2.61 The definition of native title in s 223 of the Native Title Act was not intended to codify common law, but the foundation of the provision was the decision of Brennan J in Mabo [No 2]. The High Court later emphasised that a claim for native title is made under the Native Title Act for rights and interests defined under the Act. A determination of native title must be made in accordance with the requirements of s 225. In Yarmirr, the High Court stated thatsubsections 223(1)(a) and (b) of the Act must establish that the rights and interests ‘do in fact exist’.
2.62 The Native Title Act provides the framework in which the facts in the other normative system—Aboriginal and Torres Strait Islander law and custom—must be proved. At the heart of proof in native title, there is a complex, cross-system translation occurring between the legal rules in the legislation that set the ‘test’ and the facts in the Aboriginal and Torres Strait Islander ‘system’ that must form the evidence to satisfy that test for recognition. Recognition is now an element of the statutory definition of s 223(1).
2.63 In 2002, French J, writing extra-curially, suggested that the case law of the time, ‘foreshadow[ed] limited development of the common law’. Debate remains as to whether the earlier common law centred on Mabo [No 2] has been superseded by statutory construction—as well as the consistency of statutory construction with the intent evidenced in the Preamble of the Act. The precise relationship between the interpretation of a statutory provision and the common law may often remain ambiguous. Francis Bennion has stated:
The common law system of statutory interpretation is not just going by the words alone (literal interpretation) or applying rules of thumb … but something much more difficult and pluralistic.
2.64 The task of construing ‘connection’ in the Native Title Act therefore is a complex one. Gageler J, writing extra-curially, contends that the current approach in Australia to statutory construction is one of ‘literal in total context’. This accords to the view that ‘connection in this context extends beyond the specific question of connection addressed in s 223(1)(b) and encompasses the whole matter of proving native title rights and interests’.
2.65 The ALRC considers that adopting the literal wording of s 223 of the Native Title Act as the starting point for construing native title is important. In turn, the ALRC considers that there remains a role for construing the statute against the ‘total context’ of its common law jurisprudential heritage, particularly as the Act is beneficial legislation, to be given a liberal interpretation.
Interpretation of s 223(1)
2.66 The approach that proof of native title must begin with the definition in the Act, has not simplified the interpretation of s 223(1). Over time, an expanded set of requirements for determining native title has been articulated beyond the ‘elements’ contained in the express definition of native title. Commentators have noted the highly technical character of native title law and its complexity.
2.67 Regardless of the underlying jurisprudential position, the practical outcome has been that there are new matters requiring evidence, certainly beyond those indicated either by the judgments in Mabo [No 2] or the strict words of s 223(1).
2.68 Several submissions to this Inquiry noted the difficulties for all parties that these additional requirements have imposed. Other submissions suggested that connection requirements in themselves no longer constitute a significant difficulty for claim resolution.
2.69 The precise manner in which amplification of requirements for proof of native title occurs and the ALRC’s recommendations that address this are dealt with in detail in later chapters. Here, the ALRC’s discussion turns to four general matters related to the interpretation of the definition of s 223 of the Native Title Act that reflect the legacy of the laws and customs approach to recognising native title. These areas are the subject of the package of recommendations in Chapters 4–8, identified by the ALRC as the most appropriate and clearly targeted of the options for reform.
Traditional laws and customs
2.70 An expanded exposition of the ‘connection requirements’ for proof of native title culminated in Yorta Yorta, centred upon ‘traditional’. Recognition cannot be accorded to laws and customs which are not traditional; these must pre-exist sovereignty and only normative rules are ‘traditional’. This concept is at the core of a recognition model based upon a ‘laws and customs’ approach. The emphasis upon discerning the facts about a ‘subtle and elaborate system of social rules and customs’ can be traced back to Milirrpum and its antecedents.
