Implications for s 223(1)(b)

5.145   Amendments affecting how s 223(1)(a) is interpreted will have a consequential effect on the construction of s 223(1)(b). Section 223(1)(b) requires that the relevant Aboriginal peoples or Torres Strait Islanders, by ‘those laws and customs’—that is, the traditional laws and customs referred to in s 223(1)(a)[233]—have a connection with the land or waters.[234]

5.146   The Full Federal Court in Bodney v Bennell set out the relationship between the level of continuity of acknowledgment and observance of traditional laws and customs required by s 223(1)(a) and the level of continuity of connection required by s 223(1)(b). It stated:

the laws and customs which provide the required connection are ‘traditional’ laws and customs. For this reason, their acknowledgment and observance must have continued ‘substantially uninterrupted’ from the time of sovereignty; and the connection itself must have been ‘substantially maintained’ since that time.[235]

5.147   The ALRC considers that it follows from Recommendations 5–2 and 5–3 that a commensurate approach should be taken to establishing connection for the purpose of satisfying s 223(1)(b).