Accommodation of change to laws and customs

5.15       The ALRC proposes that there be explicit acknowledgment in the Native Title Act that traditional laws and customs under which native title rights and interests are possessed may adapt, evolve or otherwise develop.

5.16       As a number of submissions to this Inquiry have noted,^[15] the current interpretation of the requirement that rights and interests are possessed under traditionallaws and customs already allows for some change in those laws and customs. Contemporary laws and customs do not have to be identical to those at sovereignty to be considered traditional. Instead, to be designated traditional, contemporary laws and customs need only have their ‘origins’ in pre-sovereign laws and customs.^[16]

5.17       The High Court in Yorta Yorta explicitly deals with the question of evolution and adaptation. There, Gleeson CJ, Gummow and Hayne JJ stated that some change to, or adaptation of, traditional laws and customs will not necessarily be fatal to a native title claim.^[17] There is no bright line test that can be offered to judge the significance, in a particular case, of change and adaptation to law and custom.^[18] The key question remains ‘whether the law and custom can still be seen to be traditional law and traditional custom’.^[19]

5.18       Gaudron and Kirby JJ in Yorta Yorta also considered that laws and customs may adapt and still be considered traditional:

What is necessary for laws and customs to be identified as traditional is that they should have their origins in the past and, to the extent that they differ from past practices, the differences should constitute adaptations, alterations, modifications or extensions made in accordance with the shared values or the customs and practices of the people who acknowledge and observe those laws and customs.^[20]

5.19       A number of submissions to this Inquiry argued that the existing approach to the meaning of ‘traditional’ sufficiently allows for evolution and adaptation of laws and customs.^[21] For example, the South Australian Government submitted that the ‘evolution of traditional law and custom tends to be accepted in most circumstances but the evolved laws must be in some way referable to those in existence at sovereignty’.^[22]

5.20       In a number of determinations of native title, the Federal Court has recognised adapted laws and customs as retaining a ‘traditional’ character. For example, in Neowarra v Western Australia, Sundberg J found that the claimants’ laws and customs were traditional notwithstanding that they were ‘modified and to some extent diluted by the changed circumstances of the older applicants and their forebears’.^[23] Other examples of adapted laws and customs have included changes to:

• descent rules: from patrilineal to cognatic;^[24] or a shift over time involving an increase in reliance on matrilineal descent;^[25]

• laws allowing images relating to country to be painted on canvas rather than on country, and the sale of these artworks;^[26]

• the location of initiation rituals,^[27] or a cessation of initiation ceremonies on the claimed area;^[28]

• social organisation associated with particular parts of the claimed area—with a number of smaller groups ‘coalescing’ into larger groupings.^[29]

5.21       However, while it is clear that some accommodation of change to laws and customs has been held to be possible, the ALRC considers that the definition of native title in the Native Title Act should explicitly acknowledge that traditional laws and customs may adapt, evolve or otherwise develop.

5.22       Such legislative acknowledgment of change is arguably in keeping with the approach envisaged upon first recognition of native title in Mabo v Queensland [No 2] (‘Mabo [No 2]’). That native title rights will continue notwithstanding cultural change was repeatedly adverted to by the High Court in Mabo [No 2]. For example, Brennan J noted that, ‘of course in time the laws and customs of any people will change and the rights and interests of the members of the people among themselves will change too’.^[30] Deane and Gaudron JJ stated that traditional laws and customs are not

frozen as at the moment of establishment of a Colony. Provided any changes do not diminish or extinguish the relationship between a particular tribe or other group and particular land, subsequent developments or variations do not extinguish the title in relation to that land.^[31]

5.23       Toohey J was also of the view that ‘an indigenous society cannot … surrender its rights by modifying its way of life’.^[32]

5.24       As Kirby J noted in Commonwealth v Yarmirr, an adherence to the principle of non-discrimination

must include a recognition that the culture and laws of indigenous peoples adapt to modern ways of life and evolve in the manner that the cultures and laws of all societies do. They do this lest, by being frozen and completely unchangeable, they are rendered irrelevant and consequently atrophy and disappear.^[33]

5.25       As the National Congress of Australia’s First Peoples noted,^[34] the United Nations Declaration on the Rights of Indigenous Peoples also recognises the right of Indigenous peoples 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’.^[35]

