27.05.2015
Recommendation 5–2 The definition of native title in s 223 of the Native Title Act 1993 (Cth) should be amended to clarify that it is not necessary to establish that the acknowledgment of traditional laws and the observance of traditional customs have continued substantially uninterrupted since sovereignty.
Recommendation 5–3 The definition of native title in s 223 of the Native Title Act 1993 (Cth) should be amended to clarify that it is not necessary to establish that traditional laws and customs have been acknowledged and observed by each generation since sovereignty.
5.51 The ALRC recommends that there be explicit acknowledgment in the Native Title Act that there is no independent legal requirement to establish that the acknowledgment of traditional laws and observance of traditional customs has continued substantially uninterrupted since sovereignty. Further, there should be no additional refinement of that requirement so that traditional laws and customs must have been acknowledged and observed by each generation since sovereignty. A number of stakeholders supported the ALRC’s approach to reform in this regard.[77]
5.52 The ALRC recommends the removal of this legal requirement.[78] The requirement stems from the courts employing what may be considered an overly technical approach to the statutory construction of s 223(1). Interpretation of the word ‘traditional’, in the context of s 223(1)(a), has relevantly been held to require that the acknowledgment and observance of those laws and customs has continued substantially uninterrupted by each generation since sovereignty.
5.53 In making these recommendations, the ALRC is responding to the Terms of Reference which asked the ALRC to inquire into, and report on, connection requirements relating to the recognition and scope of native title rights and interests. Specifically, the ALRC was directed to consider whether there should be empowerment of courts to disregard substantial interruption or change in continuity of acknowledgment and observance of traditional laws and customs where it is in the interests of justice to do so. In Chapter 6, the ALRC discusses various models for accommodating change in, and interruptions to, continuity of acknowledgment and observance of laws and customs, including allowing judicial discretion to disregard substantial interruption. Having considered the issues and reform options, the ALRC has concluded that Recommendations 5–2 and 5–3 are the best way to approach the problems caused by the legal requirement. The ALRC considers that, because the requirement arises from the statutory construction that has been given to s 223(1), the most effective way to address problems stemming from the requirement is to clarify that it is not necessary to establish it. That is, to remove the requirement for the continuity of the acknowledgment of traditional laws and observance of traditional customs to be at the high ‘substantially uninterrupted’ and ‘by each generation since sovereignty’ thresholds.
5.54 The ALRC considers that the reforms outlined in this chapter should be implemented as a package. However, in the event that only part of the reform is implemented, the ALRC makes two separate recommendations with respect to continuity of acknowledgment and observance of traditional laws and customs. The ALRC considers that the need for traditional laws and customs to have been acknowledged and observed by ‘by each generation since sovereignty’ is a particularly high threshold.
The idea of ‘continuity’
5.55 The word ‘continuity’ does not appear in the definition of native title in the Native Title Act. However, in Yorta Yorta,Gleeson CJ, Gummow and Hayne JJ stated that ‘continuity of acknowledgment and observance is a condition for establishing native title’.[79] They derived a requirement for continuity of the acknowledgment of traditional laws and observance of traditional customs (together, ‘the normative rules’)[80] from their interpretation of the qualifier ‘traditional’, in respect of laws and customs, in s 223(1)(a).[81] They stated that
acknowledgment and observance of those laws and customs must have continued substantially uninterrupted since sovereignty. Were that not so, the laws and customs acknowledged and observed now could not properly be described as the traditional laws and customs of the peoples concerned. That would be so because they would not have been transmitted from generation to generation of the society for which they constituted a normative system giving rise to rights and interests in land …[82]
5.56 Later, they stated that
continuity in acknowledgment and observance of the normative rules in which the claimed rights and interests are said to find their foundations before sovereignty is essential because it is the normative quality of those rules which rendered the Crown’s radical title acquired at sovereignty subject to the rights and interests then existing and which now are identified as native title.[83]
5.57 That is, these members of the High Court insisted on ‘continuity’ so as ‘to ensure that the court does not recognise any parallel lawmaking entity subsequent to the Crown’s initial assertion of sovereignty’.[84] In consequence, where there is no continuity of acknowledgment of laws and observance of customs, the laws and customs cannot be revived for the purposes of establishing native title. Revival is discussed in Chapter 6.
5.58 The need for traditional laws and customs to have been acknowledged and observed continuously from sovereignty to the present imposes a considerable burden of proof on native title claimants. It has also been criticised for not according with ‘universal principles as to the respect due [to] existing rights of a society’.[85]
The requirement for the acknowledgment and observance of traditional laws and customs to have continued ‘substantially uninterrupted’ since sovereignty
5.59 The High Court has acknowledged that continuity in acknowledgment and observance of laws and customs from sovereignty to the present need not be absolute. To that end, the qualification ‘substantially’ is important in ‘substantially uninterrupted’.[86] Two reasons were given for this in Yorta Yorta. First, the qualification was said to recognise the great difficulty of proving continuous acknowledgment and observance of oral traditions over the many years since sovereignty. Second, it recognises the ‘most profound effects’ of European settlement on Aboriginal societies. This means that it is ‘inevitable that the structures and practices of those societies, and their members, will have undergone great changes’.[87] While there is stated acknowledgment that the European settlement of Australia brought about great changes to Aboriginal and Torres Strait Islander societies, it is arguable that insisting that the acknowledgment and observance of law and custom must have continued substantially uninterrupted by each generation since sovereignty effectively counters any real acknowledgment of the ensuing, and in many cases insurmountable, difficulties.
