Confirming the nature and content of native title rights and interests

8.39       Given the importance of the evidential basis in establishing the content of native title rights and interests, the ALRC proposes that the express inclusion of a right for any purpose in s 223(2) will allow sufficient flexibility to cover a variety of factual circumstances and will retain emphasis on the content being derived from Aboriginal people and Torres Strait Islander law and custom.

8.40       Since Akiba it is clear that a native title determination may include a ‘right to access resources and to take for any purposes resources in the native title areas’,^[51] if the evidence supports it, and that the ‘right so framed could be exercised in a variety of ways, including by taking fish for commercial or trading purposes’.^[52] In Akiba, ‘[n]o distinct or separate native title right to take fish for sale or trade was found’.^[53]

8.41       The key question for this Inquiry is whether there should be statutory ‘clarification’^[54] of that case law. The ALRC proposes a statutory confirmation of the current statement of the law^[55] in Akiba as a platform for the courts to assess the evidence in each instance to determine the content of the native title rights and interests. The proposed reform of s 223(2) reflects the current case law.

Is statutory confirmation necessary?

Reasons for confirmation

8.42       The ALRC considers that statutory confirmation of the case law in Akiba is warranted because it:

• would accord with the Preamble and Objects of the Native Title Act;

• may assist in unlocking the economic potential of native title; and

• may assist in ensuring that the practice of all parties is in accordance with the stated case law and in accordance with the Preamble of the Act.

8.43       First, the ALRC considers that statutory confirmation would accord with the principles of statutory construction outlined in Chapter 5 in respect of s 223.^[56] Such a statutory confirmation accords with Principle 1—acknowledging the importance of the recognition of native title^[57]—and with Principle 4—consistency with international law.^[58]

8.44       Secondly, the ALRC considers that statutory confirmation that native title is a right for any purpose and that such rights may include commercial activities, may assist in unlocking the economic potential of native title. This reason accords with Principle 5—supporting sustainable futures. There was stakeholder support for this rationale.^[59] Many stakeholders submitted that there was a need for native title to afford Aboriginal and Torres Strait Islander peoples—and Prescribed Bodies Corporate^[60]—economic development opportunities.^[61] AIATSIS submitted that including economic rights ‘will help unlock some of the potential for native title holders to freely pursue the aspirations they hold for their traditional lands and waters’.^[62] Similarly, others submitted that statutory confirmation ‘would help native title groups that have achieved native title determinations become more future-focused’.^[63]

8.45       Thirdly, the ALRC considers that statutory confirmation may assist in ensuring that the practice of all parties is in accordance with the stated case law and in accordance with the Preamble. Again, this reason reflects Principle 1.^[64]

8.46       The view that statutory confirmation may assist in ensuring that the practice of all parties is in accordance with the stated case law was supported by a number of stakeholders.^[65] Angus Frith and Maureen Tehan submitted:

While the recent decisions in Akiba and Brown do support arguments that native title rights and interests should be sufficiently broadly conceived to encompass rights to use land and waters subject to native title for commercial purposes, they may not suffice to ensure that native title rights and interests recognised in the future do enable commercial activities.

The High Court has stated that if rights exist they can be exercised in the manner that the native title group wants to exercise them subject to regulation or extinguishment. However, there is no necessary implication that native title rights and interests can be exercised in a commercial manner. This should be made explicit in the NTA.^[66]

8.47       Some native title representative bodies submitted that the state governments, with whom they had been negotiating, had been unwilling to accept that native title included rights and interests of a commercial nature.^[67] Cape York Land Council expressed the view that ‘[t]here is evidence that groups across Cape York were involved in trade and barter at the time of sovereignty’.^[68] However, because of the State of Queensland’s view of the native title jurisprudence, prior to the High Court’s decision in Akiba, commercial rights were unable to be recognised.^[69] It submitted:

Although there is case law to suggest that the purpose for which a holder of a right may have for exercising that right is not an incident of the right, the practical reality is that without clarification, it is likely that the State will continue to require non-commercial qualifications on non-exclusive native title rights and interests.^[70]

