Empowerment of courts to disregard ‘substantial interruption’

6.94       The ALRC, under its Terms of Reference, was directed to inquire and report on whether Commonwealth native title laws and legal frameworks should provide for ‘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’.^[164]

6.95       Several models for disregarding or accommodating change in, or interruptions to, the continuity of acknowledgment and observance of laws and customs were examined. This examination included investigation of the various legal elements comprised in a model for judicial disregard of ‘substantial interruption’, as well as alternative formulations for ‘judicial disregard’ that have been proposed.^[165]

6.96       Assessment of this option for reform in the Terms of Reference required consideration of many complex factors in the native title claim process, including the role of the judiciary in determining native title and how consent determinations are concluded. Chapter 2 provides context for understanding the doctrine of recognition—its strengths, but also its constraints. In relation to determinations of matters of fact, it required investigation of whether European settlement may be taken into account, and to what degree, when determining if there has been substantial interruption to, or a change in, ‘continuity’ and thereby loss of connection. The current threshold for establishing connection is that of substantial maintenance.^[166]

6.97       The ALRC acknowledges that many submissions and commentators, among them prominent Indigenous leaders,^[167] have stressed the importance of addressing the effects of European settlement upon Aboriginal and Torres Strait Islander peoples.^[168]The ALRC considers that the solution is best found in the Recommendations 5–1 to
5–5^[169] which would act in conjunction to achieve a similar legal effect to the ‘option for reform’ outlined in the Terms of Reference. Accordingly, the ALRC is not recommending that the Native Title Act be amended specifically to empower courts to disregard substantial interruption or change in continuity of acknowledgment and observance of traditional laws and customs.

Relevant law

6.98       The terms ‘continuity’ and ‘substantially uninterrupted’ do not appear in the text of s 223 of the Act. The requirement has arisen instead from the statutory construction of s 223(1) of the Native Title Act. The requirement that acknowledgment of law and observance of custom must have occurred substantially uninterrupted by each generation since sovereignty is discussed in earlier chapters.^[170] Connection, as discussed, must be ‘substantially maintained’.^[171]

6.99       The qualification of ‘substantially’ reflects the impacts of European settlement, as the High Court explained in Yorta Yorta:

It is a qualification that must be made to recognise that European settlement has had the most profound effects on Aboriginal societies and that it is, therefore, inevitable that the structures and practices of those societies, and their members, will have undergone great change since European settlement.^[172]

6.100   Further, the High Court held that, to describe ‘the consequences of interruption in acknowledgment and observance of traditional laws and customs as “abandonment” or “expiry” of native title was apt to mislead’, because it involved imputing an intention to abandon law and custom on the part of Indigenous peoples.^[173]

6.101   Nonetheless, the High Court emphasised:

the inquiry about continuity of acknowledgment and observance does not require consideration of why, if acknowledgment and observance stopped, that happened. That is, continuity of acknowledgment and observance is a condition for establishing native title. If it is not demonstrated that that condition was met, 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.^[174]

6.102   Accordingly, the High Court left open the permissibility of examining why acknowledgment and observance may have ‘stopped’ in confined circumstances.

6.103   However, subsequently, the Full Federal Court in Bodney v Bennell, when discussing continuity, stated:

But if … there has been a substantial interruption, it is not to be mitigated by reference to white settlement. The continuity enquiry does not involve consideration of why acknowledgment and observance stopped.^[175]

6.104   The law is uncertain as to whether consideration of the reasons why acknowledgment and observance may have ‘stopped’ is permitted at all. Further, the view has been expressed that Bodney v Bennell ‘should be treated with caution insofar as it suggests that evidence of European influence is irrelevant to the question of change, as opposed to interruption’.^[176] This caution is relevant in relation to the recommendations made in Chapter 5.

