The Inquiry

Review of the Native Title Act

1. The Native Title Act 1993 (Cth) represented an important step in building the relationship between Aboriginal and Torres Strait Islander people and other Australians. The legislation reflected the landmark High Court decision of Mabo v Queensland [No 2].[1] Mabo [No 2] first recognised native title in Australia.[2] For Aboriginal and Torres Strait Islander people, the recognition of native title has immense significance as acknowledging their first occupation of Australian land and waters; and it brings the potential of tangible benefits.

2. Since the introduction of the Act over twenty years ago, native title determinations and agreement-making have become in many contexts, ‘a way of doing business’.[3] In other areas, native title remains a more contested right. A native title determination affects many people.[4] Continuing to develop the relationship between Aboriginal and Torres Strait Islander people and the Australian community, and ‘advancing the process of reconciliation among all Australians’[5] that began with the Native Title Act in 1993 remains a significant legal and policy challenge.

3. Native title is the recognition by the Australian legal system of the relationships that Aboriginal and Torres Strait Islander people have with ‘country’.[6] Accordingly, ‘native title has its origins in the traditional laws acknowledged and the customs observed by the Indigenous peoples who possess the native title’.[7] Native title is defined in the Native Title Act, however, the nature and content of native title rights and interests are ascertained by reference to Aboriginal and Torres Strait Islander laws and customs.[8] Native title therefore sits at the intersection of two legal systems.[9] To establish that they have native title, Aboriginal and Torres Strait Islander people must prove that they have maintained, through traditional law and custom, a continuous connection with the land and waters of the areas being claimed since before European settlement and the introduction of the common law.[10]

4. While recognition of native title has brought opportunities for Aboriginal and Torres Strait Islander people, ‘connection requirements’ have been regarded as unduly limiting.[11] The need to demonstrate a normative society, observing traditional laws and customs continuously since before European settlement, in order to provide proof of connection to land and waters is seen as particularly onerous. It is often more difficult to establish ‘connection’ in situations where there has been extensive dispossession or displacement of Aboriginal and Torres Strait Islander people.

5. Concerns have also been raised about the complexity, length and difficulty of native title proceedings for all parties involved. These problems include authorisation processes for determining who may bring a native title claim and joinder provisions as to which parties may contest a determination of native title. Debates have emerged about the nature of native title rights and interests, and the extent to which native title can provide economic and social development for Aboriginal and Torres Strait Islander people.[12] These debates raise questions about the nature of the outcomes achieved by native title law—questions pertinent to this Inquiry.

6. On 3 August 2013, the then Attorney-General of Australia, the Hon Mark Dreyfus QC MP, requested that the Australian Law Reform Commission (ALRC) conduct an Inquiry into, and report on, the Commonwealthnative title laws and legal frameworksin relation to two specific areas:

Connection requirements relating to the recognition and scope of native title rights and interests, including, but not limited to whether there should be:

  • a presumption of continuity of acknowledgment and observance of traditional laws and customs and connection;

  • clarification of the meaning of ‘traditional’ to allow for the evolution and adaptation of culture and recognition of ‘native title rights and interests’;

  • clarification that ‘native title rights and interests’ can include rights and interests of a commercial nature;

  • confirmation that ‘connection with the land and waters’ does not require physical occupation or continued or recent use; and

  • empowerment of courts to disregard substantial interruption or change in continuity of acknowledgment and observance of traditional laws and customs where it is in the interests of justice to do so.

Any barriers imposed by the Act’s authorisation and joinder provisions to claimants’, potential claimants’ and respondents’ access to justice.

7. In relation to the two areas identified for review, and in light of the Preamble and Objects of the Act, the Commission is to consider what, if any, changes could be made to improve the operation of Commonwealth native title laws and legal frameworks. [13]

Getting involved in the law reform process

8. The ALRC is engaging in widespread community, government and industry consultation throughout the Inquiry. This Issues Paper is the first consultation document. It is intended to encourage informed community participation. The ALRC invites individuals and organisations to make submissions in response to specific questions, or to any of the background material and analysis provided. The closing date for submissions is 14 May 2014.

9. There is no specified format for submissions. Submissions may be made in writing, by email or using the ALRC’s online submission form. Submissions made using the online submission form are preferred.

10. Generally, submissions will be published on the ALRC website, unless marked confidential. Confidential submissions may still be the subject of a request for access under the Freedom of Information Act 1982 (Cth). In the absence of a clear indication that a submission is intended to be confidential, the ALRC will treat the submission as public. The ALRC does not publish anonymous submissions.

11. The submissions and further consultation rounds will inform the next stage of the Inquiry process—the publication of a Discussion Paper in September 2014. The ALRC will call for submissions on the proposals in the Discussion Paper before finalising its recommendations in a Final Report in March 2015.

12. Further information about the consultation and submission process is available on the ALRC website. This information includes how the ALRC uses submissions in its research and policy development. You can subscribe to an e-newsletter for the Inquiry on the website.