Construction of s 223

2.37       In its Preamble, the Native Title Act stated: ‘The Parliament of Australia intends that the following law will take effect according to its terms and be a special law for the descendants of the original inhabitants of Australia’.[43] The Terms of Reference expressly direct the ALRC to the Preamble and Objects of the Act when considering what, if any, changes could be made to improve the operation of Commonwealth native title law and legal frameworks.

2.38       Further, where legislation is identified as being beneficial, the High Court has stated that such legislation should be given a ‘fair, large and liberal’ interpretation, rather than one which is ‘literal or technical’.[44]

2.39       In view of these approaches to interpreting the Act, this section briefly summarises the approach to reforms to the definition of native title. The intention is to reduce the complexity and remain consistent with a ‘fair, large and liberal’ interpretation of the Native Title Act. A detailed overview of the law relevant to s 223 of the Act appears in Chapters 4–8.

2.40       It is accepted though that there is a complex approach to the interpretation of statutory definitions:

The common law system of statutory interpretation is not just going by the words alone (literal interpretation) or applying rules of thumb … but something much more difficult and pluralistic.[45]

2.41       Interpretation of s 223 of the Native Title Act has become ‘difficult and pluralistic’ as the courts have grappled with the difficulties of reconciling the Aboriginal and Torres Strait Islander laws and customs with the Australian legal system—as the necessary task for determining native title.[46]

2.42       Yet the actual wording in s 223 of the Native Title Act contains relatively straightforward concepts—rights and interests in land and waters which are possessed under laws and customs; acknowledgment of those laws and observance of customs since the assertion of sovereignty, giving rise to the connection that Aboriginal peoples and Torres Strait Islanders have with land and waters. The rights and interests are recognised by the common law. The High Court in Ward, noted that these core elements have remained constant.[47]

2.43       The Act is the starting point for determining native title rights and interests.[48]

New requirements for s 223

2.44       Over time, however, the courts have progressively articulated an expanded set of requirements for determining native title beyond the ‘core elements’ actually contained in the statutory definition of native title.[49] Although sourced in Mabo [No 2], this framework has reoriented or expanded the meaning of certain terms in the actual wording, such as ‘traditional’. In turn, other concepts, such as ‘normative society’, have been implied into the definition. These additional requirements are now held to be integral to the s 223 definition of native title, although not found in the text of the statute.

2.45       The expanded exposition of ‘connection requirements’ to prove native title culminated in the formulation adopted by the High Court in Yorta Yorta.[50]This ‘test’ for determining native title was affirmed in later case law and has become central to framing the evidence that is brought to prove native title (see Chapters 4–7).

2.46       Concepts introduced into the framework of the Native Title Act have produced extensive requirements for factual proof of native title under the Act. For example, ‘continuity’ now effectively functions as an integrated, but yet an additional ‘connection requirement’ (see Chapter 5).

2.47       Several submissions noted the difficulties for all parties that these additional requirements have imposed.[51] By contrast, other submissions suggested that connection requirements no longer constituted a significant difficulty for claim resolution.[52]

Summary of approach to connection requirements

2.48       The ALRC proposes several amendments to s 223 of the Native Title Act by means of clarifying statements to focus construction on the core elements in the text of the section to ameliorate the effect of ‘additional’ requirements.

2.49       The proposals give renewed attention to the actual wording of s 223(1) of the Native Title Act. In line, with accepted principles for statutory construction governing Commonwealth legislation, the statements support an interpretation of s 223, ‘that would best achieve the Act’s purpose’.[53]

2.50       Proposals 5–1 to 5–4 suggest amendment of s 223 of the Native Title Act through clarifying statements directed to the interpretation of terms that exist in the statutory definition.

2.51       Proposals 7–1 and 7–2 provide an alternative by proposing that the text of the definition itself be altered. ‘Traditional’ and ‘connection’ are to be found in the text of s 223.[54] The ALRC proposes that the term ‘traditional’ be deleted from the text of s 223. The ALRC also proposes amendments to the term ‘connection’ in s 223(1)(b).

2.52       Proposals 8–1 and 8–2 reflect the current law with respect to ‘commercial native title rights and interests’.

2.53       The proposals around connection requirements are designed to:

  • accord with the object of the recognition and protection of native title rights and interests under the Native Title Act;

  • give greater attention to how Aboriginal people and Torres Strait Islanders frame their relationship to country;

  • reduce the complexity of the law around connection requirements by emphasising the present day connection of Aboriginal and Torres Strait Islander peoples with land and waters, while recognising the origins in the period before the assertion of sovereignty;

  • expedite the claims process by a refocus on core elements of the definition of native title in the framing and assessment of connection;

  • provide statutory reflection of the law on the scope of native title rights and interests;

  • give closer attention to the common law doctrines that were drawn upon in Mabo [No 2] to form the basis for interpretation of the text in s 223; and

  • review the anomalous position of Australian native title jurisprudence in terms of the evolution of international law and comparative law.