Evidence of physical occupation, continued or recent use
6.25 The ALRC was asked to consider whether there should be confirmation that ‘connection with the land and waters’ does not require physical occupation or continued or recent use of the land and waters claimed.
6.26 In Western Australia v Ward the Full Federal Court considered whether connection with land and waters could be maintained in the absence of physical presence. The Court concluded that, while actual physical presence provides evidence of connection, it is not essential for establishing native title under s 223(1) of the Native Title Act. For example, it was argued by the State respondent that the inundation of parts of the claim area by Lakes Kununurra and Argyle meant that connection had not continued. The Court observed:
The inundation of the areas by water makes it impracticable to enjoy native title rights and interests insofar as they involve activities ordinarily carried out by physical presence on the land. However, by continuing to acknowledge and observe traditional laws and customs involving ritual knowledge, ceremony and customary practices, the spiritual relationship with the land can be maintained.
6.27 On appeal, the High Court noted that s 223 ‘is not directed to how Aboriginal peoples use or occupy land or waters’, although the way in which land and waters are used may be evidence of the kind of connection that exists. The Court confirmed that the absence of evidence of recent use, occupation or physical presence does not necessarily mean that there is no connection with the land or waters.
6.28 In De Rose v South Australia (No 2) (‘De Rose (No 2)’), the Full Federal Court held:
It is possible for Aboriginal peoples to acknowledge and observe traditional laws and customs throughout periods during which, for one reason or another, they have not maintained a physical connection with the claim area. Of course, the length of time during which the Aboriginal peoples have not used or occupied the land may have an important bearing on whether traditional laws and customs have been acknowledged and observed. Everything will depend on the circumstances.
6.29 There have been occasional attempts to characterise connection as either physical or spiritual,or as ‘essentially spiritual’.This may have been influenced by the Court’s experience with cases under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), which requires claimants to establish ‘common spiritual affiliations’ to land.However, given that connection for the purpose of the Native Title Act can be maintained by the acknowledgment of laws and observance of customs, this distinction between physical and spiritual may be unhelpful. It may also be inconsistent with the relationship of Aboriginal and Torres Strait Islander peoples with land, which was described by Blackburn J in Milirrpum v Nabalco Pty Ltd:
The physical and spiritual universes are not felt as distinct. There is an unquestioned scheme of things in which the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole.
Physical occupation and the identification of native title rights and interests
6.30 A determination of native title must include a determination of the nature and extent of the native title rights and interests in the area. Physical occupation and continued or recent use may be relevant to proving the particular rights and interests possessed under traditional laws and customs. The content of native title is a question of fact, to be determined on a case by case basis. Evidence of physical possession, occupation and use could be relevant to the question of whether the rights and interests include a right to exclude others, or other rights. For example, in Banjima People v Western Australia (No 2), Barker J said:
There is ample evidence to show that hunting and the taking of fauna in customary ways continues today. Similarly, the customary practice of gathering and taking flora is well established historically and presently. The right to take fish is the subject of less contemporary evidence, but the right to take fish in the claim area is still exercised and clearly established as a right possessed by the claimants both historically and presently. It is not a right or activity that the evidence suggests has been abandoned. Similarly the right to take stones, timber, ochre and water is another right possessed by the claimants even though the evidence of current exercise of those rights is relatively limited.
6.31 The courts have emphasised that, while the exercise of native title rights and interests is ‘powerful evidence’ of the existence of those rights, the ultimate question concerns possession of rights, not their exercise.
6.32 In Akiba v Queensland (No 3), the claimant failed to establish connection at the extremities of the claim because there was ‘no evidence of use of, or connection to, those areas’. The claim over extremities did not fail because there was no evidence of use of the areas, but because there was no evidence at all regarding connection to those areas. The Court did not require evidence of use, but it did require evidence of connection.
6.33 The Court confirmed that:
Islander knowledge of areas when coupled with the deep and transmitted sea knowledge that many of them possess, is itself a potent indicator of connection, and continuing connection at that, to their marine estates—the more so because under their laws and customs they have, and do exercise, traditional rights to use and forage there …
Clarification of s 223?
6.34 The ALRC considers that it is not necessary to clarify Native Title Act s 223 with regard to physical occupation, continued or recent use, as it is a matter of settled law. When codifying, confirming or clarifying an area of settled law, there is a risk of disturbing the settled law, causing uncertainty and unnecessary litigation.
