Summary of recommendations

This Report makes 30 recommendations for the reform of the Native Title Act.

Connection requirements

The ALRC has concentrated on clarifying the highly complex law around connection requirements centred on s 223 and s 225 of the Native Title Act. The recommendations take into account the development of native title law since the enactment of the Act and the degree of legal certainty achieved as a result of major native title litigation.

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. 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.^[17]

In Members of the Yorta Yorta Aboriginal Community v Victoria (‘Yorta Yorta’), Gleeson CJ, Gummow and Hayne JJ noted that the Native Title Act does not create new rights and interests in land called ‘native title’.^[18] Instead,

the native title rights and interests to which the Native Title Act refers are rights and interests finding their origin in pre-sovereignty law and custom, not rights or interests which are a creature of that Act.^[19]

As a result, the meaning of ‘traditional’ refers to:

• the means of transmission of a law or custom: a ‘traditional’ law or custom is one which has been passed from generation to generation of a society;^[20]

• the age of the laws and customs: as the origins of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown;^[21] and

• continuity: the ‘normative system’—that is, the traditional laws and customs—under which rights and interests are possessed must have had a continuous existence and vitality since sovereignty.^[22]

From this approach to traditional laws and customs has arisen a focus on two issues:

• the extent to which laws and customs can change over time and still be considered traditional; and

• the degree of continued acknowledgment of traditional laws and the observance over time that is required.

In this context, and after careful examination, the ALRC makes five central recommendations in relation to the definition of native title in s 223(1) of the Native Title Act. Statutory amendment clarifying the definition of native title is the preferable approach, in line with the beneficial purposes of the legislation.

Recommendations around s 223(1)

First, the ALRC recommends that there be explicit acknowledgment in the Native Title Act that traditional laws and customs under which native title rights and interests are possessed may adapt, evolve or otherwise develop.

Second, the ALRC recommends that the definition of native title be amended to clarify that it is not necessary to establish either that:

• the acknowledgment of traditional laws and the observance of traditional customs have continued substantially uninterrupted since sovereignty; or

• traditional laws and customs have been acknowledged and observed by each generation since sovereignty.

The ALRC observes that the generation by generation requirement is particularly stringent. The test for connection in s 223(1)(b) remains ‘substantially maintained’.

Third, the ALRC recommends that the definition of native title be amended to clarify that it is not necessary to establish that a society, united in and by its acknowledgment and observance of traditional laws and customs, has continued in existence since prior to sovereignty.

Finally, the ALRC recommends that the definition of native title clarifies that rights and interests may be possessed by a native title claim group where they have been transmitted or transferred between groups, or otherwise acquired in accordance with traditional laws and customs.

The law for proving connection

Beyond the first package of recommendations, the ALRC considered the law governing how connection to land and waters is proved, and whether evidence of physical occupation or continued or recent use is required. The ALRC considers that the law is already clear in this regard,^[23] and no confirmation is necessary. Two provisions of the Native Title Act—dealing with the claimant application^[24] and the registration test^[25]—refer to ‘traditional physical connection’ with land and waters. As these appear in potential conflict with the substantive law regarding connection, the ALRC recommends the repeal of these provisions.

The ALRC also considered the feasibility of reframing the definition of connection in s 223(1) of the Native Title Act. The ALRC gauged support for a redefinition that gave priority to the present connection ‘as a relationship with country’, while retaining the need for the origins of the laws and customs to be found in the pre-sovereign period. The redefinition of connection was intended to operate in conjunction with either an amended definition of ‘traditional’, or with the removal of ‘traditional’ from s 223 of the Native Title Act and its substitution by the phrase, ‘in the period prior to the assertion of sovereignty’.

There was limited stakeholder support for these proposals and therefore no recommendation was made. The ALRC endorses the importance of giving primacy to Aboriginal and Torres Strait Islander peoples’ expressions of their understanding of connection, in line with best practice international standards under the UNDRIP. However, no express recommendation is made to amend s 223(1)(b).

