Recommendation 5–5 The definition of native title in s 223 of the Native Title Act 1993 (Cth) should be amended to provide that rights and interests may be possessed by a native title claim group where they have been:
(a) transmitted or transferred between Aboriginal or Torres Strait Islander groups in accordance with the traditional laws and customs of those groups; or
(b) otherwise acquired in accordance with traditional laws and customs.
5.120 There is some uncertainty as to whether a native title claim group can establish that it holds native title rights and interests where those rights and interests were held by a different group at sovereignty. This process is often referred to, in the native title context, as ‘succession’.
5.121 The ALRC recommends that the definition of native title be amended to make clear that native title rights and interests may be succeeded to by another Aboriginal or Torres Strait Islander group, where these rights and interests have been transmitted, transferred or otherwise acquired in accordance with traditional laws and customs.
5.122 This recommendation addresses an area of uncertainty in native title law. The ALRC views this recommendation as consistent with the beneficial purpose of the Native Title Act. Recognition of succession does not, in the ALRC’s view, disturb the basis of recognition of native title—that is, it does not involve a greater burden on the radical title of the Crown than existed at sovereignty. It is also arguably consistent with Aboriginal understandings of the range of ways in which rights and interests in land and waters may be acquired.
Is succession possible under the Native Title Act?
5.123 There is a lack of clarity in the case law as to the possibility of succession to native title rights and interests under the Native Title Act. Mansfield J, in Croft on behalf of the Barngarla Native Title Claim Group v South Australia, stated that
the question of whether it is permissible for a native title claim group to claim land that was not land to which their apical ancestors possessed any rights and interests to under their laws and customs is a question that has arisen in past cases but has not been authoritatively resolved.
5.124 The judgment of Gleeson CJ, Gummow and Hayne JJ in Yorta Yorta may be considered to provide some support forthe efficacy of transmission of native title rights and interests from one group to another:
The rights and interests in land which the new sovereign order recognised included the rules of traditional law and custom which dealt with the transmission of those interests.
5.125 It appears that succession to native title rights and interests is likely to be accepted as legitimate where both the transferring and transferee groups are considered to be part of the same ‘society’ for native title purposes—that is, where both groups can be considered to be part of a society ‘united in and by its acknowledgment and observance of a body of laws and customs’.
5.126 In Western Australia v Sebastian, the Full Federal Court was inclined to the view that succession could occur, in factual circumstances where succession occurred as the numbers of one group had reduced and it was in accordance with the ‘common traditional laws and customs’ of the two relevant Aboriginal clans.
5.127 However, the Full Federal Court has expressed doubt about the ability to transmit native title rights and interests between different native title ‘societies’. In Dale v Moses, Moore, North and Mansfield JJ considered the remarks made in Yorta Yorta about transmission did not encompass succession. The Full Federal Court considered that the statement in Yorta Yorta was
probably directed to intergenerational transmission of rights and interests under traditional laws within the society possessing rights and interests in the land under traditional laws and customs at the time of sovereignty. The observations of the members of the High Court do not establish a principle of the type … that where the traditional laws and customs of one society provide for the transmission of rights and interests in land recognised by those laws and customs, then transmission to another society can be effected and the acquisition of the transferred rights in interest [sic] can ultimately be recognised as rights and interests of the transferee society for the purposes of the NTA.
5.128 A number of submissions supported a recommendation to explicitly recognise succession to native title rights and interests. CDNTS regarded this as ‘a sensible clarification of the law regarding a legitimate practice’. It noted that ‘succession between groups in accordance with traditional law and custom is not uncommon, particularly where groups have significantly reduced in number or ceased to exist, often due to the impact of non-Aboriginal settlement activity’. Similarly, NTSV argued that ‘the transfer of rights and interests between sub-sets of a society or between different groups is an accepted practice with a traditional basis within Victoria’.
5.129 The ALRC considers that succession, where in accordance with traditional laws and customs, should be recognised by the Native Title Act regardless of whether the transferring and transferee groups are considered to be part of one society for native title purposes. This is in keeping with a fair, large and liberal approach to the interpretation of the Native Title Act.
5.130 Recommendation 5–5 follows from 5–4, which recommends that it be made clear in the Native Title Act that it is not necessary to establish that a society united in and by its acknowledgment and observance of traditional laws and customs has continued in existence since sovereignty. Both recommendations suggest that, instead of focusing on notions of ‘society’, attention should appropriately be directed to whether rights and interests in land and waters are possessed in accordance with traditional laws and customs.
5.131 Succession to native title rights and interests, where they have been transmitted in accordance with traditional laws and customs, was arguably envisaged in Mabo [No 2]. In that case, discussing alienability of native title, Brennan J stated:
a right or interest possessed as a native title cannot be acquired from an indigenous people by one who, not being a member of the indigenous people, does not acknowledge their laws and observe their customs; nor can such a right or interest be acquired by a clan, group or member of the indigenous people unless the acquisition is consistent with the laws and customs of that people.
