2.64 Chapter 4 sets out the legal requirements to establish native title rights and interests. It outlines the definition of native title in s 223 of the Native Title Act and sets out major judicial statements on its interpretation. The chapter then discusses problems in relation to proof of native title and considers whether a presumption of continuity should be introduced. The ALRC does not propose that there be a presumption of continuity, as it considers that it is not necessary to introduce such a presumption in light of other proposed reforms to the definition of native title in the Native Title Act.
2.65 Chapter 5 considers the definition of native title in s 223 of the Native Title Act more detail, focusing on the approach taken to the meaning of acknowledgment and observance of traditional laws and customs. The ALRC makes proposals for reform of this aspect of the definition. The Inquiry considers that an interpretation of this provision consistent with the beneficial purpose of the Native Title Act, and in accordance with the Preamble and Objects of the Act, entails an approach that is ‘fair, large and liberal’. As a consequence, the ALRC considers that s 223(1) should not be construed in a way that renders native title rights and interests excessively fragile, or vulnerable, to a finding that there has been loss of their factual foundation.
2.66 In Chapter 5, the ALRC proposes 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. It also proposes that the definition of native title in s 223 of the Act clarify that rights and interests may be possessed under traditional laws and customs where they have been transmitted between groups in accordance with traditional laws and customs. Additionally, the ALRC makes proposals addressing the degree of continuity of acknowledgment and observance of traditional laws and customs that is required to establish native title.
2.67 Chapter 6 considers whether there should be confirmation that ‘connection with the land or waters’ in s 223(1)(b) of the Native Title Act does not require physical occupation or continued or recent use. The ALRC has concluded that amendment of the Native Title Act on this issue is not necessary, as there is no lack of clarity in the Act or in the courts’ interpretation of the Act. The Native Title Act contains two references to ‘physical connection’, in sections of the Act concerning affidavits in support of an application, and the registration of claims. The ALRC proposes that these references should be removed, to promote consistency with the courts’ interpretation of s 223(1)(b).
2.68 Chapter 7 completes the chapters of the Discussion Paper that are concerned with the definition of native title in s 223(1) of the Native Title Act. The proposals outlined in Chapter 5 suggest amendment of the definition of native title in s 223 of the Native Title Act by clarifying statements directed to the interpretation of terms that exist in the statutory definition. Those proposals retain the existing text of s 223.
2.69 Proposals in Chapter 7 offer an alternative approach by proposing changes to the text of the definition in s 223(1) of the Act. The changes relate to the terms ‘traditional’ and ‘connection’. These terms are found in the text of s 223 but each has been the source of much complexity. These two amendments are in accordance with the Guiding Principles for the Inquiry.
2.70 Chapter 7 asks a number of questions. The ALRC invites comment about the utility of providing greater legal formality to native title claim group identification and composition prior to the final determination of native title. It seeks views on whether the law relating to connection should include revitalisation of the relationship with country. The ALRC also asks whether, in determining connection, there should be regard to the reasons for any displacement of Aboriginal peoples and Torres Strait Islanders and, if so, how the relevance of those reasons is to be taken into account. The ALRC seeks views on one possible model for reform that would permit the influence of European settlement to be considered.
2.71 Chapter 8 considers whether there should be clarification that native title rights and interests can include rights and interests of a commercial nature. The chapter is in three parts. First, it considers the nature and content of native title rights and interests and whether statutory clarification of the commercial nature of native title is appropriate. Secondly, it considers whether there is a need to adopt a definition of commercial native title rights and interests. Finally, the chapter considers what other native title rights and interests fall within the scope of s 223(1).
2.72 The ALRC proposes that the definition in s 223 reflect the law in Akiba v Commonwealth, that native title is a ‘right for any purpose’. The ALRC does not propose that the terms ‘commercial activities’ and ‘trade’ be defined in the Act. The ALRC also seeks views on whether the exercise of cultural knowledge should be included in the list of native title rights and interests in s 223(2).
