Native Title Act 1993 (Cth)

On 1 January 1994 the Commonwealth Native Title Act 1993 commenced operation. The Act was part of the Federal Government's response to the High Court's decision in Mabo v Queensland [No 2]. In Mabo [No 2]the majority of the High Court recognised that Aboriginal peoples and Torres Strait Islanders may have existing rights and interests in land and waters according to traditional laws and customs, called native title and that these rights are capable of recognition by the common law. The Native Title Act was intended to recognize and protect native title whilst providing certainty for governments and people with interests in land (Australian Law Reform Committee, 2015). The Native Title Act was shaped by the need to balance competing interests whilst establishing an effective and efficient system (Australian Law Reform Committee, 2015).

The Act was extensively amended in 1998 following another High Court decision about native title, in Wik v Queensland (1996), which confirmed that native title rights and interests may exist over land which is or has been subject to a pastoral lease, and possibly some other forms of leasehold tenure.

The Act establishes the National Native Title Tribunal and governs how native title is dealt with across Australia.

In its current amended form, the Native Title Act (1993):

• recognises native title rights and sets down some basic principles in relation to native title in Australia, including that native title can not be extinguished other than through the Act;
• validates 'past acts' over land, such as the grant of pastoral or mineral interests, which may be invalid because of the existence of native title;
• provides for a 'future act' regime in which native title rights are protected and conditions are imposed on proposed activities affecting native title;
• extinguishes native title completely over areas covered by valid acts of exclusive possession, like granting freehold title;
• extinguishes native title to the extent that it is 'inconsistent' with valid acts of non-exclusive possession, like some types of pastoral leases;
• provides a process by which native title rights can be established and compensation determined, and by which determinations can be made as to whether future grants can be made or acts done over native title land and waters;
• enables Indigenous Land Use Agreements (ILUAs) to be made between native title parties and other interest holders; and
• provides for a range of other matters, including the establishment of a National Aboriginal and Torres Strait Islander Land Fund.

Section 223 of the Native Title Act defines native title as 'the communal, group or individual rights and interests of Aboriginal or Torres Strait Islanders in relation to land or waters' where the rights and interests are possessed under traditional laws and customs. The Native Title Act requires Aboriginal and Torres Strait Islander peoples to show connection with land and waters in order to find native title exists.

The Native Title Act was amended in 1998 with the Native Title Amendment Act 1998 (Cth) which:

• Validated land dealings which violated the Native Title Act between 1994 and 1999;
• Suppressed extensive coexisting native title on pastoral leases where the land is used for primary production;
• Introduced a system of agreements between native title holders, other land users, and governments developed by indigenous and industry groups;
• Limited the operation of the Racial Discrimination Act 1975 (Cth) with respect to native title;
• Expanded the definition of extinguishment; and
• Imposed more stringent tests for native title claims

For more information see: Native Title Amendment Act 1998 (Cth).

(Clarke, 1997; Behrendt, 2009).

The Native Title Act was again amended in 2007 with the Native Title Amendment Act 2007 (Cth) and the Native Title Amendment Act (Technical Amendments) Act 2007 (Cth) ('The 2007 Amendments'). The 2007 Amendments were intended to address the issues relating to the costs and time taken to resolve native title claims (AIATSIS, 2016). They further aimed to promote the resolution of native title claims through agreement (AIATSIS, 2016).

Changes introduced by the 2007 Amendments include:

• Allowing non-Indigenous corporations to perform the function representative Indigenous bodies;
• Limiting the requirements for consultation with native title holders for prescribed body corporates;
• Restricting the eligibility requirements for respondent funding assistance.

Now Chief Justice French reflected that whilst the 2007 Amendments provided some new tools to increase the efficiency of the resolution of claims, the framework for judicial determination of native title claims provided by the Native Title Act continued to impose 'heavy burdens on the human and financial resources of the principal parties involved' (French, 2008).

Procedural amendments to the Native Title Act occurred in 2009 with the Native Title Amendment Act 2009 (Cth). This Act amended provisions of the Native Title Act to enable the Federal Court to determine which body should mediate native title claims, vary the operation of representative bodies and alter evidence rules amongst other procedural changes (Parliament of Australia, 2009)

In June 2013, the Commonwealth initiated a review of the Native Title Act by the Australian Law Reform Commission (ALRC, 2015). The terms of reference for the enquiry included:

• The importance of the recognition and protection of native title;
• The importance of certainty regarding native title and other interests in land and waters;
• The delays to the resolution of claims caused by litigation;
• The need to ensure practical, timely and flexible outcomes for all parties through faster, better claims resolution. (ALRC, 2015).

The Law Reform Commission was asked to consider:

• The connection to land and continuity of traditional laws and customs requirements of the Act; and
• The authorisation and joinder provisions.

The Commission published their report in June 2015 and made 30 recommendations. These recommendations included:

• Several changes to the s 231 definition of Native Title;
• Clarification that native title rights may be commercial and non-commercial;
• Repeal sections 62(1)(c) and 190B(7) regarding the requirement for a 'traditional physical connection' with the land and waters; and
• Amendments to the authorisation requirements.

In 2014, Senator Siewert introduced the Native Title Amendment (Reform) Bill 2014 to parliament to amend the Native Title Act in accordance with submissions made to the Senate Standing Committee on Legal and Constitutional Affairs and the 2009 Native Title Report from the Aboriginal and Torres Strait Islander Social Justice Commissioner (Parliament of Australia, 2014). This bill was explicitly aimed to address the evidentiary burden on Indigenous parties claiming native title over land (Parliament of Australia, 2014). However, this Bill lapsed following the dissolution of the 44th Parliament in 2016.

In 2019, the Native Title Legislation Amendment Bill 2019 was introduced. This Bill was developed following public consultation, and aims to implement some recommendations of the Law Reform Commission Report (Parliament of Australia, 2009). The primary amendments concern Indigenous Land Use Agreements (ILUAs) and extinguishment provisions, including:

• Extending the circumstances under which historical extinguishment can be disregarded;
• Altering notification requirements for ILUAs; and
• Allowing registered native title bodies coporate (RNTBC) to bring compensation applications over areas where native title has been extinguished.

This bill is currently before the House of Representatives and has been referred to the Senate Legal and Constitutional Affairs Legislative Committee. Their report is due on the 16th of April 2020.

Related Entries

References

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