2.71 Yet few stakeholders supported removal of ‘traditional’ from the definition of native title. ‘Traditional’ appears firmly embedded in native title law—not surprising, given the long history of its use within the Australian ‘laws and customs’ framework and its importance for Aboriginal people and Torres Strait Islanders. Accordingly, the ALRC considers it assists certainty in the native title claims process to retain ‘traditional’, but to confirm that traditional laws may evolve, adapt and develop. Further, the ALRC confirms in Chapter 5 that native title rights and interests may be transmitted, transferred or otherwise acquired between Aboriginal or Torres Strait Islander groups in accordance with the traditional laws and customs of those groups.
2.72 These recommendations address the dilemma of change but allow retention of the pre-sovereign origins for traditional laws and customs in a measured way.
Continuity over an extended time frame
2.73 The Federal Court in Bodney v Bennell stated:
Because it is the normative system that is the source of the rights and interests, it is necessary in order to prove native title that the normative system has had a continuous existence and vitality since sovereignty.
2.74 The strict requirement of continuity of acknowledgment of traditional laws and customs is qualified by the phrase ‘substantially uninterrupted’. This phrase is not found in the words of s 223. The word ‘substantially’ recognises that some interruption is permissible because of the effects of European settlement. The law is discussed in detail in Chapters 4, 5 and 6.
2.75 Under the Native Title Act, the legal determination of rights and interests possessed under laws and customs with origins in the pre-sovereign period is deferred for some 200 years. This poses an acute practical and metaphysical problem of proof for native title claimants. It contributes to the high transaction costs experienced by all parties involved in determining native title ‘connection’. There are inherent difficulties in producing evidence of a long-distant past and connecting it to the present.
The scope of native title rights and interests
2.76 The nature of native title under the Native Title Act has been framed against the questions of the extinguishment of native title rights and interests. This view has tended towards the susceptibility to extinguishment of native title rights and interests and a narrowing of the scope of native title rights and interests.
2.77 Another view is possible, where extinguishment is the ‘obverse of recognition’. In Akiba, French CJ and Crennan J held that
extinguishment of native title rights and interests must be understood as the cessation of the common law’s recognition of those rights and interests, not the cessation of those rights and interests under traditional laws and customs.
2.78 This view affirms the continued vitality of rights and interests under traditional laws and customs notwithstanding that these may not have ‘translated’ across the normative divide. It offers a model for recognition closer to the continuity model where rights and interests in the pre-existing legal system continued until abrogated by the common law.
2.79 As this chapter demonstrates, there has been a long standing pre-occupation in the Australian legal system and its colonial forebears with the factual character of Aboriginal and Torres Strait Islander peoples’ laws and customs. The ALRC’s recommendations in Chapter 5 acknowledge that linking between the pre-sovereign laws and customs and their modern counterpart is necessary, but the targeted recommendations are directed to reducing the impact of those requirements where they have introduced more stringency than may be evident from the text of the definition of native title in s 223(1).
A society united in and by its acknowledgment of laws and customs
2.80 Section 225 of the Native Title Act requires that any determination of native title must specify ‘who the persons or each group of persons, holding the common or group rights comprising native title are’. This derives from the requirement in Mabo [No 2] of an ‘identifiable community’. The language of ‘normative system’ was not used. The term ‘society’ is neither found in Mabo [No 2], nor the words of s 223.
2.81 In Yorta Yorta, the majority held that a ‘society is to be understood as a body of persons united in and by its acknowledgment and observance of a body of laws and customs’. Those laws and customs must have a normative quality. The concept of the acknowledgment of law, derived from United States constitutional jurisprudence on the nature of law, has come to govern the laws and customs ‘test’ for native title.
2.82 This chapter has outlined how pervasive the ‘laws and customs’ approach has been in Australian native title law. Accordingly, the ALRC has adopted a flexible approach to the concept of a normative society, promoting certainty by allowing the concept to do some useful work in identifying coherent groups at a number of levels, but not treating it as a strict requirement for proof.