2.73 Chapter 9 considers various procedural aspects of the native title process, including: evidence in native title proceedings and consent determinations; the development of policies relating to the involvement of the Commonwealth in consent determinations; the development of principles guiding assessment of connection reports; and the potential for a training and accreditation scheme for native title practitioners. Several questions are also asked about possible reforms of the native title application inquiry process.
2.74 Chapter 10 considers whether any barriers to access to justice are imposed by the authorisation provisions in the Native Title Act for claimants, potential claimants and respondents. In this chapter, the ALRC proposes changes to the authorisation provisions of the Native Title Act to: allow a claim group to choose its decision-making process; clarify that the claim group can define the scope of the authority of the applicant; simplify the procedure where a member of the applicant is unable or unwilling to act; and clarify that the applicant may act by majority unless the terms of the authorisation provide otherwise.
2.75 These proposals are intended to confirm the ultimate authority of the claim group, and may support efforts to ensure that native title benefits are held for the benefit of the claim group. Chapter 10 also reports on other efforts that are being made to assist claim groups in managing benefits. Finally, this chapter considers how the identification of claim group members, and disputes about claim group composition, affect access to justice for claimants, potential claimants and respondents.
2.76 Chapter 11 considers the party and joinder provisions in s 84 of the Native Title Act. These provisions specify who is a party to native title proceedings, who may join native title proceedings, in what circumstances they may join, and when they may be dismissed. In this chapter, the ALRC asks several questions and proposes several reforms designed to reduce burdens that may limit access to justice, while also ensuring that a wide range of interests are adequately represented in native title proceedings. The ALRC also makes proposals about allowing appeals from joinder and dismissal decisions, and about the Commonwealth’s participation in proceedings.
2.77 It is important to consider how the reforms proposed above may take effect, and to recognise the need for transitional arrangements. The ALRC will direct further consideration to the areas of transitional arrangements and the commencement of any recommended reforms in its Final Report.
2.78 Under the Native Title Act, a determination of native title may be varied or revoked on the ground that ‘events have taken place since the determination was made that have caused the determination no longer to be correct’ or ‘that the interests of justice require’.The ALRC invites comment on these matters.
2.79 In respect of the commencement of reforms, the ALRC notes that there is a common law presumption that legislation does not have a retrospective operation. This presumption informs past practice. The Native Title Amendment Act 1998, which included amendments to s 223 and s 225, applied to all determinations made after the commencement of the amendment. The changes came into operation after evidence had been completed in the trial of Yorta Yorta, and were applied by the trial judge in making that determination.
2.80 At this point, the ALRC invites comments about the commencement of any proposed reforms to the claims process; including to the authorisation and joinder provisions. The Inquiry notes some concerns raised by stakeholders. Two submissions from representatives of the mining industry were concerned that there would be changes to the Native Title Act with retrospective operation or changes that would unsettle existing agreements.
Question 2–1 Should the proposed amendments to the Native Title Act have prospective operation only?
2.81 It is anticipated, that if enacted, any reforms to s 223 of the Native Title Act should only apply to determinations made after the commencement of the amendments. Again, this expectation would be in accordance with past practice.
Question 2–2 Should the proposed amendments to s 223 of the Native Title Act only apply to determinations made after the date of commencement of any amendment?
2.82 The ALRC invites comment on these two questions and related matters.
Akiba v Commonwealth (2013) 250 CLR 209.
Native Title Act 1993 (Cth) s 13(5).
Thomson Reuters, The Laws of Australia, (at 15 April 2013) 25 Interpretation and Use of Legal Sources, ‘25.1 Statutory Interpretation’ [25.1.2230].
Native Title Amendment Act 1998 (Cth) sch 1, item 42.
Ibid sch 2 item 80.
Ibid sch 5 pt 5 item 24. The transitional provisions only refer specifically to the amendments to s 225. In the absence of any specification, the amendments to s 223 can be assumed to operate upon commencement.
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, .
Chamber of Minerals and Energy of Western Australia, Submission 21; Minerals Council of Australia, Submission 8.