5.60 In Yorta Yorta,Gleeson CJ, Gummow and Hayne JJ stated that ‘the inquiry about continuity of acknowledgment and observance does not require consideration of why, if acknowledgment and observance stopped, that happened’.[88] If the requirement is not met, then ‘examining why that is so is important only to the extent that the presence or absence of reasons might influence the fact-finder’s decision about whether there was such an interruption’.[89] Consideration of the reasons for interruption is discussed in Chapter 6.
Further refinement of the requirement: that, since sovereignty, each generation must have acknowledged and observed the traditional laws and customs
5.61 In Yorta Yorta, Gleeson CJ, Gummow and Hayne JJ stated that a ‘traditional law or custom is one which has been passed from generation to generation of a society, usually by word of mouth and common practice’.[90] In Risk v Northern Territory, Mansfield J summarised the Yorta Yorta continuity requirement as the requirement to establish that ‘acknowledgment and observance of the laws and customs has continued substantially uninterrupted by each generation since sovereignty’.[91] Such a requirement has significant implications in terms of the evidence to be produced by claimants.
5.62 The ‘generation by generation’ test was also discussed in Bodney v Bennell. The Full Federal Court stated that the correct question was ‘whether the laws and customs have continued to be acknowledged and observed substantially uninterrupted by each generation since sovereignty’.[92]
Regional variation
5.63 The requirement for native title claimants to establish that the acknowledgment of their traditional laws and the observance of their traditional customs have continued substantially uninterrupted by each generation since sovereignty has caused particular difficulty for claimants in some parts of Australia.[93] For example, in CG (Deceased) on behalf of the Badimia People v Western Australia, the Federal Court concluded that ‘the claimants have not proved that the Badimia people, since sovereignty, and in each generation, have continued to acknowledge traditional laws and observe traditional customs to the present day in respect of the claim area’.[94]
5.64 In a number of instances where claimants have not been able to establish this requirement, the claims are in closer proximity to areas of concentrated settlement.[95] Professor Richard Bartlett has expressed the view that the decision in Bodney v Bennell ‘affirmed the nigh impossibility of proving native title in urban areas irrespective of consideration of extinguishment’.[96]
5.65 By contrast, there are other cases where the traditional laws and customs observed by the claimants were found to have continued substantially uninterrupted since sovereignty because the ‘evidence to that effect was strong’.[97] This was the situation in Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group, which was a claim for land and waters south-east of Tennant Creek in the Northern Territory. Also, in Banjima People v Western Australia (No 2), which concerned a claim over land and waters in the east Pilbara region of Western Australia, the Federal Court found that there had been continuity of the acknowledgment and observance of the traditional laws and customs.[98]
The rationale for reform
5.66 The ALRC heard divergent views about whether reform of the requirement was needed. A number of stakeholders considered the requirement for the acknowledgment and observance of traditional laws and customs to have continued substantially uninterrupted by each generation since sovereignty to be problematic.[99] Some stakeholders called for the ‘substantially uninterrupted’ threshold to be removed,[100] or its application otherwise limited.[101] However, a number of state and territory governments submitted that they considered that discharging the onus in respect of the requirement for substantially uninterrupted continuity of acknowledgment and observance of traditional laws and customs is not unduly problematic for native title claimants, or for the resolution of claims.[102] Governments and other stakeholders representing respondent interests, such as industry groups in the minerals sector, opposed the reform as proposed in the Discussion Paper.[103]
5.67 Some governments expressed the view that the requirement for continuity of acknowledgment and observance of traditional laws and customs already incorporates appropriate flexibility,[104] noting that the qualification ‘substantially’ essentially ‘makes allowances for the impacts of European settlement upon Aboriginal societies’.[105] To this end, the Western Australian Government submitted:
It is … the State’s experience from a broad range of consensual and contested matters that Aboriginal groups may compellingly and successfully establish that they hold native title rights and interests notwithstanding profound social and demographic changes since European settlement.[106]
5.68 However, there are examples in Western Australia where this has not been the case.[107]
5.69 The Northern Territory Government submitted that the ‘substantially uninterrupted’ threshold for continuity of acknowledgment and observance of traditional laws and customs has been ‘uncontroversial’ in that jurisdiction.[108] Some Native Title Service Providers and Native Title Representative Bodies acknowledged that meeting the requirement may not pose a problem in their particular regions of Australia, although they expressed concern that this may not be the case elsewhere.[109] Cape York Land Council (‘CYLC’) submitted that the State in Queensland has ‘generally been willing to accept continuity in circumstances where there has been some interruption for reasons beyond the group’s control’.[110] However, it also submitted:
it is extremely difficult and often distressing for Cape York Traditional Owners to participate in a process which in practical terms requires them to effectively deny the devastating effects of their dispossession and displacement.[111]
5.70 Further, governments referred to a willingness, by both the Court and respondent parties, to draw inferences.[112] For example, governments draw inferences in relation to reaching agreed facts for connection. The use of inferences is discussed in Chapter 7. The South Australian Government submitted that, in its consent determination process,
inferences tend to be drawn based on genealogical and anthropological information that link ‘snapshots’ in time periods. The question of interruption is rarely raised without some other (usually historical) evidence suggesting that interruption may be relevant and it is then discussed with the applicant.[113]
5.71 CDNTS acknowledged its experience that the Western Australian government was usually willing to infer continuity of the acknowledgment of traditional laws and customs by the relevant claimant group since prior to first contact. However, it considered that approach to be ‘arguably the result of the particular factual situation of native title claims in our region’.[114] It explained that those native title claim groups have had ‘relatively little’ post-sovereignty disruption.[115]
5.72 Some stakeholders expressed reservations about the extent of practical extenuation provided by the qualification ‘substantially’ and the use of inferences.[116] CDNTS submitted that,