5.132 Deane and Gaudron JJ stated:
The enjoyment of the rights can be varied and dealt with under the traditional law or custom. The rights are not, however, assignable outside the overall native system.
5.133 The ALRC notes the objections made to a recommendation of this kind by state governments, as well as from industry stakeholders. The South Australian Government submitted that transmission of rights in land between groups after sovereignty should not be permissible:
Such transmission could lead to the creation of new native title rights, not only after the assertion of British sovereignty but potentially into the present day and future. Such a process would require the acceptance that native title is a parallel legal system that continues to evolve alongside the common law and this would contravene the ideal, first elucidated in Mabo and emphasised in Ward and Yorta Yorta, that native title should not fracture the skeleton of the Australian legal system.
5.134 The Western Australian Government argued that rights and interests that have been succeeded to are,
by deﬁnition, not rights and interests which existed at sovereignty because at sovereignty the relevant rights were held by a different group under different laws and customs.
5.135 The ALRC does not consider such transfer to involve the creation of new rights. Instead, it views this is an example of a change in the distribution of rights, and not a creation of rights. As such it does not ‘impose a greater burden on the Crown’s radical title’ than existed at sovereignty.
5.136 There are precedents for the recognition of the transfer of rights between Indigenous peoples in other jurisdictions. In New Zealand, the Marine and Coastal Area (Takutai Moana) Act 2011 provides for customary transfer of land. Section 58(3) of that Act provides that
(a) a transfer is a customary transfer if a customary interest in a specified area of the common marine and coastal area was transferred—
(i) between or among members of the applicant group; or
(ii) to the applicant group or some of its members from a group or some members of a group who were not part of the applicant group; and
(b) the transfer was in accordance with tikanga; and
(c) the group or members of the group making the transfer—
(i) held the specified area in accordance with tikanga; and
(ii) had exclusively used and occupied the specified area from 1840 to the time of the transfer without substantial interruption; and
(d) the group or some members of the group to whom the transfer was made have—
(i) held the specified area in accordance with tikanga; and
(ii) exclusively used and occupied the specified area from the time of the transfer to the present day without substantial interruption.
5.137 Succession to land or waters often involves complex factual scenarios, as a number of submissions noted. QSNTS submitted:
succession occurs over a long period and it is never really complete (it is only ever complete in circumstances where the group has completely died out). In most cases, there is an overlap between different interests over the same area. No doubt the issue is very complex.
5.138 Such factually complex scenarios at present are to be resolved under current native title law. The ALRC’s recommendation will remove a barrier to recognition of native title rights and interests where succession has occurred in accordance with traditional laws and customs. However, factual complexity, which may be attended by intra-Indigenous conflict, will remain. Cultural sensitivity is needed in approaching questions of succession. As QSNTS argued, these issues require ‘a thorough appreciation of the anthropological and genealogical evidence and, culturally appropriate, sensitive management’. QSNTS further advocated that ‘culturally tailored alternative dispute resolution processes would need to be built around the negotiation and resolution of these matters’.
5.139 The Law Society of Western Australia submitted:
Room needs to be left for the analysis of normative systems referable to an existence which preceded colonisation which is fully comprehensive of the reality of how Aboriginal and Torres Strait Islander peoples’ normative systems have evolved. It is by no means clear that the courts or the expert witnesses who have informed them in matters of ethnography have developed an entirely satisfactory set of models with which to analyse the range of normative systems which may exist in Australia.
5.140 On a practical level, the question of whether succession to native title rights and interests is by a different ‘society’, rather than between groups within a single society, may be avoided by framing a claim at the level of a region, or cultural bloc. In such cases, the question of succession to areas of land or waters will largely arise as an issue of succession within a society. QSNTS supported this approach, submitting:
the phenomenon [of succession] might be better explored and explained from a broader or regional perspective where commonalities between cultural blocs particularly if such societies are governed by common nor mative systems can be identified.
5.141 Contrary to concerns raised by some submissions, the ALRC does not consider that Recommendation 5–4 will allow groups who have moved into an area since sovereignty (sometimes referred to as ‘historical’ people) to establish that they hold native title rights and interests.
5.142 Dr David Martin explains that the terms ‘traditional’ and ‘historical’ people are used by some Aboriginal people to differentiate between types of associations to country. Traditional refers to:
Those who are recognised as members of the ‘tribal’ groups whose lands lie within the region … They are the ones who can legitimately ‘talk for country’ and thus should be consulted about its use. The ‘historical’ people include those who are living in a particular area now, but who are from elsewhere in this region, and those who have moved here from outside the region entirely.
5.143 ‘Historical’ groups would not be able to show that they have succeeded to rights and interests in accordance with traditional laws and customs. For example, groups who have been granted only a revocable permission or a licence to use an area by native title holders would not be able to establish that they have native title rights and interests in an area.
