ALRC recommendations for reform of the Native Title Act

The ALRC report, Connection to Country: Review of the Native Title Act 1993 (Cth) (ALRC Report 126), was released today.

This Report marks the first major review of ‘connection’ in native title claims—central to native title determinations—since the introduction of the Native Title Act. The Report also examines authorisation of persons bringing native title claims and joinder of parties, and includes 30 recommendations for reform.

Connection recommendations address barriers to the recognition of native title, for example by amending the definition of native title in the Act to clarify that:

• traditional laws and customs, under which native title rights and interests are possessed, 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 succession of native title rights and interests may be recognised. (Recs 5-1 to 5-5)

The Commissioner leading the Inquiry, Professor Lee Godden, said: “The reforms refocus on the core elements of native title and introduce flexibility in the evidence required for connection.”

The ALRC has also addressed the capacity of native title to support Indigenous economic development, recommending, for example, that the Act explicitly acknowledge that, where the evidence supports it, a native title right can be exercised for any purpose, including commercial purposes (see Recs 8-1 to 8-2). Commissioner Godden said: “The Native Title Act has the capacity to improve the economic circumstances of Aboriginal and Torres Strait Islander peoples. The ALRC has focused on ensuring that the native title system is efficient, fair and equitable, and that the law has the flexibility to facilitate the beneficial purposes of the Act.”

Authorisation and joinder recommendations are designed to support durable and productive relationships between participants and balance the wide range of interests in the native title system. Recommendations seek to reduce costs, streamline procedures, and support effective decision-making structures. For example, the ALRC recommends simpler procedures to replace a member of the applicant, and that native title claim groups may choose their own decision-making procedures. Recommendations for joinder include that claimants and potential claimants may seek joinder, and the availability of appeals on joinder decisions.

During the Inquiry, the ALRC conducted 162 consultations around Australia and received 70 submissions. Commissioner Godden noted the significant public input to the inquiry: “The ALRC was assisted by the generous contribution of Indigenous leaders and organisations, Federal court judges, legal professionals, industry bodies, anthropologists and academics who afforded unparalleled access to information about how the Native Title Act claims system is operating—facilitating robust law reform.”

ALRC President Professor Rosalind Croucher AM thanked Professor Godden for leading the Inquiry. She said: “Professor Godden and the ALRC Inquiry Team, along with our expert Advisory Committee, ensured this complex Inquiry was informed by views from all participants in the native title process, and that the extensive jurisprudence of the High Court and the Federal Court was acknowledged, as native title law continues to evolve.”

The Report and a Summary Report are available in html, PDF or epub format via the ALRC website (www.alrc.gov.au/publications). A limited number of hard copies are available for purchase.

Media contact: Marie-Claire Muir (02) 8238 6305, web@alrc.gov.au