On 3 August 2013, the then Attorney-General of Australia, the Hon Mark Dreyfus QC MP, requested that the Australian Law Reform Commission (ALRC) conduct an Inquiry into Commonwealthnative title laws and legal frameworksin the following areas:
connection requirements relating to the recognition and scope of native title rights and interests; and
any barriers imposed by the Act’s authorisation and joinder provisions to claimants’, potential claimants’ and respondents’ access to justice.
The Report is informed by 20 years of the operation of the Native Title Act 1993 (Cth) (‘Native Title Act’) and the contribution made by High Court and Federal Court jurisprudence. The Inquiry marks the first major review of the law governing ‘connection’ in native title claims since the introduction of the Act. ‘Connection’ is the relationship that Aboriginal and Torres Strait Islander peoples have with their traditional lands and waters. It is necessary for connection to be established for native title to be recognised and a determination of native title to be made.
The Native Title Act is an important part of building the relationship between Aboriginal and Torres Strait Islander peoples and other Australians. The Act drew upon Mabo v Queensland [No 2] (‘Mabo [No 2]’). Recognition of native title holds great significance for Aboriginal and Torres Strait Islander peoples. This significance is reflected in the Preamble of the Act, which states the 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.
The legislation was enacted against the backdrop of international human rights developments that had been incorporated into Australian law. The objects of the Native Title Act state the need to recognise and protect native title, but also affirm that certainty is required for other members of the Australian community affected by a native title determination. The need to balance a range of considerations, while promoting an effective and efficient system, has framed the development of the native title claims process (determination of native title), as it has evolved since the inception of the Act. A significant part of that evolution has been the move toward a larger number of claims being resolved as consent determinations.
The definition of native title and the laws for determining native title sit at the heart of the native title claims process. It is these ‘connection requirements’ for proving native title that are the central focus for enquiry by the ALRC. The laws governing connection not only set the requirements for whether native title is proved, but also the scope or content of native title and ultimately who are the holders of native title.
The native title rights and interests that are determined reflect the rights and interests that are possessed under the traditional laws and customs that have their origins in the period prior to European settlement. As part of its Inquiry into the scope of native title rights, the ALRC was asked to consider whether there should be clarification that native title could include native title rights of a commercial nature. Shortly after the ALRC received the Terms of Reference, the High Court of Australia handed down Akiba v Commonwealth (‘Akiba HCA’), recognising that a native title right to access and take resources could be exercised for any purpose—commercial or non-commercial. The ALRC has undertaken a detailed examination of Akiba HCA and the subsequent decision in Western Australia v Brown (‘Brown’) in developing its recommendations around the scope of native title rights and interests.
Across the Inquiry, the ALRC had to consider reforms which would effectively recognise and protect native title rights and interests in accordance with the beneficial purposes of the Native Title Act, while having regard to the wide range of other interests in the native title system and the interaction of the Act with many other statutory frameworks. Effective and fair provisions governing parties and joinder of parties to native title proceedings play an important function in this regard.
As establishing connection is central to a native title determination, it is important that the traditional owners as ‘right people for country’ are identified in the native title claims process—particularly where there may be overlapping claims. The Native Title Act is unique in that the Aboriginal and Torres Strait Islander peoples who may ultimately hold native title cannot be precisely determined until the claim is resolved. In the interim, it is the applicant who brings the native title claim on behalf of a claim group. The authorisation process determines who will be the members of the applicant, and it is central to important decision-making processes within the claim group. The applicant is also the entity with which the courts and third parties, such as industry, will deal in relation to the native title claim and associated matters. Authorisation has the potential to build governance capacity within the native title claim group, and into the future—the next phase of native title—as progressively more claims are determined.