Establishing native title rights and interests

Recognition of native title in Mabo [No 2]

4.2          In Mabo v Queensland [No 2] (‘Mabo [No 2]’), the High Court found that pre-existing rights and interests in land held by Aboriginal and Torres Strait Islander peoples—native title—survived the assertion of sovereignty by the Crown.^[1]

4.3          As noted in Chapter 2, native title has its source in the traditional laws and customs of the relevant Aboriginal and Torres Strait Islander peoples. In Mabo [No 2],Brennan J stated that native title ‘has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory’.^[2]

4.4          Brennan J set out the conditions for the survival of native title after the assertion of sovereignty, stating that native title will survive or continue after sovereignty where:

• a clan or group has continued to acknowledge and observe traditional laws and customs whereby their traditional connection with the land has been substantially maintained;^[3] and

• it has not been extinguished by the valid exercise of sovereign power.^[4]

4.5          However, where ‘any real acknowledgment of traditional law and any real observance of traditional customs’ has ceased, ‘the foundation of native title has disappeared’.^[5]

Defining native title in the Native Title Act: s 223(1)

4.6          Following Mabo [No 2], the Native Title Act was enacted to provide, among other things, a mechanism for determining native title.^[6]

4.7          To establish that they hold native title rights and interests, claimants must be able to satisfy the definition of native title in s 223(1), which is based on Brennan J’s judgment in Mabo [No 2].^[7] Section 223(1) provides that

(1)        The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

             (a)        the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

             (b)        the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

             (c)        the rights and interests are recognised by the common law of Australia.

4.8          Briefly, the definition requires that the native title claimants show, as a matter of fact, that they possess communal, group or individual rights and interests in relation to land or waters under traditional laws acknowledged and customs observed by them, and that, by those laws and customs, they have a connection with the land or waters claimed.^[8] Additionally, the native title rights and interests must be able to be recognised by the common law.^[9] Whether they can be recognised is a question of law.

4.9          This means that native title rights and interests can be determined not to exist because:

• there is no factual foundation for them; or

• they cannot be recognised as a matter of law.

4.10       A determination of native title is made by the Court in accordance with s 225 of the Native Title Act:

A determination of native title is a determination whether or not native title exists in relation to a particular area of land or waters and, if it does exist, a determination of

(a)     who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

(b)     the nature and extent of the native title rights and interests in relation to the determination area; and

(c)     the nature and extent of any other interests in relation to the determination area; and

(d)     the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

(e)     to the extent that the land or waters in the determination area are not covered by a non‑exclusive agricultural lease or a non‑exclusive pastoral lease—whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

4.11       The High Court has emphasised repeatedly that the Native Title Act provides the starting point for considering a determination of native title.^[10] However, the interpretation of the Act has been guided by the basis upon which native title was first recognised in Mabo [No 2].

4.12       In Members of the Yorta Yorta Aboriginal Community v Victoria (‘Yorta Yorta’), Gleeson CJ, Gummow and Hayne JJ began their discussion of s 223 by emphasising this. They noted that, upon the acquisition of sovereignty over a particular part of Australia, native title—rights and interests in relation to land or waters that owed their origin to the traditional laws and customs of the relevant Indigenous peoples—survived or continued.^[11] As they later noted,

The native title rights and interests which are the subject of the Act are those which existed at sovereignty, survived that fundamental change in legal regime, and now, by resort to the processes of the new legal order, can be enforced and protected. It is those rights and interests which are ‘recognised’ in the common law.^[12]

4.13       This basis for the recognition of native title has consequences for the construction of the definition of native title in the Native Title Act.^[13] The following is a short overview of major judicial statements on the various elements of the definition of native title.

Section 223(1)(a): Traditional laws and customs

4.14       Section 223(1)(a) requires that rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the relevant Aboriginal or Torres Strait Islander peoples. Satisfaction of s 223(1)(a) is a question of fact.^[14]Yorta Yorta provides the High Court’s fullest elaboration of how s 223(1)(a) should be construed.^[15]

‘Traditional’ laws and customs

4.15       In Yorta Yorta, Gleeson CJ, Gummow and Hayne JJ found that the reference to ‘traditional’ law and custom in the definition of native title must be understood in light of the proposition that

the native title rights and interests to which the Native Title Act refers are rights and interests finding their origin in pre‑sovereignty law and custom, not rights or interests which are a creature of that Act.^[16]

4.16       As a result, the meaning of ‘traditional’ has been held to include a number of aspects:

• it refers to the means of transmission of a law or custom: a ‘traditional’ law or custom is one which has been passed from generation to generation of a society;^[17]

• it refers to the age of the laws and customs: the origins of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown;^[18]

• the ‘normative system’—that is, the traditional laws and customs—under which rights and interests are possessed must have had a continuous existence and vitality since sovereignty.^[19]