6.35 Several stakeholders suggested that the Native Title Act should be amended for consistency with De Rose (No 2). However, no lack of consistency with De Rose (No 2) has been identified, and the ALRC has not been directed to any areas of doubt or uncertainty in the construction of s 223 on this issue. Section 223 does not contain any reference to physical occupation or continued and recent use. The courts have been clear that, while such evidence is relevant, it is not necessary. A number of stakeholders agreed that clarification is not necessary. For example, Goldfields Land and Sea Council said ‘the case law clearly and consistently holds that these matters are not necessary elements of proof for establishing native title’.
6.36 One representative body indicated that claim groups ‘have experienced difficulties satisfying the State about continuing connection in circumstances where there is no recent evidence of physical presence on particular parts of a claim area’. Just Us Lawyers also reported that ‘State governments generally expect physical occupation and ongoing use of at least parts of the claim area to be demonstrated for the purposes of a consent determination’. Because courts have confirmed that such evidence is ‘powerful’, respondents will continue to seek such evidence, and place weight on it, when it is available. However, to treat such evidence as a necessary element for a consent determination would be to impose a standard higher than that set by Parliament and the courts for a contested determination.
6.37 Even without a requirement to demonstrate physical occupation, or continued or recent use, the requirement to demonstrate connection to land or waters is still a substantial one. Connection must be demonstrated to have been maintained under traditional laws and customs that have been observed, substantially uninterrupted, since pre-sovereignty times. Further discussion of these requirements and the ALRC’s recommendations in this regard, are in Chapters 4 and 5.
The affidavit supporting a claimant application
Recommendation 6–1 Section 62(1)(c) of the Native Title Act 1993 (Cth) provides that a claimant application may contain details of any ‘traditional physical connection’ that a member of the native title claim group has, or had, with the land or waters claimed. This subsection should be repealed.
6.38 The Native Title Act includes two references to physical connection that the ALRC considers may be inconsistent with the courts’ interpretation of s 223 concerning connection. The ALRC recommends that these references should be removed.
6.39 Section 62(1)(c) provides that a claimant application may contain details of ‘any traditional physical connection’ with the land or waters by a member of the native title claim group, or if any member of the native title claim group has been prevented from gaining access, the circumstances in which the access was prevented.
6.40 This section does not require evidence of physical connection. It is consistent with statements of the courts that evidence of the exercise of rights can be adduced to support a claim for the existence of rights. However, the ALRC is concerned that the section specifically refers to physical connection and does not refer to other ways of demonstrating connection, such as observing traditional laws and customs, maintaining traditional customs and ceremonies, maintaining stories and allocating responsibilities, faithfully performing obligations under traditional law and the continuing internal and external assertion by the group of its traditional relationship with country. The inclusion of physical connection in s 62 and the omission of spiritual, social and cultural evidence of connection give an apparent priority to physical connection that does not reflect the case law or the requirements of s 223.
6.41 Stakeholders largely supported the proposed change, on the basis that s 62(1)(c) is inconsistent with the law on connection, or places an overemphasis on this type of evidence. Native Title Services Victoria said that s 62(1)(c) is
inconsistent with s 223 and the jurisprudence, which does not require physical connection with the land claimed, and recognises the myriad of other ways in which Aboriginal people connect to land.
6.42 The National Native Title Council (NNTC) expressed the hope that
removing any reference to a requirement for evidence of ‘traditional physical connection’ may help persuade respondents that they should not treat such evidence as a necessary element in their decision-making about whether to agree to a consent determination.
6.43 The National Native Title Tribunal noted that such a change would not affect the Registrar’s functions, as s 62(1)(c) does not make evidence of traditional physical connection a mandatory requirement. The ALRC agrees that the recommended change would not alter the operation of the registration test. However, the use of the term ‘traditional physical connection’ in the Native Title Act has the potential to cause confusion. A number of stakeholders appeared to be of the understanding that the law currently requires evidence of physical connection, and that removing s 62(1)(c) would remove that requirement. For example, one said that
we are concerned that removal of the requirement to establish a traditional physical connection with the land or water may increase the number of groups wishing to participate in a native title claim.
6.44 The recommended amendment would not change the substantive law on connection. However, removing references to ‘physical connection’ could help eliminate this confusion.
The registration test
Recommendation 6–2 Section 190B(7) of the Native Title Act 1993 (Cth) provides that the Registrar must be satisfied that at least one member of the native title claim group has, or previously had, a traditional physical connection with any part of the land or waters, or would have had such a connection if not for things done by the Crown, a statutory authority of the Crown, or any holder of a lease. This subsection should be repealed.