Consideration of the reasons for ‘substantial interruption’

The case for reform

6.105   A number of stakeholders expressly supported consideration of the reasons for displacement of Aboriginal peoples or Torres Strait Islanders in construing s 223(1)(b).^[177] The Law Council of Australia submitted that there should not be ‘an inflexible rule against the Court having regard to the reasons for displacement’ when assessing connection under s 223(1)(b).^[178]

6.106   Two main reasons were given in support. First, some stakeholders submitted that, given the history of colonisation, it was inherently unjust for the reasons for displacement not to be taken into account when assessing connection.^[179]

6.107   As NQLC put it, ‘European settlement which occurred pursuant to British and Australian law inhibited the observance of traditional laws and customs in areas of closer settlement’.^[180] Similarly, others noted that state or settler acts—such as being forced to move off country to missions or reserves—often denied groups ‘the right or ability to acknowledge and observe their laws and customs’.^[181] Yet, as the Aboriginal and Torres Strait Islander Social Justice Commissioner has observed, ‘there is little room to raise past injustice as a counter to the loss of, or change in, the nature of acknowledgment of laws or the observance of customs’.^[182]

6.108   The Australian Human Rights Commission (AHRC) submitted that ‘native title claimants are effectively frustrated in satisfying the requirements of demonstrating continuous connection in circumstances where the interruption has been caused by colonisation’.^[183] The National Congress of Australia’s First Peoples (National Congress) submitted that the courts ‘must have capacity to take into account displacement, caused by direct or indirect effects of European Settlement, when assessing whether Aboriginal and/or Torres Strait Islander Peoples have a connection with land or waters’.^[184]

6.109   Several submissions commented on the ‘apparent unconscionability of the State or Territory effectively relying on its own actions to the detriment of native title groups’ assertion of native title’.^[185] Just Us Lawyers submitted that the strict application of ‘substantial interruption’ effectively downplays the practical impacts of colonisation and dispossession.^[186]

6.110   The second, and interrelated, rationale given in support of reform was that a failure to consider the factual reasons may lead to unjust outcomes for some native title claimants.^[187] NTSCORP submitted that where the reasons for interruption are not taken into account, it

can and has had the perverse effect that Aboriginal groups who have been forced off their land by governmental or other Anglo-European intervention can be disentitled from the native title process, despite later continuing the physical aspect of their association with their Country. This is true no matter how strongly they have resisted that dislocation or maintained their non-physical connection to their Country, nor how short the duration of the dislocation.^[188]

6.111   NTSCORP indicated that, ‘[s]uch outcomes are disproportionately likely in NSW due to the long history of repeated forced dislocation due to the government’s Mission program’.^[189] The South Australian Government acknowledged that ‘as the State approaches resolution of native title claims in areas where European settlement has had greater impacts on the practice of Aboriginal law and custom, more difficulties will be encountered in achieving resolution by consent’.^[190]

Complexities of reform that would enable consideration of reasons

6.112   A number of stakeholders, including those representing Indigenous interests and respondent interests, did not support specific reform enabling consideration of the reasons for substantial interruption or change in continuity within the native title claims process.^[191]

6.113   Some stakeholders expressed opposition to any change to s 223, considering such reform to be unnecessary.^[192]The Western Australian Government submitted that ‘courts have been increasingly willing to recognise native title notwithstanding the ostensibly onerous requirements of the Yorta Yorta test’.^[193]The South Australian Government submitted that, in practice, courts already consider the reasons for any displacement—specifically when considering the group’s efforts to retain connection in situations where they have not been present on the land, and also when considering the adaptation of traditional laws and customs.^[194]

The Federal Court takes into account that extensive loss or modification of traditional law and custom was almost inevitable in the face of colonisation and has, on occasion, found in favour of groups that have long been absent from their lands or whose culturally active membership has, at various times in history, numbered very few individuals.^[195]

6.114   The Law Society of Western Australia similarly submitted that there was no need for a change to the law, because ‘the Courts have made it clear since the first court determination of native title under the NTA that a connection in accordance with traditional laws and customs did not need to be a physical connection or a continued or recent use’.^[196]

6.115   Governments expressed concern lest reform seek to change the basis of native title law. The Western Australian Government considered the ALRC’s inquiry to be premised on the ‘flawed’ assumption that ‘a group of Indigenous persons may be able to establish that they hold native title rights and interests in the absence of any “connection” to an area pursuant to traditional law and customs’.^[197] The Northern Territory Government expressed its concern at proposals which it considered would likely ‘enable a much wider class of Aboriginal persons who, under the NTA, cannot properly establish native title rights and interests, to do so in the future’.^[198] Amendment to the Act ‘could not overcome the complete loss of a group’s traditional laws and customs that related to land from which they had been historically displaced’.^[199]