8.48       Central Desert Native Title Services submitted that a number of native title claims in which it had been involved had asserted native title rights to take and use resources.^[71] However, the State of Western Australia has ‘not been prepared to agree to such a right’, and ‘attempted to limit the right to take resources for “non-commercial” or “domestic purposes only”’. It referred to the native title claims of the Pilki People and the Birriliburu People. The Federal Court subsequently found that the determinations in these claims should include a ‘native title right to access and take for any purpose the resources of the determination area’.^[72]

8.49       Governments submitted that their practice in respect of resolving native title claims was commendable.^[73] The Western Australian Government submitted that its ‘consistent record’ of recognising native title by consent contradicts the premise that the Act’s provisions do not deliver just outcomes for Indigenous Australians.^[74] The South Australian Government submitted that six of the claims that had been resolved by consent determination in that jurisdiction ‘involved comprehensive settlement agreements that address broader issues including compensation, sustainability of the Prescribed Body Corporate, and future act issues’.^[75]

Reasons against confirmation

8.50       Some stakeholders were opposed to a statutory confirmation, considering that it:

• is unnecessary;
• will cause uncertainty;^[76] and
• will open the floodgates.

8.51       Some stakeholders opposed amendment of the Native Title Act, considering such statutory confirmation to be unnecessary given that case law, namely Akiba, already so provides.^[77] The Law Society of Western Australia was of the view that the decision in Akiba ‘provides a sufficient statement of the law to deal with the issue of the possibility of native title rights comprising commercial interests’.^[78] The Chamber of Minerals and Energy of Western Australia (CME) made a similar point, stating ‘[i]n light of this, it is unclear why amendments to the [Act] to expressly recognise commercial native title rights and interests are required’.^[79] Statutory confirmation was seen as unnecessary given that the recognition of commercial rights will depend on the evidence.^[80]

8.52       A few stakeholders, notably those with minerals and energy resource interests, were opposed to amendment of the statute because they considered that such an amendment would introduce uncertainty.^[81] The Association of Mining and Exploration Companies (AMEC) expressed concern that uncertainties could outweigh any benefits of the proposal.^[82] The CME expressed concern about unintended consequences.^[83] Both the CME and the Minerals Council of Australia submitted that there was a need for the impacts of any change to be clearly understood and quantified.^[84]

8.53       Some state governments raised a ‘floodgates’ argument—that is, a fear that groups may seek to re-open existing determinations.^[85] The South Australian Government submitted that,

Were the NTA to be amended to make commercial rights easier to establish, this would change the basis on which native title has been approached for 20 years and would most probably result in a number of groups seeking to re-open existing determinations.^[86]

Supporting sustainable futures

8.54       Some stakeholders submitted that more than statutory confirmation is needed to deliver real economic returns to Aboriginal and Torres Strait Islander peoples.^[87] Some stakeholders outlined other things which they considered could be done to create real economic benefit, such as: amending all existing native title determinations ‘to specify that the recognised native title rights and interests can be exercised in a commercial manner’;^[88] amending the future act regime;^[89] and enacting a comprehensive broader land settlement framework.^[90] Both the future act regime and the possibility of the enactment of a land settlement framework are outside the scope of this Inquiry.^[91]

8.55       Further, a number of submissions advocated consistency with,^[92] or drew upon key rights^[93] which are provided in the United Nations Declaration on the Rights of Indigenous Peoples.^[94]

ALRC conclusion

8.56       The ALRC proposes that there be a statutory confirmation of the wording in the case law.^[95] The ALRC considers that a statutory confirmation would provide overarching principles for the determination of native title. Further, amending the provision to reflect current case law accords with the original purpose of the provision in that the statute will continue to provide examples of the type of rights and interests that might comprise native title. The ALRC is mindful that the content of the native title rights and interests would still need to be established on the facts in each case. Respondents may still challenge whether the evidence substantiates that the claimed native title right and interest can include a right to take resources for any purpose, such as for commercial activities.

