Terms of Reference

Review of the Native Title Act 1993

I, Mark Dreyfus QC MP, Attorney-General of Australia, having regard to:

  • the 20 years of operation of the Native Title Act 1993 (the Act)

  • the importance of the recognition and protection of native title to Indigenous Australians and the broader Australian community

  • the importance of certainty as to the relationship between native title and other interests in land and waters

  • Australia’s statement of support for the United Nations Declaration on the Rights of Indigenous Peoples

  • the need to ensure that the native title system delivers practical, timely and flexible outcomes for all parties, including through faster, better claims resolution

  • significant and ongoing stakeholder concern about barriers to the recognition of native title

  • delays to the resolution ofclaims caused by litigation, and

  • the capacity of native title to support Indigenous economic development and generate sustainable long-term benefits for Indigenous Australians.

I REFER to the Australian Law Reform Commission for inquiry and report, pursuant to subsection 20(1) of the Australian Law Reform Commission Act 1996, Commonwealth native title laws and legal frameworks in relation to two specific areas, as follows:

  • connection requirements relating to the recognition and scope of native title rights and interests, including but not limited to whether there should be:

  • a presumption of continuity of acknowledgement 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’

  • clarification that ‘native title rights and interests’ can include rights and interests of a commercial nature

  • 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 acknowledgement and observance of traditional laws and customs where it is in the interests of justice to do so.

  • any barriers imposed by the Act’s authorisation and joinder provisions to claimants’, potential claimants’ and respondents’ access to justice.

In relation to these areas and in light of the Preamble and Objects of the Act, I request that the Commission consider what, if any, changes could be made to improve the operation of Commonwealth native title laws and legal frameworks.

Scope of reference

In performing its functions in relation to this reference, the Commission should consider:

(a)      the Act and any other relevant legislation, including how laws and legal frameworks operate in practice

(b)     any relevant case law

(c)      relevant reports, reviews and inquiries regarding the native title system and the practical implementation of recommendations and findings, including the Taxation of Native Title and Traditional Owner Benefits and Governance Working Group, the Review of Native Title Organisations and the Productivity Commission inquiry into non-financial barriers to mineral and energy resource exploration

(d)     the interests of key stakeholders, and

(e)      any other relevant matter concerning the operation of the native title system.


In undertaking this reference, the Commission should identify and consult with key stakeholders, including:

(a)      relevant Commonwealth, State, Territory and local governments, departments and agencies

(b)     the Federal Court of Australia and the National Native Title Tribunal

(c)      Indigenous groups, Native Title Representative Bodies and Native Title Service Providers, and Prescribed Bodies Corporate

(d)     industry, including the agriculture, pastoral, fisheries, and minerals and energy resources industries, and

(e)      any other relevant groups or individuals.

Timeframe for reporting

The Commission is to report by March 2015.

Dated 3 August 2013

Mark Dreyfus QC MP