2.83 The shift away from recognising native title rights and interests to a focus on a normative society that acknowledges traditional laws and customs is apparent in the current requirements to meet s 223(1):
[The claimants] are a society united in and by their acknowledgment and observance of a body of accepted laws and customs;
[T]hat the present day body of accepted laws and customs of the society, in essence, is the same body of laws and customs acknowledged and observed by the ancestors or members of the society adapted to modern circumstances; …
[T]hat the acknowledgment and observance of those laws and customs has continued substantially uninterrupted by each generation since sovereignty and that the society has continued to exist throughout that period as a body united in and by its acknowledgment and observance of those laws and customs[; and]
The claimants must show that they still possess rights and interests under the traditional laws acknowledged and the traditional customs observed by them and that those laws and customs give them a connection to the land.
2.84 Perhaps most simply, the above ‘test’ illustrates the amplified elements for proof that have developed in construing the definition of native title in s 223 of the Native Title Act. The definition, however, on one view contains relatively straightforward concepts—rights and interests in land and waters which are possessed under traditional laws and customs; acknowledgment of those laws and observance of customs since the assertion of sovereignty, giving rise to the connection that Aboriginal peoples and Torres Strait Islanders have with land and waters. The rights and interests are recognised by the common law. The High Court in Ward, noted that these elements have remained constant in the definition.
2.85 The Law Council of Australia noted in its submission
that Courts should be able to interpret s 223 of the Native Title Act flexibly; rather than in a technical and restrictive manner. Change over time to the pre-sovereignty society should not, of itself, result in the dismissal of a native title application.
2.86 The ALRC considers that in the light of the beneficial purposes of the legislation that it is important to refocus on these core elements of the definition. The ALRC makes recommendations in Chapter 5 that are designed to allow s 233 to be construed flexibly, adopting a ‘literal in context’ approach to the Native Title Act.
Laws, customs and change
2.87 A significant contemporary challenge in native title law is the question of change and adaptation in indigenous communities. The extent to which traditional laws and customs can evolve or adapt is set against a system of proof that requires tradition and a continuous connection to a pre-sovereign past as the basis for entitlement.
2.88 This legal model can be contrasted with the growing acknowledgement in practice that Aboriginal and Torres Strait Islander peoples and their relationships with land and waters, can and do adapt to changing circumstances; the influence of European settlement makes that inevitable.
2.89 This Inquiry has not disturbed the basic proposition that native title rights and interests that are recognised must be possessed under laws and customs with origins in the pre-sovereign period. That proposition is now fundamental to the Native Title Act. The ALRC’s review has engaged with the question of the degree of permissible evolution and development of laws and customs. The Terms of Reference for this Inquiry require such reflection.
2.90 Further, where legislation is identified as being beneficial, the High Court has stated that such legislation should be given a ‘fair, large and liberal’ interpretation, rather than one which is ‘literal or technical’.
2.91 In summary, the recommendations around connection requirements are designed to:
accord with the object of the recognition and protection of native title rights and interests under the Native Title Act;
give greater attention to how Aboriginal people and Torres Strait Islanders frame their relationship to country;
reduce the complexity of the law around connection requirements;
expedite the claims process by a refocus on core elements of the definition of native title;
provide statutory reflection of the evolving law on the nature and content of native title rights and interests; and
give closer attention to the common law doctrines that were drawn upon in Mabo [No 2] to form the basis for interpretation of the text in s 223.
Commonwealth, Parliamentary Debates, House of Representatives, 16 November 1993, 2879 (Paul Keating).
Western Australia v Ward (2002) 213 CLR 1,  (Gleeson CJ, Guadron, Gummow and Hayne JJ).
Ibid. See also Western Australia v Commonwealth (1995) 183 CLR 373; Fejo v Northern Territory (1998) 195 CLR 96; Commonwealth v Yarmirr (2001) 208 CLR 1.
Commonwealth v Yarmirr (2001) 208 CLR 1.
Ibid; Western Australia v Ward (2002) 213 CLR 1; Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422.
