13. The Terms of Reference contain a number of technical terms. This section briefly describes what these terms mean.
Connection requirements for the recognition and scope of native title: Connection requirements relate to what must be established in law for native title to be recognised and in order to determine the scope—nature and content—of native title rights and interests. The requirements are principally found in the definition of native title in s 223 of the Native Title Act and in the interpretation of native title in case law.
Native title determination: A determination of native title by a court under the Native Title Act formally recognises native title rights and interests, and the nature and content of those rights and interests.
Authorisation: Authorisation refers to the process under the Native Title Act that establishes which persons in a native title claim group have the authority to bring an application for a determination of native title. Those persons are the ‘applicant’ and can make decisions about the claim.
Joinder: Joinder refers to the legal process by which the Federal Court allows new parties to join (to be involved in) legal action in respect of a native title determination.
Native title law and legal frameworks: Native title law refers to the Native Title Act as well as case law interpretation of the Act. The Native Title Act is the ‘starting point’ for the recognition of native title rights and interests in Australia. The legislation is a complex and detailed statute that is underpinned by a multi-faceted institutional and decision-making structure. However this Inquiry focuses only on those sections of the Act that are directly related to connection requirements, authorisation and joinder. Legal frameworks, in this context, are taken to include: the practices of parties to native title determinations, such as the preparation of connection reports, together with policy and administrative guidelines integral to the operation of the Native Title Act in respect of connection requirements, authorisation and joinder.
The Native Title Act intersects with other Commonwealth, state and territory legislation, including resource and land management laws. The Terms of Reference ask the ALRC to consider other legislation, case law and other relevant matters, concerning the operation of the native title system.
Options for reform: In relation to connection requirements for the recognition and scope of native title and native title rights and interests, the ALRC is directed to consider five specific ‘options for reform’, but is not limited to consideration of these measures.
Reform in the native title system
14. The Native Title Act is invested with many aspirations for the future of Australia’s Indigenous peoples. It has brought opportunities and challenges for the wider Australian society. The law surrounding connection requirements for the recognition and scope of native title raises fundamental questions about the nature of native title as it is currently conceived within the Australian legal system. The provisions relating to authorisation and joinder, while more procedural in character, also impinge on important questions around access to justice and the identification of interests that may be affected by native title.
15. Given that the Act has been in operation for 20 years it is clear that ‘native title is not going away’. To sustain and build relationships around native title within the Australian community will require an approach to law reform that can balance the many interests involved to ensure the native title system achieves a range of objectives. There are diverse views about native title law. The Aboriginal and Torres Strait Islander Commissioner’s 2013 report suggests that there has been a failure of the native title system to meet expectations—‘the promise of the Mabo decision and the Native Title Act as drafted in 1993 has not been fully realised’. Other stakeholders stress the need for certainty in the native title process. Native title claims occur in a highly-contested environment with significant political, economic and social ramifications. It is unsurprising then that there are calls for reform to native title law.
16. In addition to these factors, native title law is complex. This legal complexity works with the need for detailed factual evidence relating to connection and authorisation having to be brought by claimants. Compiling such evidence typically will require significant resources and the extensive use of experts, such as anthropologists. Preparing or responding to connection reports, for example, is a time-intensive process. Similarly, authorisation or joinder of parties may involve many procedures for compliance. Taken together, these factors represent a significant challenge for any potential law reform, especially given increasing attention to the need to resolve many longstanding native title claims.
17. Native title and reform have been inextricably linked. There have been several reviews of the Native Title Act, with a series of amendments to the Act over time. To date, however, there has not been a recent, substantial review of connection requirements for the recognition and scope of native title, or authorisation and joinder.
18. Amendments have been made in regard to authorisation and joinder matters since the inception of the Native Title Act. These amendments have sought to reconcile the interests of justice for parties with the need for facilitating effective resolution of claims.
19. There has been a series of proposed amendments to the Native Title Act, in respect of the connection requirements for the recognition and scope of native title rights and interests. In 2011, the Native Title Amendment (Reform) Bill was introduced into the Federal Senate. The 2011 Bill was revised following an Inquiry by the Senate Standing Committee on Legal and Constitutional Affairs, and reintroduced as the Native Title Amendment (Reform) Bill (No 1) 2012. This Bill lapsed. At the time of writing, the Native Title Amendment (Reform) Bill 2014 (Cth) was before Parliament, and its content is substantially the same as that of the lapsed 2012 Bill.
Other inquiries and reviews
20. This Inquiry occurs in the context of several reviews into the native title system. The ALRC is to have regard to the recommendations of the
Taxation of Native Title and Traditional Owner Benefits and Governance Working Group;
Review of Native Title Organisations; and
Productivity Commission Inquiry into non-financial barriers to mineral and energy resource exploration.