6.116   Some stakeholders qualified their support. The Law Council of Australia submitted that ‘having regard to the reasons for displacement should not result in a group of people with no meaningful connection to land or waters being found to have native title on the basis that their displacement explains the lack of connection’.^[200] Similarly, QSNTS noted the need for ‘agreement on certain minimum threshold requirements (eg right people, right country; and acknowledgment and observance of laws relating to land and waters)’.^[201]

6.117   Conversely, other stakeholders expressed concern that presenting the reasons for displacement ‘may be antithetical to obtaining a positive determination of native title’,^[202] as reform may impose ‘unintended prejudicial impacts on groups’.^[203] A number of stakeholders submitted that reform would focus on the past rather than the future;^[204] and reinforce a ‘frozen in time’ approach to native title,^[205] rather than focusing on the future aspirations of native title groups.^[206]

6.118   Other submissions indicated that it may limit ‘the recognition of Aboriginal or Torres Strait Islander agency in responding to the particular circumstances of colonisation that they faced’^[207] and not recognise that ‘it may not always be possible to prove a direct correlation between a demonstrated interruption or change and the effect of government policies and individual behaviour on the movements of individuals or families’.^[208]

6.119   Some submissions expressed concern about unhelpful distinctions.^[209] As Native Title Services Victoria (NTSV) put it, ‘[a] debate about the difference between Traditional Owners forced off country by European colonisation and Traditional Owners leaving “voluntarily” to be closer to education and services, should not be fostered’.^[210]

6.120   Other concerns centred on the increased complexity and time that might be introduced into native title proceedings,^[211] potentially precipitating ‘another wave of judicial interpretation’.^[212] The NNTC expressed concern that ‘such an inquiry may end up involving an assessment of competing versions of history, which may be difficult for the Court and for claim groups’.^[213] NTSCORP, who favoured reform, was concerned about the likelihood of increased litigation leading to further delay in the resolution of claims.^[214]

Suggested model

6.121   The ALRC suggested an amendment to the Native Title Act to explore how a measure to take into account the reasons—that is the impact of European settlement—might be formulated.^[215] This model drew upon drafting precedents in the Native Title Act.^[216] Few stakeholders supported this model for reform.^[217] NTSCORP submitted that

it strikes a good balance between directing the Court to a consideration of the reasons for dislocation in reaching decisions on the existence of native title, but allowing the Court discretion to develop principles for how this consideration would be undertaken in practice. It would also give a similar indication to the State governments in the claims mediation process.^[218]

6.122   However, a number of submissions expressed concerns and possible improvements.^[219] While the ALRC’s intention was to preserve judicial discretion, several stakeholders urged deletion of the words ‘unless it would not be in the interests of justice to do so’.^[220] Some raised concerns about an overemphasis on physical connection implicit in the wording of the suggested text, preferring that a wider range of ‘reasons’ be considered.^[221]Some stakeholders objected to the expression ‘undue weight’.^[222]

No statutory clarification regarding reasons for ‘substantial interruption’

6.123   The ALRC sees merit in the fact-finder having regard to reasons for the displacement of Aboriginal and Torres Strait Islander peoples and some change in the continuity of the acknowledgment and observance of traditional laws and customs in certain circumstances. The ALRC notes the High Court’s observation in Yorta Yorta that examining ‘the presence or absence of reasons might influence the fact-finder’s decision about whether there was such an interruption’. The ALRC seeks to mediate the view expressed in Bodney v Bennell that it is irrelevant to ask why the acknowledgment of traditional laws and the observance of traditional customs may have ‘changed’. The fact-finder should be able to have regard to the reasons for any change in continuity of the acknowledgment and observance of traditional laws and customs when assessing whether traditional laws and customs have adapted, evolved or developed.

6.124   The ALRC considers that this approach, together with the likely net effect of recommendations made in Chapter 5, should allow greater scope to consider factors relevant to whether there was change in the continuity of acknowledgment and observance of traditional laws and customs. In particular, Recommendations 5–2 and 5–3, which remove the ‘substantially uninterrupted’ and the ‘generation by generation’ thresholds, will mean that there may be greater opportunity for the fact-finder to have regard to the reasons in deciding the effect of the  interruption or change in continuity of acknowledgment of law and observance of custom. The ALRC considers that this is the best way to enable consideration of the reasons for interruption or change in continuity of acknowledgment of law and observance of custom rather than recommending specific change to the Native Title Act.

