6.1 This chapter complements Chapters 5 and 7 as part of the set of chapters concerned with ‘connection requirements for the recognition of native title rights and interests’. This chapter concentrates on how connection to land and waters is proved. Section 223(1)(b) states that ‘the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters’.
6.2 The chapter starts with an overview of the various meanings of ‘connection’ in native title law as relevant to examining connection requirements generally, and the two specific options for reform that are the focus of this chapter. These two options for reform are whether there should be:
confirmation that ‘connection with the land and waters’ does not require physical occupation or continued or recent use; and
empowerment of courts to disregard substantial interruption or change in continuity of acknowledgement and observance of traditional laws and customs where it is in the interests of justice to do so.
6.3 With respect to the first option for reform, the ALRC considers that the law is already clear in not requiring evidence of physical occupation or recent and continued use in order to establish connection in s 223(1)(b). The ALRC makes no recommendation to confirm this in the Native Title Act 1993 (Cth)(‘Native Title Act’). However, two provisions of the Native Title Act—dealing with the claimant application and the registration test—refer to ‘traditional physical connection’ with land and waters and these appear to be causing confusion about the substantive law regarding connection. The ALRC recommends the repeal of these provisions.
6.4 The next section of the chapter considers the feasibility of reframing the definition of connection in s 223(1) of the Native Title Act. The ALRC gauged support for a redefinition of connection that gave priority to the present connection ‘as a relationship with country’—although retaining origins of the laws and customs in the pre-sovereign period. The ALRC stresses the importance of giving primacy to Indigenous peoples’ own expressions of connection in line with best practice international standards.However, no recommendation is made to amend s 223(1)(b).
6.5 The chapter then considers two areas of law relevant to the second option for reform. First, there is discussion of whether revitalisation of traditional law and custom should be a permissible factor for establishing connection in s 223(1)(b). The ALRC considers that Recommendation 5–1, to the effect that traditional laws and customs may adapt, evolve and develop, provides an effective measure. Statutory amendment around revitalisation is not warranted.
6.6 Second, the ALRC examines whether there should be ‘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’. The ALRC, after careful consideration of the complex matters involved in this option for reform, has concluded that direct legislative amendment of the definition in s 223 is a more targeted means of law reform; with the expected net effect of Recommendations 5–1 to 5–5 better addressing the concerns that gave rise to the suggested option for reform. The ALRC considers that no specific statutory reform is required to empower courts to disregard substantial interruption or change in continuity.
An overview of the law on connection is contained in Ch 4. This chapter includes a more in-depth analysis of that law, as well as discussion of relevant legal frameworks, eg evidence gathered in connection reports.
See the Terms of Reference.
Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN GAOR, 61st Sess, 107th Plen Mtg, Supp No 49, UN Doc A/RES/61/295 (13 September 2007) Art 11.
See Rec 5–1, discussed in Ch 5.
See Rec 5–1 to 5–5, discussed in Ch 5.