although some Governments may take a practical approach with regards to continuity, the actions of government can vary significantly depending on both the particular government, and the people within it. Consequently, the extent to which ‘substantially interrupted’ provides sufficient flexibility in favour of native title groups depends significantly upon the government assessing the merits of the claim.[117]
5.73 With respect to the use of inferences by the courts, AIATSIS submitted that ‘the extent to which an inference may be raised is amenable to judicial discretion’.[118]
5.74 In contrast to what was submitted by governments, AIATSIS submitted that the requirement for acknowledgment and observance of traditional laws and customs to have continued substantially uninterrupted by each generation since sovereignty is logically inconsistent, difficult to meet and leads to injustice.[119] Duff has argued that there are inherent difficulties of proof, including because native title claimants must prove a ‘negative proposition’, namely ‘the absence of substantial interruption in acknowledgment and observance of law and custom’.[120] Some submissions argued that the requirement for substantially uninterrupted acknowledgment of traditional laws and observance of traditional customs is inherently unconscionable or unjust given the history of colonisation.[121]
5.75 GLSC submitted that it ‘does not consider that “substantially uninterrupted” acknowledgment and observance of traditional law and custom should be a legal requirement for the proof of native title’.[122] While submissions expressed various views on how limitation of the requirement should be achieved,[123] a number preferred a statutory amendment to limit the application of the requirement to other possible reform options, such as a statutory definition of ‘substantial interruption’.[124] In Chapter 6, the ALRC analyses the feasibility of providing a definition of substantial interruption and outlines the difficulties of adopting a definition that could comprehensively cover a range of circumstances given the diverse factual origins for native title.
5.76 The ALRC acknowledges the practical developments that have occurred in the approach taken to evidence and the use of inferential reasoning to fill gaps in the facts where appropriate given the absence of relevant records and claimant evidence.[125] However, notwithstanding these developments and the fact that the modifier ‘substantially’ provides a qualification not requiring absolute continuity, the ALRC considers that legislative reform is needed. The ALRC considers that reform is warranted for the following reasons.
Recognising and protecting native title
5.77 First, acknowledging the importance of the recognition of native title,[126] the ALRC considers that the recommendation will facilitate the recognition and protection of native title.[127] The ALRC considers that the requirement that acknowledgment and observance of law and custom must have continued substantially uninterrupted by each generation since sovereignty is an unnecessary stricture on the recognition of native title. The requirement ‘undermines’ the foundation for native title rights.[128] For example, it renders native title claims excessively vulnerable to a finding that the factual basis for recognising rights and interests is no longer in existence.[129]
5.78 Demonstrating substantially uninterrupted continuity of acknowledgment and observance of laws and customs requires a high level of factual evidence. It is resource intensive to demonstrate and quite unrealistic for many native title communities affected by dislocation, removal of members and discrimination, that at times prohibited exercise of cultural practices.[130]
5.79 Recognition of native title is significant for native title holders as well as the broader Australian community.[131] However, the current degree of continuity required in the acknowledgment of traditional laws and observance of traditional customs—particularly the requirement for it to be ‘generation by generation’—acts as an unnecessary barrier to the recognition of native title. The NSW Young Lawyers Human Rights Committee submitted that the requirement ‘operates contrary to the aim of repairing and supporting Indigenous cultures to encourage further development’.[132] As CDNTS put it, the ‘generation by generation’ requirement is ‘unduly harsh and unjust’.[133]
5.80 A number of submissions expressed the view that the requirement serves no useful purpose.[134] The Law Society of Western Australia was of the view that ‘there is no reason why a temporary failure to observe laws and customs should automatically disqualify a native title claim’.[135] GLSC went further, submitting that ‘[e]ither the Indigenous rights exist under Indigenous law and custom or they do not; the question of whether that law and custom has been practised continuously since colonisation is for all policy purposes irrelevant’.[136]
5.81 The ALRC considers the requirement to represent an extension of the literal wording of s 223(1) has unnecessarily narrowed the foundation of the test for proving native title. Stakeholders agreed with this approach in that:
it requires claimants to surmount unnecessarily high evidential ‘hurdles’[137] to establish native title;[138]
it has ‘a prejudicial application for those Aboriginal and Torres Strait Islander peoples who have, by choice or otherwise, adapted their cultural practices in response to the profound social and economic impacts of colonisation’;[139] and
it ‘operates as a strong incentive for applicants to settle for consent determinations below their expectations lest they risk losing at trial because of “substantial interruption”’.[140]
5.82 The first point was addressed frequently in submissions. Dr Shelley Bielefeld, for example, submitted that ‘[t]he standard of proof is set so high that attaining a successful outcome for many Aboriginal claimants is more onerous than it should be if rectifying injustice is the aim’.[141] Some stakeholders noted that United Nations treaty bodies—such as the Committee on the Elimination of Racial Discrimination—have expressed concerns about the high evidential burden on claimants to prove native title.[142]
5.83 As a number of submissions pointed out, the requirement for proof of continuity of the acknowledgment and observance of laws and customs is problematic because the evidence may be limited[143] or have limitations.[144] The Law Society of Western Australia argued that cases where acknowledgment and observance of laws and customs were not found to have continued substantially uninterrupted have reflected, ‘either a disproportionate focus on some evidence over other available evidence, or a gap in the evidence of observable acknowledgment and observance of laws and customs, rather than an abandonment of that acknowledgment and observance’.[145]
5.84 A lack of evidence to meet the requirement continues to be a problem for some native title claimants.[146] In the Yugara People’s claim, in respect of the need to demonstrate that acknowledgment and observance of traditional laws and customs had continued substantially uninterrupted, the Federal Court observed:
crucially, the evidence does not cover anything more than a fraction of the period with which the court must be concerned: even to go back to the grandparents of the oldest of the Yugara applicants, there remains the better part of a century with respect to which the court does not have any relevant evidence.[147]
5.85 AIATSIS argued that the need to meet the requirement in circumstances where there is limited or no evidence constitutes ‘a form of evidentiary discrimination against those groups who had little or no interaction with non-Indigenous anthropologists and scientists throughout the 19th and 20th centuries’.[148]
5.86 Some stakeholders referred to the limitations of historical records.[149] Frith and Tehan submitted that historical documents that were produced by the states and territories may ‘not record instances of the acknowledgment and observance of laws and customs because that is not what the State or Territory was interested in’.[150]
5.87 Submissions and consultations also raised specific concerns about the ‘generation by generation test’. Some submissions referred to the judgments in the Larrakia people’s claim.[151] There, the Federal Court specifically referred to a lack of evidence about the passing on of knowledge of the traditional laws and customs from generation to generation during much of the twentieth century.[152] Concerns have been expressed about the Larrakia case as ‘[a] break in continuity of traditional laws and customs for just a few decades was sufficient for the court to find that native title did not exist’.[153]
5.88 The ALRC considers that the requirement for acknowledgment and observance of traditional laws and customs by each generation since sovereignty does not accord with the prevalent view in the literature concerning the transmission of laws in Aboriginal and Torres Strait Islander communities.[154] A strict interpretation of the requirement may not recognise transmission of laws and customs from grandparent to grandchild because of the absence of the intervening generation in the process. The ALRC considers that the requirement insufficiently takes account of the impacts of European settlement. Reform would address historic injustice and facilitate the recognition of rights.
5.89 The ALRC considers that the current requirement of proof, to meet the legal test that acknowledgment and observance of law and custom must have occurred substantially uninterrupted by each generation since sovereignty, is a difficult threshold for establishing native title under the Native Title Act.
Encouraging timely and just resolution of determinations
5.90 The second reason the ALRC is recommending this reform accords with the objective of encouraging timely and just resolution of determinations.[155] The ALRC considers that the recommendations will assist with the efficiency of the native title system and the timely, but just, resolution of native title claims. A number of stakeholders shared this view.[156] The requirement, with its need for ‘fine-grained historical enquiries’,[157] burdens native title applicants and their representatives in terms of both cost and time.[158] Further, it places resource burdens on state and territory governments and also on the Australian Government, where the Commonwealth is the respondent. Governments must assess voluminous material as well as undertake tenure assessments. The ALRC heard in consultations that there were particular problems for governments in identifying experts with requisite expertise.[159] Additionally, the requirement reduces the timeliness of the overall process.[160]
5.91 NTSCORP Limited (‘NTSCORP’) submitted that the reform, together with other recommendations in this chapter, would assist mediation processes by reducing the number of issues and the time needed.[161] The ALRC considers that implementation of these two recommendations should reduce similarly the number of issues that might be contested in litigation—working consistently with the Federal Court’s case management reforms—and consequently, the time taken in that legal process.
5.92 The ALRC considers that implementation of the recommendations will encourage just resolution of determinations in at least two ways. First, by reconceptualising the continued acknowledgment and observance of traditional laws and customs. At present, the requirement gives pre-eminence to continued acknowledgment and observance of laws and customs in a relatively decontextualised way, which ignores the past impacts of European settlement on Aboriginal and Torres Strait Islander communities. Second, by reducing the extent to which the approach taken to construction of the requirements may vary between governments throughout Australia and between consent determinations and litigated outcomes.[162]
A necessary part of native title law?
5.93 State and territory government submissions contended that substantially uninterrupted continuity of the acknowledgment and observance of traditional laws and customs is an important aspect of native title law.[163] On a practical level, the Queensland Government submitted that ‘it is probably not possible to remove evidence of continuing connection without affecting the quality of the evidence required to demonstrate other indicia of the existence of native title’.[164]
5.94 The Western Australian Government submitted that ‘[a]ny proposal to remove, or fundamentally alter, the requirement to demonstrate adherence to a continuing normative system based on pre-settlement laws and customs ignores a central tenet of the Mabo No 2 decision’.[165]
5.95 The ALRC considers that, while the recognition of native title is anchored in traditional laws and customs at sovereignty, such an intensive level of continuity of acknowledgment and observance of laws and customs was arguably not envisaged in Mabo [No 2]. There, Brennan J referred to a need for acknowledgment and observance of laws and customs, ‘so far as it is practicable to do so’.[166] Similarly, the Law Council of Australia submitted:
there was no indication in Mabo [No 2] (the findings of which were intended to be given a statutory framework by the Act) that the recognition of continuing native title rights and interests was dependent upon the continuity of a normative system of laws and customs in a pre-sovereign normative society.[167]
5.96 As a number of stakeholders noted, the words of s 223 of the Native Title Act do not mention a need for ‘substantially uninterrupted’ continuity of the acknowledgment of traditional laws and the observance of traditional customs.[168] Rather, as has been explained above, the majority of the High Court in Yorta Yorta interpreted the word ‘traditional’, where it occurs in s 223(1)(a), in such a way that it effectively imports an independent requirement for proof of substantially uninterrupted continuity of the acknowledgment and observance of traditional laws and customs. Arguably, the Full Federal Court approved the further refinement of the requirement so that the acknowledgment and observance of the laws and customs must have continued substantially uninterrupted by each generation since sovereignty.[169] The ALRC considers that this so-called continuity requirement has been ‘read into’[170] s 223(1) of the Act.