21. The Inquiry will gain valuable insights from these contemporary reports. The Inquiry will contribute to building the longer-term governance and operation of the native title system.
22. The ALRC has developed draft principles to inform its Inquiry. These will help to evaluate what, if any, changes could be made to improve the operation of Commonwealth native title law and legal frameworks. First, the Guiding Principles refer to the existing Preamble and Objects of the Native Title Act. These reflect principles adopted at the time the legislation was introduced. Other identified principles capture important policy, human rights and legal developments over the course of the 20 year operation of the Native Title Act.
Question 1. The Preamble and Objects of the Native Title Act 1993 (Cth) provide guidance for the Inquiry. The ALRC has identified five other guiding principles to inform this review of native title law.
(a) Will these guiding principles best inform the review process?
(b) Are there any other principles that should be included?
Principle 1: Acknowledging the importance of the recognition of native title
Reform should acknowledge the importance of the recognition and protection of native title for Aboriginal and Torres Strait Islander people and the Australian community.
23. The recognition and protection of native title is integral to the rights of Australia’s Aboriginal and Torres Strait Islander people. The Preamble to the Native Title Act captured the importance of the initial acknowledgment of the recognition of native title by the Commonwealth Parliament:
The people of Australia intend:
(a) to rectify the consequences of past injustices by the special measures contained in this Act … for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders; and
(b) to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.
The main objects of the Native Title Act include:
to provide for the recognition and protection of native title; and
to establish a mechanism for determining claims to native title.
Principle 2: Acknowledging interests in the native title system
Reform should acknowledge the range of interests in achieving native title determinations that support relationships between stakeholders.
24. The commencement of the Native Title Act in 1994 caused concern for many stakeholders. Over time, there have been significant shifts in the practices surrounding the Act. Among the most important has been the trend toward achieving consent determinations rather than litigated outcomes, and the emphasis given to agreements. The Native Title Act is to give precedence to conciliation and negotiation of native title determinations where possible.
25. Indigenous organisations, such as Native Title Representative Bodies and Native Title Service Providers, together with the Commonwealth government and state and territory governments, play an important role in facilitating determinations of native title and agreement-making. These entities, together with key stakeholders in industry and the broader Australian community, have an interest in sustaining an effective native title system that can support ongoing relationships.
Principle 3: Encouraging timely and just resolution of native title determinations
Reform should promote timely and practical outcomes for parties to a native title determination through effective claims resolution, while seeking to ensure the integrity of the process.
26. Many stakeholders have commented on the excessive length of time taken to achieve native title determinations. It is of concern for many Indigenous communities that their elders are dying before seeing the resolution of native title claims. Other stakeholders point to continuing uncertainty in relation to their rights and interests in land and waters posed by lengthy resolution of native title determinations. The unique challenges that native title pose include:
lengthy hearings in some matters once they get to trial, which require extensive evidence and submission;
the large number of parties involved in a single matter;
the range and amount of evidence required to establish connection, authorisation, and extinguishment;
the management and evidencing of Indigenous decision-making processes; and
the resolution of intra-Indigenous disputes and overlapping claims.
27. Related to the amount of time taken to reach a resolution are factors such as costs for the parties involved, and more generally, within the native title system. The Federal Court has instituted practice initiatives designed to ‘ensure where possible that resolution of native title cases is achieved more easily and delivered in a more timely, effective and efficient way’. While time itself should not be the sole standard against which native title outcomes are evaluated, consideration of principles which promote the integrity of processes but which also address the excessive length of native title resolutions are pertinent to the Inquiry.
Principle 4: Consistency with international law
Reform should reflect Australia’s international obligations in respect of Aboriginal and Torres Strait Islander people, and have regard to the United Nations Declaration on the Rights of Indigenous Peoples.
28. The Native Title Act was enacted against the backdrop of significant developments in international law. The Convention on the Elimination of all Forms of Racial Discrimination, to which Australia is a party, was of particular relevance to the development of native title law. The Native Title Act was informed by international standards for the protection of universal human rights.
29. Since the Native Title Act came into effect, there have been further changes in international law. In 2009 Australia issued a statement of support for the United Nations Declaration on the Rights of Indigenous Peoples (the ‘Declaration’). Article 38 of the Declaration provides that:
States, in consultation and cooperation with Indigenous Peoples, shall take appropriate measures, including legislative measures, to achieve the ends of the Declaration.
30. The Aboriginal and Torres Strait Islander Social Justice Commissioner has suggested a ‘principled approach’ that involves identifying key principles in the Declaration, and then agreeing on ways in which the principles can give practical guidance on the operation of articles under the Declaration.