4.17       Section 223(1)(a) is in the present tense, directing attention to the present possession of rights and interests.^[20] However, Gleeson CJ, Gummow and Hayne JJ in Yorta Yorta stated that, nonetheless, the

• rights and interests presently possessed must be possessed under traditional laws and customs—that is, ‘the body of law and customs acknowledged and observed by the ancestors of the claimants at the time of sovereignty’;^[21]

• acknowledgment and observance of the traditional laws and customs must have continued ‘substantially uninterrupted’ since sovereignty. If this were not the case, the laws and customs presently acknowledged and observed could not properly be described as traditional. Instead, ‘they would be a body of laws and customs originating in the common acceptance by or agreement of a new society of indigenous peoples to acknowledge and observe laws and customs of content similar to, perhaps even identical with, those of an earlier and different society of the peoples concerned’.^[22]

Laws and customs

4.18       The reference, in s 223(1)(a), to laws and customs means that there is no need to distinguish between matters of law and matters of custom. However, rights and interests must be possessed under a set of rules with normative content, for ‘without that quality, there may be observable patterns of behaviour but not rights or interests in relation to land or waters’.^[23]

Society

4.19       In Yorta Yorta, Gleeson CJ, Gummow and Hayne JJ interpreted the requirement that rights and interests are possessed under law and custom in the light of their assertion that there is an inextricable link between a society and its laws and customs. Laws and customs cannot exist in a vacuum, so if a society—understood as a body of persons united in and by its acknowledgment of a body of laws and customs—ceases to exist, the laws and customs (and rights and interests possessed under them) also cease.^[24]

4.20       Subsequent Federal Court judgments have considered the approach to society taken in Yorta Yorta. A number have emphasised that ‘society’ is not found in the words of the Act, and may be utilised as a ‘conceptual tool’ to illuminate the central question of acknowledgment and observance of traditional laws and customs.^[25] The following propositions can be identified in relation to the concept of society for native title purposes:

• A society can be seen as the ‘repository’ of traditional laws and customs in existence since sovereignty.^[26] It functions to provide a link between pre-sovereign and contemporary laws and customs.^[27]

• Proof of the continuity of a society is insufficient to establish that there has been continuity of a normative system of traditional laws and customs.^[28]

• The concept of society ‘does not introduce, into the judgments required by the NT Act, technical, jurisprudential or social scientific criteria for the classification of groups or aggregations of people as “societies”’.^[29]

• In determining whether a group of people constitute a society, the central consideration is whether the group acknowledge the same body of laws and customs relating to rights and interests in land and waters.^[30] This can be so, ‘notwithstanding that the group was composed of people from different language groups or groups linked to specific areas within the larger territory which was the subject of the application’.^[31]

• Claimants need not establish that there exists a body of laws and customs that unite people as a society. Rather, the society is required to be united in and by its acknowledgment and observanceof a body of law and customs.^[32]

• The boundaries of a society need not coincide with the native title claim group. A native title claim group may assert that it holds individual or group rights under the traditional laws and customs of a larger society or community of which they are a part.^[33]

Relationship between traditional laws and customs and rights and interests

4.21       In Western Australia v Ward (‘Ward’), the High Court noted that s 223(1)(a) requires both:

• the identification of laws and customs said to be traditional; and

• the identification of rights and interests possessed under those laws and customs.^[34]

4.22       There is a relationship between rights and interests and traditional laws and customs. Native title rights and interests are those that find their origin in traditional (pre-sovereign) law and custom.^[35] This is because:

What survived [after the Crown’s acquisition of sovereignty] were rights and interests in relation to land or waters. Those rights and interests owed their origin to a normative system other than the legal system of the new sovereign power; they owed their origin to the traditional laws acknowledged and the traditional customs observed by the indigenous peoples concerned.^[36]

4.23       Gleeson CJ, Gummow and Hayne JJ also pointed out that the relevant inquiry is into the possession, not the exercise,of rights and interests:

Evidence that at some time, since sovereignty, some of those who now assert that they have that native title have not exercised those rights, or evidence that some of those through whom those now claiming native title rights or interests contend to be entitled to them have not exercised those rights or interests, does not inevitably answer the relevant statutory questions.^[37]

4.24       The nature and content of native title rights and interests is considered further in Chapter 8.

Section 223(1)(b): Connection with land or waters

4.25       Section 223(1)(b) requires that the claimants, by ‘those laws and customs’—that is, the traditional laws and customs referred to in s 223(1)(a)^[38]—have a connection with the land or waters. Satisfaction of s 223(1)(b), like s 223(1)(a), is a question of fact.^[39]

4.26       The drafting of s 223(1)(b) has been described as ‘opaque’.^[40] Its origins in the judgment of Brennan J in Mabo [No 2], but the Full Federal Court has noted that it ‘appears to have been applied in the statute somewhat out of context’.^[41]