6.125   This approach also reflects the weight of stakeholder submissions and consultations which were opposed to specific reform to enable consideration of the reasons for any displacement. A number of stakeholders consider specific reform to be unnecessary given the ALRC’s preferred approach outlined in Recommendations 5–1 to 5–5.^[223]In respect of Recommendation 5–1, NTSV submitted that

with a suitably flexible and equitable interpretation of the term ‘traditional’, an inquiry into the extent and effect of historical displacement of Aboriginal people need not be pursued. A definition of ‘traditional’ should allow for change and adaptation, including whether such changes are made in response to the forces of colonisation or by choice.^[224]

6.126   Recommendations 5–2 and 5–3, in addressing the substantive legal test defining native title, provide a more direct way of accommodating the effects of European settlement. The ALRC considers that if a beneficial approach is taken to the construction of s 223, and that the requirement for continuity of the acknowledgment and observance of traditional laws and customs is no longer set at the high ‘substantially uninterrupted’ and ‘by each generation since sovereignty’ thresholds, then there will be greater scope, on a case by case basis, for consideration of the circumstances in which connection has, or has not, been substantially maintained.

6.127   By contrast, National Congress was ‘adamant’ that the ALRC’s preferred approach, now reflected in Recommendations 5–1, 5–2 and 5–3, had ‘not gone far enough’ to address s 223(1)(b) and the effects European settlement may have had in impairing Aboriginal and Torres Strait Islander peoples’ ability to continue their connection to land and waters by those laws and customs. It submitted that Proposal 5–3, now Recommendations 5–2 and 5–3, ‘only addresses the level or frequency of continuity of acknowledgment and observance of traditional laws and customs under s 223(1)(a)’.^[225]

6.128   Recommendations 5–2 and 5–3 are not aimed simply at the frequency of continuity; although this is typically understood to be their main effect. The ALRC’s view of the law is that consideration of why acknowledgment and observance may have ‘changed’ is permissible in certain circumstances, specifically where it ‘might influence the fact-finder’s decision about whether there was such an interruption’.^[226] The ALRC considers that, if the effect of Recommendations 5–2 and 5–3 is to remove the ‘substantially uninterrupted’ and the ‘generation by generation’ thresholds, then it allows scope to consider factors that have impaired the ability of Aboriginal and Torres Strait Islander peoples to continue their connection.

The empowerment of courts

6.129   The option for reform for consideration under the Terms of Reference also required examination of the ‘empowerment’ of courts. The ALRC understood the term ‘empowerment’ to indicate the statutory conferral of discretion.^[227] Judicial discretion is, by its very nature, one to be exercised in relation to the circumstances of an individual case and by construction of the relevant law.^[228] Therefore, the circumstances enlivening the discretion will be variable. A general empowerment of courts may therefore be quite uncertain in its effect and operation.^[229] Questions may arise whether any such ‘empowerment’ would operate as a procedural matter or would form part of the substantive area of law interpreting s 223 of the Native Title Act.

6.130   A number of submissions expressed support for the empowerment of courts to disregard substantial interruption or change in continuity of acknowledgment of traditional laws and observance of traditional customs, where it is in the interests of justice to do so.^[230] National Congress submitted that, ‘[w]here the effects of colonisation have caused a substantial interruption to connection that our Peoples have with their lands and waters, the Court must have the discretion to disregard such interruptions’.^[231] Such a reform would be ‘consistent with the beneficial purposes for which the NTA was enacted, particularly where the interruption is caused by circumstances outside the control or intent of the relevant members of the relevant society’.^[232] Similarly, AHRC submitted that such a reform would be ‘[i]n furtherance of the purposes of the Act’, and referred to the Preamble to the Act.^[233]

6.131   However, a number of stakeholders were opposed to this reform option,^[234]with some preferring other options.^[235] Concerns were raised that such a model for reform:

• ‘would likely place greater emphasis than there is presently on the fact and nature of any substantial interruption’;^[236]

• would be of uncertain effect;^[237]

• may not be in claimants’ interests as it may lead to increased debate about issues as well as increased costs and delay;^[238] and

• is problematic because of uncertainty about the meaning of ‘in the interests of justice’.^[239]

6.132   These concerns are largely the same as those expressed in some submissions about considering European settlement and any potential reasons for displacement, substantial interruption and change in continuity in general.

