Redefining connection

6.57       In the Discussion Paper, the ALRC proposed amendment to the term ‘connection’ in s 223(1)(b) of the Native Title Act.^[96] The revised definition sought to re-emphasise the relationship to the claimed land and waters as the primary focus when connection is interpreted—reflecting the actual text of s 223(1)(b). In this sense, interpretation of connection may permit claimants to assert ‘the reality of their connection’ to traditional land and waters.^[97]

6.58       The Law Council of Australia explained the inadequacy of the current legal model in terms of capturing Indigenous relationships with country,^[98] especially as the meaning of the term has become opaque^[99] and variable in interpretation.^[100]

6.59       The ALRC’s suggested redefinition was for connection to describe ‘the relationship to the land and waters’ claimed.^[101] That relationship is expressed in the present form of the acknowledgment of laws and observance of custom, although the origins of the laws and customs must be in the period prior to the assertion of sovereignty.

6.60       It sought to capture the centrality of connection to land or waters as a form of sacred obligation to country.^[102]While the expression of connection to land and waters may vary, particularly between Torres Strait Islander peoples and Aboriginal peoples of the Australian mainland, Torres Strait Islander peoples’ relationship to land and waters is also interwoven with laws and customs.^[103] Some stakeholders queried the phrasing of the redefinition.^[104]

Connection—in the present tense

6.61       In Members of the Yorta Yorta Community v Victoria(‘Yorta Yorta’), the High Court noted that:

it would be wrong to confine the inquiry for connection between claimants and the land or waters concerned to an inquiry about the connection said to be demonstrated by the laws and customs which are shown now to be acknowledged and observed by the peoples concerned. Rather, it will be necessary to inquire about the relationship between the laws and customs now acknowledged and observed, and those that were acknowledged and observed before sovereignty.^[105]

6.62       Yet the definition in s 223(1)(b) refers to the present tense, ‘by those laws and customs, have a connection with land and waters’.^[106] The focus for an amended definition would not avoid the need ‘to inquire about the relationship between the laws and customs now acknowledged and observed, and those that were acknowledged and observed before sovereignty’. Presumptively, it suggests that a claim group’s present connection should be the ‘starting point’ when considering whether connection is established. That relationship necessarily informs the scope of the laws and customs together with inquiries about right people for country.

6.63       Secondly, the proposal for an amended definition was intended to give ‘connection’ some meaningful content. In De Rose v South Australia (No 1), the Full Federal Court stated:

At first glance, it may not be evident what par (b) of s 223(1) adds to par (a). If Aboriginal people possess rights and interests in relation to land under the traditional laws acknowledged and the traditional customs observed by them, it would seem to be a small step to conclude that the people, by those laws and customs, have a connection with the land.^[107]

6.64       Some stakeholders suggested an alternative revision of s 223(1)(b). One suggested:

223(1)(b)—those laws and customs arise [or derive] from a relationship between the Aboriginal peoples or Torres Strait Islanders and the land or waters, which relationship presently connects them to the land or waters.^[108]

6.65       In comparative jurisdictions, the equivalent test to ‘connection’ does not rely so heavily upon an investigation of pre-sovereign law and custom.^[109]While in Canada there is a stronger foundation in occupancy to ground aboriginal title, Tsilhqot’in Nation confirmed that

what is required is a culturally sensitive approach to sufficiency of occupation based on the dual perspectives of the Aboriginal group in question—its laws, practices, size, technological ability and the character of the land claimed—and the common law notion of possession as a basis for title. … [T]he perspective of the Aboriginal group [to possession] … might conceive of possession of land in a somewhat different manner than did the common law.^[110]

6.66       The ALRC’s intention, in proposing a revised definition of connection, was to align the definition with international standards, specifically with respect to articles 13, 25 and 26(3) of the United Nations Declaration on the Rights of Indigenous Peoples (‘UNDRIP’).^[111]

6.67       A few submissions supported redefining s 223(1)(b) but concurrently expressed concerns about drafting^[112] or preference for the reforms in Chapter 5.^[113] A few submissions supported redefinition to focus on present connection.^[114]However, the majority of submissions were opposed, for various reasons.^[115] The Minerals Council of Australia saw the proposal as calling for ‘significant’ legislative change, without sufficient foundation.^[116] The Law Society of Western Australia held the view that ‘a fixed interpretation by the legislature would be more likely to constrain, rather than assist’ in the development of relevant concepts.^[117]

6.68       A number of submissions were concerned about the uncertainty likely to result from change.^[118] The South Australian Government observed that ‘there is a large body of jurisprudence on the current definition—any attempt to change it will merely introduce further uncertainty and promote more litigation’.^[119] Others felt that ‘the addition of new terms to the definition should be limited as much as possible’.^[120]

6.69       The proposal to redefine connection was intended to operate in conjunction with either an amended definition of ‘traditional’, or removal of ‘traditional’ from s 223 and its substitution by the phrase, ‘in the period prior to the assertion of sovereignty’. The pairing of these proposed changes, particularly the suggestion of removal of the word ‘traditional’, caused a number of stakeholders to raise concerns,^[121] including the possibility of increased conflict. The NNTC considered these combined changes ‘would undermine native title rights and interests, create confusion amongst native title groups, and completely erode any glimmers of confidence that native title holders might have in the NTA to protect their rights to country’.^[122] NTSCORP Limited (NTSCORP) submitted that

there is a need to ensure that traditional owners and their traditional connections to country are recognised by the native title process. The change to the wording might be interpreted in such a way as to create a whole new set of issues where people with more recent relationships to country make claims under the NTA.^[123]

6.70       The Minerals Council of Australia submitted that removal of traditional would cause uncertainty as to ‘the identity of persons who claim to hold native title over time and confusion to the legitimacy of existing agreements’.^[124]

6.71       The South Australian Government submitted that ‘the removal of any requirement that the laws and customs be traditional, and a requirement only for a contemporary connection to the land or waters claimed, is to re-define native title into something completely different’.^[125] Only a small number of stakeholders gave any support to the idea of removing ‘traditional’ from s 223(1).^[126]

6.72       Given strong stakeholder comment from diverse perspectives about the uncertainty and conflict that the proposal might generate, the ALRC is not recommending statutory redefinition of connection in s 223(1)(b). The ALRC stresses that the interpretation of connection should adequately reflect Indigenous expressions of connection, in line with relevant standards in the UNDRIP.

6.73       Despite acknowledged difficulties concerning the concept of ‘traditional’ in native title law,^[127]for many it has become integral to the recognition of native title— although the term itself does not appear in s 223(1)(b). While noting the potential for the concept of traditional to lock connection ‘to an artificial concept of culture frozen in time at the moment of British sovereignty’,^[128] the ALRC makes no recommendation for its removal. The ALRC considers that the recommendations in Chapter 5 provide a better balance of legal reform and certainty for stakeholders in the native title system.

6.74       As David Martin noted, ‘it is tradition which grounds and legitimates claims to country from the perspective of Indigenous people, not mere connection’.^[129]

[R]emoving the concept of ‘tradition’/‘traditional’ from s 223, while well intentioned, would actually cause more conflict and confusion within claimant groups. … [To do so] ignores the deep significance accorded to traditional connections within Indigenous societies … The legal construction of tradition is, in my view, a translation (if in rather impoverished form) of a set of deeply embedded and highly significant values within much of Indigenous Australia.^[130]