The High Court’s 1992 decision in Mabo v Queensland (No 2) (1992) 175 CLR 1 recognised that a system of Indigenous law existed alongside common law in Australia, and that the doctrine of terra nullius was a legal fiction (Korosy 2008:81). The decision had the effect of recognising Indigenous ownership of land prior to British sovereignty. The Native Title Act (Cwlth) (‘the Act’) was the Federal Government’s legislative response to the Court’s decision (Gilmour 2011). Native title is recognised as being a bundle of rights, a complex legal concept that implies rules specifying, prohibiting, or authorising actions of the owner of property (Sivarjah 2011:24), with each separate right potentially severable and extinguishable (Brennan 2010:259). The Act only concerns rights and interests in relation to lands or waters (Korosy 2008:81), not other forms of property, and was enacted to create rules and regulations for the identification of areas where native title over those lands and waters may exist, and how to deal with those claims and other competing interests in the area (Strelein 2014:6).
The Preamble of the Act recognises that the Indigenous people inhabited Australia and the Torres Strait Islands before European colonisation, and that ‘[t]hey have been progressively dispossessed of their lands.’ It speaks of ideals such as protecting the rights of Indigenous people, the protection of universal human rights and fundamental freedoms, and confirms Australia’s commitment to international treaties such as the International Convention on the Elimination of All Forms of Racial Discrimination and the Universal Declaration of Human Rights. However, under the Act, determinations of whether native title exists fall under section 223 (‘s223’) which requires that a claimant group has maintained their connection to their lands and waters according to their traditional laws and customs from sovereignty to the present time. If dispossession and dispersal of a society, and interruption in being able to follow their traditional laws and customs occurred as a result of colonisation or government action they are unable to claim native title to land or waters under the Act (Finn 2013:6).
The Act has come under much criticism, both in Australia (Duff 2013:59; Barker 2013), and internationally (CERD 2010:5), for the requirements under s223 being interpreted by the courts in an onerous manner (Strelein 2014:6). Although neither the words ‘continuity’ or ‘continuous’ are contained in s223 (Brennan 2010:256; Finn 2012:5), the 2002 decision of the High Court in Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 (‘Yorta Yorta’), raised the bar for native title claimants to one of proving continuity of a society and observance of traditional laws and customs, plus continuity in the substance of those traditional laws and customs (Brennan 2010:256). This high burden of proof placed on claimants seems at odds with the Preamble and purpose of the Act (Calma 2009:7; Finn 2013:6). Each party is expected to bear their own costs (Sivarjah 2011:24) during the long (Hughston 2009:28: Calma 2009:6), often expensive process that involves extensive research to establish continuity in observance of traditional laws and customs (Strelein 2014:7). It is easy to see why some claim that those who benefit most from the Act are the legal, anthropological, archaeological and other experts working for both sides in a contested claim (Duff 2013:64).
Many groups and individuals have proposed reversing the burden of proof (SCATSI 2013:37; Barker 2014; Strelein 2014:7), including Robert French (French 2009:13), current Chief Justice of the High Court, allowing a rebuttable presumption of continuity. This means that the State would have the burden to prove that there was disruption to the continuity required to prove a native title claim under the Act (French 2009:13; Strelein 2014:7), while at the same time there would be a need to ensure that the State would not be able to use its own wrongful actions to prove such discontinuity (North 2009 cited in Strelein 2014:7).
The High Court in Yorta Yorta also added extra meaning to the definition of the word ‘traditional’ in s223. They narrowly defined ‘traditional’ to mean that the laws and customs observed today must be the same as those that were observed at the time of sovereignty, and that the system of laws and customs must have ‘had a continuous existence and vitality since sovereignty’ (Brennan 2010:256). Instead of being a way for Indigenous people to regain lands and waters that are rightfully theirs, the Act has become little more than an exercise in statutory interpretation (Strelein 2014:7) that fails to take into account the stated purpose of the Act. There are calls, such as were raised in the Native Title Report 2009, to redefine the meaning of ‘traditional’ to encompass laws and customs that remain identifiable through time, rather than the present definition of unchanging through time (Strelein 2014:7; ATSISJC 2009:85).
