Approach to statutory construction of s 223

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.[3] Additionally, ordinary principles of statutory interpretation dictate the consideration of the purpose of the legislation.[4] 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]

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’.[6]

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;[7] 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.[8]

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.[9] 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[10] would increase uncertainty in native title law, and promote overlapping claims.[11] However, if recommendations in this chapter are adopted, claimants will still need to demonstrate that they are the ‘right people for country’.[12] 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.[13]

5.12       There are existing mechanisms to screen claims that have an insufficient factual basis,[14] and to limit overlapping claims.[15] The ALRC considers that the modest changes recommended in this chapter, coupled with these mechanisms, will not result in a proliferation of claims.

Section 223(1)(a)

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.[16]

5.14       As a result, the term ‘traditional’ in s 223(1)(a) was held to involve a number of aspects:[17]

  • 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;[18]

  • 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;[19]

  • 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.[20]

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.