5.97 The Hon Paul Finn has argued that the effect of the interpretation of s 223 in Yorta Yorta produced a ‘discernible hardening of the arteries of the Native Title Act’.[171] AIATSIS submitted that the continuity requirement stems from the ‘painful’ statutory interpretation of s 223. It saw that interpretation as arguably flawed because it was not based on common law traditions for interpreting legislation where the rules are ‘root[ed] in the common law protection of the rights of citizens against arbitrary exercises of power by the state, especially in relation to property’.[172]
5.98 The ALRC considers that it is consistent with the promotion of the beneficial purpose of the Native Title Act, and a ‘fair, large and liberal’ approach to statutory construction, to provide explicitly that it is not necessary to establish that acknowledgment and observance of laws and customs has continued substantially uninterrupted by each generation since sovereignty. A number of stakeholders supported this approach.[173] Such an approach accords with international law such as UNDRIP and the International Convention on the Elimination of All Forms of Racial Discrimination (‘CERD’).[174]
What level of continued acknowledgment and observance is required of laws and customs with origins in the pre-sovereign period?
5.99 As outlined, the ALRC considers that the requirement for ‘substantially uninterrupted’ acknowledgment and observance of laws and customs since sovereignty, particularly the ‘generation by generation’ test, is too stringent. It must be emphasised that the ALRC is not proposing change to the requirement, stemming from Mabo [No 2], that the relevant laws and customs must find their origins in the pre-sovereign period.
5.100 This leaves the question of what degree of continued acknowledgment and observance of traditional laws and customs since annexation is required to meet the doctrinal tenets of Mabo [No 2] as adopted in the actual wording of s 223(1)(a). That is, what degree of continued acknowledgment and observance of traditional laws and customs is needed to establish that ‘the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders’?
5.101 In Mabo [No 2], Brennan J referred to continuity in terms of a substantial maintenance of connection:
Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connexion with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence.[175]
5.102 That is, acknowledgment and observance of laws and customs from prior to the assertion of sovereignty is required to found the common law’s recognition of connection, in a broad sense.[176]
5.103 In Yorta Yorta, Gleeson CJ, Gummow and Hayne JJ stated that it would be ‘wrong’ to look only at the laws and customs that are currently observed. They continued that it is ‘necessary to inquire about the relationship between the laws and customs now acknowledged and observed, and those that were acknowledged and observed before sovereignty’.[177]
5.104 The ALRC similarly considers that there must be some link or ‘relationship’[178] between pre-sovereignty origins of the law and custom and the laws and customs presently acknowledged and observed by the claimant group. However, substantially uninterrupted continuity of acknowledgment and observance of laws and customs, in the ALRC’s view, puts too high an evidential burden on claimants. The terms ‘substantially maintained’[179] or ‘identifiable through time’[180] may be more appropriate approaches to the level of continuity required to found the existence of native title.
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[77]
Rec 5–2 and Rec 5–3 are substantially the same as was proposed in the Discussion Paper: Australian Law Reform Commission, Review of the Native Title Act 1993, Discussion Paper No 82 (2014) Proposal 5–3. Proposal 5–3 in the Discussion Paper was supported by AIATSIS, Submission 70; National Congress of Australia’s First Peoples, Submission 69; NTSCORP, Submission 67; Indigenous Land Corporation, Submission 66; Law Council of Australia, Submission 64; Yamatji Marlpa Aboriginal Corporation, Submission 62; National Native Title Council, Submission 57; Queensland South Native Title Services, Submission 55; A Frith and M Tehan, Submission 52; Central Desert Native Title Service, Submission 48; Native Title Services Victoria, Submission 45; North Queensland Land Council, Submission 42. While Yamati Marlpa gave in principle support, it preferred different wording, see: Yamatji Marlpa Aboriginal Corporation, Submission 62. NSW Young Lawyers Human Rights Committee also suggested a different way of amending the Act so as to limit the requirement: NSW Young Lawyers Human Rights Committee, Submission 29.
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[78]
The ‘generation by generation’ requirement in Rec 5–3 may be conceived as a further refinement of the broader continuity requirement referred to in Rec 5–2.
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[79]
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [90].
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[80]
Ibid [88].
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[81]
Ibid [87].
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[82]
Ibid.
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[83]
Ibid [88]. In Commonwealth v Yarmirr (2001) 208 CLR 1, the majority of the High Court described the concept of radical title as a legal tool of analysis, explaining that ‘when the Crown acquired sovereignty over land it did not acquire beneficial ownership of that land … What the Crown acquired was a “radical title” to land’: Ibid [47] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
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[84]
Nick Duff, ‘What’s Needed to Prove Native Title? Finding Flexibility Within the Law on Connection’ (Research Discussion Paper 35, AIATSIS, June 2014) 27.
