5.1          To establish that they hold native title rights and interests, native title claimants must satisfy the definition of native title in s 223(1) of the Native Title Act 1993 (Cth). Section 223(1)(a) requires that the claimed rights and interests are possessed under the traditional laws acknowledged and traditional customs observed by the relevant Aboriginal peoples or Torres Strait Islanders. This chapter outlines how this requirement has been interpreted, focusing on the approach taken to the meaning of acknowledgment and observance of traditional laws and customs.

5.2          The ALRC makes proposals for reform of this aspect of the definition. It considers that an interpretation of this provision consistent with the beneficial purpose of the Native Title Act, and in accordance with the Preamble and Objects of the Act, entails an approach that is ‘fair, large and liberal’. As a consequence, the ALRC considers that s 223(1) should not be construed in a way that renders native title rights and interests excessively fragile, or vulnerable, to a finding that there has been loss of their factual foundation.

5.3          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. It also proposes that the definition of native title clarify that rights and interests may be possessed under traditional laws and customs where they have been transmitted between groups in accordance with traditional laws and customs.

5.4          Additionally, the ALRC makes proposals addressing the degree of continuity of acknowledgment and observance of traditional laws and customs that is required to establish native title.

5.5          These proposals address the technicality and complexity of establishing the existence of native title rights and interests. In many respects, they endorse the movement in case law and in negotiations towards flexibility in the evidentiary requirements to establish native title.