Establishing connection

6.9          Evidence that connection with land is a ‘continuing reality’ to the claimants must be produced to establish connection:

the connection inquiry requires … demonstration that, by their actions and acknowledgement, the claimants have asserted the reality of the connection to their land or waters so made by their laws and customs.[12]

6.10       Evidence of presence on the land and the exercise of rights in relation to the land amounts to evidence of the maintenance of connection with land.[13]

6.11       Other ways of demonstrating observance of law and custom in relation to land and waters, and thus connection, can be found in knowledge of ceremony, song, dance and body painting[14] and knowledge of the land and the Dreamtime beings that created the land.[15] For example, in Western Australia v Ward (‘Ward FFC’), the Court stated that

Acknowledgment and observance may be established by evidence that traditional practices and ceremonies are maintained by the community, insofar as that is possible, off the land, and that ritual knowledge including knowledge of the Dreamings which underlie the traditional laws and customs, continue to be maintained and passed down from generation to generation. Evidence of present members of the community, which demonstrates knowledge of the boundaries to their traditional lands, in itself provides evidence of continuing connection through adherence to their traditional laws and customs.[16]

6.12       The Federal Court Rules 2011 (Cth) make specific provision for the giving of evidence by way of singing, dancing and storytelling.[17]

6.13       Using language is a way of observing law and custom, and may connect people with country.[18] Language is sometimes said to have been ‘deposited in the landscape by Dreamtime figures’, and it becomes ‘possessed by the Aboriginal people connected with the land’.[19]

6.14       It is not necessary to adduce evidence of connection to every part of the claim area. A court may draw inferences from the evidence as a whole and from evidence of connection to surrounding or neighbouring areas.[20]