Continuity of acknowledgment and observance of laws and customs

5.47       The ALRC considers that the requirement that acknowledgment and observance of law and custom must have continued substantially uninterrupted by each generation since sovereignty renders native title claims excessively vulnerable to a finding that the factual basis for recognising rights and interests is no longer in existence.^[62] The ALRC considers that it is consistent with the promotion of the beneficial purpose of the Act to make clear that it is not necessary to establish this level of intensity of continuity of acknowledgment and observance of traditional laws and customs.^[63]

The idea of continuity

5.48       Continuity does not appear in the definition of native title in the Native Title Act. However, in Yorta Yorta,Gleeson CJ, Gummow and Hayne JJ derive a requirement for continuity from its interpretation of the word ‘traditional’ in s 223(1)(a).^[64] They state that the requirement for rights and interests to be

possessed under traditional laws acknowledged and traditional customs observed by the peoples concerned, requires that the normative system under which the rights and interests are possessed (the traditional laws and customs) is a system that has had a continuous existence and vitality since sovereignty.^[65]

5.49       If this ‘normative system’ of laws and customs cannot be said to have had a ‘continuous existence and vitality’ since sovereignty, the ‘rights and interests which owe their existence to that system will have ceased to exist’.^[66] Gleeson CJ, Gummow and Hayne JJ state that ‘continuity in acknowledgment and observance of the normative rules in which the claimed rights and interests are said to find their foundations before sovereignty is essential’.^[67] Where there is no such continuity, the laws and customs cannot be revived for the purposes of establishing native title.^[68]

‘Substantially uninterrupted’ continuity

5.50       In Yorta Yorta, Gleeson CJ, Gummow and Hayne JJelaborated on the degree of continuity required to establish native title, stating that acknowledgment and observance of laws and customs must have continued ‘substantially uninterrupted’ since sovereignty: ‘[w]ere that not so, the laws and customs acknowledged and observed now could not properly be described as the traditional laws and customs of the peoples concerned’.^[69]

5.51       As with evolution or adaptation of laws and customs, the High Court acknowledged that continuity in acknowledgment and observance of laws and customs from sovereignty to the present need not be absolute. To that end, the qualification ‘substantially’ is important in ‘substantially uninterrupted’.^[70] The qualification was said to recognise the great difficulty of proving continuous acknowledgment and observance of oral traditions over the many years since sovereignty. It also recognises the ‘most profound effects’ of European settlement on Aboriginal societies. This means that it is ‘inevitable that the structures and practices of those societies, and their members, will have undergone great changes’.^[71]

5.52       In Yorta Yorta,Gleeson CJ, Gummow and Hayne JJ stated that ‘the inquiry about continuity of acknowledgment and observance does not require consideration of why, if acknowledgment and observance stopped, that happened’.^[72] If the requirement is not met, then ‘examining why that is so is important only to the extent that the presence or absence of reasons might influence the fact-finder’s decision about whether there was such an interruption’.^[73]

Substantially uninterrupted ‘generation by generation’

5.53       In Yorta Yorta, Gleeson CJ, Gummow and Hayne JJ stated that a ‘traditional law or custom is one which has been passed from generation to generation of a society, usually by word of mouth and common practice’.^[74] In Risk v Northern Territory, Mansfield J summarised the Yorta Yorta continuity requirement as the requirement to establish that ‘acknowledgment and observance of the laws and customs has continued substantially uninterrupted by each generation since sovereignty’.^[75] Such a requirement has significant implications in terms of the evidence to be produced by claimants.

5.54       The ‘generation by generation’ test was also discussed in Bodney v Bennell. There, the Full Federal Court stated that the correct question as to continuity was ‘whether the laws and customs have continued to be acknowledged and observed substantially uninterrupted by each generation since sovereignty’.^[76]

Have issues with establishing continuity been overcome in practice?

5.55       The Hon Justice Paul Finn has argued that the effect of the interpretation of s 223 in Yorta Yorta was to produce a ‘discernible hardening of the arteries of the Native Title Act … the onus cast on claimants by the Native Title Act as so interpreted is a severe one’.^[77]

5.56       Submissions by state and territory governments contended that substantially uninterrupted continuity of the acknowledgment and observance of traditional laws and customs is an important aspect of native title law.^[78] The South Australian Government was of the view that ‘[i]t is only appropriate to recognise native title in circumstances where the rights and interests have been uninterrupted (to at least some degree) since sovereignty’. It continued: ‘[w]here there has been a substantial interruption of traditional law and custom, that should preclude a finding that native title exists’.^[79]

5.57       The Western Australian Government submitted that

Any proposal to remove, or fundamentally alter, the requirement to demonstrate adherence to a continuing normative system based on pre-settlement laws and customs ignores a central tenet of the Mabo No 2 decision.^[80]

5.58       A number of the governments that made submissions expressed the view that the requirement already incorporates appropriate flexibility,^[81] noting that the qualification ‘substantially’ essentially ‘makes allowances for the impacts of European settlement upon Aboriginal societies’.^[82]

