5.1 To establish that they hold native title rights and interests, for the purposes of a determination of native title under the Native Title Act (Cth) (‘Native Title Act’), native title claimants must satisfy the definition of native title in s 223(1) of the Native Title Act. Section 223(1)(a) requires that the claimed rights and interests are possessed under the traditional laws acknowledged and traditional customs observed by the relevant Aboriginal peoples or Torres Strait Islanders. This chapter outlines how this requirement has been interpreted, focusing on the approach taken to the meaning of acknowledgment and observance of traditional laws and customs.
5.2 The ALRC makes recommendations for reform of this aspect of the definition. First, the ALRC recommends that there be explicit acknowledgment in the Native Title Act that traditional laws and customs under which native title rights and interests are possessed may adapt, evolve or otherwise develop.
5.3 Second, the ALRC recommends that the definition be amended to clarify that it is not necessary to establish either that:
the acknowledgment of traditional laws and the observance of traditional customs have continued substantially uninterrupted since sovereignty; or
traditional laws and customs have been acknowledged and observed by each generation since sovereignty.
5.4 Third, the ALRC recommends that the definition of native title be amended to clarify 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 prior to the assertion of sovereignty.
5.5 Finally, the ALRC recommends that the definition of native title clarifies that rights and interests may be possessed by a native title claim group where they have been transmitted or transferred between groups, or otherwise acquired in accordance with traditional laws and customs.
5.6 These recommendations address the technicality and complexity of establishing the existence of native title rights and interests. In many respects, the recommendations endorse the movement in case law and in negotiations towards flexibility in the evidentiary requirements to establish native title. However, they keep in place the doctrinal foundation for native title. That is, they preserve the position that native title rights and interests are those possessed under laws and customs that have their origins in laws and customs acknowledged and observed at sovereignty. As such, they are consistent with the ALRC’s guiding principles for reform: acknowledging the importance of the recognition of native title rights and interests; achieving greater efficiency in the claims process; and providing a sound platform for use of native title rights and interests into the future.