Empowering the courts to disregard substantial interruption

A detailed analysis was also undertaken as to whether the Native Title Act should allow for the ‘empowerment of courts to disregard substantial interruption or change in the continuity of acknowledgment and observance of traditional laws and customs where it is in the interests of justice to do so’. The ALRC examined related questions about the revitalisation of traditional laws and customs. While the UNDRIP principles support indigenous rights to revitalisation of culture,^[26] the ALRC considers that its recommendation that traditional laws and customs may adapt, evolve and develop will provide an effective measure to allow for revitalisation of culture as appropriate to the particular factual circumstances.

The ALRC also examined whether the reasons for the displacement of Aboriginal peoples or Torres Strait Islanders should be a relevant factor in the interpretation of s 223 of the Native Title Act. This is a sensitive matter. The reasons leading to the physical removal from country or other changes in the manner of connection to country for Aboriginal peoples and Torres Strait Islanders are many and varied. These considerations inform the test for whether the continued acknowledgment of traditional laws and customs has been substantially uninterrupted.^[27] 

Given the many complexities involved, while the ALRC supports the position that a finder of fact should be able to take into consideration the reasons for any change in the continuity of acknowledgment of traditional laws and the observance of customs, in terms of whether such laws and customs may adapt, evolve and develop, it makes no recommendation for statutory amendment to that effect. The ALRC considers that its Recommendations 5–2 and 5–3—regarding the ‘substantially uninterrupted’ and the ‘generation by generation’ thresholds for proof of native title—will better allow scope to consider factors that may have changed the nature of how Aboriginal and Torres Strait Islander peoples maintain their connection.

While the ALRC saw merit in the general proposition that there should be reform directed to allowing the courts to disregard substantial interruption or change in continuity of acknowledgment and observance of traditional laws and customs, it had some concerns around how ‘an empowerment of courts’ might be implemented. After careful consideration, the ALRC has concluded that direct legislative amendment of the definition in s 223 of the Native Title Act is a more targeted measure.

A presumption of continuity

The ALRC carefully examined whether there should be a ‘presumption of continuity of acknowledgment and observance of traditional laws and customs and connection’. The time elapsed between the assertion of sovereignty, and the Australian legal system’s recognition of native title in 1992, means that evidencing the survival of those rights over 200 years presents significant challenges of evidence.^[28] Discharging the burden of proving that native title exists, therefore, is a significant undertaking. In Yorta Yorta,the High Court acknowledged that ‘difficult problems of proof’ face native title claimants when seeking to establish native title rights and interests over a long period of time.^[29]

A presumption in relation to proof of native title is perceived as one response to the difficulty of establishing the existence of native title rights and interests. There has been stakeholder support for this option for reform over a number of years. It was first proposed by Justice French in 2008.^[30] Justice French suggested that a presumption may ‘lighten some of the burden of making a case for a determination’ by lifting some elements of the burden of proof from native title claimants.^[31]

The ALRC considers that the extent of evidence required to establish native title, is in tension with the object of the Native Title Act to recognise and protect native title,^[32] especially given an often incomplete historical and anthropological record. However, the ALRC concludes that, rather than introducing a presumption—a reform affecting how facts in issue in native title matters are proved—it is preferable to amend the requirements for proof of native title.

On balance, the ALRC considers that it is not necessary to introduce such a presumption given its recommendations to amend the definition of native title in s 223 of the Native Title Act. However, the ALRC does recommend that there be guidance in the Actregarding when inferences may be drawn in the proof of native title rights and interests.

Nature and content of native title

The scope of native title rights and interests that are recognised depends on two factors. First the judicial interpretation of the nature of native title—currently the prevailing view is that native title is a bundle of rights. Second, the content of the rights and interests is determined by reference to the traditional laws and customs under which such rights and interests are possessed. The content of native title is established by reference to the evidence in each native title claim. In this context, the ALRC was asked to examine whether the Native Title Act should be clarified to provide that native title rights and interests ‘can include rights and interests of a commercial nature’.

In Akiba HCA, French CJ and Crennan J held that:

A broadly defined native title right such as the right ‘to take for any purpose resources in the native title areas’ may be exercised for commercial or non-commercial purposes. The purposes may be well defined or diffuse. One use may advance more than one purpose. But none of those propositions requires a sectioning of the native title right into lesser rights or ‘incidents’ defined by the various purposes for which it might be exercised.^[33]

Adopting the principles from Akiba HCA, the ALRC recommends that s 223(2) of the Native Title Act shouldbe amended. The amendment is not intended to limit the operation of s 223(1) or affect the operation of s 211 of the Native Title Act. The recommended new 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 specific evidence adduced in each case.

