5. Traditional Laws and Customs

Recommendation 5–1               The definition of native title in s 223 of the Native Title Act 1993 (Cth) should be amended to provide that traditional laws and customs may adapt, evolve or otherwise develop.

Recommendation 5–2               The definition of native title in s 223 of the Native Title Act 1993 (Cth) should be amended to clarify that it is not necessary to establish that the acknowledgment of traditional laws and the observance of traditional customs have continued substantially uninterrupted since sovereignty.

Recommendation 5–3               The definition of native title in s 223 of the Native Title Act 1993 (Cth) should be amended to clarify that it is not necessary to establish that traditional laws and customs have been acknowledged and observed by each generation since sovereignty.

Recommendation 5–4               The definition of native title in s 223 of the Native Title Act 1993 (Cth) should be amended to clarify that it is not necessary to establish that a society united in and by its acknowledgment and observance of traditional laws and customs has continued in existence since prior to sovereignty.

Recommendation 5–5               The definition of native title in s 223 of the Native Title Act 1993 (Cth) should be amended to provide that rights and interests may be possessed by a native title claim group where they have been:

(a)      transmitted or transferred between Aboriginal or Torres Strait Islander groups in accordance with the traditional laws and customs of those groups; or

(b)     otherwise acquired in accordance with traditional laws and customs.

6. Connection with the Land or Waters

Recommendation 6–1               Section 62(1)(c) of the Native Title Act 1993 (Cth) provides that a claimant application may contain details of any ‘traditional physical connection’ that a member of the native title claim group has, or had, with the land or waters claimed. This subsection should be repealed.

Recommendation 6–2               Section 190B(7) of the Native Title Act 1993 (Cth) provides that the Registrar must be satisfied that at least one member of the native title claim group has, or previously had, a traditional physical connection with any part of the land or waters, or would have had such a connection if not for things done by the Crown, a statutory authority of the Crown, or any holder of a lease. This subsection should be repealed.

7. Proof and Evidence

Recommendation 7–1               The Native Title Act 1993 (Cth) should provide guidance regarding when inferences may be drawn in the proof of native title rights and interests. The Act should provide that the Court may draw inferences from contemporary evidence that the claimed rights and interests are possessed under the traditional laws acknowledged and traditional customs observed by the native title claim group.

8. The Nature and Content of Native Title

Recommendation 8–1               Without limiting s 223(1) of the Native Title Act 1993 (Cth), this recommendation is intended to give effect to the principle of a broadly defined native title right as recognised in Akiba v Commonwealth (2013) 250 CLR 209 and Western Australia v Brown (2014) 306 ALR 168; to reflect that a native title right can be exercised for any purpose (including commercial purposes); and to provide a non-exhaustive list of native title rights and interests.

Section 223(2) of the Native Title Act 1993 (Cth) should be repealed and substituted with a subsection that provides:

          Without limiting subsection (1), native title rights and interests in that subsection:

          (a)      may comprise a right that may be exercised for any purpose, including commercial or non-commercial purposes; and

          (b)     may include, but are not limited to, hunting, gathering, fishing, and trading rights and interests.

Recommendation 8–2               ‘Commercial purposes’ and ‘trading’ should not be defined in the Native Title Act.

10. Authorisation

Recommendation 10–1             Section 251B of the Native Title Act 1993 (Cth) requires a claim group to use a traditional decision-making process for authorising an applicant, if it has such a process. If it does not have such a process, it must use a decision-making process agreed to and adopted by the group.

Section 251B of the Native Title Act 1993 (Cth) should be amended to provide that a claim group may authorise an applicant either by a traditional decision-making process or a process agreed to and adopted by the group.

Recommendation 10–2             Section 251A of the Native Title Act 1993 (Cth) requires persons holding native title to use a traditional decision-making process for authorising an indigenous land use agreement (ILUA), if they have one. If they do not have one, they may use a decision-making process agreed to and adopted by the persons.

Section 251A of the Native Title Act 1993 (Cth) should be amended to provide that persons holding native title may authorise an ILUA either by a traditional decision-making process, or a decision-making process agreed to and adopted by the group.

Recommendation 10–3             Regulation 8 of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) provides that common law holders must use a traditional decision-making process in relation to giving consent for a native title decision, if they have one. If they do not have one, they must use a decision-making process agreed to and adopted by the common law holders.

Regulation 8 of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) should be amended to provide that common law holders may give consent to a native title decision using either a traditional decision-making process or a decision-making process agreed on and adopted by them.

Recommendation 10–4             Section 203BC(2) of the Native Title Act 1993 (Cth) provides that a native title holder or a person who may hold native title must use a traditional decision-making process to give consent to any general course of action that the representative body takes on their behalf, if they have one. If they do not have one, they must use a decision-making process agreed to and adopted by the group to which the person belongs.