6.133   During consultations, stakeholders raised concerns that any proposed amendment of this nature may be unconstitutional because ‘empowering’ courts to disregard substantial interruption may amount to the legislature directing the courts as to the exercise of their jurisdiction. That is, usurpation by the legislature of the judicial power of Chapter III courts. However, having investigated the issues, the ALRC considers that this is unlikely to be a problem. Presumably the purpose of such a provision is to empower courts with a discretion as to what they may take into account—rather than a direction as to how they are to exercise that discretion.^[240]

6.134   Other submissions queried the phrase ‘in the interests of justice’ which typically indicates that courts retain discretion.^[241] Concerns were expressed about defining it in the Act:^[242]

The phrase could import considerations of the overall circumstances of the case, including the present circumstances of the Claimants or the Respondents, or difficulties being experienced between multiple claim groups. There is a possibility that a decision may be taken to not disregard ‘substantial interruption’ in order to assist a poor or disadvantaged respondent due to the ‘interests of justice’.^[243]

6.135   Some submissions felt some guidance may be useful,^[244] or necessary.^[245]

6.136   Stakeholders who were opposed to a statutory definition of ‘in the interests of justice’ considered that it was ‘better left to the Court in each case’,^[246] as this would provide courts with greater flexibility to disregard substantial interruption.^[247]

Other models for considering the impact of European settlement

6.137   While stakeholders have certain expectations about what may be achieved by the native title system, dispossession is not necessarily capable of being redressed by a determination of native title.^[248]

6.138   Although the ALRC has identified Recommendations 5–1 to 5–5 as its preferred approach, the ALRC sees value in outlining the other models or options for reform that have been offered as they have been the subject of proposed legislative amendment over a number of years and have garnered significant stakeholder support, including in submissions to this Inquiry. The following section sets out responses to these other models for considering the impact of European settlement.

Background

6.139   The Aboriginal and Torres Strait Islander Social Justice Commissioner, in Native Title Report 2008, proposed a legislative amendment so that the courts would have capacity to take into account the reasons for interruption to the acknowledgment of the traditional laws and the observance of the traditional customs.^[249] In the Native Title Report 2009, the Commissioner suggested a proposal in similar terms to the option for reform in the Terms of Reference.^[250] Further, the Commissioner suggested that ‘a definition or a non-exhaustive list of historical events’ could be provided in the Native Title Act in order ‘to guide courts as to what should be disregarded’.^[251] The Native Title Amendment (Reform) Bill 2011 proposed amendments broadly consistent with these recommendations.^[252]

Native Title Amendment (Reform) Bill 2014

6.140   The Native Title Amendment (Reform) Bill 2014 differed in some key respects from the 2011 Bill,^[253] providing for a discretion be conferred on the courts rather than mandating them to ‘treat as relevant’ particular reasons for the substantial interruption.^[254]The 2014 Bill would have inserted a new s 61AB, providing that:

A court may determine that subsection 223(1) has been satisfied, despite finding that there has been:

(a)        a substantial interruption in the acknowledgment of traditional laws or the observance of traditional customs; or

(b)       a significant change to traditional laws acknowledged or traditional customs observed;

if the primary reason for the substantial interruption or the significant change is the action of a State or a Territory or a person or other party who is not an Aboriginal person or a Torres Strait Islander.

6.141   The ALRC, after careful assessment of various models and combinations, suggests that allowing courts to disregard substantial interruption or change in continuity of acknowledgment and observance of traditional laws and customs under the Native Title Amendment (Reform) Bill 2014 is the best of the alternative models. In the ALRC’s view, it is better than the model suggested in the Discussion Paper or a statutory definition of ‘substantial interruption’. It received the most support from stakeholders who favoured other reform options.

Statutory definition of ‘substantial interruption’

6.142   While the Aboriginal and Torres Strait Islander Social Justice Commissioner had suggested that a statutory definition of ‘substantial interruption’ be linked to the empowerment of courts to disregard substantial interruption,^[255] some submissions conceived of a definition as a separate reform option.^[256]

6.143   Several submissions supported a statutory definition of the factual matters related to ‘substantial interruption’,^[257] with a non-exhaustive list held to be important.^[258] Supporters of a statutory definition considered a non-exhaustive list necessary as what constitutes a ‘substantial interruption’ is unsettled.^[259]

6.144   Other stakeholders opposed a statutory definition.^[260] Governments were opposed,^[261] viewing such a reform option as:

• unnecessary;^[262]

• ‘impractical’, given that it is ‘a question of fact and degree’;^[263]

• making the test for recognising native title ‘unduly complicated’;^[264] and

• tending to ‘shift the focus of native title inquiries onto historical matters, without necessarily achieving any time savings’.^[265]

6.145   A statutory definition of ‘substantial interruption’ was also opposed by stakeholders who otherwise favoured law reform.^[266] AIATSIS, for example, acknowledged that:

A strong argument exists for including a non-exhaustive list of historical events upon which the courts could be guided with respect to disregarding the requirement for continuing connection without substantial interruption.^[267]

6.146   However, AIATSIS reiterated its comment to the Senate Inquiry concerning the provisions of the 2011 Bill, that,

Indigenous agency in responding to such forces is not always easily articulated and reasons for certain actions may form part of the implicit rather than explicit knowledge of claimants. In these circumstances, respondent rebuttal might argue that a particular move was voluntary as the subtleties and long terms effects of policies remain invisible. There are also many other factors, such as cataclysmic events, drought, flood, war and the like, which could, prima facie, indicate a substantial period of dislocation, but which might fall outside the protection of s 61AB(2).^[268]

Other models for reform

6.147   In the Discussion Paper, the ALRC invited comment on other reform options that may be appropriate. Some stakeholders preferred other reforms to those identified by the ALRC.^[269] The Law Society of Western Australia and Yamatji Marlpa Aboriginal Corporation (‘YMAC’) favoured text advanced by the Law Council of Australia in response to Native Title Amendment (Reform) Bill 2011, with a few minor additions.^[270] Essentially, this model is similar to new s 61AB(2) as proposed in the Native Title Amendment (Reform) Bill 2014.

6.148   AIATSIS favoured a ‘presumption of transformation’ to be expressly stated in the Native Title Act, together with ‘an obligation on the State to abstain from adducing any evidence about interruption of connection where the action of the State caused the interruption’. Such an approach would impose ‘an equitable obligation on the State to act in the best interest of the applicant’.^[271]

6.149   Others saw the native title system as an inappropriate vehicle for an inquiry into the impacts of European Settlement, highlighting the fact that Australia does not have a forum dedicated to reconciliation and compensation.^[272] CDNTS stated that, while

acknowledgment of the impact of displacement is key to starting to address community hurt[,] … native title is not the answer, recognition nor means of redress that Aboriginal people have been seeking. … [T]he NTA should not be the only means by which the impact of colonisation is addressed.^[273]

6.150   Similarly, the Law Council of Australia submitted that the Native Title Act ‘is not, of itself, sufficient to address the injustices caused by the dispossession of Aboriginal peoples and Torres Strait Islanders’.^[274] Both stakeholders noted the failure to implement the social justice package which had originally been proposed to compensate Aboriginal peoples and Torres Strait Islanders who had been dispossessed of their land through colonisation.^[275] CDNTS also submitted that the Indigenous Land Corporation had ‘not delivered what was intended’. It speculated that ‘[p]erhaps the answer lies more in alternative settlements or regimes’.^[276]

Overview of key points

6.151   The ALRC considers that together Recommendations 5–1, 5–2 and 5–3 will allow courts the discretion to take into account more readily the impacts of European settlement on Aboriginal and Torres Strait Islander claimants on a factual basis when determining connection under s 223(1)(b).

6.152   The ALRC considers that the change to be effected by Recommendation 5–1 would necessarily also apply to s 223(1)(b), given the repetition of the phrase ‘by those laws and customs’ in that provision. Accordingly, changes to traditional laws and customs due to displacement of groups could be accommodated; particularly as the existing law clearly does not require physical presence or continued or recent use to establish connection.

6.153   In Chapter 5, the ALRC raises the possibility that there could be a positive test for the required continuity of the acknowledgment and observance of traditional laws and customs. The terms ‘substantially maintained’ or ‘identifiable through time’ were suggested.^[277] This suggestion was in response to the removal of the high thresholds of ‘substantially uninterrupted’ and ‘by each generation since sovereignty’ in respect of the required continuity of the acknowledgment and observance of traditional laws and customs.^[278]

6.154   In addition, the ALRC considers that the recommendation for ‘society’ to be treated as a conceptual tool, rather than a strict requirement,^[279] will ameliorate situations where groups have been dispersed under settlement impacts.