Approach to statutory construction of s 223

5.6          Ordinary principles of statutory interpretation dictate the consideration of the purpose of the legislation.[1] The language of the Preamble and Objects of the Native Title Act—referring to, among other things, an intention to rectify the consequences of past injustices and that the law be a special measure for the advancement of Aboriginal and Torres Strait Islander peoples—suggests that its purpose is beneficial.[2]

5.7          As noted in Chapter 2, where legislation is identified as being beneficial and remedial, 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’.[3]

5.8          International law principles are also relevant to the approach taken to construing the Native Title Act. The High Court has accepted that ‘a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law’.[4] Rights to equality and non-discrimination are central principles in human rights law, enunciated in a number of treaties to which Australia is a party.[5]

5.9          Other principles of statutory interpretation are arguably relevant to the construction of the definition of native title rights and interests. For example, AIATSIS pointed to common law principles for interpreting legislation ‘root[ed] in the common law protection of the rights of citizens against arbitrary exercises of power by the state, especially in relation to property’.[6]

5.10       As noted in Chapter 4, native title rights and interests can be determined not to exist when either:

  • they cannot be established as a matter of fact, because claimants cannot establish that they possess rights and interests under traditional laws and customs; and a connection, by those laws and customs, with the land or waters claimed;[7] or

  • they cannot be established as a matter of law, because the rights and interests are not recognised by the common law of Australia, as they are inconsistent with them.[8]

5.11       One of the guiding principles for this Inquiry is that reform should recognise the importance of recognition of native title to Aboriginal and Torres Strait Islander peoples and the Australian community.[9] It is consistent with this principle, and the Preamble and Objects of the Act, to approach the task of recognition of native title rights and interests in a way that does not render them excessively vulnerable to a finding of factual loss. Accordingly, the proposals in this chapter are intended to promote an interpretation of the definition of native title consistent with the purpose of the Native Title Act.

5.12       However, the ALRC recognises that not all Aboriginal or Torres Strait Islander peoples will be able to establish that they hold native title under the Native Title Act. The Preamble to the Native Title Act acknowledges that ‘many Aboriginal peoples or Torres Strait Islanders, because they have been dispossessed of their traditional lands, will be unable to assert native title rights and interests’.[10]

Section 223(1)(a)

5.13       Section 223(1)(a) of the Native Title Act requires that native title rights and interests are rights and interests possessed under the traditional laws acknowledged and traditional customs observed by the relevant Aboriginal peoples Torres Strait Islanders. As explained in Chapter 4, the High Court in Members of the Yorta Yorta Aboriginal Community v Victoria (‘Yorta Yorta’)has stated that the laws and customs that can be properly described as ‘traditional’ are those that find their origin in the laws and customs acknowledged and observed at sovereignty.[11]

5.14       As a result, the meaning of ‘traditional’ has been interpreted as having a number of aspects:

  • 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;[12]

  • 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;[13]

  • continuity: 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.[14]