: Native Title reforms

Native Title reforms

Katie O'Bryan
Federal

The Australian Law Reform Commission (‘ALRC’) has completed its inquiry into the native title system, tabling its final report in Parliament on 4 June 2015.

The inquiry commenced in June 2013 with the release for public consultation of draft terms of reference, which were subsequently finalised in August that year. This was followed by the release of an issues paper in March 2014 and a discussion paper in October 2014. The terms of reference related to two specific areas, namely:

  • connection requirements relating to the recognition and scope of native title rights and interests; and
  • any barriers imposed by the authorisation and joinder provisions of the Native Title Act 1993 (Cth) (‘NTA’) 
to claimants’, potential claimants’ and respondents’ access to justice.

The ALRC conducted 162 consultations and received 72 written submissions. The final report makes 30 recommendations. In relation to connection requirements, in summary the ALRC recommended that:

  • there be explicit acknowledgement in the NTA that traditional laws and customs may adapt and evolve;
    • the definition of native title be amended to make clear that 
it is not necessary to establish:
    • that the acknowledgement and observance of traditional laws and customs have continued substantially uninterrupted since sovereignty;
    • that they’ve been acknowledged and observed by each generation since sovereignty;
  • that the society has continued in existence since sovereignty;
  • the definition also be amended to make clear that native title rights and interests may be possessed where they have been transferred between groups in accordance with traditional laws and customs;
  • in relation to the law for proving connection, that two provisions referring to ‘traditional physical connection’ be repealed, as they do not reflect current case law; and
  • the NTA be amended to expressly include the right to trade, and that claimed rights can be for any purpose, including commercial purposes.

The ALRC considered whether the NTA should be amended to empower the courts to disregard substantial interruption, concluding that the direct amendment of the definition of native title (noted above) would be a more targeted measure. It also considered whether to introduce a presumption of continuity, concluding that the NTA should instead provide guidance about when inferences may be drawn in the proof of native title rights and interests.

In relation to authorisation and joinder provisions, the ALRC recommended that the NTA be amended:

  • to allow greater flexibility in the choice of decision-making process, to allow the scope of the authority of the applicant to be defined by the claim group, to give the applicant capacity to act by majority, and to address the situation where the applicant dies, or is unable to act;
  • to provide that a member of the applicant must not obtain a benefit or advantage at the expense of the claim group; and
  • to allow respondents to limit their involvement to their own interests, to provide for notification to NSW Aboriginal Land Councils of native title proceedings, and to clarify the law regarding joinder of claimants and dismissal of parties.

The ALRC also recommended amendments to the Federal Court Act to allow for appeals from joinder and dismissal applications, and to develop principles regarding the involvement of the Commonwealth in native title proceedings.

Finally, it made recommendations to facilitate use of the native title application inquiry process and to promote capacity building.

It is now up to the Australian government to decide whether or not to implement the recommendations, in full or in part. Electronic copies of the final report and other related documents are available on the ALRC’s website:

http://www.alrc.gov.au/inquiries/native-title-act-1993.

KATIE O’BRYAN teaches law at Monash University.

(2015) 40(3) AltLJ 210
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