31. In undertaking the Inquiry, the ALRC must aim to ensure its recommendations are, as far as practicable, consistent with Australia’s international obligations in respect of Aboriginal and Torres Strait Islander people. More generally, the ALRC Inquiry will consider how international law may inform the two areas of the Inquiry.
Principle 5: Supporting sustainable futures
Reform should promote sustainable, long-term social, economic and cultural development for Aboriginal and Torres Strait Islander people.
32. The Preamble to the Native Title Act draws a link between Indigenous disadvantage and the dispossession of Aboriginal and Torres Strait Islander people. Since the introduction of the Act, there have been many policies developed and strategies adopted to address Aboriginal and Torres Strait Islander disadvantage. The Terms of Reference identify as an important consideration, ‘the capacity of native title to support Indigenous economic development and generate sustainable long-term benefits for Indigenous Australians’. The ALRC, in undertaking the review of the Native Title Act, is cognisant of the extent to which reform should engage with broader questions about how native title may support longer-term development.
Trends in the native title system
33. The Inquiry is directed to consider what, if any, changes could be made to improve the operation of Commonwealth native title laws and legal frameworks. To provide a platform for evaluation, it is important for the ALRC to gather as much information as possible. This will assist the ALRC to better understand from a range of perspectives, what is working well and what difficulties there are around connection requirements, authorisation, and joinder in the native title system. Some indicative examples are listed below.
Is there evidence that native title claims are taking a longer time to resolve than in the past? If so, what factors are relevant to such delays?
What evidence is there, if any, that overlapping claims and disputes affect connection requirements, authorisation and joinder procedures?
Do financial and capacity constraints continue to pose a barrier for claimants, potential claimants, and respondents in relation to native title determinations?
Is there sufficient expertise available to undertake the necessary reports and other procedures in relation to connection requirements?
What institutional and administrative constraints exist for claimants, potential claimants or respondents?
Question 2. The ALRC is interested in understanding trends in the native title system. What are the general changes and trends affecting native title over the last five years?
(a) How are they relevant to connection requirements for the recognition and scope of native title rights and interests?
(b) How are they relevant to the authorisation and joinder provisions of the Native Title Act?
34. The Native Title Act is Commonwealth legislation that operates across all state and territory jurisdictions. However the extent to which native title is recognised, and the scope of native title rights and interests recognised, vary considerably across Australia.
35. Historical factors relating to the timing of British sovereignty and the dispossession or displacement of Aboriginal and Torres Strait Islander people are relevant to that variation. In turn, different patterns of settlement may influence the extent to which evidence in respect of ‘connection’ and group membership (relevant to authorisation and joinder) may be available in any particular part of Australia. Anthropological material and historical records also may vary in availability across the country. Therefore, in some locations, the requirements for connection in s 223 of the Native Title Act or compliance with authorisation procedures may be more readily met than in other parts of Australia.
36. The following question asks to what extent different geographical, historical and cultural circumstances affect the Native Title Act, and in particular, the two reference areas. The question seeks to understand whether the native title system operates uniformly and equitably across Australia.
37. The different patterns related to dispossession and displacement also may have a bearing on the potential for overlapping claims and disputes, which in turn may affect procedures for establishing a native title applicant. These factors are significant in terms of the viability of authorisation procedures, and the potential for joinder applications in respect of native title determinations.
38. Certain practices have developed to support the operation of the Native Title Act; often with jurisdictional particularity. Connection reports, for example, are not mandated under the Act. Nonetheless, these procedures have a significant function in relation to determinations of native title. How important is a nationally consistent approach? Alternatively, is there sufficient scope to give effect to local circumstances in the operation of the native title system?
Question 3. What variations are there in the operation of the Native Title Act across Australia? What are the consequences for connection requirements, authorisation, and joinder?
Learning from other jurisdictions and approaches
39. The High Court in Mabo [No 2] drew on extensive jurisprudence from common law countries. This jurisprudence addressed the fundamental question of how the common law was to be reconciled with the existing laws and customs of the Indigenous inhabitants that reflected their relationship with land and waters. Native title law also draws on international law.
40. Many comparative jurisdictions have a longer history of legal developments in the field than Australia. Given that longer experience, and a common progression of the law, it is appropriate that the Inquiry examines approaches in other jurisdictions—principally common law countries.
41. Similarly, within Australia, the Native Title Act came into operation in many states, and in the Northern Territory, that already had existing land rights legislation or associated regimes, such as the protection of cultural heritage. The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), for example, was an important point of reference for the Native Title Act. Different models for resolving the issues raised by the Terms of Reference have been adopted within Australia. A diversity of approaches now exist within Australia relating to connection requirements (claim processes), authorisation (group membership and authority), and joinder of parties.