Section 203BC(2) of the Native Title Act 1993 (Cth) should provide that a native title holder or a person who may hold native title may give consent to any general course of action that the representative body takes on their behalf using either a traditional decision-making process or a decision-making process agreed to and adopted by the group to which the person belongs.

Recommendation 10–5             The Native Title Act 1993 (Cth) should be amended to clarify that the claim group may define the scope of the authority of the applicant.

Recommendation 10–6             The Native Title Act 1993 (Cth) should be amended to provide that the applicant may act by majority, unless the terms of the authorisation provide otherwise.

Recommendation 10–7             Section 66B of the Native Title Act 1993 (Cth) should provide that, where a member of the applicant is no longer willing or able to perform the functions of the applicant, the remaining members of the applicant may:

(a)      continue to act without reauthorisation, unless the terms of the authorisation provide otherwise; and

(b)     apply to the Federal Court for an order that the remaining members constitute the applicant.

Recommendation 10–8             The authorisation of an applicant sometimes provides that if a particular member of the applicant becomes unwilling or unable to act, another specified person may take their place.

Section 66B of the Native Title Act 1993 (Cth) should provide that, in this circumstance, the applicant may apply to the Federal Court for an order that the member be replaced by the specified person, without requiring reauthorisation.

Recommendation 10–9             The Native Title Act 1993 (Cth) should be amended to provide that a member of the applicant must not obtain an advantage or benefit at the expense of the common law holders.

11. Parties and Joinder

Recommendation 11–1             Section 66(3)(a) of the Native Title Act 1993 (Cth) should be amended to provide that the Registrar must notify the NSW Aboriginal Land Council and Local Aboriginal Land Councils, established under the Aboriginal Land Rights Act 1983 (NSW), of a native title application.

Recommendation 11–2             Federal Court of Australia practice notes (or similar mechanisms) should provide for a person who becomes a party to proceedings under s 84(3) or s 84(5) of the Native Title Act 1993 (Cth) to elect to participate only in respect of the matters listed in s 225(c) and s 225(d) of the Act.

Recommendation 11–3             This recommendation is intended to make clear that a claimant or potential claimant may join native title proceedings as a respondent under s 84(5). However, such a person would be required to demonstrate a ‘clear and legitimate objective’ to be achieved by joining the proceedings.

The Native Title Act 1993 (Cth) should be amended to clarify that, for the purposes of s 84(5):

(a)      a member of a claim group or other person who claims to hold native title has an interest that may be affected by the determination in the proceedings; and

(b)     when determining if it is in the interests of justice to join such a person, the Federal Court should consider whether they can demonstrate a clear and legitimate objective to be achieved by joining the proceedings.

Recommendation 11–4             The Native Title Act 1993 (Cth) should be amended to clarify that the Federal Court’s power to dismiss a party (other than the applicant) under s 84(8) is not limited to the circumstances contained in s 84(9).

Recommendation 11–5             Section 24(1AA) of the Federal Court of Australia Act 1976 (Cth) should be amended to allow an appeal, with the leave of the Court, from a decision of the Federal Court:

(a)      to join or not to join a party under s 84(5) of the Native Title Act 1993 (Cth); or

(b)     to dismiss or not to dismiss a party under s 84(8) of the Native Title Act 1993 (Cth).

Recommendation 11–6             The Australian Government should consider developing principles governing the circumstances in which the Commonwealth should either:

(a)      become a party to a native title proceeding under s 84 of the Native Title Act 1993 (Cth); or

(b)     seek intervener status under s 84A of the Native Title Act 1993 (Cth).

12. Promoting Claims Resolution   

Recommendation 12–1             The amendments recommended to s 223 of the Native Title Act 1993 (Cth) (Recommendations 5–1 to 5–5, and 8–1) should only apply to determinations made after the date of commencement of any amendment.

Recommendation 12–2             The amendments recommended regarding authorisation (Recommendations 10–1 to 10–9) and joinder (Recommendations 11–1 to 11–6) should only apply to matters that come before the Court after the date of commencement of any amendment.

Recommendation 12–3             The Australian Government should explore options for specialist training schemes for professionals in the native title system.

Recommendation 12–4             Section 138B(2)(b) of the Native Title Act 1993 (Cth), which provides that the Federal Court may only direct that a native title application inquiry be held if the applicant agrees to participate, should be repealed.

Recommendation 12–5             Section 156(7) of the Native Title Act 1993 (Cth), which provides that the National Native Title Tribunal’s power to summon a person to appear before it or produce documents does not apply to a native title application inquiry, should be repealed.