Continuity of society

5.105   The ALRC recommends that the definition of native title should be amended to make clear that, in the proof of native title, there is no independent requirement to establish continuity of a society united in and by its acknowledgment and observance of traditional laws and customs.

5.106   The High Court in Yorta Yorta noted that laws and customs ‘do not exist in a vacuum’.^[181] Therefore, there is an inextricable link between a society and its laws and customs. If a society—understood as a body of persons united in and by its acknowledgment of a body of laws and customs—ceases to exist, the laws and customs (and rights and interests possessed under them) also cease.^[182] Following Yorta Yorta,subsequent native title determinations have involved detailed consideration of the native title claim group’s membership of a society united in and by its acknowledgment and observance of traditional laws and customs, as well as the continuity of that society.^[183]

5.107   Recommendation 5–4 makes clear that establishing a society is relevant only as a ‘conceptual tool’ to assist in answering the central definitional question of whether rights and interests are possessed under traditional laws acknowledged, and traditional customs observed, by the native title claim group.^[184] It is intended to promote an interpretation of the definition of native title consistent with the Preamble and objects of the Native Title Act. In doing so, the recommendation will further the objective of appropriate recognition of Aboriginal and Torres Strait Islander rights and interests. In overcoming an overly technical approach to statutory construction, it will also reduce complexity and promote efficiency in native title claims resolution.

5.108   The ALRC considers that the focus of the factual inquiry in native title claims should be on the integrity of the laws and customs that found native title rights and interests, and not on finding extensive continuity between a society as it existed at sovereignty and the present day. In this respect, the ALRC agrees with Dr Paul Burke’s contention that ‘“society” is not conceptually distinct, but overlapping with other elements of native title legal doctrine, and there should not be a need to address it separately’.^[185]

5.109   A number of submissions supported a recommendation making clear that establishing the existence of a society is not an independent element of establishing native title.^[186] Some expressly agreed with the ALRC’s analysis that the ‘society’ requirement has ‘imposed an overly technical approach to statutory construction and proof on native title applicants’.^[187]

5.110   A number of submissions to this Inquiry were critical of the use of the concept of ‘society’ in native title law.^[188] Frith and Tehan submitted that decisions related to society ‘have generally tended to limit the prospect that native title applicants can establish native title’.^[189] GLSC submitted that the ‘society issue is a prime example of the unfortunate development of quite unnecessary technicality and legalism in native title’.^[190]

5.111   The ALRC considers that limiting such technicality may assist in lessening the time and reducing the resources involved in native title claims. CDNTS supported such a recommendation. It noted:

a great deal of time and resources are spent obtaining evidence to establish ‘societies’ when what is, in fact, required under the NTA is the identification of a group who holds rights and interests in relation to land in accordance with law and custom.^[191]

5.112   NTSCORP considered that such a recommendation, along with others made in this chapter,

would alleviate some of the time taken discussing these issues during the mediation processes … in the prosecution of native title claims. These changes would also assist in narrowing the substantive issues for mediation.^[192]

5.113   The NNTC argued that the society concept adds considerable delay to the process of establishing native title.^[193]

5.114   Some submissions considered that the language of a society ‘united in and by its acknowledgment and observance of a body of law and customs’ is improperly suggestive of a need to prove the survival of an extensive social system, rather than of the relevant laws and customs relating to land and waters. The Law Council of Australia argued that reference to society

constitutes a gloss on the statutory language of s 223(1) of the Act. Emphasis on these matters risks over-emphasising continuity of laws and customs of pre-sovereignty, such as rules about marriage, initiation and birthing practices, traditional language, which may have little relevance to whether particular customs in relation to land and waters have continued. The exercise of customary practices, such as hunting and fishing at particular times, are more relevant to establishing the existence of traditional customs than the requirement of a ‘normative’ system of laws and customs practised by a ‘normative’ society.^[194]

5.115   GLSC pointed to the ‘unfairness of having to demonstrate the continuity of cultural practice and social cohesion in the face of a history of dispossession, cultural disruption, forced assimilation and geographical dispersal’.^[195] The Young Lawyers Human Rights Committee argued:

allowing native title to be tested on a concept of society ultimately involves superficial value judgments about Indigenous ways of life, and inappropriately measures traditional, nomadic society against the legal ideas and institutions of a ‘civilised’ society.^[196]

5.116   It does not follow from Recommendation 5–4 that it will be open to ‘non-traditional’ contemporary groups to claim native title. The Western Australian Government argued that:

Absence of a traditional society implies that non-traditional groupings of Aboriginal people may assert rights … This also implies that the laws and customs relied upon to sustain rights and interests need not be those which existed at sovereignty, but, rather, only be those of the contemporary group.^[197]

5.117   However, native title claimants will continue to be required to establish that they hold rights and interests under traditional laws and customs acknowledged and observed by them. The recommendations in this chapter do not disturb the meaning of traditional laws and customs as those laws and customs that have their origins in those acknowledged and observed at sovereignty. This will continue to be the case, notwithstanding the explicit provision that such laws and customs may evolve, adapt and otherwise change, as recommended in Recommendation 5–1.

5.118   The South Australian Government correctly pointed out that establishing the identity of native title holders is a critical part of the native title determination process, and requires evidence as to the nature of the contemporary group.^[198] It raised concern that Recommendation 5–4 would affect this requirement.

5.119   The ALRC considers that nothing in this recommendation dispenses with the need to identify whether the claim group hold native title rights and interests under presently acknowledged traditional laws and presently observed traditional customs, where traditional laws and customs are understood as laws and customs that have their origins in those acknowledged and observed at sovereignty. The relevant laws and customs are those which found the claimed rights and interests. Beyond this, proof of the survival of a more extensive society should not be relevant to establishing native title.