The link between connection and the claim group

2.54       The legal framework for the establishment of native title rights and interests is focused on ‘connection requirements’. In the Act, there is a nexus between the particular Aboriginal peoples or Torres Strait Islanders bringing the claim and the rights and interests claimed. The native title claimants must be indicated at the registration of the claim.^[55] The case law on native title, while acknowledging the communal nature of native title has directed less attention to group composition unless the matter is put to issue through overlapping or disputed claims and claims boundaries.^[56] In those instances, claim group membership and composition and the interrelation with connection assume much significance.^[57]

2.55       The absence of substantive provisions in the Native Title Act to define the claimant group, avoids prescriptive processes of claim group composition and membership, in order to allow as much autonomy as possible for Aboriginal peoples and Torres Strait Islanders.^[58]

2.56       However, the pressures introduced by the native title claims process can lead to conflicts within communities that surface at points in the Act such as the authorisation and joinder provisions. Difficulties inherent to determining claim group composition have implications for third parties, governments, courts, native title organisations and many other organisations. These issues are dealt with in more detail in the proposals around authorisation and joinder; and in the general proposals promoting effective and sustainable claims resolution.

The limitations of native title

2.57       The Terms of Reference ask the ALRC to consider improvements in the existing native title system under the Native Title Act. Accordingly, the Review is not proposing the substitution of the native title claims process with a settlement framework model. The ALRC notes, however, that many claims are now resolved by consent determination (see Chapter 3). Settlement frameworks potentially offer advantages over the current native title system, although the outcomes that can be achieved will clearly depend upon a range of circumstances. Nonetheless, there is strong merit in investigating whether elements of settlement frameworks may address the acknowledged limitations in the native title system. Such settlement frameworks might operate either in conjunction with the Native Title Act or in substitution.

2.58       The Preamble to the Native Title Act identifies that several related initiatives to be adopted in conjunction with the Act.

[T]he form of the NTA as agreed in 1993 was only part of a broader settlement, which also included the Indigenous land fund and the social justice package. The Indigenous land fund was implemented as the Indigenous Land Corporation, but the social justice package was never given effect. Accordingly, the other elements of the settlement, including the recognition of native title rights and interests, have acquired more significance for Aboriginal and Torres Strait Islander peoples than might be obvious from the terms of the NTA. ^[59]

2.59       As Just Us Lawyers submitted, ‘the failure by successive Federal Governments to deliver Paul Keating’s “Social Justice Package” has meant that the void created by the inability of the NTA to deliver benefits to certain people has never been filled’.^[60]

Settlement frameworks

2.60       Several submissions endorsed consideration of settlement frameworks.^[61] The National Native Title Council submitted

the Council has been consistently advocating for the agreement of and implementation of a Broader Land Settlement framework, where native title is a means to an end, not an end in itself—that is native title should be a tool along with other legislative and administrative tools that assist with recognising Indigenous peoples and redressing Indigenous disadvantage.

For some time a Comprehensive Land Claims Settlement policy and legislative package has been needed in Australia. In terms of the ALRC’s current reference this would allow Indigenous peoples … to bypass complex legal proposals to address the inadequacies of the common law and native title jurisprudence to date and address the real issues from an Indigenous perspective. That is having traditional rights to country recognised, agreeing to a fair compensation package whilst being able to facilitate equitable outcomes in the modern economy.^[62]

2.61       Several state-based frameworks have emerged:

These settlements occur largely under the framework of the NTA and therefore have the same issues in relation to connection and authorisation.^[63]

2.62       Other models ‘opt out’ of the Native Title Act system.^[64] For example, the focus of the Traditional Owner Settlement Act 2010 (Vic) is on identifying the ‘right people for country’ rather than a laborious connection requirement.^[65] The adoption of agreement-based models may contribute to achieving long-term sustainable outcomes as identified by Guiding Principle 5.

2.63       However, the negotiation of broader settlement frameworks has its own difficulties. Accordingly, it may promote certainty to consider retaining the existing native title framework under the Act but to implement changes within that model.