5.7 One of the guiding principles for this Inquiry is that reform should recognise the importance of recognition of native title to Aboriginal and Torres Strait Islander peoples and the Australian community. Additionally, ordinary principles of statutory interpretation dictate the consideration of the purpose of the legislation. The language of the Preamble and objects of the Native Title Act—referring to, among other things, an intention to rectify the consequences of past injustices and that the law be a special measure for the advancement of Aboriginal and Torres Strait Islander peoples—suggests that its purpose is beneficial.
5.8 Where legislation is identified as being beneficial and remedial, the High Court has stated that it should be given a ‘fair, large and liberal’ interpretation, rather than one which is ‘literal or technical’.
5.9 As noted in Chapter 4, native title rights and interests cannot be recognised when either:
they cannot be established as a matter of fact, because claimants cannot establish that they possess rights and interests under traditional laws and customs; and a connection, by those laws and customs, with the land or waters claimed; or
they cannot be established as a matter of law, because the rights and interests are not recognised by the common law of Australia, as they are inconsistent with them.
5.10 This chapter considers the requirements for establishing native title as a matter of fact. It makes recommendations intended to promote an interpretation of the definition of native title consistent with the beneficial purpose of the Native Title Act. An approach that promotes a ‘fair, large and liberal’ interpretation of the definition of native title, rather than a ‘literal or technical’ one, also accords with the ALRC’s guiding principles for reform—promoting efficiency in the native title system. Reducing technicality in interpretation of the definition will produce a concomitant reduction in the resources and time involved in bringing evidence to establish the existence of native title.
5.11 Some submissions to this Inquiry argued that the reforms recommended in this chapter would increase uncertainty in native title law, and promote overlapping claims. However, if recommendations in this chapter are adopted, claimants will still need to demonstrate that they are the ‘right people for country’. Native title claimants will still be required to establish that they possess rights and interests under laws and customs presently acknowledged and observed by them. Further, those present-day laws and customs must have their origins in laws and customs acknowledged and observed at sovereignty. The ALRC acknowledges that not all Aboriginal and Torres Strait Islander peoples will be able to establish that they hold native title under the Native Title Act.
5.12 There are existing mechanisms to screen claims that have an insufficient factual basis, and to limit overlapping claims. The ALRC considers that the modest changes recommended in this chapter, coupled with these mechanisms, will not result in a proliferation of claims.
5.13 Section 223(1)(a) of the Native Title Act provides that native title rights and interests are rights and interests possessed under the traditional laws acknowledged and traditional customs observed by the relevant Aboriginal peoples or Torres Strait Islanders. In Members of the Yorta Yorta Aboriginal Community v Victoria (‘Yorta Yorta’), the High Court stated that the laws and customs that can properly be described as ‘traditional’ are those that find their origin in the laws and customs acknowledged and observed at sovereignty.
5.14 As a result, the term ‘traditional’ in s 223(1)(a) was held to involve a number of aspects:
the means of transmission of a law or custom: a ‘traditional’ law or custom is one which has been passed from generation to generation of a society;
the age of the laws and customs: the origins of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown;
continuity: the ‘normative system’—that is, the traditional laws and customs—under which rights and interests are possessed must have had a continuous existence and vitality since sovereignty.
5.15 The interpretation of ‘traditional’ has been criticised as productive of restrictive and technical approaches to establishing native title rights and interests. This chapter details some of these criticisms, and makes a number of recommendations to address them.
Guiding Principle 1: see Ch 1.
Acts Interpretation Act 1901 (Cth) s 15AA. In 2014, the High Court commented that this provision reflected a ‘general systemic principle [of statutory construction]’: Thiess v Collector of Customs (2014) 306 ALR 594, .
