The scope of Inquiry

1.17       The Terms of Reference direct the ALRC to inquire into, and report on, Commonwealthnative title laws and legal frameworksin the following areas:

• connection requirements for recognition and scope of native title;
• nature and content of native title;
• authorisation; and
• joinder.

Connection requirements for recognition and scope of native title

1.18       Connection requirements relate to how native title is established and proven under the Native Title Act. ‘Connection’ is not specifically defined in the legislation, but the term appears in s 223(1)(b) of the Native Title Act.^[7] As a term of more general usage, it refers to the provisions in s 223 defining native title and associated sections, such as the originating process for the application for a determination of native title, not only s 223(1)(b).

1.19       In regard to connection, the ALRC was asked to consider the following five options for reform:

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

1.20       The Inquiry may consider any other improvements to the law and legal frameworks for connection requirements.

1.21       Connection requirements consider both the factual matters relevant to Aboriginal and Torres Strait Islander peoples’ laws and customs, as well as the legal rules that govern how native title is proven. This legal architecture owes much to Mabo v Queensland [No 2] (‘Mabo [No 2]’).^[8]

1.22       The statutory provisions dealing with connection requirements for native title rights and interests form one section of the Native Title Act. The Inquiry, under its Terms of Reference, is to focus on these areas of law. The ALRC acknowledges the extent to which the native title claims process necessarily interacts with other sections of the Act, and the many other components in the native title system.^[9]

1.23       Recognition encompasses the acknowledgment of the historical occupancy of Aboriginal and Torres Strait Islander peoples in Australia and it animates the relevant legal rules in that

the metaphorical result of applying rules whereby rights and interests are defined at common law as having vested, at the time of annexation, in the members of an Aboriginal society by reason of its traditional laws and customs and the way in which they define its relationship to land and waters. It is not a ‘mere’ metaphor. Its choice reflects a desire to give effect legally to the human reality involved in the ordinary meaning of ‘recognition’.^[10]

Nature and content of native title

1.24       The nature and content (scope) of native title rights and interests is determined by reference to the factual circumstances of each claim.^[11] Section 223(2) of the Native Title Act relevantly provides ‘[w]ithout limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests’. The court, in making a determination of native title under s 225 of the Act, must set out

(b)     the nature and extent of the native title rights and interests in relation to the determination area; and

(c)     the nature and extent of any other interests in relation to the determination area; and

(d)     the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act).

Authorisation

1.25       Authorisation forms an initial step in bringing an application for a determination (claim) of native title under s 61 of the Native Title Act. Under s 251B of the Act there is a process that establishes which persons from a claim group have the authority to bring the claim. Those persons are the ‘applicant’ and can deal with matters arising in relation to the claim.^[12]

1.26     The ALRC is to consider any potential barriers to access to justice imposed by the authorisation procedures in the Native Title Act.

1.27       There is an important meeting point between the law around ‘connection and recognition of native title’ and questions of claim group membership and authorisation.

It is a matter of simple justice that native title determinations should be made only in favour of the traditional owners of each area of land … Just as importantly, the ongoing demands of governance and decision-making in relation to native title lands require a clear and shared understanding of how different groups and subgroups fit together. These two considerations highlight the paramount importance of identifying the ‘right people for country’.^[13]

Joinder

1.28       The applicant is always a party to a claim, as well as the respective governments involved. There may be many other parties too. Most persons become parties at the initial notification stage. Other persons may seek to become a party after this stage. Aboriginal peoples or Torres Strait Islanders as well as non-Indigenous Australians can seek joinder. Joinder raises issues about potential barriers to access to justice, and the good ordering and productive relationships between all participants—Indigenous and non-Indigenous—within the native system.^[14]