8.57       The ALRC’s approach in proposing statutory confirmation is in contrast to the ALRC’s approach to the consideration of ‘whether there should be … confirmation that “connection with the land and waters” does not require physical occupation or continued or recent use’.^[96] The ALRC considers that statutory confirmation of the case law in Akiba is warranted as this case law is evolving—with only a couple of Federal Court decisions in this regard^[97]—compared with the case law pertaining to physical occupation.^[98]

Rights in relation to any purpose

8.58       Paragraph (a) of the ALRC’s proposal provides statutory confirmation of the case law statement that native title rights and interests may comprise rights in relation to any purpose. This reflects the High Court’s stated view of the nature of the right.

8.59       A number of stakeholders supported the broadly defined, purpose-based native title right—namely the right to take resources.^[99] Central Desert Native Title Services submitted that the Native Title Act

must be taken to recognise the existence of broadly stated rights which may be exercised in particular ways or for particular purposes without listing every way in which, or every activity by which, a right may be exercised, for example, the right to take and use resources without specifying how that right is to be, or may be, exercised.^[100]

8.60       AMEC contrasted the characterisation of rights in relation to purpose, submitting:

rights and interests ‘of a commercial nature’ defines a category of native title rights by reference to their purpose. This contrasts to the accepted conceptualisation of native title as a ‘bundle of rights’ which are primarily defined by their content rather than their purpose.^[101]

8.61       The question of how Aboriginal rights should be designated has arisen for decision in jurisdictions such as Canada.^[102]

8.62       The ALRC considers that the Native Title Act should be amended to make clear that rights and interests comprise rights in relation to any purpose to avoid the potential confusion over the characterisation of native title rights.

Indicative activities for which a right might be exercised

8.63       Paragraph (b) of the ALRC’s proposal provides that native title rights and interests may include, but are not limited to, hunting, gathering, fishing, commercial activities and trade. That is, this aspect of the proposal provides an indicative listing of examples or types of native title rights and interests.

8.64       Section 223(2) of the Native Title Act provides that native title rights and interests can include hunting, gathering, or fishing, rights and interests. The ALRC’s proposal would continue to provide expressly that native title may encompass such rights and interests.

8.65       The ALRC considers that a revised s 223(2) should include reference to both commercial activities and trade. A number of stakeholders, including a large number of native title representative bodies, supported the amendment of the Native Title Act so that it expressly states that native title rights and interests can include rights and interests of a commercial nature.^[103] Further, a number of stakeholders supported the express inclusion of ‘trade’ as indicative of commercial activities under law and custom.^[104]

8.66       While ‘commercial’ is a term that is capable of various meanings, typically it has been linked to native title rights to take resources for trade or exchange.^[105] What is meant by ‘trade’? Some submissions referred to anthropological and historical evidence of trade in various parts of Australia,^[106] including international trade.^[107] AIATSIS submitted:

[Dale] Kerwin, amongst others, has detailed extensive trade, including in pituri, ochre, furs, stone, shells, songs and stories, and notes the significance of market places/trade centres as being central to large ceremonial gatherings.

Daryl Wesley and Mirani Lister … argue that glass beads were received from Macassan traders in exchange for fishing rights in areas off the coast of Arnhem land.^[108]

8.67       For some stakeholders, such trade and exchange exhibited by Aboriginal and Torres Strait Islander peoples ‘aligns to [a] general commercial mindset’.^[109] In Cape York Land Council’s view, it is

logical that if native title rights and interests were traditionally exercised in a manner which involved trade or barter, then rights and interests of a commercial nature should be afforded to native title claimants.^[110]

Adaptation and native title

8.68       Native title rights are understood as being possessed under laws and customs with origins in the period prior to annexation.^[111] While there can be some degree of change and adaptation of the traditional laws and customs, there cannot be new native title rights and interests.^[112] The Full Court of the Federal Court in Bodney v Bennell stated that ‘[s]o long as the changed or adapted laws and customs continue to sustain the same rights and interests that existed at sovereignty, they will remain traditional’.^[113] 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.^[114]