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[85]
Richard H Bartlett, Native Title in Australia (LexisNexis Butterworths, 3rd ed, 2015) 100. Earlier Bartlett had referred to ‘the principles of recognition of existing rights at common law or international law’: Ibid 97.
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[86]
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [89] (Gleeson CJ, Gummow and Hayne JJ).
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[87]
Ibid.
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[88]
Ibid [90].
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[89]
Ibid. See also Bodney v Bennell (2008) 167 FCR 84, [97].
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[90]
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [46]. The ‘generation by generation’ requirement appears to stem from dictionary definitions of ‘traditional’ and ‘tradition’. See Risk v Northern Territory (2007) 240 ALR 75, [124], [127] (Branson and Katz JJ).
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[91]
Risk v Northern Territory [2006] FCA 404 (29 August 2006) [97], emphasis added. On appeal the Full Court considered Mansfield J’s statement of the law to be accurate: Risk v Northern Territory (2007) 240 ALR 75, [78]–[98]. Justice Mansfield has ameliorated somewhat the stringency of this requirement in Croft on behalf of the Barngarla Native Title Claim Group v South Australia [2015] FCA 9 (22 January 2015). His Honour stated, ‘it is clear that s 223(1)(a) will be fulfilled only where there is proof that a society acknowledges and observes rules under which rights and interests in land are possessed that have normative content and that find their real origins in the same pre-sovereignty society. The acknowledgment and observance of those normative rules must have continued substantially uninterrupted from the time of sovereignty. However, the qualification indicated by the use of the adverb “substantially” recognises both the difficulty of proving continuous acknowledgment and observance of oral traditions and the inevitability of change to the structures and practices of Aboriginal societies in the light of European settlement’: Ibid [69].
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[92]
Bodney v Bennell (2008) 167 FCR 84, [73].
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[93]
See, eg, CG (Deceased) on behalf of the Badimia People v Western Australia [2015] FCA 204 (12 March 2015); Sandy on behalf of the Yugara People v State of Queensland (No 2) [2015] FCA 15 (27 January 2015); Wyman on behalf of the Bidjara People v Queensland (No 2) [2013] FCA 1229 (6 December 2013); Bodney v Bennell (2008) 167 FCR 84; Risk v Northern Territory (2007) 240 ALR 75; Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422.
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[94]
CG (Deceased) on behalf of the Badimia People v Western Australia [2015] FCA 204 (12 March 2015) [495].
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[95]
See, eg, Sandy on behalf of the Yugara People v State of Queensland (No 2) [2015] FCA 15 (27 January 2015); Bodney v Bennell (2008) 167 FCR 84; Risk v Northern Territory (2007) 240 ALR 75.
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[96]
Bartlett, above n 85, 106.
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[97]
Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442, [25].
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[98]
Banjima People v Western Australia (No 2) (2013) 305 ALR 1, [399].
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[99]
See, eg, Yamatji Marlpa Aboriginal Corporation, Submission 62; AIATSIS, Submission 36; Goldfields Land and Sea Council, Submission 22; North Queensland Land Council, Submission 17; S Bielefeld, Submission 6; Just Us Lawyers, Submission 2.
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[100]
See, eg, Native Title Services Victoria, Submission 45; Queensland South Native Title Services, Submission 24; A Frith and M Tehan, Submission 12. Some stakeholders did not specify removal of the requirement but it seems clear that this was their intent, or not something they opposed: Goldfields Land and Sea Council, Submission 22.
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[101]
See, eg, NSW Young Lawyers Human Rights Committee, Submission 29; North Queensland Land Council, Submission 17; Cape York Land Council, Submission 7.
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[102]
Northern Territory Government, Submission 71; South Australian Government, Submission 34; Northern Territory Government, Submission 31; Western Australian Government, Submission 20.
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[103]
South Australian Government, Submission 68; 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; Queensland Government, Submission 28.
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[104]
South Australian Government, Submission 34; Queensland Government, Submission 28; Western Australian Government, Submission 20. The South Australian Government submitted that it was a ‘flexible doctrine that in recent years has generally been interpreted by the Courts (and in the State’s consent determination process) in favour of claimant groups’. See also Minerals Council of Australia, Submission 65.
-
[105]
Western Australian Government, Submission 20. See also South Australian Government, Submission 68: ‘The courts readily acknowledge the impact of British settlement on Australia’s Indigenous cultures’. However, Frith and Tehan argued that the exception for ‘substantially uninterrupted’ acknowledgment and observance of laws and customs ‘does not go far enough’: A Frith and M Tehan, Submission 12.
-
[106]
Western Australian Government, Submission 20. See also Queensland Government, Submission 28: ‘The difficult problems of proof that are inherent in the concept of native title have, on the evidence of the rates of resolution of claims, been adequately addressed by the jurisprudence and the attitudes and skills of the participating parties’.
-
[107]
CG (Deceased) on behalf of the Badimia People v Western Australia [2015] FCA 204 (12 March 2015); Bodney v Bennell (2008) 167 FCR 84.
-
[108]
Northern Territory Government, Submission 71.
-
[109]
Central Desert Native Title Service, Submission 48; Cape York Land Council, Submission 7.
-
[110]
Cape York Land Council, Submission 7.
-
[111]
Ibid. The Australian Human Rights Commission argued that ‘requiring “literal continuous connection” ignores ‘the reality of European interference in the lives of Indigenous peoples’: Australian Human Rights Commission, Submission 1.
