Australian Law Reform Commission Report on Reform of Native Title Act

Last week, the Australian Law Reform Commission (ALRC) released a report on Connection to Country: Review of the Native Title Act 1993 (Cth).

The report addresses barriers to the recognition of legal rights of indigenous groups to their ancestral lands and waters in the Commonwealth of Australia.

 From the Executive Summary:

"... the ALRC’s recommendations for amendment to s 223(1) acknowledge that linking between the pre-sovereign laws and customs and their modern counterpart is necessary, but carefully targeted recommendations are directed to reducing the impact of the connection requirements where they have introduced more stringency than may be evident from the current definition of native title in s 223(1). The capacity for traditional laws to adapt, evolve and develop and that requirements for continued acknowledgment of laws and customs not be unduly onerous, is an important means of addressing the challenge of change in Aboriginal and Torres Strait Islander communities, while still reflecting the significance of the recognition of traditional connection to land and waters (...)"

"In summary, the recommendations are intended to (...)

• acknowledge that, while retention of a focus on traditional laws and customs is important, the law should be flexibly applied to allow evolution, adaptation and development of those laws and customs and succession to native title rights and interests;

• expedite the claims process by removing ‘substantially uninterrupted continuity’ and the ‘normative society’ requirements as a strict necessity and refocusing on the core elements of the definition of native title;

• facilitate the drawing of inferences of fact in defined circumstances, while recognising that the extent of evidence required to establish native title is in tension with the object of the Act to recognise and protect native title;

• provide statutory reflection of the principles developed by the High Court that recognised that a native title right may be exercised for any purpose—commercial or non-commercial and to include a native title right to trade in a non exhaustive list of native title rights and interests;

• strengthen the internal governance of the claim group by clarifying the functions, powers and duties of the applicant (...)"

The report also looks at aboriginal title in Canada and New Zealand.