The ALRC consulted widely regarding whether clarification of the Act was necessary following Akiba HCA and the later case of Brown.^[34] There was a spectrum of views as to whether statutory clarification was necessary. On balance, the ALRC recommends statutory clarification, while noting that judicial evolution of the law will continue, and that each claim will turn on its evidence. Recommendation 8–1 seeks to assist certainty in the law—particularly in relation to connection reports and consent determinations.

Currently, s 223(2) of the Native Title Act states that native title rights and interests include, but are not limited to, 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.^[35] The ALRC recommends that the terms ‘commercial purposes’ and ‘trading’ should not be defined in the Act. The ALRC also considered other potential native title rights and interests. Cultural knowledge (traditional knowledge) is considered in some detail due to the volume of existing research in this field. The ALRC considers that a specific review of this area would be appropriate.

Adopting the principles from Akiba HCA that native title rights may be broadly defined and may be exercised for any purpose, including commercial purposes, provides a platform to start to align the native title system more closely with the increasingly widely adopted policy position that native title should be a component in supporting long term sustainable futures for Aboriginal and Torres Strait Islander peoples.

Authorisation provisions

The recommendations regarding authorisation are designed to reduce costs, streamline the procedures, and support robust decision-making structures. Authorisation maintains its important function in respect of overlapping claims.^[36] Typically, claim groups do not invest full decision-making authority in the applicant, but expect the applicant to bring important decisions back to the group and to follow the directions of the group. Some groups establish separate decision-making bodies, such as steering committees or working groups.

Recommendations are made for amendments to the Native Title Act regarding the choice of a decision-making process, limits on the scope of the authority of the applicant, and the applicant’s capacity to act by majority. Recommendations are also made to address the situation where a member of the applicant dies or is unable to act, and where the authorisation provides for the replacement of a person with another specified person.

These recommendations are intended to support claim groups as they develop their own governance structures, work within the requirements of Australian law and negotiate with third parties.

The Native Title Act and some state and territory legislation create opportunities for the applicant to receive funds that are intended for the native title group. The Native Title Act should be amended to provide that a member of the applicant must not obtain an advantage or benefit at the expense of the common law holders of native title.

Joinder and party provisions

The party and joinder provisions in the Native Title Act raise a number of issues around the balance of interests in the native title system which may affect how readily a native title determination is reached, as well as whether the proceedings are protracted and involve administrative burdens for all parties, and the institutions administering the native title claims process (the National Native Title Tribunal and the Federal Court). In this regard the ALRC has considered the role of Commonwealth, state and territory governments as primary respondents in native title claims.

The joinder provisions may need to accommodate Aboriginal and Torres Strait Islander respondents—for example, where there are overlapping claim groups or disaffected members of the claim group.^[37] Access to justice may involve considerations distinct from, and potentially in conflict with, the considerations of equity for the primary claim group.

After extensive consultations and review, the ALRC considers the joinder provisions are operating effectively. There is a diversity of interests in any native title claim.^[38] In most instances, the Federal Court’s existing discretion conferred under s 84 of the Native Title Act, in combination with robust case management,^[39] will be the most appropriate way to balance the considerations involved in an application for a determination of native title. However, the ALRC makes several targeted recommendations—to allow respondent parties to elect to limit their involvement in proceedings to representing their own interests; to provide Aboriginal Land Councils in NSW with notice of native title proceedings; to clarify the law regarding joinder of claimants and potential claimants; and to clarify the law regarding dismissal of parties.

The ALRC recommends that the Federal Court Act 1976 (Cth) be amended to allow appeals from joinder and dismissal decisions in native title proceedings, and for consideration to developing principles governing the circumstances in which the Commonwealth will become a party to, or intervene in, native title proceedings.

Claims resolution

The ALRC did not undertake a comprehensive review of the claims resolution process. It focused on those aspects most relevant to connection requirements, authorisation and joinder. The relevant recommendations should be viewed in that light. The ALRC makes recommendations to facilitate the use of the native title application inquiry process,^[40] and recommends that the Australian Government give further consideration to options for voluntary specialist training schemes to build capacity for the effective operation of the native title system and to build the capacity of people engaged in native title claims.