No clarification of s 223

6.23       The ALRC considers that it is not necessary to clarify Native Title Act s 223. When codifying, confirming or clarifying an area of settled law, there is a risk of disturbing the settled law, causing uncertainty and unnecessary litigation.

6.24       Several stakeholders suggested that the Native Title Act should be amended for consistency with De Rose (No 2).^[34] However, no lack of consistency with De Rose (No 2) has been identified, and the ALRC has not been directed to any areas of doubt or uncertainty in the construction of s 223 on this issue. Section 223 does not contain any reference to physical occupation or continued and recent use. The courts have been clear that, while such evidence is relevant, it is not necessary. A number of stakeholders agreed that clarification is not necessary.^[35]

6.25       One representative body indicated that claim groups ‘have experienced difficulties satisfying the State about continuing connection in circumstances where there is no recent evidence of physical presence on particular parts of a claim area’.^[36] Just Us Lawyers also reported that ‘State governments generally expect physical occupation and ongoing use of at least parts of the claim area to be demonstrated for the purposes of a consent determination’.^[37] Because courts have confirmed that such evidence is ‘powerful’, respondents will continue to seek such evidence, and place weight on it, when it is available. However, to treat such evidence as a necessary element for a consent determination would be to impose a standard higher than that set by Parliament and the courts for a contested determination.

6.26       Even without a requirement to demonstrate physical occupation, or continued or recent use, the requirement to demonstrate connection to land or waters is still a substantial one. Connection must be demonstrated to have been maintained under traditional laws and customs that have been observed, substantially uninterrupted, since pre-sovereignty times. Further discussion of these requirements and the ALRC’s proposals in this regard, are in Chapter 4.