests as usufuctuary rights and interests does not necessarily preclude their exercise for commercial purposes.[187] Recommendation 8–1 confirms that position.

8.119   NTSV drew attention to the Traditional Owner Settlement Act 2010 (Vic), which enables Traditional Owners, under a settlement, to harvest forest produce and flora for commercial purposes.[188]

The relationship between s 211 and s 223(2)

8.120   It is important to distinguish between the scope of the ALRC’s recommendations for s 223(1) and s 223(2), and the operation of s 211 of the Native Title Act. Section 211 deals expressly with usufructuary native title rights.

8.121   Recommendation 8–1 is not intended to affect the current interaction between s 223(1) and s 211 of the Native Title Act. The ALRC considers that s 211 is narrowly drafted and unlikely to be affected by the recommendation.

8.122   Section 211 operates to render lawful certain activities by native title holders that would otherwise be contrary to a law of the Commonwealth, state or territory, because they were carried on without ‘a licence, permit or other instrument’. It has the effect of allowing the exercise of some native title rights and interests, notwithstanding the general requirement for a licence or permit for the activity.[189]

8.123   The High Court, in Western Australia v Commonwealth, said:

If the affected law be a law of the State … its operation is suspended in order to allow the enjoyment of the native title rights and interests which, by s 211, are to be enjoyed without the necessity of first obtaining ‘a licence, permit or other instrument’. … [T]he effect of s 211 … [is to] exclude laws made in exercise of that power (inter alia) from affecting the freedom of native title holders to enjoy the usufructuary rights referred to in s 211.[190]

8.124   Section 211 has three elements. First, the exercise or enjoyment of native title rights and interests in doing any of the activities set out in s 211(3); second, the activities are prohibited for all unless permitted by ‘a licence, permit or other instrument’; and third, the activity is both for the purpose of satisfying the ‘personal, domestic or non-commercial needs’ of native title holders and in the exercise or enjoyment of native title rights and interests. All elements must be satisfied for the benefit of the section to flow.

8.125   Subsection (3) sets out separate classes of activity: hunting, fishing, gathering, cultural or spiritual activity and any other prescribed purpose. In the context of s 211, these are the rights collectively described, in Western Australia v Commonwealth and Yanner v Eaton,as usufructuary rights.[191] The limitation of s 211 to these classes of activity means that not all native title rights and interests in a determination under s 225 will necessarily engage s 211. Gummow J in Yanner v Eaton,citing Western Australia v Commonwealth, referred to, ‘[t]he usufructuary rights comprehended by sub-s (3)’.[192]

8.126   Therefore, only the exercise of rights and interests recognised under s 223 can attract the protection of s 211.[193] These rights and interests are further limited by both s 211(2) and (3), namely they must fall into the ‘class of activities’ in subsection (3) and must be ‘(a) for the purpose of satisfying … personal, domestic or non-commercial communal needs; and (b) in exercise of enjoyment of … native title rights and interests’.[194]

8.127   The application of s 211 as a defence to prosecutions has come before the High Court in two cases: Yanner v Eaton[195]and Karpany v Dietman.[196] In both cases, the Court first addressed the issue of extinguishment of any native title right by the regulatory regimes in the relevant state legislation.

8.128   In Yanner v Eaton, the appellant was charged with the taking of juvenile crocodiles without a permit as required by s 54(1)(a) of the Fauna Act 1974 (Qld). The appellant argued successfully before the Magistrate that s 211 applied and this finding was ultimately upheld by a majority of the High Court. As the majority said:

Accordingly, by operation of s 211(2) of the Native Title Act and s 109 of the Constitution, the Fauna Act did not prohibit or restrict the appellant, as a native title holder, from hunting or fishing for the crocodiles he took for the purpose of satisfying personal, domestic or non-commercial communal needs.[197]

8.129   Karpany v Dietman involved a prosecution of Karpany and another, both members of the Narrunga People, for taking undersized abalone contrary to s 72(2)(c) of the Fisheries Management Act 2007 (SA). It was accepted that the appellants had taken the undersized abalone in accordance with ‘traditional laws and customs of the Narrunga People’,[198] that the ‘relevant native title right was the right to fish which included taking undersized abalone’,[199] and that it was for ‘bona fide non-commercial, or communal need’.[200]