5.26       A number of stakeholders were critical of the present interpretation of the meaning of ‘traditional’ laws and customs, or supported better recognition of evolution and adaptation to laws and customs.^[36] For example, Goldfields Land and Sea Council (GLSC) argued that focusing on tradition has the propensity ‘to ingrain and incentivise a cultural conservatism in Indigenous communities, effectively discouraging (even punishing) processes of cultural change and renewal that might otherwise occur’.^[37]

5.27       Queensland South Native Title Services (QSNTS) identified the tradition requirement as one of the ‘inherent deficiencies’ with the definition of native title, pointing to the limitations and injustice in

the notion that upon settlement, all that the introduced law could and can ever recognise was a master copy of an indigenous legal system that existed at that point, from which successive generations of Aboriginal peoples across time have to be imprinted against.^[38]

5.28       Other stakeholders noted the injustice of requiring Aboriginal people to establish the existence of a system of traditional laws and customs ‘when former generations of European settlement have contrived to repress those laws and customs’.^[39]

5.29       Legislative acknowledgment in the Native Title Act of adaptation, evolution and development of laws and customs provides explicit recognition of the cultural vitality of Aboriginal and Torres Strait Islander peoples.

5.30       An approach that explicitly acknowledges that laws and customs under which native title rights and interests are possessed can evolve, adapt and change is also in keeping with the aim of facilitating Aboriginal and Torres Strait Islander peoples’ ability to utilise their native title rights to promote future development.^[40] As Mr Angus Frith and Associate Professor Maureen Tehan noted, there is merit in promoting an approach to native title that allows native title holders to ‘achieve their economic, social and cultural aspirations’.^[41]

5.31       The High Court in Ward has suggested that native title determinations have an indefinite character, reflecting

the requirement for the continuing acknowledgment and observance of traditional laws and customs and continuing connection with land implicit in the definition of ‘native title’ in s 223(1) of the NTA.^[42]

Explicit recognition that traditional laws and customs may evolve, adapt or develop is also appropriate to ensure that further adaptation or evolution of traditional laws and customs following a determination does not provide grounds for variation or revocation of a determination of native title.^[43]

How much change?

5.32       The proposed amendment largely confirms and clarifies the current approach taken by courts to determining whether laws and customs are traditional. However, the ALRC acknowledges that ‘difficult questions of fact and degree’ will continue to arise in determining whether contemporary laws and customs can be characterised as having their origins prior to the assertion of sovereignty.^[44] These are essentially matters of evidence—and inference.

5.33       Establishing that laws and customs have their origins in laws and customs acknowledged and observed prior to sovereignty will, in most cases, rely on the court (or a respondent in a consent determination) being willing to draw inferences from other evidence. As discussed in Chapter 4, in Gumana v Northern Territory,Selway J usefully identifies the evidence that may found such an inference, akin to the proof of custom at common law. Selway J considered that, where there is:

• a clear claim of the continuous existence of a custom or tradition that has existed at least since settlement;

• supported by credible evidence from persons who have observed that custom or tradition; and

• evidence of a general reputation that the custom or tradition had ‘always’ been observed;

then, in the absence of evidence to the contrary, there is an inference that the tradition or custom has existed at least since the date of settlement.^[45]

5.34       In a consent determination in favour of the Dieri people, Mansfield J remarked:

The Determination can be made without the necessity of strict proof and direct evidence of each issue as long as inferences can legitimately be made. In consent determination negotiations, it is the State’s policy to focus on contemporary expressions of traditional laws and customs and pay less regard to laws and customs that may have ceased. The State can reasonably infer that such contemporary expressions are sourced in the earlier laws and customs. So can the Court.^[46]

5.35       The ALRC considers that, when assessing whether or not laws and customs are ‘traditional’, adaptation, evolution and development of laws and customs should be treated as the norm rather than the exception. In this regard, the ALRC notes QSNTS’s submission that, implicit in ‘the recognition established at the time of acquisition of sovereignty is an acceptance that the indigenous normative system of law was and is inherently capable of dynamism’.^[47] As AIATSIS argued, Aboriginal and Torres Strait Islander people should not be deprived of ‘the right to interpret and re-interpret the meaning and content of their evolving laws and customs in line with changing conditions and environments’.^[48] Moreover, as the Law Society of Western Australia noted in its submission, ‘the requirement for adaptation from an original source does not require that adaptation to have occurred without the outside influence of European interaction’.^[49]

