The Preamble and objects of the Native Title Act

1.29       In examining what, if any, changes could be made to Commonwealth native title laws and legal frameworks, the Terms of Reference direct the ALRC to be guided by the Preamble and objects of the Native Title Act.

The Preamble

1.30       The Preamble to the Native Title Act affirmed that ‘[t]he people whose descendants are now known as Aboriginal peoples and Torres Strait Islanders were the inhabitants of Australia before European settlement’.[15]

1.31       The Preamble lists relevant matters for the Parliament of Australia in enacting the law—it is the ‘moral foundation’ for the Act.[16] The matters include: the uncompensated and involuntary dispossession of Aboriginal peoples and Torres Strait Islanders; their comprehensive social disadvantage in Australian society; and the 1967 amendment to the Constitution.[17]

1.32       The Preamble captures the Commonwealth Parliament’s 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.[18]

1.33       The Preamble references international law ‘by recognising international standards for the protection of universal human rights and fundamental freedoms’.[19]

1.34       The Act was identified as an opportunity ‘to do justice to the Mabo decision in protecting native title and to ensure workable, certain, land management’.[20] The Preamble notes that the ‘broader Australian community requires certainty and the enforceability of acts potentially made invalid because of the existence of native title’.[21]

1.35       The Native Title Act was to be a special law:[22]

The Parliament of Australia intends that the following law will take effect according to its terms and be a special law for the descendants of the original inhabitants of Australia … for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders.[23]

1.36       The Act and claims process were part of a proposed broader package, as ‘many Aboriginal peoples and Torres Strait Islanders, because they have been dispossessed of their traditional lands, will be unable to assert native title rights and interests’.[24] A Special Fund for land acquisitions has been implemented.[25] The proposed social justice package has not eventuated.

1.37       Central Desert Native Title services submitted that the guiding principles should be seen as consistent with ‘the characterisation of the NTA as beneficial legislation’.[26]

The objects of the Act

1.38       The objects in s 3 of the Native Title Act align with the Preamble. They are

(a)     to provide for the recognition and protection of native title; and

(b)     to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings; and

(c)     to establish a mechanism for determining claims to native title; and

(d)     to provide for, or permit, the validation of past acts, and intermediate period acts, invalidated because of the existence of native title.

1.39       The introduction of the Native Title Act was promoted as a ‘practical building block of change’ and ‘the basis of a new relationship between indigenous and non-Aboriginal Australians’.[27] The legislation was ‘enacted against the fabric of the common law and in response to the recognition of native title in Mabo [No 2]’.[28] Later cases have adopted differing positions on the extent of common law influence.[29]

1.40       The Native Title Act operates within Australia’s federal system of government with divided, but at times overlapping, spheres of legislative powers and executive responsibilities between the Commonwealth and state and territory governments.[30] The powers to grant interests of land in the tenure-based system of land law rest with state governments, as the inheritors of the colonial land law structures.[31] In conjunction, state and territory governments have extensive land management, environmental protection, infrastructure provision, land use planning and other responsibilities that interface with native title rights and interests.[32]

1.41       The Native Title Act is a valid exercise of the Commonwealth’s legislative power pursuant to s 51(xxvi) of the Constitution.[33] As valid Commonwealth legislation, pursuant to s 109 of the Constitution, it is binding upon the states and territories.[34]

1.42       There is no similar statutory scheme for determining Indigenous peoples’ claims of the extent of the Native Title Act in comparable jurisdictions.[35] In New Zealand, the Waitangi Tribunal has a compensation and settlement function predicated upon the Treaty of Waitangi.[36] In Canada, the courts have continued to play the major role in developing the common law of aboriginal rights and aboriginal title—albeit against the back drop of significant treaty and constitutional protections for First Nations peoples.[37]

1.43       The objects reflect practical mechanisms to facilitate co-existence but reinforce the fundamental schema of native title imported from Mabo [No 2].[38] The interplay between recognition, extinguishment and protection of native title rights and interests are central to understanding the functional structures within the Act.[39] The Act ensures that ‘constitutional and legislative protections afforded to other property holders are enjoyed by Aboriginal and Torres Strait Islander peoples. This includes the requirement that compensation be paid on just terms’.[40]