5.59       Moreover, a number of governments submitted that discharging the onus in respect of continuity is not a problem in practice because of a willingness, by both the Court and respondent parties, to draw inferences.^[83] The South Australian Government submitted that, in its consent determination process,

inferences tend to be drawn based on genealogical and anthropological information that link ‘snapshots’ in time periods. The question of interruption is rarely raised without some other (usually historical) evidence suggesting that interruption may be relevant and it is then discussed with the applicant.^[84]

5.60       The Western Australian Government submitted:

It is … the State’s experience from a broad range of consensual and contested matters that Aboriginal groups may compellingly and successfully establish that they hold native title rights and interests notwithstanding profound social and demographic changes since European settlement.^[85]

5.61       CYLC submitted that the requirement itself may not pose a problem in that region as the State in Queensland has ‘generally been willing to accept continuity in circumstances where there has been some interruption for reasons beyond the group’s control’. Nonetheless,

it is extremely difficult and often distressing for Cape York Traditional Owners to participate in a process which in practical terms requires them to effectively deny the devastating effects of their dispossession and displacement.^[86]

5.62       CYLC also expressed concern that groups in different parts of Queensland and Australia may not be able to satisfy the requirement.^[87]

5.63       The ALRC acknowledges the practical developments that have occurred in the approach taken to evidence of continuity, particularly the use of inferential reasoning to fill gaps in continuity where appropriate. However, it is consistent with the promotion of the beneficial purpose of the Act, and a ‘fair, large and liberal’ approach to statutory construction, to explicitly provide that it is not necessary to establish that laws and customs have been acknowledged and observed substantially uninterrupted by each generation since sovereignty.^[88]

5.64       In this, the ALRC agrees with Black CJ’s view, in the Full Federal Court decision in Yorta Yorta,that to justify a finding that ‘there is a point in time at which acknowledgment and observance has ceased to the extent that the foundation for any native title rights or interests has disappeared’ requires consideration of a ‘very substantial time frame’.^[89]

5.65       The ALRC considers that the current degree of continuity of acknowledgment and observance of traditional laws requires claimants to surmount unnecessarily high evidential ‘hurdles’ to establish native title.^[90]

5.66       Such an intensive level of continuity of acknowledgment and observance of laws and customs was arguably not envisaged in Mabo [No 2]. There, Brennan J referred to a need for acknowledgment and observance of laws and customs, ‘so far as it is practicable to do so’.^[91]

5.67       Many stakeholders considered the continuity requirement to be problematic, with a number calling for the application of the continuity requirement to be limited.^[92] GLSC submitted that it ‘does not consider that “substantially uninterrupted” acknowledgment and observance of traditional law and custom should be a legal requirement for the proof of native title’.^[93] While submissions expressed various views on how limitation of the requirement should be achieved,^[94] a number preferred a statutory amendment to limit the application of the requirement to other possible reform options such as a statutory definition of ‘substantial interruption’.^[95]

5.68       As a number of submissions pointed out, the requirement for generation by generation proof of continuity of the acknowledgment and observance of laws and customs is problematic because the evidence may be limited or have limitations.^[96]

5.69       Frith and Tehan expressed the view that, in many cases, ‘the gap in continuity observed by the Court is due to a lack of evidence rather than a lack of acknowledgment and observance of laws and customs.^[97]

5.70       The Law Society of Western Australia similarly argued that cases where acknowledgment and observance of laws and customs was not found to have continued substantially uninterrupted have reflected, ‘either a disproportionate focus on some evidence over other available evidence, or a gap in the evidence of observable acknowledgment and observance of laws and customs, rather than an abandonment of that acknowledgment and observance’.^[98]

5.71       AIATSIS argued that the need to meet the requirement in such circumstances constitutes ‘a form of evidentiary discrimination against those groups who had little or no interaction with non-Indigenous anthropologists and scientists throughout the 19th and 20th centuries’.^[99]

5.72       Other submissions argued that the requirement for substantially uninterrupted continuity of the acknowledgment of traditional laws and observance of traditional customs is inherently unconscionable or unjust given the history of colonisation.^[100]

Continuity of society

5.73       The ALRC proposes that the definition of native title should be amended to make clear that continuity of a society is not an independent requirement to establish native title. Again, this proposal seeks to overcome an overly technical approach to statutory construction.

5.74       As outlined in Chapter 4, the High Court in Yorta Yorta considered there to be 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.^[101]

5.75       The ALRC considers that its Proposal 5–4 is in keeping with Federal Court consideration of the relevance of society to establishing native title rights and interests. The Full Court in Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group has emphasised that the term ‘society’ is not found in the words of the Act, and is to be used as a conceptual tool^[102] in the application of the words of the Native Title Act. The proposal is intended to further clarify that establishing a society is relevant only as a conceptual tool to assist in answering the central definitional question of whether there is acknowledgment and observance of traditional laws and customs under which rights and interests are possessed.

