Evidence of physical occupation, continued or recent use

6.15       In Ward FFC, the Full Federal Court considered whether connection with land and waters could be maintained in the absence of physical presence.[21] The Court concluded that, while actual physical presence provides evidence of connection, it is not essential for establishing native title under Native Title Act s 223(1).

6.16       On appeal, the High Court noted that s 223 ‘is not directed to how Aboriginal peoples use or occupy land or waters’, although the way in which land and waters are used may be evidence of the kind of connection that exists.[22] The Court confirmed that the absence of evidence of recent use, occupation or physical presence does not mean that there is no connection with the land or waters.[23]

6.17       In De Rose v South Australia (No 2) (‘De Rose (No 2)’), the Full Federal Court held that

It is possible for Aboriginal peoples to acknowledge and observe traditional laws and customs throughout periods during which, for one reason or another, they have not maintained a physical connection with the claim area. Of course, the length of time during which the Aboriginal peoples have not used or occupied the land may have an important bearing on whether traditional laws and customs have been acknowledged and observed. Everything will depend on the circumstances.[24]

6.18       In Moses v Western Australia, the Full Federal Court confirmed that ‘physical presence is not a necessary requirement for connection’.[25]