5.144 The ALRC notes the views of some anthropologists that the native title process crystallises distinctions between ‘traditional’ and ‘historical’ people, resulting in ‘increased levels of conflict and stress’ in Indigenous settlements. However, the Native Title Act, premised on the recognition of the pre-existing rights of Aboriginal and Torres Strait Islander peoples, is not able to act as the vehicle for recognising ‘historical’ associations to land and waters. Other mechanisms for land settlements with Aboriginal and Torres Strait Islander peoples may more appropriately recognise the spectrum of associations to land that may exist in an area.
Bodney v Bennell (2008) 167 FCR 84, .
See, eg, Peter Sutton, ‘Kinds of Rights in Country: Recognising Customary Rights as Incidents of Native Title’ (Occasional Papers 2, National Native Title Tribunal, 2001) 6–11; Peter Sutton, Native Title in Australia: An Ethnographic Perspective (Cambridge University Press, 2003) 116–118.
For an anthropological discussion of the process of succession, see: Sutton, ‘Kinds of Rights in Country: Recognising Customary Rights as Incidents of Native Title’, above n 200, 6–11.
Croft on behalf of the Barngarla Native Title Claim Group v South Australia  FCA 9 (22 January 2015) .
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, .
Ibid  (Gleeson CJ, Gummow and Hayne JJ). See the discussion accompanying Rec 5–4 for a more detailed exposition of the meaning of society in native title.
Western Australia v Sebastian (2008) 173 FCR 1, . See also Croft on behalf of the Barngarla Native Title Claim Group v South Australia  FCA 9 (22 January 2015) –; AB (deceased) (on behalf of the Ngarla People) v Western Australia (No 4)  FCA 1268 (21 November 2012) –; Graham on behalf of the Ngadju People v Western Australia  FCA 1455 (21 December 2012) –; Lardil Peoples v Queensland  FCA 298 (23 March 2004) –.
Dale v Moses  FCAFC 82 (7 June 2007) . Mansfield J has stated that ‘in my opinion, there is no inconsistency between the views expressed in Dale v Moses and Western Australia v Sebastian’: Croft on behalf of the Barngarla Native Title Claim Group v South Australia  FCA 9 (22 January 2015) .
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; D Wy Kanak, Submission 61; 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; S Jackson and PL Tan, Submission 44; North Queensland Land Council, Submission 42.
Central Desert Native Title Service, Submission 48.
Native Title Services Victoria, Submission 45.
Justice Robert French, ‘Mabo—Native Title in Australia’ (2004) 23 Federal Judicial Scholarship .
Mabo v Queensland [No 2] (1992) 175 CLR 1, 60.
South Australian Government, Submission 68; Minerals Council of Australia, Submission 65; Association of Mining and Exploration Companies, Submission 54; The Chamber of Minerals and Energy of Western Australia, Submission 49; Western Australian Government, Submission 43.
South Australian Government, Submission 68.
Western Australian Government, Submission 43.
Bodney v Bennell (2008) 167 FCR 84, . The Full Court suggested that the proposition that there cannot be changes in the distribution of rights after sovereignty paid ‘insufficient attention’ to what was said in Yorta Yorta: .
Marine and Coastal Area (Takutai Moana) Act 2011 (NZ) s 58(1).
Ibid s 58(3). ‘Tikanga’ is defined in the Act as ‘Māori customary values and practices’: s 9.
See, eg, Minerals Council of Australia, Submission 65; Queensland South Native Title Services, Submission 55; The Chamber of Minerals and Energy of Western Australia, Submission 49; Western Australian Government, Submission 43.
Queensland South Native Title Services, Submission 55.
Law Society of Western Australia, Submission 41.
For example, in February 2015, an application for determination of native title covering the Cape York region of Queensland was registered by the National Native Title Tribunal: Cape York United Number 1 Claim v State of Queensland (Cape York United Number 1 Claim) Federal Court no QUD673/2014; NNTT no QC2014/008.
Queensland South Native Title Services, Submission 55.
Northern Territory Government, Submission 71; South Australian Government, Submission 68; Minerals Council of Australia, Submission 65; The Chamber of Minerals and Energy of Western Australia, Submission 49; Western Australian Government, Submission 43.
See generally David Edelman, ‘Broader Native Title Settlements and the Meaning of the Term “Traditional Owners”’ (Paper Presented at AIATSIS Native Title Conference, 4 June 2009); David Martin, ‘The Incorporation of “Traditional” and “Historical” Interests in Native Title Representative Bodies’ in DE Smith and J Finalyson (eds), Fighting Over Country: Anthropological Perspectives (CAEPR Research Monograph No 12, 1997) 153.
Martin, above n 205, 157.
See AB (deceased) (on behalf of the Ngarla People) v Western Australia (No 4)  FCA 1268 (21 November 2012) .
Benjamin R Smith and Frances Morphy, ‘The Social Effects of Native Title: Recognition, Translation, Coexistence’ in Benjamin R Smith and Frances Morphy (eds), The Social Effects of Native Title: Recognition, Translation, Coexistence (ANU E Press, 2007) 1, 12.
See, eg, Aboriginal Land Rights Act 1983 (NSW); Traditional Owner Settlement Act 2010 (Vic).