8.1          The Terms of Reference direct the ALRC to inquire into whether there should be ‘clarification that “native title rights and interests” can include rights and interests of a commercial nature’. The suggested reform option has particular relevance for issues related to determining the scope (nature and content) of native title.[1]

8.2          Native title or native title rights and interests are defined in s 223(1) of the Native Title Act 1993 (Cth). Section 223(2) provides a non-exhaustive listing of representative native title rights and interests. It does not refer to rights of a commercial nature. Recent case law has held that native title comprises a ‘right for any purpose’.[2]

8.3          This 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).

Overview of the proposals and questions

8.4          The ALRC proposes that the definition in s 223 reflect the law in Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth (‘Akiba’),[3] that native title is a ‘right for any purpose’.

8.5          The proposal is that s 223(2) of the Native Title Act should be repealed and substituted with a provision that provides ‘without limiting subsection (1) but to avoid doubt, native title rights and interests in s 223(1) comprise rights in relation to any purpose and may include, but are not limited to, hunting, gathering, fishing, commercial activities and trade’.

8.6          The inclusion of the terms ‘commercial activities’ and ‘trade’ in s 223(2) is indicative and not intended to limit the operation of s 223(1). The precise native title rights and interests determined in each claim will turn on the particular factual circumstances and the evidence brought by the claimants.

8.7          The ALRC is not proposing that the terms ‘commercial activities’ and ‘trade’ be defined in the Act. This is to allow flexibility—in acknowledgment that ‘[n]ative title has its origins in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory’.[4]

8.8          The ALRC seeks views on whether the exercise of cultural knowledge should be included in s 223(2) and the utility of a specific s 223(2)(b) to that effect. The ALRC also invites comment on other activities that should be included in the proposed indicative listing in the revised s 223(2)(b).