Accommodation of change to laws and customs

Recommendation 5–1               The definition of native title in s 223 of the Native Title Act 1993 (Cth)should be amended to provide that traditional laws and customs may adapt, evolve or otherwise develop.

5.16       The ALRC recommends that there be explicit acknowledgment in the Native Title Act that traditional laws and customs may adapt, evolve or otherwise develop.[21]

5.17       Legislative acknowledgment in the Native Title Act of adaptation, evolution and development of laws and customs provides explicit recognition of the cultural vitality of Aboriginal and Torres Strait Islander peoples.

5.18       Such legislative acknowledgment of change is arguably in keeping with the approach envisaged upon first recognition of native title in Mabo v Queensland [No 2] (‘Mabo [No 2]’). That native title rights will continue notwithstanding cultural change was repeatedly adverted to by the High Court in Mabo [No 2]. For example, Brennan J noted that ‘of course in time the laws and customs of any people will change and the rights and interests of the members of the people among themselves will change too’.[22] Deane and Gaudron JJ stated that traditional laws and customs are not

frozen as at the moment of establishment of a Colony. Provided any changes do not diminish or extinguish the relationship between a particular tribe or other group and particular land, subsequent developments or variations do not extinguish the title in relation to that land.[23]

5.19       Toohey J was also of the view that ‘an indigenous society cannot … surrender its rights by modifying its way of life’.[24]

5.20       It is also consistent with a non-discriminatory approach to Aboriginal and Torres Strait Islander peoples’ rights and interests in land and waters. As Kirby J noted in Commonwealth v Yarmirr, an adherence to the principle of non-discrimination

must include a recognition that the culture and laws of indigenous peoples adapt to modern ways of life and evolve in the manner that the cultures and laws of all societies do. They do this lest, by being frozen and completely unchangeable, they are rendered irrelevant and consequently atrophy and disappear.[25]

5.21       Further, the United Nations Declaration on the Rights of Indigenous Peoples (‘UNDRIP’) recognises the right of Indigenous peoples to ‘practise and revitalize their cultural traditions and customs’. This includes the ‘right to maintain, protect and develop the past, present and future manifestations of their cultures’.[26]

5.22       An approach that explicitly acknowledges that laws and customs can evolve, adapt and change also facilitates Aboriginal and Torres Strait Islander peoples’ ability to utilise their native title rights to promote future development.[27] As Dr Angus Frith and Associate Professor Maureen Tehan submitted, there is merit in promoting an approach to native title that allows native title holders to ‘achieve their economic, social and cultural aspirations’.[28]

5.23       This recommendation will also promote clarity in native title legislation, particularly in assisting those affected by the legislation to understand how the law applies to them.[29]

Criticisms of tradition

5.24       A number of stakeholders supported amending the Native Title Act to provide that traditional laws and customs may adapt, evolve or otherwise develop.[30] Many of these stakeholders were critical of the present interpretation of the meaning of ‘traditional’ laws and customs, or supported better recognition of evolution and adaptation to laws and customs.[31]

5.25       For example, Goldfields Land and Sea Council (‘GLSC’) argued that focusing on tradition can ‘ingrain and incentivise a cultural conservatism in Indigenous communities, effectively discouraging (even punishing) processes of cultural change and renewal that might otherwise occur’.[32] Professor Simon Young has argued that this is

inconsistent with the continuing … external pressure on Indigenous communities to adapt and participate. Contemporary communities face irresistible western influence and an increasingly urgent need to engage in the politics, law and economy of the non-Indigenous society. Yet they are met in the courts with detailed, doctrinally authorised and inevitable stylised preconceptions and a rule that calls on them to demonstrate, within that frame of reference, their cultural stagnancy.[33]

5.26       Other stakeholders noted the injustice of requiring Aboriginal people to establish the existence of a system of traditional laws and customs ‘when former generations of European settlement have contrived to repress those laws and customs’.[34] Professor Francesca Merlan has identified this as a ‘basically anachronistic’ demand:

After all these decades of non-recognition and, indeed, state attempts to erase Indigenous relations to land, one might ask: why should recognition depend on the capacity for land courts and tribunals, and Indigenous and other participants, to produce collectively what is essentially an ‘as if ’ story: we (in a position to decide these things) accord you (Indigenous people) recognition to the extent you can show you are traditional in your relations to land?[35]

5.27       AIATSIS argued that tradition is a limiting concept:

The long-held dominant view in anthropology is that societies and cultures are not and never have been static, but that they are developing in a continual process of change and transformation. Over the last few decades, much anthropological research concerning Aboriginal and Torres Strait Islander culture has focused on the process of cultural change and ‘creative adaptation to change consistent with the continuity of aspects of traditional beliefs and practices’. Laws and customs do not exist in a static past and to impose that deprives Aboriginal and Torres Strait Islander people of the right to interpret and re-interpret the meaning and content of their evolving laws and customs in line with changing conditions and environments.[36]

5.28       In the Discussion Paper, the ALRC proposed, as an alternative to clarifying that traditional laws and customs may adapt, evolve or otherwise develop, that the term ‘traditional’ be removed from the definition of native title.[37] After consideration, the ALRC has not proceeded with this approach.