In Alyawarr, the Full Court of the Federal Court described the Preamble as the Act’s ‘moral foundation’: Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442, . See also Justice Robert French, ‘Lifting the Burden of Native Title—Some Modest Proposals for Improvement’ (Speech Delivered at the Federal Court Native Title User Group, Adelaide, 9 July 2008) . A number of submissions also referred to the beneficial purpose of the Native Title Act: see, eg, Queensland Government, Submission 28; Central Desert Native Title Services, Submission 26; Native Title Services Victoria, Submission 18; North Queensland Land Council, Submission 17; Law Society of Western Australia, Submission 9. For further discussion of the Act’s status as beneficial, see Sean Brennan, ‘Statutory Interpretation and Indigenous Property Rights’ (2010) 21 Public Law Review 239, 252.
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,  (French CJ, Gummow, Hayne, Kiefel and Bell JJ).
Native Title Act 1993 (Cth) s 223(1)(a), (b).
Ibid s 223(1)(c). For further discussion of the concept of ‘recognition’, see Ch 2.
Guiding Principle 3: see Ch 1.
These reforms were proposed in substantially the same form in: Australian Law Reform Commission, Review of the Native Title Act 1993, Discussion Paper No 82 (2014) Proposals 5–1 to 5–4.
Northern Territory Government, Submission 71; Minerals Council of Australia, Submission 65; National Farmers’ Federation, Submission 56; Association of Mining and Exploration Companies, Submission 54; The Chamber of Minerals and Energy of Western Australia, Submission 49; Western Australian Government, Submission 43.
Victoria Department of Premier and Cabinet, Right People for Country Project <www.dpc.vic.gov.au>.
The Preamble to the Native Title Act acknowledges that ‘many Aboriginal peoples or Torres Strait Islanders, because they have been dispossessed of their traditional lands, will be unable to assert native title rights and interests’. A number of submissions to this Inquiry highlighted this aspect of the Preamble: see, eg, Queensland Government, Submission 28; Western Australian Government, Submission 20; National Farmers’ Federation, Submission 14. See also Ch 3.
A native title claim is subjected to a ‘registration test’: a consideration, by the Registrar of the National Native Title Tribunal, of whether a claim meets certain merits and procedural conditions: Native Title Act 1993 (Cth) ss 190A–190C. Among the merits conditions that must be satisfied are that the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion, and that there is a prima facie case for establishing at least some of the native title rights and interests claimed: ss190B(5)–(6). The Court may dismiss a claim that has not been accepted for registration, when satisfied of certain matters, including that avenues for review of the decision have been exhausted, and that the application has not been amended and is not likely to be amended in a way that would lead to a different outcome once considered by the Registrar: ss 190F(5), (6). Strictly, the registration test is not a screening mechanism for access to the Federal Court—it is the Court’s power under s 190F(6) which provides this screening mechanism. However, ‘satisfaction of the registration test has ramifications for whether an application should be allowed to remain on the Court’s list’: Christine George on behalf of the Gurambilbarra People v Queensland  FCA 1518 (10 October 2008) . See also Little on behalf of the Djaku:nde People v Queensland  FCA 287 (31 March 2015) .
For a native title claim to be registered, the Registrar must be satisfied that no member of the claim group has also been part of a previous application over part of the same claim area unless that entry onto the register of the previous application has now been removed: Native Title Act 1993 (Cth) s 190C(3). Native Title Representative Bodies (NTRBs) must make all reasonable efforts to minimise the number of claims covering land or waters within its area: ss 203BC(3)(b); 203BE(3)(a)–(b). An NTRB also has dispute resolution functions, including to assist in promoting agreement among native title holders in its area about the making of native title applications: s 203BF(1)(a). If two or more proceedings before the Federal Court relate to native title claims that cover the same area, the Federal Court must make such order as it considers appropriate to ensure that, to the extent that the applications cover the same area, they are dealt with in the same proceeding: s 67(1).
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422,  (Gleeson CJ, Gummow and Hayne JJ).
Ch 2 discusses approaches to the term ‘traditional’ prior to the High Court’s decision in Yorta Yorta.
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422,  Gleeson CJ, Gummow and Hayne JJ).
Ibid  (Gleeson CJ, Gummow and Hayne JJ).
Ibid  (Gleeson CJ, Gummow and Hayne JJ). See also Melissa Perry and Stephen Lloyd, Australian Native Title Law (Lawbook Co, 2003) 22–23.