Two consecutive Aboriginal and Torres Strait Islander Social Justice Commissioners, Tom Calma and Mick Gooda, have recommended an independent review of the Act in both the 2010 and 2011 Native Title Reports (ATSISJC 2010; ATSISJC 2011). In 2012 two Bills were introduced into Parliament, the Native Title Amendment Bill 2012, and the Native Title Amendment (Reform) Bill (No. 1) 2012. The first Bill was reviewed by two separate Parliamentary Committees, resulting in the Native Title Amendment Bill 2012 [Provisions] and Advisory Report: Native Title Amendment Bill 2012 reports.
In 2013 the Act was referred to the Australian Law Reform Commission for inquiry, with the final report due out by March 2015 (ALRC 2014:4). In the meantime, another Native Title Amendment (Reform) Bill 2014 is before the Senate that includes the two proposed amendments mentioned here. Whilst perhaps prematurely introduced to the Senate, the Bill does ensure that these important issues remain a current topic in the Federal Parliament.
The recommendations of, and whether any legislative reforms occur, as a result of the Australian Legal Reform Commission report remains to be seen. No changes have been made to the Act since 2010, despite a great deal of law reform activity (Duff 2013:64).
Aboriginal and Torres Strait Islander Social Justice Commissioner (‘ATSISJC’) 2009 Native Title Report 2009 Australian Human Rights Commission. Retrieved online 9 August 2014 .
Aboriginal and Torres Strait Islander Social Justice Commissioner 2010 Native Title Report 2010 Australian Human Rights Commission. Retrieved online 9 August 2014 .
Aboriginal and Torres Strait Islander Social Justice Commissioner 2011 Native Title Report 2011 Australian Human Rights Commission. Retrieved online 9 August 2014 .
Australian Law Reform Commission 2014 Review of the Native Title Act 1993, Issues Paper 45 (IP 45). Retrieved online 9 August 2014 .
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Committee on the Elimination of Racial Discrimination (‘CERD’), Concluding observation, Seventy-seventh session, 2 – 27 August 2010, International Convention on the Elimination of All Forms of Racial Discrimination, CERD /C/AUS/CO/15-17. Retrieved online 9 August 2014 .
Duff, N. 2013 Reforming the Native Title Act: Baby Steps or Dancing the Running Man? Australian Indigenous Law Review 17(1):56-70.
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French, R. 2009 Lifting the Burden of Native Title: Some modest proposals for improvement. Reform Native Title 93:10-13.
Gilmour, J. 2011 Native title: reform and why? Federal Judicial Scholarship 32. Retrieved online 11 August 2014 .
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Standing Committee on Aboriginal and Torres Strait Islander Affairs (‘SCATSI’) 2013 Advisory Report: Native Title Amendment Bill 2012, House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, the Parliament of the Commonwealth of Australia, Canberra. Retrieved online 9 August 2014 .
Strelein, L. 2014 Reforming the Requirements of Proof: The Australian Law Reform Commission’s Native Title Inquiry. Indigenous Law Bulletin 8(10):6-10.
The Parliament of The Commonwealth of Australia, House of Representatives 2012 Native Title Amendment Bill 2012 Explanatory Memorandum. Retrieved online 11 August 2014 .
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The Parliament Of The Commonwealth Of Australia, Senate 2014 Native Title Amendment (Reform) Bill 2014 Explanatory Memorandum. Retrieved online 11 August 2014 .
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The Parliament of The Commonwealth of Australia, Senate 2014 Native Title Amendment (Reform) Bill 2014 Explanatory Memorandum. Retrieved online 11 August 2014 .
Mabo v Queensland (No 2) (Mabo case) (1992) 175 CLR 1.
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422.