8.130   There have been a number of other cases in which s 211 has been argued as a defence to prosecutions, with varying outcomes.[201] In summary:

  • ss 211 and 223 are linked in that s 211 only operates where activities are undertaken in exercise and enjoyment of ‘native title rights and interests’ under s 223;

  • s 211 does not permit the exercise of all ‘native title rights and interests’ that might exist under s 223 in any particular case;

  • the application of s 211 is further limited by the ‘class of activity” in s 211(3);

  • the application of s 211 is further limited by the purpose set out in s 211(2)(a)— ‘satisfying their personal, domestic or non-commercial needs’; and

  • the range of cases that have been unsuccessful indicates the difficulties in establishing the applicability of s 211 as a defence in prosecutions.

8.131   There is a power in s 211 for further activities to be added by administrative act.[202]

8.132   Leaving aside the operation of s 211, a native title holder in exercising a native title right, including the right to hunt, fish or gather would be able to exercise that right ‘for any purpose’commercial or non-commercialin terms of Recommendation 8–1 and where established on the evidence.

No statutory definition of terms

Recommendation 8–2               ‘Commercial purposes’ and ‘trading’ should not be defined in the Native Title Act.

8.133   The ALRC considers that ‘commercial purposes’ and ‘trading’ should not be defined in the Native Title Act. A statutory definition may be inflexible and unhelpful, given the factdependent nature of native title claims. It is unnecessary to define prescriptively the meaning of ‘commercial purposes’ and the scope of ‘trading’ rights. The application of terms is most appropriately left to judicial exposition as a question of fact based on the relevant law and custom in each claim.[203]

8.134   In the Discussion Paper, the ALRC proposed that the terms ‘commercial activities’ and ‘trade’ should not be defined.[204] Submissions were received on this terminology. Similar considerations apply in respect of the reworded s 223(2) in Recommendation 8–1.

8.135   Several stakeholders agreed that the terms ‘commercial activities’ and ‘trade’ should not be defined in the Native Title Act.[205] Some stakeholders agreed that definitions would limit flexibility,[206] and ‘the type of commercial activities or trade being recognised’.[207] Others preferred the interpretation to be ‘driven’ by the Act’s Preamble and objects.[208]

8.136   CDNTS submitted that ‘the content of commercial activities and trade are going to be dependent on the particular group and the relevant law and custom’.[209] This position was echoed in many submissions.[210]Dr Angus Frith and Associate Professor Maureen Tehan submitted that to define the terms would ‘inappropriately reduce the significance of the laws and customs’.[211]

8.137   For some stakeholders, trade and exchange ‘aligns to [a] general commercial mindset’.[212] The Kimberley Land Council (‘KLC’) submitted that:

The understanding of commercial activity should also not be unduly limited by its current operation or understanding in modern secular societies. Traditional Indigenous communities were/are not necessarily ‘secular’, and as such spiritual or religious obligations could infiltrate almost all undertakings, including transactions, transfers, exchanges and activities undertaken for value or benefit. The fact that an activity may have a spiritual or religious component or derivation should not exclude it from being recognised as a ‘commercial’ activity, right or interest.[213]

8.138   Most stakeholders who opposed reforms to include commercial native title rights and interests in the Native Title Act did not address the issue of statutory definitions of the terms. The South Australian Government stated that native title rights and interests of a commercial nature ‘cannot be comprehensively codified, as each example of any ongoing traditional commerce will turn on its own facts’.[214]

Adaptation and commercial native title rights and interests

8.139   Native title rights and interests are possessed under laws and customs with origins in the period prior to annexation. ‘It is those rights and interests which are “recognised” in the common law.’[215] There can be some degree of change and adaptation of the traditional laws and customs, but there cannot be new native title rights and interests.[216] In Mabo [No 2], Brennan J stated:

It is immaterial that the laws and customs have undergone some change since the Crown acquired sovereignty provided the general nature of the connection between the indigenous people and the land remains. [217]

8.140   Activities or practices that constitute the exercise of an established native title right may be exercised in modern form.[218] In Yorta Yorta, the majority acknowledged the changing nature of laws and customs.[219] The Law Society of Western Australia noted the greater allowance for adaptation of traditional law and custom set out in the judgment of Gaudron and Kirby JJ ‘ought to be sufficient to avoid the approach of laws and customs being frozen in time’.[220]

