Framework for the proposals

2.1          This chapter outlines the approach adopted for the ALRC proposals in light of the Guiding Principles identified in Chapter 1 and by reference to the Preamble and Objects of the Native Title Act 1993 (Cth). The analysis deals primarily with proposals related to ‘connection requirements’, and secondly with issues in relation to authorisation and joinder.

2.2          The ALRC Inquiry, in formulating its proposals, has adopted the benchmark of ‘the recognition and protection’ of native title rights and interests.[1] This platform can provide an effective basis for native title to support ‘Indigenous economic development and generate sustainable long-term benefits for Indigenous Australians.[2]

2.3          However, notwithstanding the growing number of native title determinations across Australia, and the achievement of benefits for Aboriginal and Torres Strait Islander peoples, the law relating to connection requirements remains complex and variable in its outcomes. There is a need to reduce complexity and to focus on the core elements for proving native title. Timely—but just—resolution of claims is also an important objective.

2.4          The ALRC was asked to examine potential improvements to the operation of the native title system—requiring analysis of the effectiveness of proposals against the systemic operation of native title laws and the many interests and areas affected.

2.5         The statutory provisions relating to authorisation of an applicant, for example, have significant human and resource impacts. Joinder matters impinge on important questions around access to justice for all parties in the system.

2.6         The improved operation of native title law and legal frameworks therefore has many potential benefits for participants in the claims process and for the Australian community.

Rationale for reform

2.7          The Native Title Act is sketched upon a large ethical canvas, but also serves

the pragmatic requirements of an orderly interaction between the recognition of native title and the myriad laws and interests that have settled upon the land and waters of Australia since their progressive annexation by the British Crown.[3]

2.8         This Inquiry seeks to balance requirements for certainty and orderly interaction in the native title system, with the principles of fairness and equality that are stated in the Act. Australia has obligations under international instruments that help shape its relationship with Aboriginal people and Torres Strait Islanders.

2.9          The ALRC’s proposals retain the basis of native title law adopted in the Native Title Act from Mabo v Queensland [No 2][4](Mabo [No 2]). The Law Society of Western Australia submitted that the legislation as originally enacted was intended to reflect beneficial purposes consistent with the decision in Mabo [No 2].[5]

2.10       Attention, however, is directed to clarifying and refining the highly complex law around connection requirements centred on s 223 of the Act to ensure that claim resolution is not impeded.

2.11       In addition, the Inquiry seeks to streamline aspects of the authorisation process, while adopting decision-making processes appropriate to Aboriginal and Torres Strait Islander communities—in line with facilitating access to the claims process. Access to justice considerations, balanced by the need for system integrity and efficiency, inform the suggested reforms to joinder provisions.

2.12       These areas are important in governing the interactions between Aboriginal and Torres Strait Islander peoples, as well as between claimants and other parties in the native title claims process. The laws have significant ramifications for the effective operation of institutions within the native title system, such as courts, the National Native Title Tribunal, Native Title Representative Bodies and service providers.

The question of change?

2.13       The Australian legal system is characterised by change to ensure its continued relevance and coherence, through statutory reform and common law evolution. In examining improvements to native title law and legal frameworks, the ALRC, has necessarily, included an analysis of the interaction between the Native Title Act and case law.

2.14       The proposals take into account the development of native title law since the enactment of the Native Title Act and the degree of legal certainty achieved as a result of major native title litigation.[6] Parties in the native title system have ordered their practices and interactions with other parties and with native title institutions and organisations on this basis. Some submissions have stressed the importance of stability.[7]

2.15       Nonetheless, there have been calls for reform of the Native Title Act, over time; including to the law governing the claims mechanism.[8] Dr Paul Burke noted:

there is a tendency in legal circles towards acceptance of the law as it is. The promise of bodies like the Australian Law Reform Commission is to step outside the usual orientation towards acceptance, at least within the terms of the enquiry.[9]

2.16       However, some caution was advised in terms of potential disruption in some submissions.[10] Others pointed to the achievements of the last two decades and notedthat the native title claims process has accelerated and consent determinations are moving forward in many areas.[11]

2.17       Other submissions advocated an incremental model of change within the Native Title Act.[12] In addition, recent years have seen systemic changes to the claims process designed to deliver ‘practical, timely and flexible outcomes.’[13]

2.18       Several ALRC proposals are oriented to the practical operation of the claims process in relation to authorisation and joinder procedures, although some issues generating conflict in the native title sphere are not easily resolved through the legal process.

2.19       In turn, there were calls for a more fundamental revision of the Native Title Act, arguing that

some of the problems underlying the specific questions of the inquiry stem back to fundamental choices in the judicial formulation of the legal doctrine of native title.[14]

2.20       The ALRC does not propose that there should be comprehensive redefinition of native title under the Act as this may exacerbate the uncertainties experienced by all participants in the native title system. Nor does the ALRC suggest removal of the current claims-based process for native title determinations. Instead, 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. The elements in the definition of native title come from Mabo [No 2].[15]

Australia’s legal history

2.21       In Mabo [No 2], the High Court explored the legal relationship between Australia’s Indigenous peoples and the incoming settlers. One of the central questions was to consider whether, upon assertion of British sovereignty over Australia, the Crown’s title was ‘burdened’ by pre-existing rights.

2.22       The Court declared that the pre-existing rights of Australia’s Indigenous peoples survived the acquisition of sovereignty.[16] The majority decision was summarised as recognising ‘a form of native title which, in cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their law and customs to their traditional lands’.[17]

2.23       Mabo [No 2] navigated a path between extremes:

On the one hand, the implications of sovereignty and the demand for a coherent skeleton of principle in the law prevented a wholesale reappraisal of Australian land law. On the other hand, the demands of justice prevented a simple confirmation of the extinguishment of all Indigenous rights to land.[18]

2.24       As the Western Australian Government submitted

the present concepts of native title derive from Mabo No 2, and, in turn, from Australia’s unique political and legal history, including its history of European settlement. Any proposed changes to the native title system, especially any changes to s 223(1) of the NTA, must take into account these historical foundations of native title.[19]

2.25       The overarching political relationship between the Australian nation and Aboriginal and Torres Strait Islander peoples that has evolved since Mabo [No 2] and its future development are beyond the scope of this Inquiry. However, the ALRC notes the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 (Cth).[20] Native title can contribute to a platform for strengthening the place of Aboriginal peoples and Torres Strait Islanders within Australian society—including by supporting economic development in a culturally relevant manner, in line with the principles adopted for this Inquiry.