6.45 Section 190B(7) of the registration test includes a requirement that at least one member of the claim group demonstrate a ‘traditional physical connection’, except in certain circumstances. The ALRC considers that the registration test should not include a requirement that is additional to what is required by s 223 and the courts’ interpretation of that section, and recommends that it should be removed.
6.46 Part 7 of the Native Title Act establishes a Register of Native Title Claims and sets out conditions for registration. If a claim satisfies all of the conditions, it must be entered in the Register. The native title claim group is then entitled to certain rights, including the right to negotiate under s 31 of the Native Title Act.
6.47 The registration test requires the Registrar to be satisfied that the factual basis exists to support the assertion that the native title claim group has an association with the area. The native title claim group must show an association with the entire area claimed, but it has been held that the association can be physical or spiritual.
6.48 Section 190B(7) adds a requirement that the Registrar must be satisfied that at least one member of the native title claim group has, or previously had, a traditional physical connection with any part of the land or waters, or would have had such a connection if not for things done by the Crown, a statutory authority of the Crown, or any holder of a lease. ‘Traditional physical connection’, in this instance, means that the connection is in accordance with the laws and customs of the group.
6.49 Information about a claim group member’s presence on, or use of, the land or waters, is relevant to whether the factual basis exists for a claim. However, the requirement in s 190B(7) that an application include information about ‘traditional physical connection’ is inconsistent with the case law that has established that physical occupation or use is not required to establish connection. The requirement could result in a claim group with ample evidence of connection being denied registration and the procedural rights that are associated with registration.
6.50 If the s 190B(7) requirement is the only reason a claim is not registered, an applicant may apply to the Federal Court for an order that the claim be registered. However, Professor Richard Bartlett has noted that it would be difficult for an applicant to secure a court order in time to use the right to negotiate.
6.51 When the introduction of this subsection into the Native Title Actwas being considered, concerns were raised that it did not reflect the common law elements for a native title claim.
6.52 Further, the reference in s 190(7)(b) to ‘things done’ by the Crown, a statutory authority of the Crown, or a leaseholder suggests that those things are relevant to the question of whether connection has been maintained. However, the courts have indicated that the reasons for an absence of connection are not relevant. There are concerns that this section may elicit evidence that could be used against the claimant group.
6.53 This element of the registration test is also inconsistent with the reality of the lives of Aboriginal and Torres Strait Islander people who have moved away from their country in order to access employment, health services and education. Queensland South Native Title Services (QSNTS) noted:
Whilst traditional owners might be physically separated from country, they remain rooted in their identity and their convictions about their connections to their traditional estates. QSNTS’s clients managed to stay connected to their traditional life and land in multiple ways. Aside from maintaining traditional practices and beliefs, there is also tourism, preservation actions, government involvement and the use of symbols which maintain strong connections.
6.54 There was wide support for the proposed change regarding s 190B(7) as it would create consistency between the requirements of the registration test and the requirements of s 223 of the Native Title Act regarding connection.The Law Society of Western Australia said ‘a physical connection is not required for connection or a finding of native title. It should not be required for the registration test’.
6.55 There have been no instances where a claim has been refused registration solely on the basis of s 190B(7). The provision does not appear to serve any independent function, but may be contributing to confusion regarding the substantive requirements for connection. Several stakeholders opposed the repeal of s 190B(7) on the basis that it would amount to ‘the removal of connection’ or a broadening of the definition of native title.
6.56 Section 190B(7) is one of the few parts of the Native Title Act that acknowledges that acts of the Crown, and others, have interfered with the connection between Aboriginal and Torres Strait Islander peoples and their lands and waters. The issue of the reasons for ‘substantial interruption’ or displacement is discussed later in this chapter. While this acknowledgment in s 190B(7) may have some symbolic value, the ALRC considers that it is important that the registration test is consistent with s 223 and the case law regarding physical occupation and continued and recent use.
See Terms of Reference.
Western Australia v Ward (2000) 99 FCR 316.
Western Australia v Ward (2002) 213 CLR 1, 86.
De Rose v South Australia (No 2) (2005) 145 FCR 290, 306; see also Dale v Moses  FCAFC 82(7 June 2007) ; Moses v Western Australia (2007) 160 FCR 148, 222.