5.29       The proposal did not receive widespread support, even from those critical of aspects of the tradition requirement.[38] For example, Queensland South Native Title Services (‘QSNTS’) identified the tradition requirement as one of the ‘inherent deficiencies’ with the definition of native title. It pointed to limitations and injustice in

the notion that upon settlement, all that the introduced law could and can ever recognise was a master copy of an indigenous legal system that existed at that point, from which successive generations of Aboriginal peoples across time have to be imprinted against.[39]

5.30       Nonetheless, QSNTS advocated that the word ‘traditional’ be retained, with ‘some statutory clarification around its meaning’.[40]

5.31       Generally, other submissions in favour of reform also preferred an amendment clarifying that traditional laws and customs may change over time to removing the term ‘traditional’ from the definition of native title.[41] Native Title Services Victoria (‘NTSV’) submitted that ‘it is not the word “traditional” but its interpretation that is at issue’.[42]

5.32       Concern to ensure that the Native Title Act recognises only the rights and interests of peoples with a relationship to country that has endured since sovereignty was shared by Aboriginal and respondent interests who made submissions to the Inquiry.[43] The Western Australian Government argued that removal of the word traditional ‘explicitly contemplates rights and interests which did not exist at sovereignty’.[44] Native Title Representative Bodies and Native Title Service Providers were similarly concerned that if ‘traditional’ were removed, the Native Title Act could recognise those with more recent connections to country as native title holders. Yamatji Marlpa Aboriginal Corporation suggested that the ‘danger of removing the word “traditional” … is that it may suggest that native title claims could be supported by mere “historical” (namely, post-settlement) connection and/or newly invented laws and customs’.[45]

5.33       This would bring with it the potential for intra-Indigenous conflict. For example, Central Desert Native Title Services (‘CDNTS’) suggested:

removal of the requirement for laws and customs to be ‘traditional’ could also lead to an increase in intra-indigenous disputes over country including disputes relating to historical versus traditional connection. This would particularly be the case where people of long historical occupation held different laws and customs to those observed by those people with a traditional connection to the area concerned.[46]

5.34       QSNTS argued:

re-defining the parameters around this element might give ‘historical people’ (people not traditionally associated or affiliated with the area) a ‘leg up’ to gain native title or a boon to those who would not have otherwise been traditionally entitled to the land. It is submitted that this is cause for the creation of conflicts within claim groups and/or lateral violence.[47]

5.35       NTSV argued that ‘the term “traditional” is one of importance to Aboriginal people, denoting their unique relationship with particular land and waters through the concept of traditional ownership’.[48] The National Native Title Council (‘NNTC’) submitted that ‘traditional’ functions in native title to recognise a ‘longstanding relationship with land and waters that is more significant than other more recent connections with country’.[49]

How much change?

5.36       The current interpretation of the requirement that native title rights and interests are possessed under traditionallaws and customs allows for some change in those laws and customs.[50] To be designated traditional, the content of contemporary laws and customs need only have their ‘origins’ in pre-sovereign laws and customs.[51] This means that contemporary laws and customs may not be identical to those at sovereignty. They may still be considered traditional so long as the origin, or source, of their content, can be found in laws and customs acknowledged and observed before the assertion of sovereignty.

5.37       In Yorta Yorta, the High Court addressed the question of evolution and adaptation of laws and customs. Gleeson CJ, Gummow and Hayne JJ stated that some change to, or adaptation of, traditional laws and customs was not necessarily fatal to a native title claim.[52] They stated that there was no ‘bright line’ test that could be offered to judge the significance, in a particular case, of change and adaptation to law and custom.[53] The key question remained ‘whether the law and custom can still be seen to be traditional law and traditional custom’.[54]

5.38       Gaudron and Kirby JJ also considered that laws and customs may adapt and still be considered traditional:

What is necessary for laws and customs to be identified as traditional is that they should have their origins in the past and, to the extent that they differ from past practices, the differences should constitute adaptations, alterations, modifications or extensions made in accordance with the shared values or the customs and practices of the people who acknowledge and observe those laws and customs.[55]

5.39       A number of submissions to this Inquiry argued that the existing approach to the meaning of ‘traditional’ sufficiently allows for evolution and adaptation of laws and customs.[56] For example, the South Australian Government submitted that the ‘the term “traditional” is one of broad interpretation and has been found to permit a substantial element of adaptation’.[57]

5.40       In a number of determinations of native title, the Federal Court has recognised adapted laws and customs as retaining a traditional character. For example, in Neowarra v Western Australia, Sundberg J found that the claimants’ laws and customs were traditional notwithstanding that they were ‘modified and to some extent diluted by the changed circumstances of the older applicants and their forebears’.[58] Other examples of adapted laws and customs have included changes to:

  • descent rules: from patrilineal to cognatic;[59] or a shift over time involving an increase in reliance on matrilineal descent;[60]

  • laws allowing images relating to country to be painted on canvas rather than on country, and the sale of these artworks;[61]

  • the location of initiation rituals,[62] or a cessation of initiation ceremonies on the claimed area;[63] and

  • social organisation associated with particular parts of the claimed area—with a number of smaller groups ‘coalescing’ into larger groupings.[64]

5.41       Notwithstanding that some scope exists to accommodate evolution and adaptation of traditional laws and customs within the interpretation of s 223, the ALRC considers that the Native Title Act should explicitly provide for this. The ALRC agrees with those submissions that argue for keeping the word ‘traditional’ but providing guidance as to how it ought to be interpreted, in a manner beneficial to Aboriginal and Torres Strait Islander peoples.

5.42       The ALRC acknowledges that, if Recommendation 5–1 is adopted, ‘difficult questions of fact and degree’ will continue to arise in determining whether the content of contemporary laws and customs can be characterised as having their origins in pre-sovereign laws and customs.[65] These are essentially matters of evidence and the inferences to be drawn from the evidence.

5.43       Establishing that the content of contemporary laws and customs have their origins in laws and customs acknowledged and observed prior to sovereignty will, in most cases, rely on the Court (or a respondent in a consent determination) being willing to draw inferences from other evidence. As discussed in Chapter 7, in Gumana v Northern Territory, Selway J usefully identifies the evidence that may found such an inference, akin to the proof of custom at common law. Selway J considered that, where there is:

  • a clear claim of the continuous existence of a custom or tradition that has existed at least since settlement;

  • supported by credible evidence from persons who have observed that custom or tradition; and

  • evidence of a general reputation that the custom or tradition had ‘always’ been observed;

then, in the absence of evidence to the contrary, there is an inference that the tradition or custom has existed at least since the date of settlement.[66]

5.44       In a consent determination in favour of the Dieri people, Mansfield J remarked:

The Determination can be made without the necessity of strict proof and direct evidence of each issue as long as inferences can legitimately be made. In consent determination negotiations, it is the State’s policy to focus on contemporary expressions of traditional laws and customs and pay less regard to laws and customs that may have ceased. The State can reasonably infer that such contemporary expressions are sourced in the earlier laws and customs. So can the Court.[67]

5.45       The ALRC considers that, when assessing whether or not laws and customs are ‘traditional’, adaptation, evolution and development of laws and customs should be treated as the norm rather than the exception. In this regard, the ALRC notes QSNTS’s submission that, implicit in ‘the recognition established at the time of acquisition of sovereignty is an acceptance that the indigenous normative system of law was and is inherently capable of dynamism’.[68] As AIATSIS argued, Aboriginal and Torres Strait Islander peoples should not be deprived of ‘the right to interpret and re-interpret the meaning and content of their evolving laws and customs in line with changing conditions and environments’.[69] Moreover, as the Law Society of Western Australia noted in its submission, ‘the requirement for adaptation from an original source does not require that adaptation to have occurred without the outside influence of European interaction’.[70]

5.46       The ALRC also considers that recognition that traditional laws and customs may adapt, evolve or develop should not be limited by any requirement that such changes be of a kind contemplated by the laws and customs.[71]

5.47       The ALRC further considers that significant weight should be accorded to claimants’ perspectives as to the traditional character of their contemporary laws and customs. As French J stated in Sampi v Western Australia, claimants’ ‘testimony about their traditional laws and customs and their rights and responsibilities with respect to land and waters, deriving from them, is of the highest importance. All else is second order evidence’.[72] The NSW Young Lawyers Human Rights Committee argued that, in assessing whether laws and customs are traditional, ‘the degree to which the claim group genuinely acknowledges and observes the laws and customs as a reflection of their traditions and customs’ should be taken into account.[73] Such an approach would be in keeping with according the ‘highest importance’ to the testimony of Aboriginal and Torres Strait Islander witnesses.[74]

5.48       The High Court in Western Australia v Ward suggested that native title determinations have an indefinite character, reflecting

the requirement for the continuing acknowledgment and observance of traditional laws and customs and continuing connection with land implicit in the definition of ‘native title’ in s 223(1) of the NTA.[75]

5.49       Explicit recognition that traditional laws and customs may evolve, adapt or develop is also appropriate to ensure that adaptation or evolution of laws and customs following a determination does not provide grounds for arguments to be raised for variation or revocation of a determination of native title.[76]

5.50       Recognition that traditional laws and customs may adapt, evolve or otherwise develop is also relevant to consideration of whether there has been continuity of acknowledgment and observance of traditional laws and customs. If there is recognition that a law or custom adapts, evolves or otherwise develops, there should be similar recognition that the manner in which the law is acknowledged and the custom is observed may also adapt, evolve or otherwise develop.