5.76       Justice Paul Finn has commented that the society requirement has created a ‘problematic and quite time consuming distraction’ in native title litigation.^[103] He referred to his own judgment in a claim over the Torres Strait, Akiba v Queensland (No 3), to illustrate this difficulty, noting that

The Islanders’ primary case was that they were one society; the Commonwealth’s, that they were four societies, these representing the four island groups involved in the hearing; and the State of Queensland alleged there were thirteen societies, each being one of the thirteen inhabited islands.^[104]

5.77       In Akiba, Finn J found that the applicant had established its case that it comprised one society. However, he noted that:

There is an irony in this … [T]he answers to the question of native title rights and interests—which is, after all, the concern of the NT Act—would in all probability be the same whether my conclusion had been one, or four, or thirteen societies.^[105]

5.78       Dr Paul Burke argued that society should not be seen as an independent element of proof for native title:

If claimants prove that they, as a group, have been following a coherent body of traditional laws and customs relating to land that is substantially continuous with the pre-contact era, they would have, ipso facto, established that there had been and continues to be a relevant society out of which laws and customs arose. In other words, if the claimant group demonstrates the continuity of a body of traditional laws and customs, it will have demonstrated that it forms a ‘society’ or that it is part of a ‘society’. On this view, ‘society’ is not conceptually distinct, but overlapping with other elements of native title legal doctrine, and there should not be a need to address it separately.^[106]

5.79       The South Australian Government argued that there was no need for reform in this area, noting also the development of the jurisprudence related to society:

In practice, the apparently difficult test proposed by the High Court in Yorta-Yorta has not proved onerous. For example the cultural differences between native title holding groups in Akiba did not prevent the Court describing the group as a single normative society.^[107]

5.80       However, a number of submissions to this Inquiry were critical of the use of society in native title law. Frith and Tehan submitted that decisions related to society ‘have generally tended to limit the prospect that native title applicants can establish native title’.^[108] GLSC submitted that the ‘society issue is a prime example of the unfortunate development of quite unnecessary technicality and legalism in native title’.^[109]

5.81       CYLC reported practical difficulties with the approach taken to society, submitting that

The issue of identification of the relevant ‘society’ has caused considerable delays in some Cape York claims, although recent case law appears to have improved the situation somewhat. Anthropological evidence obtained for Cape York indicates that there may be a number of different ‘societies’ for a particular group of native title claimants, within which the group ‘acknowledges the same body of laws and customs relating to rights and interests in land and waters’. A number of early Cape York determinations were based on societies at the language-named group level. However, it is arguable that those groups may also be part of broader ‘regional’ groupings which still meet native title requirements.^[110]

5.82       Some submissions considered that the language of a society ‘united in and by its acknowledgment and observance of a body of law and customs’ is improperly suggestive of a need to prove the survival of an extensive social system, rather than of the relevant laws and customs relating to land and waters. The Law Council of Australia argued that reference to society

constitutes a gloss on the statutory language of s 223(1) of the Act. Emphasis on these matters risks over-emphasising continuity of laws and customs of pre-sovereignty, such as rules about marriage, initiation and birthing practices, traditional language, which may have little relevance to whether particular customs in relation to land and waters have continued. The exercise of customary practices, such as hunting and fishing at particular times, are more relevant to establishing the existence of traditional customs than the requirement of a ‘normative’ system of laws and customs practiced by a ‘normative’ society.^[111]

5.83       GLSC pointed to the ‘unfairness of having to demonstrate the continuity of cultural practice and social cohesion in the face of a history of dispossession, cultural disruption, forced assimilation and geographical dispersal’.^[112] The Young Lawyers Human Rights Committee argued that

allowing native title to be tested on a concept of society ultimately involves superficial value judgments about Indigenous ways of life, and inappropriately measures traditional, nomadic society against the legal ideas and institutions of a ‘civilised’ society.^[113]

Implications for s 223(1)(b)

5.84       Amendments affecting how s 223(1)(a) is interpreted will have a consequential effect on the construction of s 223(1)(b). Section 223(1)(b) requires that the relevant Aboriginal peoples or Torres Strait Islanders, by ‘those laws and customs’—that is, the traditional laws and customs referred to in s 223(1)(a)^[114]—have a connection with the land or waters.

5.85       The Full Federal Court in Bodney v Bennell set out the relationship between the level of continuity of acknowledgment and observance of traditional laws and customs required by s 223(1)(a) and the level of continuity of connection required by s 223(1)(b). It stated that

the laws and customs which provide the required connection are ‘traditional’ laws and customs. For this reason, their acknowledgment and observance must have continued ‘substantially uninterrupted’ from the time of sovereignty; and the connection itself must have been ‘substantially maintained’ since that time.^[115]

The ALRC considers that it follows from Proposal 5–3 that a commensurate approach should be taken to establishing connection for the purpose of satisfying s 223(1)(b).^[116]