See, eg, De Rose v South Australia  FCA 1342 (1 November 2002) .
Western Australia v Ward (2002) 213 CLR 1, .
Richard H Bartlett, Native Title in Australia (LexisNexis Butterworths, 3rd ed, 2015) 173–176.
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, 456; Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442, 469.
Duff, above n 17, 49.
Milirrpum v Nabalco (1971) 17 FLR 141, 167.
Native Title Act 1993 (Cth) s 225.
Commonwealth v Yarmirr (2001) 208 CLR 1, 39; Western Australia v Ward (2000) 99 FCR 316, 338; Wik Peoples v Queensland (1996) 187 CLR 1, 169; Mabo v Queensland [No 2] (1992) 175 CLR 1, 58, 61.
Banjima People v Western Australia (No 2) (2013) 305 ALR 1, , .
Ibid ; Rubibi Community v Western Australia (No 5)  FCA 1025 (29 July 2005) ; Neowarra v Western Australia  FCA 1402 (8 December 2003) ; Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422,  (Gleeson CJ, Gummow and Hayne JJ).
Akiba v Queensland (No 2) (2010) 204 FCR 1, 168, 172.
Ibid 168, 173.
Just Us Lawyers, Submission 2; Australian Human Rights Commission, Submission 1.
South Australian Government, Submission 68; Yamatji Marlpa Aboriginal Corporation, Submission 62; South Australian Government, Submission 34; Northern Territory Government, Submission 31; Queensland Government, Submission 28; Goldfields Land and Sea Council, Submission 22; Western Australian Government, Submission 20; National Farmers’ Federation, Submission 14; Law Society of Western Australia, Submission 9.
Goldfields Land and Sea Council, Submission 22.
Cape York Land Council, Submission 7.
Just Us Lawyers, Submission 2.
Bodney v Bennell (2008) 167 FCR 84, ; Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, –.
AIATSIS, Submission 36.
Mabo v Queensland [No 2] (1992) 175 CLR 1, 59–60; Western Australia v Ward (2000) 99 FCR 316, 382.
Western Australia v Ward (2000) 99 FCR 316, 382.
Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442, 469–470.
De Rose v South Australia (No 2) (2005) 145 FCR 290, 306–307.
Sampi v Western Australia  FCA 777 (10 June 2005) .
AIATSIS, Submission 70; National Congress of Australia’s First Peoples, Submission 69; Indigenous Land Corporation, Submission 66; Law Council of Australia, Submission 64; Yamatji Marlpa Aboriginal Corporation, Submission 62; 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; North Queensland Land Council, Submission 42; Law Society of Western Australia, Submission 41.
AIATSIS, Submission 70.
Native Title Services Victoria, Submission 45.
National Native Title Council, Submission 57.
National Native Title Tribunal, Submission 63.
Minerals Council of Australia, Submission 65; Association of Mining and Exploration Companies, Submission 54; Cement Concrete and Aggregates Australia, Submission 47.
Cement Concrete and Aggregates Australia, Submission 47.
Native Title Act 1993 (Cth) s 190A(6).
Ibid s 190B(5).
Martin v Native Title Registrar  FCA 16 (19 January 2001) ; Corunna v Native Title Registrar  FCA 372 (24 April 2013).
Native Title Act 1993 (Cth) s 190B(7).
Gudjala People No 2 v Native Title Registrar  FCA 1167 (7 August 2007) .
Bartlett, above n 50, 266–267.
Commonwealth Government, Submission to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Native Title Amendment Bill 1997.
Bodney v Bennell (2008) 167 FCR 84, 104–105; Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, 456–457. In Yorta Yorta, the High Court said that the presence or absence of reasons might be relevant to the question of whether there has been an interruption: at , discussed further below.
Central Desert Native Title Service, Submission 48.
Queensland South Native Title Services, Submission 55.
AIATSIS, Submission 70; Indigenous Land Corporation, Submission 66; Law Council of Australia, Submission 64; Yamatji Marlpa Aboriginal Corporation, Submission 62; National Native Title Council, Submission 57; Queensland South Native Title Services, Submission 55; A Frith and M Tehan, Submission 52; Native Title Services Victoria, Submission 45; North Queensland Land Council, Submission 42; Law Society of Western Australia, Submission 41.
Law Society of Western Australia, Submission 41.
National Native Title Tribunal, Submission 63.
Minerals Council of Australia, Submission 65.
Association of Mining and Exploration Companies, Submission 54.