Revitalisation of connection?

6.75       The ALRC considered whether the Act should be amended to distinguish between revival and revitalisation.[131] The approach suggested in the Discussion Paper would allow revitalisation of laws and customs but not revival of native title. Revival of native title at common law is not possible.[132] The High Court adopted a similar position on revival in construing the Native Title Act.[133] The ALRC is not recommending any change to the Native Title Act in respect of revival.

6.76       In Mabo [No 2], Brennan J stated:

When the tide of history has washed away any real acknowledgment of traditional law and real observance of traditional customs, the foundation of native title has disappeared. A native title which has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition.[134]

6.77       In Risk v Northern Territory,concerning the Larrakia people’s claim, the Federal Court at first instance concluded that there were ‘significant’ changes in the laws and customs compared to those which existed prior to the assertion of sovereignty. The Court expressed its view that ‘[t]hose differences and changes stem from, and are caused by, a combination of the historical events which occurred during the 20th Century’.[135] This was despite a finding that ‘[t]he Larrakia community of today is a vibrant, dynamic society, which embraces its history and traditions. This group of people has shown its strength as a community, able to re-animate its traditions and customs’.[136]

6.78       On appeal, the Full Federal Court remarked that:

A claimant group that has been dispossessed of much of its traditional lands and thereby precluded from exercising many of its traditional rights will obviously have great difficulty in showing that its rights and customs are the same as those exercised at sovereignty.[137]

6.79       This passage was approved in Sandy on behalf of the Yugara People v Queensland (No 2) as ‘directly applicable to the circumstances’ in that case.[138]

Revitalisation of Aboriginal and Torres Strait Islander culture

6.80       Since early cases were litigated, there is more knowledge about how culture is transmitted in Aboriginal and Torres Strait Islander communities and how laws and customs change over time. The Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) submitted:

The long-held dominant view in anthropology is that societies and cultures are not and never have been static, but that they are developing in a continual process of change and transformation. Over the last few decades, much anthropological research concerning Aboriginal and Torres Strait Islander culture has focused on the process of cultural change and ‘creative adaptation to change consistent with the continuity of aspects of traditional beliefs and practices’.[139]

6.81       AIATSIS has expressed concern about unduly focusing on ‘the distinction between “revitalise” and “revive” may divert the relevant inquiry from the critical consideration of the existence of a right’.[140]

6.82       The Federal Court, in Wyman on behalf of the Bidjara People v Queensland (No 2), outlined the opinion of two anthropologists about revitalisation:

Professor Langton considered that Bidjara songs, dances and stories have continued since sovereignty and that any difference in practices through the generations is explicable and does not amount to a severance of continuity. She acknowledged there had been revitalisation of some traditions, but noted that this did not imply recent invention. Rather, revitalisation is a legitimate means of maintaining Bidjara culture within a contemporary setting. Professor Sutton agreed with this latter point.[141]

6.83       While the Court concluded that the Bidjara people did not meet the requirements of s 223, it stated that ‘these conclusions say nothing about the value of Bidjara efforts to continue, revive and protect aspects of Bidjara culture’.[142]

6.84       The issue of whether laws and customs, and therefore connection, have been substantially maintained where there has been some revitalisation as an adaptation to changing circumstances has been addressed in Canadian and New Zealand case law.[143]

6.85       Article 11 of UNDRIP provides, in part, that ‘Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures’. Article 13(1) provides that

Indigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons.[144]

6.86       At the time of writing, the interpretation of s 223 does prevent evidence of revitalisation. Some people view the current interpretation of s 223 of the Act, ‘as creating ‘insurmountable barriers to cultural resurgence’.[145]

Where a group has revitalised its culture, laws and customs by actively seeking out and recovering those elements of cultural continuity driven underground by dispossession, forced relocation, or the removal of children—a comparatively minimal interruption to the sharing of that culture across the claimant group should not prevent recognition of native title.[146]

6.87       Several submissions expressly supported distinguishing between ‘revitalisation’ and ‘revival’,[147] with some suggesting the Native Title Act recognise a right of revitalisation.[148] QSNTS indicated that revitalisation ‘does not necessarily suggest starting from a position where there has been a clean break or abandonment’. It submitted that revitalisation ‘simply means that something which had dissipated or lessened in some degree has intensified’.[149]

6.88       Few stakeholders supported amendment of the Act to permit revitalisation of connection.[150] QSNTS and Central Desert Native Title Services Limited (CDNTS) viewed the proposal as addressing ‘continuity’,[151] but evidence was crucial:

The difficulty of course is one of evidence. A group may very well be revitalizing law and customs but because of the particular evidence, lack of evidence, or the way it is presented, it could be deemed revival because of what appears to be a ‘substantial interruption’.[152]

6.89       Other stakeholders expressed strong concerns[153] or outright opposition.[154] The Western Australian Government’s submission, amongst others, was opposed. It argued it would make native title ‘available to a multitude of contemporary groupings in respect of a given area’.[155]

Revitalisation as adaptation

6.90       The ALRC, by reference to UNDRIP,[156] supports a distinction between revitalisation and revival (that is, abandonment) although it acknowledges the fine distinctions required in the evidence and the questions of degree that arise factually in determining these matters.

6.91       The ALRC acknowledges the importance of Indigenous peoples’ right to revitalise culture, but it is not recommending direct statutory amendment to allow recognition of revitalisation of laws and customs under s 223(1). The ALRC believes that reform objectives are more effectively achieved by a recommendation that it be made clear that traditional laws and customs may adapt, evolve or otherwise develop.[157]

6.92       Revitalisation can be best accommodated as an adaptation or evolution in the manner in which traditional law is acknowledged and traditional customs observed. Any adaptation will be determined by reference to the factual circumstances of each claim. Working in conjunction with other recommendations in Chapter 5 (allowing for succession;[158] not necessary to establish ‘substantially uninterrupted’ continuity[159] by each generation since sovereignty)[160] should provide sufficient flexibility.[161]

6.93       NTSCORP felt the recommendations, ‘would allow for sufficient scope to include the way laws and customs may have changed due to many varying circumstances over time including, where appropriate, the revitalisation of laws and customs’.[162] CDNTS commented:

The central question that the ALRC appears to be grappling with is, how one deal[s] with forced abandonment while producing a just outcome and one that does not deter people from reviving or revitalising their culture in any event? … It is arguable that if proper and respectful regard is had to historical factors which cause displacement, then accepting revitalisation of law and custom should necessarily follow.[163]