Justice Robert French, ‘Western Australia v Ward: Devils and Angels in the Detail’ (Paper Presented at the Native Title Conference 2002, Geraldton).
Francis Bennion, ‘The Global Method: Statutory Interpretation in the Common Law World’ (2000) 82 Commonwealth Legal Education Association Newsletter 30, 33.
Stephen Gageler, ‘Common Law Statutes and Judicial Legislation: Statutory Interpretation as a Common Law Process’ (2011) 37 Monash University Law Review 1, 1.
Nick Duff, ‘What’s Needed to Prove Native Title? Finding Flexibility Within the Law on Connection’ (Research Discussion Paper 35, AIATSIS, June 2014).
Justice French, in an extra-curial comment, noted that the turn to the statute also involved extensive re-interpretation of the terms within s 223. Justice Robert French, ‘Western Australia v Ward: Devils and Angels in the Detail’ (Paper presented at the Native Title Conference 2002, Geraldton).
Tehan, above n 54, 556.
Kimberley Land Council, Submission 30; Queensland South Native Title Services, Submission 24; A Frith and M Tehan, Submission 12; Cape York Land Council, Submission 7; Australian Human Rights Commission, Submission 1.
Northern Territory Government, Submission 31; Central Desert Native Title Services, Submission 26; Chamber of Minerals and Energy of Western Australia, Submission 21; Western Australian Government, Submission 20.
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422.
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422.
Milirrpum v Nabalco (1971) 17 FLR 141.
P Burke, Submission 33.
Bodney v Bennell (2008) 167 FCR 84, .
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, .
The date of sovereignty varies in different parts of Australia—for example, it is 1788 for eastern Australia and 1829 for Western Australia. However, it was much later for the Torres Strait, ranging from 1872 to 1879: Bartlett, above n 88, 216–217; Department of Natural Resources and Mines, Queensland, Guide to Compiling a Connection Report for Native Title Claims in Queensland (Department of Natural Resources and Mines, Queensland, 2013) 20–22.
The metaphysical problem arises in that there can never be an absolute correlation between evidence of the past and that past—a problem exacerbated by such a long interval of time.
Western Australia v Ward (2002) 213 CLR 1; Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; Akiba v Commonwealth (2013) 250 CLR 209; Western Australia v Brown (2014) 306 ALR 168.
Western Australia v Ward (2002) 213 CLR 1, . For example, in Fejo, it was decided that native title is extinguished by a grant in fee simple, because ‘the rights that are given by a grant in fee simple are rights that are inconsistent with the native title holders continuing to hold any of the rights or interests which together make up native title’: Fejo v Northern Territory (1998) 195 CLR 96, .
Akiba v Commonwealth (2013) 250 CLR 209, .
Congoo on behalf of the Bar-Barrum People No 4 v Queensland (2014) 218 FCR 358,  (North and Jagot JJ).
Native Title Act 1993 (Cth), s 225(a).
Mabo v Queensland [No 2] (1992) 175 CLR 1, 61 per Brennan J; 86 per Deane and Gaudron JJ.
Bodney v Bennell (2008) 167 FCR 84, .
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, -.
Far West Coast Native Title Claim v South Australia (No 7)  FCA 1285 (5 December 2013)– as affirmed in Starkey v South Australia  FCA 924 (1 September 2014) ; Apetyarr v Northern Territory of Australia  FCA 1088 (14 October 2014) –.
Western Australia v Ward (2002) 213 CLR 1, .
Law Council of Australia, Submission 64. See also Law Council of Australia, ‘Policy Statement on Indigenous Australians and the Legal Profession’ (Background Paper, February 2010).
Aboriginal and Torres Strait Islander Social Justice Commissioner, ‘Native Title Report 2012’ (Australian Human Rights Commission, 2012).
IW v City of Perth (1997) 191 CLR 1, 12 (Brennan CJ, McHugh J); 39 (Gummow J). See also AB v Western Australia (2011) 244 CLR 390, .