8.141   The implications of an adaptation of laws and customs were elaborated by the Full Court of the Federal Court in Bodney v Bennell.[221]

Proof of the continuity of a society does not necessarily establish that the rights and interests which are the product of the society’s normative system are those that existed at sovereignty, because those laws and customs may change and adapt. Change and adaptation will not necessarily be fatal. So long as the changed or adapted laws and customs continue to sustain the same rights and interests that existed at sovereignty, they will remain traditional.[222]

8.142   More specifically, the Court stated the ‘rights and interests, which are the product of rules and customs which adapt or develop, may themselves change without losing recognition’.[223]

8.143   Despite acknowledgment of the possibility of adaptation, there has often been limited accommodation to modern circumstances. Kirby J in Ward HCA stated that ‘it would be a mistake to ignore the possibility of new aspects of traditional rights and interests developing as part of Aboriginal customs not envisaged, or even imagined, in the times preceding settlement’.[224]

8.144   In other jurisdictions there are questions about the evolution and adaptation of indigenous rights to land and waters.[225] Major agreements and settlements[226] with Indigenous peoples often include a component that allows for commercial utilisation of land and waters.

8.145   In Chapter 5, the ALRC recommends that the definition of native title in s 223(1) of the Native Title Act should be amended to make clear that traditional laws and customs, under which native title rights and interests are possessed, may adapt, evolve or otherwise develop.[227] The recommended revision to s 223(2) expressly states that it is not to ‘limit’ the operation of s 223(1). Recommendation 5–1 makes it clear that where laws and customs adapt, evolve or otherwise develop, the exercise of rights and interests possessed under traditional laws and customs may similarly adapt, evolve and develop.

8.146   Finn J, writing extra-curially noted,

merely because other rights have been used in particular ways in the past, for example, for subsistence because there was no opportunity otherwise to exploit them, that should not of itself preclude newer modes of taking, ie using new technologies, or newer purposes in taking, ie for commercial purposes, because the opportunity presents itself to do so after sovereignty.[228]

8.147   Views vary as to what might constitute such adaptation, evolution and development of traditional laws and customs. North Queensland Land Council submitted that, ‘[i]f the changes continue to sustain the same native title rights and interests that existed at sovereignty that should be sufficient to demonstrate the adaption or modification is acceptable’.[229]

8.148   For the NFF, the commercial exploitation of activities done in accordance with traditional laws and customs, such as hunting and gathering, is ‘one thing’, but they see the ‘expan[sion of] the range of activities to encompass broad commercial rights’ as quite another, and one that they do not support.[230]In the view of the NFF, ‘[a]part from the commercial exploitation of traditional activities, the creation of general commercial rights would have no source in traditional law and custom’.[231]

8.149   Just Us Lawyers submitted that ‘[i]f it is still traditional to hunt with a rifle rather than a spear, then the same logic should apply to commercial native title rights and interests. The source of the right to trade is in the ancestral connection to the land from where the commodity is obtained’.[232]

8.150   The KLC submitted that ‘native title rights and interests of a commercial nature should be broadly inclusive and accommodate … the current and future commercialisation of previously non-commercial activities such as ecosystem services, carbon farming and bio-banking’.[233]

Expansion of the burden of native title

8.151   As noted, some governments articulated concerns about the Discussion Paper proposal for clarifying whether native title might comprise commercial rights and interests.[234] The South Australian Government expressed the view that such a proposition is ‘not an accurate reflection’ of Akiba HCA. It saw the proposal as going ‘beyond’ a mere statutory confirmation of the decision in Akiba HCA.[235]

8.152   Governments and industry groups in the mining, construction and farming industries expressed concern that the proposal, as drafted, would expand the current law.[236] Some industry sectors considered that the existing case law does not currently extend to recognising commercial activities and trade.[237]

8.153   In respect of the ALRC’s proposal in the Discussion Paper, the submissions from the Western Australian and South Australian governments raised the possibility that the proposal, if enacted, may constitute an acquisition of a state’s property, otherwise than on just terms, contrary to s 51(xxxi) of the Australian Constitution:

