Native title is defined in s 223 of the Native Title Act as 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.

A determination of native title is a determination ‘whether or not native title exists’, and is made by the Court in accordance with s 225 of the Native Title Act.

The ALRC also examined other relevant provisions of the Native Title Act and legal frameworks covering general aspects of the claims process, such as expert evidence on connection and connection reports. The ALRC, in making its recommendations, was asked to examine what changes, if any, could be made to improve the practical operation of the native title system.

The native title claims process necessarily interacts with other provisions of the Native Title Act. The Report canvasses the interaction of the claims process with these other areas, such as the future acts regime, as necessary to an understanding of the relevant law, but only where necessary to properly examine connection requirements, authorisation and joinder. This may have the effect of truncating consideration of issues, but is necessary given the scope of the Terms of Reference.

The Terms of Reference asked the ALRC to examine connection requirements generally, but specifically to examine four options for reform in how native title is proved and determined. These were:

  • 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.

In examining the law concerning the recognition and scope of native title rights and interests, the ALRC has taken a perspective, consistent with the Native Title Act, but it has also situated the law in a broader context of the common law, international law and the law in comparative jurisdictions. Mabo [No 2] and the introduction of the Native Title Act should not be understood in isolation. The doctrines of continuity and recognition that sit behind the current ‘test’ for connection in s 223 of the Native Title Act have a long history and have been reframed over time.[6] The law that now governs connection requirements was not made in a single moment or a single decision, although the Native Title Act now is the starting point for interpreting that law.

In the latter part of the 20th century, Indigenous peoples across the globe sought legal rights to their ancestral lands and waters. The responses to these claims have taken different legal shape in different places, but share many commonalities. In Australia, Canada and New Zealand, customary rights to traditional territories have been recognised at common law.[7] The recognition doctrines were developed from a shared jurisprudential basis but with some divergences due to the specific circumstances in each country. Robust law reform is enhanced by a consideration of comparable law as it operates in common law countries.

International law has been significant for the development of native title. The most recent development at international law is the United Nations Declaration on the Rights of Indigenous Peoples (‘UNDRIP’). The UNDRIP is seen as a contextualised elaboration of general human rights principles ‘as they relate to the specific historical, cultural and social circumstances of indigenous peoples’.[8] The Law Council of Australia has adopted the position that:

The UNDRIP, whilst lacking the status of a binding treaty, embodies many human rights principles already protected under international customary and treaty law and sets the minimum standards for States Parties’ interactions with the world’s indigenous peoples.[9]

Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Gooda has indicated the need to build a constructive partnership around the Declaration. He said:

I believe approaching the challenge of implementation through the principles rather than addressing each article individually will provide an analysis that is better understood by a broader cross section of Government and the community.[10]

The ALRC considers that a principled approach to developing best practice standards having regard to the Declaration is an important consideration in a review of the Native Title Act. Its recommendations are developed in the light of the beneficial purposes of the Act, including its underpinning framework of international obligations referred to in the Preamble. The ALRC’s recommendations also reflect, where appropriate, emerging international best practice standards.

As well as looking to developments historically and comparatively, in undertaking the Inquiry the ALRC sought evidence from the many people in Australia involved in the native title claims system, or affected by its operation, to gauge whether the current native title system is meeting its objectives, and if the specified options for reform would improve the operation of the system.

The ALRC was guided in its analysis by reference to the Preamble and objects of the Act and the following five guiding principles derived from the contextual factors identified in the Terms of Reference. The principles include: acknowledging the importance of the recognition of native title; acknowledging all interests in the native title system; encouraging the timely and just resolution of native title claims; reflecting Australia’s international obligations; and promoting sustainable, long-term social, economic and cultural development for Aboriginal and Torres Strait Islander peoples.