6.4 The definition of native title in s 223 of the Native Title Act refers to interests in relation to land and waters possessed under traditional laws and customs where Aboriginal peoples or Torres Strait Islanders ‘by those laws and customs, have a connection with the land or waters’. These words are taken from the judgment of Brennan J in Mabo v Queensland [No 2]: ‘native title … [is] ascertained according to the laws and customs of the indigenous people who, by those laws and customs, have a connection with the land’. In Members of the Yorta Yorta Community v Victoria, the High Court held that the phrase ‘by those laws and customs’ indicates that the ‘connection’ that must be shown is connection sourced in Aboriginal and Torres Strait Islander laws and customs. The Full Federal Court in Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (‘Alyawarr’) said that
‘connection’ is descriptive of the relationship to the land and waters which is, in effect, declared or asserted by the acknowledgment of laws and observance of customs which concern the land and waters in various ways. To observe laws and acknowledge customs which tell the stories of the land and define the rules for its protection and use in ways spiritual and material is to keep the relevant connection to the land.
6.5 When traditional laws and customs confer rights and responsibilities in relation to land, that creates connection as required by s 223(1)(b). The connection, or relationship, between people and country includes the obligation to care for country and the right to speak for country.
6.6 The courts have held that s 223(1)(b) requires the claim group to establish that they have had the connection with the land or waters from the time of sovereignty. This is because the connection must be by their traditional laws and customs, and traditional laws and customs are those that have their origin in pre-sovereignty law and custom.
6.7 Again, in Alyawarr, the Full Federal Court said:
The use of ‘connection’ as emphasising a requirement to show continuity of association with the land by observance and acknowledgment of traditional law and custom relating to it gives proper recognition to its origins in the Mabo judgment. It involves the continuing assertion by the group of its traditional relationship to the country defined by its laws and customs.
6.8 A substantial interruption in the observance of laws and customs in relation to country will result in a failure to establish connection as required by s 223(1)(b).
Mabo v Queensland [No 2] (1992) 175 CLR 1, 70.
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, 456.
Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442, 469.
De Rose v South Australia (No 2) (2005) 145 FCR 290, 323.
Western Australia v Ward (2002) 213 CLR 1, 64.
Sampi v Western Australia  FCA 777 (10 June 2005) ; Neowarra v Western Australia  FCA 1402 (8 December 2003) ; Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, 447; Western Australia v Ward (2000) 99 FCR 316, 382.
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, 444, 447. For a more detailed examination of what it means for a law to be ‘traditional’, see Ch 4.
Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442, 469–470.
Bodney v Bennell (2008) 167 FCR 84, 132.For a more detailed examination of ‘substantial interruption’, see Ch 5.