4.1 This chapter sets out the legal requirements to establish native title rights and interests—commonly referred to a ‘connection requirements’. It outlines the definition of native title in s 223 of the Native Title Act (Cth) (‘Native Title Act’) and sets out major judicial statements on its interpretation. Satisfying the definition of native title has been said to impose an ‘onerous’ burden of proof on claimants, particularly in light of jurisprudence interpreting what is required to satisfy the definition.
4.2 This has led to calls for reform that relate to both the means of proving native title, and the substantive legal test for establishing native title. The ALRC was directed to consider both of these issues under its Terms of Reference. The ALRC considers that aspects of the definition of native title should be reformed to better align it with the beneficial purpose of the Act. This chapter identifies these aspects, and summarises the ALRC’s recommendations for reform. Justifications for these recommendations are fully developed in subsequent chapters.
4.3 Briefly, the ALRC recommends that there be explicit acknowledgment in the Native Title Act that traditional laws and customs may adapt, evolve or otherwise develop. The ALRC also makes recommendations addressing the degree of continuity of acknowledgment and observance of traditional laws and customs that is required to establish native title. Additionally, the ALRC recommends that the definition of native title be amended to make clear that native title rights and interests may be succeeded to by another Aboriginal or Torres Strait Islander group, where these rights and interests have been transmitted, transferred or otherwise acquired in accordance with traditional laws and customs. In relation to the nature and content of native title rights and interests, the ALRC recommends that it be made clear that native title may comprise a right that may be exercised for any purpose, including commercial purposes, and that the native title may include a right to trade.