4.27       The High Court in Ward stated that a separate inquiry to that required by s 223(1)(a) is demanded by s 223(1)(b).^[42] This is so even though the inquiry may depend on the same evidence as is used to establish s 223(1)(a).^[43]

4.28       The connection inquiry under s 223(1)(b) requires, ‘first an identification of the content of traditional laws and customs and, secondly, the characterisation of the effect of those laws and customs as constituting a “connection” of the peoples with the land or waters in question’.^[44] The concept of connection is ‘multifaceted, with differing aspects of it being emphasised in differing factual contexts’.^[45]

4.29       The laws and customs connecting claimants to land or waters need not exclusively be the laws and customs giving them rights and interests in the land or waters.^[46]

Connection and continuity

4.30       Like s 223(1)(a), s 223(1)(b) is expressed in the present tense, and requires inquiry into the present connection of claimants with land or waters. However, the connection must be shown to be ‘by’ the claimants’ traditional laws and customs.^[47] The Full Court of the Federal Court has observed that this means that connection involves an element of continuity, deriving from ‘the necessary character of the relevant laws and customs as “traditional”’.^[48]

4.31       Continuity of acknowledgment and observance of laws and customs can manifest connection—that is, connection can be maintained by continued acknowledgment and observance of traditional laws and customs.^[49]

4.32       Bodney v Bennell noted that the acknowledgment and observance of traditional laws and customs providing the required connection must have continued substantially uninterrupted since sovereignty, and the connection itself must have been ‘substantially maintained’ since that time.^[50] In Sampi v Western Australia, French J expressed the continuity aspect to the connection inquiry as involving the ‘the continuing internal and external assertion by [a claimant community] of its traditional relationship to the country defined by its laws and customs’.^[51]

4.33       To establish connection ‘requires demonstration that, by their actions and acknowledgement, the claimants have asserted the reality of the connection to their land or waters so made by their laws and customs’.^[52] Lack of physical presence does not necessarily mean a loss of connection.^[53]

Connection to particular areas within a claim

4.34       The connection inquiry can have a particular topographic focus within the claim area, but connection to an area may be inferred from activities in the surrounding areas.^[54] In Bodney v Bennell, the Full Federal Court stated that, where connection to a particular part of a claim area is in issue, there is a need to

• examine the traditional laws and customs for s 223(1)(b) purposes as they relate to that area; and

• demonstrate that connection to that area has, in reality, been substantially maintained since the time of sovereignty.^[55]

Section 223(1)(c): Recognised by the common law

4.35       Sections 223(1)(a) and 223(1)(b) indicate that native title rights and interests derive from the traditional laws and customs of Aboriginal and Torres Strait Islander peoples—not the common law. In Ward, the High Court noted that the common law is accorded a role in the statutory definition of native title by virtue of s 223(1)(c), in that the rights and interests are ‘recognised’ by the common law.^[56]

4.36       In Yorta Yorta,Gleeson CJ, Gummow and Hayne JJ stated that this requirement emphasises that native title is a product of an intersection between legal systems: the rights and interests ‘recognised’ by the common law are rights and interests that existed at sovereignty, survived that change in legal regime, and can now be enforced and protected under the new legal order.^[57]

4.37       The High Court has elsewhere noted that the requirement that the claimed rights and interests are recognised by the common law ‘requires examination of whether the common law is inconsistent with the continued existence of the rights and interests that owe their origin to Aboriginal law or custom’.^[58] If there is no inconsistency, the common law will ‘recognise’ the rights and interests by giving remedies in support of the relevant rights and interests to those who hold them.^[59] If there is inconsistency, recognition by the common law will be ‘withdrawn’.^[60]

4.38       Inconsistency may arise, and recognition may be refused, because the claimed rights and interests are in some way ‘antithetical to fundamental tenets of the common law’,^[61] or ‘clash with the general objective of the common law of the preservation and protection of society as a whole’.^[62]

4.39        Recognition may also cease because native title rights and interests have been ‘extinguished’.^[63] Rights and interests will be extinguished where there have been acts done by the executive pursuant to legislative authority, or grants of rights to third parties, that are inconsistent with the claimed native title rights and interests.^[64]

4.40       Extinguishment is, in this sense, the ‘obverse’ of recognition.^[65] However, native title rights and interests are not extinguished ‘for the purposes of the traditional laws acknowledged and customs observed by the native title holders’.^[66] That is,

extinguishment of native title rights and interests must be understood as the cessation of the common law’s recognition of those rights and interests, not the cessation of those rights and interests under traditional laws and customs.^[67]

4.41       Questions of continuity of acknowledgment and observance of traditional laws and customs,^[68] or of a traditional community,^[69] pertain to s 223(1)(a), and not s 223(1)(c).^[70]