8.69       Views vary as to what might be included in any definition of ‘commercial’ and what could have evolved and adapted. For the National Farmers’ Federation, the commercial exploitation of activities done in accordance with traditional laws and customs, such as hunting and gathering, is ‘one thing’, but they see the ‘expan[sion of] the range of activities to encompass broad commercial rights’ as quite another, and one that they do not support.^[115] By contrast, Native Title Services Victoria submitted that ‘[w]hen linked to an “unfrozen” definition of traditional, rights that are commercial in nature would not then imply a time-bound and stagnated view of the value of the interest’.^[116] An example here is the use of Aboriginal practices of fire management in northern Australia which formed the basis for generating carbon credits for native title holders under the carbon farming legislation.^[117]

8.70       In other jurisdictions there have been debates about the evolution and adaptation of indigenous rights to land and waters.^[118] In New Zealand, there have been several claims to rights in waters with a commercial aspect^[119] and cases seeking to establish commercial activities around a ‘right to development’.^[120] In 2013, the British Columbia Court of Appeal affirmed the existence of an Aboriginal commercial fishing right.^[121] Major agreements^[122] and settlements^[123] with indigenous peoples often include a component that allows for commercial utilisation of land and waters.

8.71       Just Us Lawyers submitted:

If it is still traditional to hunt with a rifle rather than a spear, then the same logic should apply to commercial native title rights and interests. The source of the right to trade is in the ancestral connection to the land from where the commodity is obtained.^[124]

8.72       Dr Lisa Strelein has argued that the decision in Akiba at first instance is ‘important’, because

Finn J held that once a determination had been made that law and custom supported the right to take resources, the use made of those resources was irrelevant … That is, where the laws of the society in question support a right to take for any purpose available at the time sovereignty was asserted, there is no barrier to the development of new modes of use and taking advantage of new opportunities and purposes that may arise.^[125]

8.73       Chapter 5 contains further detail about the courts’ approach to statutory construction of s 223. Notably where legislation is identified as being beneficial and remedial, the High Court has stated that such legislation should be given a ‘fair, large and liberal’ interpretation, rather than one which is ‘literal or technical’.^[126]

 ‘Commercial activities’ and ‘trade’ should not be defined in the Act

8.74       The ALRC considers that the terms ‘commercial activities’ and ‘trade’ should not be defined in the Native Title Act as it is unnecessary to define prescriptively the scope of commercial activities and trade. Statutory definitions of ‘commercial activities’ and ‘trade’ may introduce inflexibility which may not be warranted, and may actually be unhelpful, given the fact dependent nature of native title claims.

8.75       In the Issues Paper, the ALRC asked, in the event that the Native Title Act defines ‘native title rights and interests of a commercial nature’, what the definition should contain.^[127] Some stakeholders submitted that any definition should be broadly defined,^[128] while others submitted that prescription of what is meant by commercial activities and trade is unnecessary,^[129] impossible^[130] or possibly distracting.^[131] Native Title Services Victoria was of the view that prescription was unnecessary because rights that are commercial in nature ‘will necessarily flow from traditional law and custom’.^[132] The South Australian Government, a stakeholder that opposed statutory confirmation, also made this point. In its view, it would be futile to prescribe the rights: the definition of commercial ‘cannot be comprehensively codified, as each example of any ongoing traditional commerce will turn on its own facts’.^[133]

8.76       As outlined earlier, native title rights and interests ‘derive from’ the traditional laws and customs of the relevant Indigenous communities.^[134] The nature and content of native title is a question of fact that is based on the relevant law and custom.

Protection or exercise of cultural knowledge?