-
[112]
South Australian Government, Submission 34; Northern Territory Government, Submission 31; Queensland Government, Submission 28; Western Australian Government, Submission 20.
-
[113]
South Australian Government, Submission 34. See also Lander v South Australia [2012] FCA 427 (1 May 2012) [48].
-
[114]
Central Desert Native Title Service, Submission 48.
-
[115]
Central Desert Native Title Services, Submission 26.
-
[116]
See, eg, Central Desert Native Title Service, Submission 48; AIATSIS, Submission 36.
-
[117]
Central Desert Native Title Service, Submission 48.
-
[118]
AIATSIS, Submission 36. AIATSIS referred to Duff, above n 84, 28–33.
-
[119]
AIATSIS, Submission 36.
-
[120]
Duff, above n 84, 57.
-
[121]
See, eg, Native Title Services Victoria, Submission 45; Kimberley Land Council, Submission 30; North Queensland Land Council, Submission 17; A Frith and M Tehan, Submission 12; S Bielefeld, Submission 6.
-
[122]
Goldfields Land and Sea Council, Submission 22.
-
[123]
See, eg, NSW Young Lawyers Human Rights Committee, Submission 29; North Queensland Land Council, Submission 17; A Frith and M Tehan, Submission 12; Cape York Land Council, Submission 7.
-
[124]
See, eg, NSW Young Lawyers Human Rights Committee, Submission 29; Cape York Land Council, Submission 7.
-
[125]
See Ch 7.
-
[126]
Guiding Principle 1.
-
[127]
Law Council of Australia, Submission 64. AMEC expressed concern that the recommendation ‘appear[s] to lower the threshold to prove that native title exists’: Association of Mining and Exploration Companies, Submission 54.
-
[128]
NSW Young Lawyers Human Rights Committee, Submission 29.
-
[129]
Central Desert Native Title Service, Submission 48; Australian Human Rights Commission, Submission 1. Central Desert Native Title Services agreed with this statement whereas the Australian Human Rights Commission submitted that ‘[t]he claim of the Larrakia people illustrates the vulnerability and fragility of native title’.
-
[130]
See, eg, Aboriginal and Torres Strait Islander Social Justice Commissioner, ‘Native Title Report 2008’ 54–55: ‘As it has been stated in many native title reports, providing such evidence generation by generation, while being subject to the strict rules of evidence, is a herculean task for people of an oral culture with a history of dispossession and generations of children that were removed from their parents’.
-
[131]
See Ch 1.
-
[132]
NSW Young Lawyers Human Rights Committee, Submission 29. Native Title Services Victoria noted that ‘[t]he State of Victoria declined to include continuity of connection as one of the requirements traditional owners are required to establish for a settlement under the Settlement Framework’: Native Title Services Victoria, Submission 45.
-
[133]
Central Desert Native Title Service, Submission 48.
-
[134]
National Native Title Council, Submission 57; AIATSIS, Submission 36; Goldfields Land and Sea Council, Submission 22. Others have also criticised the requirement in this respect. ‘Particularly around the issue of the continuous observance and acknowledgment of traditional custom and law … the Australian legal system imposes technical requirements that may be irrelevant to questions of intra-Indigenous justice and, arguably, questions of justice in relation to the broader Australian society too’: Duff, above n 84, 17.
-
[135]
Law Society of Western Australia, Submission 41.
-
[136]
Goldfields Land and Sea Council, Submission 22. The Western Australian Fishing Industry Council was also of the view that ‘the integrity of traditional law and custom’ is the ‘key issue’. However, it submitted that continuity is also relevant: Western Australian Fishing Industry Council, Submission 23.
-
[137]
Transcript of Proceedings, Risk v Northern Territory [2007] HCATrans 472 (31 August 2007) (Kirby J).
-
[138]
See, eg, AIATSIS, Submission 70; AIATSIS, Submission 36; Queensland South Native Title Services, Submission 24; Native Title Services Victoria, Submission 18; North Queensland Land Council, Submission 17; A Frith and M Tehan, Submission 12; S Bielefeld, Submission 6.
-
[139]
AIATSIS, Submission 36. ‘The inevitable changes brought by European settlement to Aboriginal and Torres Strait Islander law and custom do not necessarily result in the abandonment of law and custom. The same could be said of other transformational events and even cataclysmic events, including drought, flood, war and the like’: AIATSIS, Submission 70. See Ch 6.
-
[140]
Just Us Lawyers, Submission 2. Others have written of ‘the shadow that potential litigation casts on parties’ negotiations’ and expressed the view that ‘negotiations should not take place under the misapprehension that native title is harder to prove at trial than it really is’: Duff, above n 84, 5, 57.
-
[141]
S Bielefeld, Submission 6.
-
[142]
National Congress of Australia’s First Peoples, Submission 32; Australian Human Rights Commission, Submission 1.
-
[143]
See, eg, Central Desert Native Title Service, Submission 48; Law Society of Western Australia, Submission 41; AIATSIS, Submission 36; Goldfields Land and Sea Council, Submission 22; A Frith and M Tehan, Submission 12.
-
[144]
See, eg, A Frith and M Tehan, Submission 12; Just Us Lawyers, Submission 2.
-
[145]
Law Society of Western Australia, Submission 9. The reference to the former is to the primary judge’s preference, in Yorta Yorta, to a nineteenth century squatter’s writings over the evidence of the Yorta Yorta witnesses: Members of the Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606(18 December 1998) [123]. The Society submitted that the Larrakia case is an example of the second point.
