Meeting the challenge of Native Title reform

By Norrie Ross

Australia's system to establish native title rights is a complex test and often proves onerous for Aboriginal and Torres Strait Islander groups trying to prove that their laws and customs provide a continuing connection to their traditional country.

Professor Lee Godden from the Melbourne Law School Centre for Resources, Energy and Environmental Law led an Australian Law Reform Commission (ALRC) Review of the Native Title Act 1993. The Act had its foundation in the landmark Mabo decision.

Professor Godden's team delivered a report in April which she hopes will pave the way for reform and lead to a native title system that is fairer and more flexible for Indigenous Australians.

"It was a demanding reference in the time frame and the ALRC team who worked on native title were remarkable. The review team conducted more than 160 consultations with a diverse range of Indigenous people, native title representative bodies, Federal Court judges, minerals industry, fishing and farming groups and community groups interested in native title," Professor Godden says.

There were three major issues under review. First the technical legal requirements for proving native title, such as the native title claim group providing evidence that they had observed law and customs without substantial interruption since British settlement. Second, the procedures for authorising members of the native title claim group to bring the claim on behalf of a community. Third, the joinder laws by which the Court determines whether third persons can 'join' a native title claim.

In response, the review produced recommendations to be considered by the Government.

"The review suggested reforms to the test for proving native title. For example, it would no longer be necessary for groups to show observance of laws and customs had continued 'substantially uninterrupted' or for groups to demonstrate a society from presovereign time," Professor Godden says.

"Reforms were suggested to make it clear that native title, traditional laws and customs could be adapted, and evolve over time without losing their character as traditional."

Professor Godden says it is vital that there is a fair, equitable and efficient process in proving native title claims which accords with human rights standards and international best practice.

She believes native title reforms must occur alongside the moves by the Federal Government toward recognition of Aboriginal and Torres Strait Islander peoples in the Constitution.

"Unless you have a robust native title claims process and you streamline various aspects such as authorisation and joinder, the aspirations for economic and cultural sustainability for Aboriginal and Torres Strait Islander peoples – that you would hope would form part of the groundswell for constitutional recognition – are not easily able to be achieved," Professor Godden says.

"We need to be clearly thinking 'next steps' and how we deal with native title into the future. Research over time has identified that unless you have a firm economic and culturally appropriate basis for Indigenous communities then you are left with the difficult conundrum of much rhetoric but little implementation that will really lift aboriginal communities."

Professor Godden was asked to lead the review on the strength of more than 25 years of research relating to Indigenous legal issues. "I was able to draw on much scholarship that's been done by people here in the University, but also more generally," Professor Godden says.

She says the review has proved to be a great learning experience and a platform for future research.

"I now have a much stronger grasp of the way native title works in a grounded, practical sense. It will inform how I do research in the future. It was a great privilege to have the benefit of everybody's experience of the Native Title Act - interviewing former High Court judges, claimant lawyers, gathering the views of governments; gaining an understanding of the position of Industry, and above all being given insights by Indigenous peoples; indeed the whole spectrum," Professor Godden says.

"The process tests your thinking as to whether after so long reading, researching and writing you've actually been able to come to a meaningful analysis. That was a wonderful experience as an academic."

This article originally appeared in MLS News, Issue 14, October 2015.