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Australian law reform: Connection to country

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Cite as: September 2015 89 (9) LIJ, p.75

The ALRC has recommended that the definition of native title be clarified.

Sanapshot

The ALRC believes that s223 should be amended to clarify that:

  • traditional laws and customs may adapt, evolve or otherwise develop;
  • acknowledgment of traditional laws and customs need not have continued substantially uninterrupted since sovereignty – nor is acknowledgement required by each generation;
  • it is not necessary that a society, united by acknowledgment of traditional laws and customs, has continued since sovereignty; and
  • native title rights and interests may be acquired by succession.
  • In June the Australian Law Reform Commission (ALRC) released its report Connection to Country: Review of the Native Title Act 1993, making 30 recommendations for reform.

    Former federal Attorney-General Mark Dreyfus QC had asked the ALRC in 2013 to review the Native Title Act 1993 (Cth), focusing on connection requirements relating to the recognition and scope of native title rights and interests; and any barriers imposed by the Act’s authorisation and joinder provisions to claimants’, potential claimants’ and respondents’ access to justice.

    Over the past 18 months, the ALRC has conducted a comprehensive examination of native title laws and legal frameworks with regard to connection requirements, authorisation and joinder, assisted by 162 consultations with government agencies, judicial officers, Indigenous leaders, organisations and traditional owners, industry representatives and others. It also received 72 submissions in response to two consultation papers.

    Connection requirements

    The ALRC found that the legal requirements for Aboriginal and Torres Strait Islander peoples to establish native title are unduly onerous, complex and technical. In particular, the requirements that claimants prove that their laws have been passed from generation to generation, and have been acknowledged by each generation since sovereignty, impose a considerable burden on claimants. Many stakeholders noted the injustice of these requirements in light of the history of dislocation, forced removal of people from their lands and prohibitions on the exercise of cultural practices.

    The ALRC has recommended that the definition of native title be clarified to remove some requirements. The basis of native title, as set out in Mabo and reflected in the Native Title Act s223, should be preserved – that is, native title rights and interests are those possessed under laws and customs that have their origins in laws and customs acknowledged and observed at sovereignty. However, the ALRC believes that s223 should be amended (see Snapshot).

    These proposed amendments will streamline proof requirements to focus on the essential elements of native title and reflect the approach often adopted in case law and in consent negotiations. Statutory amendments will confirm this flexible approach and ensure that the law is given a “fair, large and liberal” interpretation, as is appropriate for beneficial legislation.

    The collection and assessment of connection evidence is a significant contributor to cost and delay in the native title system, although it is not the only contributor. Reducing technicality in the definition of native title will reduce the resources and time required. Claimants will still have to establish that they are the “right people for country”, with rights and interests possessed under laws and customs that have their origins in laws and customs acknowledged and observed at sovereignty. This remains an evidentiary challenge in light of the disruption caused by European settlement. The ALRC considered whether a presumption of continuity would be appropriate, but concluded that amending the definition is a better approach. The ALRC has also recommended that the Act should provide that the Court may draw inferences from contemporary evidence that the claimed rights and interests are possessed under traditional laws and customs.

    Native title rights and interests used for commercial purposes

    During the inquiry, the High Court held in Akiba that a broadly defined native title right to take resources may be exercised for commercial or non-commercial purposes. The case law in this area is evolving. Accordingly, the ALRC recommends that s223(2) of the Native Title Act be amended to confirm that a broadly framed right may be exercised for commercial purposes, where the evidence supports such a right. The ALRC also recommends the inclusion of a right to trade in the representative list of native title rights and interests in s223. It recognises the important role that these recommendations may play in securing economic and cultural sustainability for Aboriginal and Torres Strait Islander peoples.

    Authorisation and joinder

    The authorisation provisions of the Native Title Act are largely working well. The ALRC has recommended some changes to allow native title claim groups to limit the authority of the applicant, and to provide that the applicant must not obtain a benefit at the expense of the group. These recommendations are intended to support claim groups as they develop their own governance structures, work within the requirements of Australian law and negotiate with third parties.

    Similarly, the joinder provisions have not attracted much criticism. The ALRC has recommended some changes to improve access to justice and reduce costs.

    The Final Report can be found at www.alrc.gov.au/publications as an e-pub or free download.

    This column is provided by the ALRC. Author Sabina Wynn is executive director of the ALRC. For further information, visit www.alrc.gov.au

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