This report marks the first major review of the law governing ‘connection’ in native title claims since the introduction of the Native Title Act 1993 (Cth). It also examines authorisation of persons bringing claims and joinder of parties to a native title claim. This report reflects the law as at 31 March 2015
The Terms of Reference asked the Australian Law Reform Commission to examine connection requirements generally, but specifically to examine four options for reform in how native title is proved and determined. These were:
· a presumption of continuity of acknowledgment 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’;
· 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 acknowledgment and observance of traditional laws and customs where it is in the interests of justice to do so.
In examining the law concerning the recognition and scope of native title rights and interests, the Australian Law Reform Commission has taken a perspective, consistent with the Native Title Act, but it has also situated the law in a broader context of the common law, international law and the law in comparative jurisdictions.