5.36       The ALRC also considers that recognition that traditional laws and customs may adapt, evolve or develop should not be limited by any requirement that such changes be of a kind contemplated by the laws and customs.^[50]

5.37       The ALRC further considers that significant weight should be accorded to claimants’ perspectives as to the traditional character of their contemporary laws and customs. For example, the NSW Young Lawyers Human Rights Committee argued that, in assessing whether laws and customs are traditional, ‘the degree to which the claim group genuinely acknowledges and observes the laws and customs as a reflection of their traditions and customs’ should be taken into account.^[51] Such an approach would be in keeping with according the ‘highest importance’ to the testimony of Aboriginal and Torres Strait Islander witnesses.^[52]

Recognition of succession

5.38       The ALRC proposes that the definition of native title be amended to make clear that native title rights and interests may be succeeded to by sub-groups within a native title claim group, as well as by a different group or society than that which possessed these rights and interests at sovereignty, where these rights and interests have been transmitted in accordance with traditional laws and customs.

5.39       The ALRC views this proposal as consistent with treating native title rights and interests as durable, rather than excessively fragile, rights. Moreover, recognition of succession does not, in the ALRC’s view, disturb the basis of recognition of native title—that is, it does not involve a greater burden on the radical title of the Crown than existed at sovereignty.^[53]

5.40       Succession to native title rights and interests, where they have been transmitted in accordance with traditional laws and customs, was arguably envisaged in Mabo [No 2].^[54] There, discussing alienability of native title, Brennan J stated that

a right or interest possessed as a native title cannot be acquired from an indigenous people by one who, not being a member of the indigenous people, does not acknowledge their laws and observe their customs; nor can such a right or interest be acquired by a clan, group or member of the indigenous people unless the acquisition is consistent with the laws and customs of that people.^[55]

5.41       Deane and Gaudron JJ stated that

The enjoyment of the rights can be varied and dealt with under the traditional law or custom. The rights are not, however, assignable outside the overall native system.^[56]

5.42       There is a lack of clarity in the case law as to the possibility of succession to native title rights and interests under the Native Title Act. The judgment of Gleeson CJ, Gummow and Hayne JJ in Yorta Yorta may be considered to provide some support forthe efficacy of transmission of native title rights and interests from one group to another. They state:

The rights and interests in land which the new sovereign order recognised included the rules of traditional law and custom which dealt with the transmission of those interests.^[57]

5.43       The Full Federal Court has expressed views in obiter about the ability of native title rights and interests to be transmitted through succession. In Dale v Moses, Moore, North and Mansfield JJ considered the remarks made in Yorta Yorta about transmission did not encompass succession. The Full Federal Court considered that the statement in Yorta Yorta was

probably directed to intergenerational transmission of rights and interests under traditional laws within the society possessing rights and interests in the land under traditional laws and customs at the time of sovereignty. The observations of the members of the High Court do not establish a principle of the type … that where the traditional laws and customs of one society provide for the transmission of rights and interests in land recognised by those laws and customs, then transmission to another society can be effected and the acquisition of the transferred rights in interest can ultimately be recognised as rights and interests of the transferee society for the purposes of the NTA.^[58]

5.44       The issue of succession was also considered in Western Australia v Sebastian.^[59] In that case, the Full Federal Court was inclined to the view that succession could occur, in factual circumstances where succession occurred as the numbers of one group had reduced and in accordance with the traditional laws and customs of the two relevant Aboriginal clans.^[60]

5.45       There was some evidence from submissions that the question of succession is causing practical issues in native title. Cape York Land Council (CYLC) provided an example:

A recent example involved two neighbouring groups which succeeded to country of an extinct group. Notwithstanding the existence of evidence of exclusive native title rights held by each group, including the right to exclude others, the State queried whether two groups could succeed to the country of another group.^[61]

5.46       The ALRC considers that rights and interests that have been succeeded to in accordance with traditional laws and customs should be recognised as native title rights and interests, and that this proposal will clarify the law in this regard.