This article argues that native title has the potential to be an empowering process, but that achieving this requires a clear and economically valuable property right that supports Indigenous governance and traditions and long term prosperity.
The 20th anniversary of the commencement of the Native Title Act 1993 (Cth) (‘NTA’), the legislative response to the High Court’s recognition of native title in Mabo v Queensland [No.2] (1992) (‘Mabo’), passed in December 2012 with little fanfare. The Commonwealth response was designed to recognise and protect native title from abrogation by the states, as well as to create an orderly system for the identification of where native title might exist, to determine how native title would be dealt with in the future, and to resolve any implications that recognition may have on other titles and interests. Among the largely procedural provisions of the NTA, the definition of native title in section 223 has come to be understood as setting the parameters for the requirement of proof as to whether native title exists. This specific section of the NTA has been a focus of jurisprudence in the courts, as well as a source of contention in public commentary on the perceived injustices and complexities of the native title system.
Section 223, in part, sets the terms for native title groups and government entering into settlement negotiations, and casts a long shadow over negotiations. By defining native title, section 223 sets the requirements for proving native title and the High Court has said that this is where the inquiry must start if the end sought is a determination that native title exists.
In 2014, section 223 of the NTA will again be at the centre of public policy and legal scrutiny as the Australian Law Reform Commission (‘ALRC’) holds an inquiry into, among other things, the requirements of connection ‘relating to the recognition and scope of native title rights and interests’. The ALRC inquiry builds upon a long debate about ways in which the requirements of proof could be reformed, including two private members bills introduced to the Parliament; the most recent in 2013. In particular, the ALRC has been asked to consider various proposals including:
- a presumption of continuity of acknowledgement 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 acknowledgement and observance of traditional laws and customs where it is in the interests of justice to do so.
As may be evident from this list, the limitations of section 223 have been criticised, not necessarily because of the terms of the definition, but because of the way they have been interpreted and applied. This article focuses on four key limitations that should underpin the ALRC inquiry:
- Section 223 as a statutory definition separates native title negotiation and judicial reasoning from the common law history and principles of justice, including international and comparative law.
- Section 223 has been interpreted by the courts as requiring an unnecessarily complex and high benchmark for proving native title.
- The narrow and reductive interpretation of native title rights, when combined with section 225 has negatively impacted on the scope of the enjoyment of native title.
- The courts’ interpretations have unnecessarily been relied upon by state governments in negotiating consent determinations (under the shield of section 87), and the flexibility of the law has been underutilised.