8.77       The interpretation of s 223(1) has excluded the protection or exercise of cultural knowledge as a native title right and interest that can be recognised by the common law. The ALRC is interested in views on whether this exclusion is appropriate given the enhanced understanding of the links between Aboriginal and Torres Strait Islander laws and customs as expressed through cultural knowledge and connection with land and waters. Section 211 includes a savings provision for cultural or spiritual activities. Should the indicative listing in any revised s 223(2) include the protection or exercise of cultural knowledge? A reversal of the current interpretation may influence the content of commercial rights and interests.

8.78       The term ‘cultural knowledge’ may encompass a number of different things. In Ward, the majority of the High Court, in joint reasons, complained of the ‘imprecision’ of the term.^[135] In that appeal, the submissions referred to ‘such matters as the inappropriate viewing, hearing or reproduction of secret ceremonies, artworks, song cycles and sacred narratives’.^[136]

8.79       A submission to this Inquiry used the term ‘traditional knowledge’ rather than ‘cultural knowledge’.^[137] The concept of ‘traditional knowledge’ is ‘contested and there is ongoing debate about the merits of various definitions of the subject matter’.^[138]

8.80       In Ward, the majority of the High Court held that the Native Title Act cannot protect ‘a right to maintain, protect and prevent the misuse of cultural knowledge’ if it goes beyond denial or control of access to land or waters.^[139] The opening words of s 223(1) of the Native Title Act require native title rights and interests to be ‘in relation to’ land or waters.^[140] Section 223(1)(b) requires the Aboriginal people or Torres Strait Islanders, by their traditional laws acknowledged and their traditional customs observed, to have a ‘connection with’ the land or waters.^[141]

8.81       The majority of the High Court, stated in a joint judgment:

To some degree, for example respecting access to sites where artworks on rock are located, or ceremonies are performed, the traditional laws and customs which are manifested at these sites answer the requirement of connection with the land

…

However, it is apparent that what is asserted goes beyond that to something approaching an incorporeal right akin to a new species of intellectual property to be recognised by the common law under par (c) of s 223(1). The ‘recognition’ of this right would extend beyond denial or control of access to land held under native title. It would, so it appears, involve, for example, the restraint of visual or auditory reproductions of what was to be found there or took place there, or elsewhere.^[142]

8.82       Native title rights and interests in respect of cultural knowledge—variously described^[143]—had been claimed in some early cases. In Bulun Bulun v R & T Textiles Pty Ltd, von Doussa J remarked that the pleadings ‘appear to assert that intellectual property rights of the kind claimed by the applicants were an incident of native title in the land’,^[144] ‘such that they constituted some recognisable interest in the land itself’.^[145] However, that was not a case for the determination of native title^[146] and the claim with respect to native title was not pressed.^[147]

8.83       In Commonwealth v Yarmirr, the majority of the High Court observed that, in the course of argument before them, there had been no discussion about what was meant by the rights and interests ‘to visit and protect places within the claimed area which are of cultural or spiritual importance’ that had been included in the determination ‘or how effect might be given to a right of access to “protect” places or “safeguard” knowledge’. They said nothing more about the issues.^[148]

8.84       The ALRC is aware that ‘[f]or Indigenous people there are unbreakable links between their knowledge systems, the land and waters, and its resources’.^[149] Further, for such communities, ‘spiritual or religious obligations could infiltrate almost all undertakings, including transactions, transfers, exchanges and activities undertaken for value or benefit’.^[150] Frith and Tehan quoted WEH Stanner, who, in 1968, said, ‘[n]o English words are good enough to give a sense of the links between an Aboriginal group and its homeland’.^[151]

8.85       In both the Full Court of the Federal Court and the High Court, the majority acknowledged that ‘the relationship of Aboriginal people to their land has a religious or spiritual dimension’.^[152] In their joint reasons, Gleeson CJ, Gaudron, Gummow and Hayne JJ remarked:

It is a relationship which sometimes is spoken of as having to care for, and being able to ‘speak for’, country. ‘Speaking for’ country is bound up with the idea that, at least in some circumstances, others should ask for permission to enter upon country or use it or enjoy its resources … The difficulty of expressing a relationship between a community or group of Aboriginal people and the land in terms of rights and interests is evident. Yet that is required by the NTA. The spiritual or religious is translated into the legal. This requires the fragmentation of an integrated view of the ordering of affairs into rights and interests which are considered apart from the duties and obligations which go with them.^[153]

8.86       Different views were expressed about the appropriate statutory construction of s 223(1) in respect of cultural knowledge in strong dissenting judgments in both the High Court^[154] and in the Full Federal Court.^[155] In the Full Federal Court, North J discussed an extract from the evidence—an anthropologist’s report—that showed that the respective knowledge was ‘intimately linked with the land’,^[156] and how ‘the secular and spiritual aspects of the aboriginal connection with the land are twin elements of the right to the land’:^[157]

The protection of ritual knowledge is required by traditional law. Traditional law treats both elements as incidents of native title. There is no reason why the common law recognition of native title should attach to one incident and not the other. Because common law recognition is accorded to the entitlement to land as defined by traditional laws and customs the contrary conclusion should follow.^[158]

8.87       Kirby J, in dissent in the High Court in Ward, focused on the ‘very broad’ phrase ‘in relation to’ in the opening words of s 223(1).^[159] He was of the view that what is required ‘is a real relationship, or connection, between the interest claimed and the relevant land or waters’ and he saw the right to protect cultural knowledge as sufficiently connected to the area to be a right ‘in relation to’ the land or waters for the purpose of s 223(1).^[160] Kirby J concluded:

Recognition of the native title right to protect cultural knowledge is consistent with the aims and objectives of the NTA, reflects the beneficial construction to be utilised in relation to such legislation and is consistent with international norms declared in treaties to which Australia is a party. It recognises the inherent spirituality and land-relatedness of Aboriginal culture.^[161]

8.88       The ALRC did not expressly consult on cultural knowledge. Few submissions raised the express inclusion in the Native Title Act of the protection or exercise of cultural knowledge—or something like it.^[162] However, the ALRC considers that it is within the scope of the ALRC’s Inquiry to seek views on the express inclusion of the protection or exercise of cultural knowledge in the Native Title Act as part of examining the ‘connection requirements relating to the recognition and scope of native title rights and interests’. Further, the issue may be relevant in conceiving of commercial activities. The Kimberley Land Council submitted that ‘commercial activity should not be unduly limited by its current operation or understanding in modern secular societies’ but rather should encompass ‘an activity that may have a spiritual or religious component or derivation’.^[163]

8.89       The ALRC invites responses as to whether the indicative listing of native title rights and interests in s 223(2) should be amended to include the protection or exercise of cultural knowledge. The ALRC is also interested in what stakeholders understand is meant by the phrase ‘cultural knowledge’ and on views as to whether a definition is needed and what such a definition should contain. Some submissions to this Inquiry used different descriptions.^[164] With respect to Indigenous intellectual property, one stakeholder submitted to a Senate Inquiry that:

Currently the native title system is not clear about the rights of Indigenous people to control valuable biological resources on their land and waters, rights that do exist under customary intellectual property systems (for example, the rights that people have over plants with which they have a totemic relationship).^[165]

8.90       The ALRC is also aware that some stakeholders may consider that the Native Title Act is not the appropriate statute for recognition of Indigenous customary intellectual property norms.^[166]

Anything else to be included in the indicative listing?

8.91       The ALRC is aware that claims for other rights are evolving. For example, in Akiba, in respect of the claim for reciprocal rights, the High Court held that, ‘intramural reciprocal relationships between members of different island communities giv[ing] rise to obligations relating to access to and use of resources’^[167] are not rights and interests ‘in relation to’ land or waters within the meaning of s 223 of the Native Title Act.^[168] Rather, on the basis of the evidence in that case, they were correctly characterised as ‘rights of a personal character dependent upon status’.^[169]

8.92       The ALRC is interested in views about whether any other purposes or activities should be included in the proposed indicative listing in revised s 223(2)(b).