[A]t sovereignty, the State’s radical title was not burdened by native title rights ‘in relation to any purpose’ which would involve commercial rights. It is only by allowable change and adaptation that such rights are now capable of recognition (where made out on the evidence). The proposed amendment would expand the scope of that recognition to native title rights generally and thereby increase the burden on the State’s radical title. There is also the prospect that the State’s property would then be available for commercial exploitation where no such right existed previously.[238]

8.154   The Full Federal Court in Bodney v Bennell suggested that rights which originate in traditional laws and customs may change and adapt in accordance with changes in traditional laws and customs, although not so as, ‘to impose a greater burden on the Crown’s radical title’.[239]

8.155   It is well established in Mabo [No 2] that the Crown’s radical title is burdened by native title rights. The Crown, at the point of sovereignty, acquired a radical or ultimate title—but not a beneficial interest. Native title rights and interests, as recognised, therefore must necessarily pre-date sovereignty and thus the accrual of any beneficial interest to the Crown.[240]

8.156   If the evidence demonstrates, for example, that there were rights to trade, then this is not a new burden, but one where the rights and interests stem from the traditional laws and customs with origins in the period prior to sovereignty. Recommendation 8–1 adopts the principles from Akiba HCA, but still requires that any finding of a right that is exercised for a commercial purpose will be determined on the evidence of traditional laws and customs. Further, for the right to be recognised, it must be possessed under traditional laws and customs which have pre-sovereign origins.

8.157   This position is consistent with the case law that suggests adaptation of laws and customs is permissible.[241] The corollary of the position outlined by Western Australia is that there can be no adaptation to laws and customs. The ALRC confirms, in Recommendation 5–1, that traditional laws and customs may adapt, evolve and develop.

Resolution of claims

8.158   A number of governments submitted that their practice in respect of resolving native title claims was commendable.[242] The Northern Territory Government stated that it has ‘a strong record in achieving consent determinations of native title’.[243] The Western Australian Government submitted that its ‘consistent record’ of recognising native title by consent contradicts the premise that the Act’s provisions do not deliver just outcomes for Indigenous Australians.[244] The South Australian Government observed that six of the claims that had been resolved by consent determination in that jurisdiction involved comprehensive settlement agreements that address broader issues including compensation, sustainability of the Prescribed Body Corporate, and future act issues’.[245]

8.159   The Queensland Government suggested that there was little basis for amendment to the Act because of the current rate of resolution of claims and the associated outcomes being achieved. The Queensland Government pointed to its accelerating number of consent determinations in recent years. It stated that the Federal Court has taken ‘a broad and flexible approach’ in applying the definition of native title and has confirmed that native title rights may comprise commercial rights.[246]

8.160   In this context, a substantial number of stakeholders opposed statutory amendment on the basis that it would introduce uncertainty.[247] The potential for commercial native title rights and interests also may be a factor that affects the willingness of industry and other third party respondents to enter negotiated consent determinations and agreements.[248]

8.161   Some stakeholders suggested that some governments may start negotiations with a relatively conservative position on whether the native title claim may include rights and interests of a commercial nature.[249] The NNTC observed that ‘the recognition of native title rights and interests of a commercial nature in a determination of native title continues to be generally hotly contested by all levels of government’.[250]

8.162   CDNTS noted that in claims for native title rights to take resources, Western Australia had ‘attempted to limit the right to take resources for “non-commercial” or “domestic purposes only”’.[251] This precipitated the litigated native title claims of the Pilki People and the Birriliburu People.[252]

8.163   NTSCORP submitted that amending the law ‘would assist in the process of resolving claims by removing the, often circular, discussion about what rights are able to be claimed and limit the issue to which rights can be established by the evidence’.[253]

8.164   The ALRC considers that statutory amendment to clarify the position is preferable to increased litigation that may introduce delay and increased costs into the native title system.

8.165   The Terms of Reference refer to ‘the importance of certainty as to the relationship between native title and other interests in land and waters’. The ALRC acknowledges the importance of certainty for all stakeholders and the need to promote an efficient and effective native title system. The intention of the recommendation is to clarify the legal position—particularly in regard to the conclusion of consent determinations.