-
[146]
See Ch 7.
-
[147]
Sandy on behalf of the Yugara People v State of Queensland (No 2) [2015] FCA 15 (27 January 2015) [153].
-
[148]
AIATSIS, Submission 36. There was support for this statement from other stakeholders. See, eg, Yamatji Marlpa Aboriginal Corporation, Submission 62.
-
[149]
See, eg, AIATSIS, Submission 36; A Frith and M Tehan, Submission 12; Just Us Lawyers, Submission 2. Just Us Lawyers submitted that ‘[i]n many cases, we are left with inferring and extrapolating from the observations of 19th century ethnographers (of various quality), pastoralists, explorers and others whose attitudes towards Indigenous culture does little to assist claimants’.
-
[150]
A Frith and M Tehan, Submission 12. AIATSIS also mentioned the ‘bias of those reporting’: AIATSIS, Submission 36.
-
[151]
Risk v Northern Territory [2006] 404, 240 ALR 75. See, eg, NSW Young Lawyers Human Rights Committee, Submission 29; Australian Human Rights Commission, Submission 1.
-
[152]
Risk v Northern Territory [2006] FCA 404 (29 August 2006) [823].
-
[153]
Aboriginal and Torres Strait Islander Social Justice Commissioner, ‘Native Title Report 2009’ (Australian Human Rights Commission, 2009) 86. The Full Court of the Federal Court observed that ‘His Honour found that the laws acknowledged and customs observed by Larrakia as a whole were interrupted between the war and the 1970s’: Risk v Northern Territory (2007) 240 ALR 75, [106].
-
[154]
See, eg, Paul Memmott, ‘Modelling the Continuity of Aboriginal Law in Urban Native Title Claims: A Practice Example’ in Toni Bauman and Gaynor MacDonald (eds), Unsettling Anthropology: The Demands of Native Title on Worn Concepts and Changing Lives (AIATSIS, 2011) 122, 130.
-
[155]
Guiding Principle 3.
-
[156]
NTSCORP, Submission 67; National Native Title Council, Submission 57; Central Desert Native Title Service, Submission 48.
-
[157]
Goldfields Land and Sea Council, Submission 22.
-
[158]
National Native Title Council, Submission 57; AIATSIS, Submission 36.
-
[159]
See Ch 12.
-
[160]
National Native Title Council, Submission 57.
-
[161]
NTSCORP, Submission 67.
-
[162]
Submissions suggested that there may be regional variation and variation between outcomes that could be achieved by consent or at trial: Central Desert Native Title Service, Submission 48; Just Us Lawyers, Submission 2.
-
[163]
South Australian Government, Submission 34; Northern Territory Government, Submission 31; Western Australian Government, Submission 20. Accordingly, the South Australian Government could not conceive of its application causing injustice. ‘It is difficult to conceive of a situation where an injustice could be wrought upon a party seeking native title where a substantial interruption had occurred, if only because it suggests that the basis for any positive native title finding does not exist’: South Australian Government, Submission 34.
-
[164]
Queensland Government, Submission 28.
-
[165]
Western Australian Government, Submission 20.
-
[166]
Mabo v Queensland [No 2] (1992) 175 CLR 1, 60.
-
[167]
Law Council of Australia, Submission 35.
-
[168]
See, eg, NTSCORP, Submission 67; National Native Title Council, Submission 57; Kimberley Land Council, Submission 30; Queensland South Native Title Services, Submission 24; North Queensland Land Council, Submission 17; Australian Human Rights Commission, Submission 1.
-
[169]
See Bodney v Bennell (2008) 167 FCR 84; Risk v Northern Territory (2007) 240 ALR 75. AIATSIS quoted Dr Lisa Strelein who has argued that it was the Full Federal Court in Bodney v Bennell that ‘added the proviso that continuity be demonstrated “for each generation”’: AIATSIS, Submission 36.
-
[170]
AIATSIS, Submission 36.
-
[171]
Paul Finn, ‘Mabo into the Future: Native Title Jurisprudence’ (2012) 8 Indigenous Law Bulletin 5, 6.
-
[172]
AIATSIS, Submission 36 quoting Dr Lisa Strelein.
-
[173]
Indigenous Land Corporation, Submission 66; National Native Title Council, Submission 57; A Frith and M Tehan, Submission 52; Central Desert Native Title Service, Submission 48.
-
[174]
Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN GAOR, 61st Sess, 107th Plen Mtg, Supp No 49, UN Doc A/RES/61/295 (13 September 2007); International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969). International law is discussed further in Ch 9.
-
[175]
Mabo v Queensland [No 2] (1992) 175 CLR 1, 59–60.
-
[176]
See Ch 3.
-
[177]
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [56].
-
[178]
Ibid [56] (Gleeson CJ, Gummow and Hayne JJ).
-
[179]
Mabo v Queensland [No 2] (1992) 175 CLR 1, 59 (Brennan J). Note that the phrase is used with respect to connection.
-
[180]
Native Title Amendment (Reform) Bill 2014 cl 18. The Bill relevantly proposes a new s 223(1A) which would state, ‘Without limiting subsection (1), traditional laws acknowledged in that subsection includes such laws as remain identifiable through time, regardless of whether there is a change in those laws or in the manner in which they are acknowledged’. Proposed new s 223(1B) concerns ‘traditional customs observed’ and is expressed in similar terms.