Question 4. The ALRC is interested in learning from comparative jurisdictions.
(a) What models from other countries in relation to connection requirements, authorisation, and joinder may be relevant to the Inquiry?
(b) Within Australia, what law and practice from Australian states and territories in relation to connection requirements, authorisation, and joinder, may be relevant to the Inquiry?
The Act is held to be the starting point rather than the common law: Native Title Act 1993 (Cth) s 10; Commonwealth v Yarmirr (2001) 208 CLR 1, .
An example is the Federal Court of Australia Act 1976 (Cth).
See Aboriginal and Torres Strait Islander Social Justice Commissioner, ‘Social Justice and Native Title Report’ (Australian Human Rights Commission, 2013) 103.
See, eg, Association of Mining and Exploration Companies Inc, Submission to the Australian Attorney-General’s Department, Review of the Native Title Act 1993—Draft Terms of Reference, 2013.
Graeme Neate, ‘Resolving Native Title Issues: Travelling on Train Tracks or Roaming the Range?’ (Paper Presented at Native Title and Cultural Heritage Conference, Brisbane, 26 October 2009) 11.
The Hon Justice John Gilmour, ‘Native Title: Reform and Why?’ (Speech Delivered at LegalWise Seminar on ‘Native Title’, Perth, 3 June 2011).
See eg, Graeme Hiley and Ken Levy, ‘Native Title Claims Resolution Review’ (Report, Attorney-General’s Department, 31 March 2006).
For an overview of amendments to the Native Title Act 1993 (Cth), see Aboriginal and Torres Strait Islander Social Justice Commissioner, ‘Social Justice and Native Title Report’ (Australian Human Rights Commission, 2013) 78.
Native Title Act 1993 (Cth) s 3(a),(c).
Data from National Native Title Tribunal as at 24 February 2014 shows that the total number of decisions about determinations of native title made by a court or other recognised body stands at 270, of which 203 were consent determinations, 28 were litigated determinations, and 36 were unopposed determinations. Other types of determinations make up the remainder.
For a recent example, see Noongar (Koorah, Nitja, Boordahwan) (Past, Present, Future) Recognition Bill 2014 (WA).
North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595, ; Native Title Act 1993 (Cth) Preamble.
See eg, The Chamber of Minerals and Energy of Western Australia, Submission to the Australian Attorney-General’s Department, Review of the Native Title Act 1993—Draft Terms of Reference, 2013.
Angus Frith and Ally Float, ‘The 2007 Amendments to the Native Title Act 1993 (Cth): Technical Amendments or Disturbing the Balance of Rights?’ (Native Title Research Monograph 3, AIATSIS, November 2008).
Federal Court of Australia, ‘Annual Report 2011–2012’ (2012).
Justice Robert French and Patricia Lane, ‘The Common Law of Native Title in Australia’ (2002) 2 Oxford University Commonwealth Law Journal 15; Convention on the Elimination of All Forms of Racial Discrimination, Opened for Signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969); International Labor Organisation Convention Concerning Indigenous and Tribunal Peoples in Independent Countries (No. 169), (entered into force 5 September 1991).
Richard H Bartlett, Native Title in Australia (Butterworths, 2nd ed, 2004), 15.
The Hon Jenny Macklin, MP, ‘Statement on the United Nations Declaration on the Rights of Indigenous Peoples’ (Speech Delivered at Parliament House, Canberra, 3 April 2009).
Aboriginal and Torres Strait Islander Social Justice Commissioner, ‘Social Justice and Native Title Report’ (Australian Human Rights Commission, 2013) 93.
Australian Law Reform Commission Act 1996 (Cth) s 24(1)(b).
Western Australia v Commonwealth (1995) 183 CLR 373.
Aboriginal and Torres Strait Islander Social Justice Commissioner, ‘Social Justice and Native Title Report’ (Australian Human Rights Commission, 2013) 81.
See for example the discussion of the settlement of the ‘waste lands’ of Queensland in Wik v Queensland (1996) 187 CLR 1, 169.
Aboriginal and Torres Strait Islander Social Justice Commissioner, ‘Social Justice and Native Title Report’ (Australian Human Rights Commission, 2013).
Mabo v Queensland [No 2] (1992) 175 CLR 1.
For an example of comparative scholarship, see Kent McNeil and University of Saskatchewan Native Law Centre, Emerging Justice?: Essays on Indigenous Rights in Canada and Australia (Native Law Centre, 2001).