Physical occupation and the identification of native title rights and interests

6.19       A determination of native title must include a determination of the nature and extent of the native title rights and interests in the area.^[26] Physical occupation and continued or recent use may be relevant to proving the particular rights and interests possessed under traditional laws and customs. The content of native title is a question of fact, to be determined on a case by case basis.^[27] Evidence of physical possession, occupation and use could be relevant to the question of whether the rights and interests include a right to exclude others,^[28] or other rights. For example, in Banjima, the Court said:

There is ample evidence to show that hunting and the taking of fauna in customary ways continues today. Similarly, the customary practice of gathering and taking flora is well established historically and presently. The right to take fish is the subject of less contemporary evidence, but the right to take fish in the claim area is still exercised and clearly established as a right possessed by the claimants both historically and presently. It is not a right or activity that the evidence suggests has been abandoned. Similarly the right to take stones, timber, ochre and water is another right possessed by the claimants even though the evidence of current exercise of those rights is relatively limited.^[29]

6.20       The courts have repeatedly emphasised that, while the exercise of native title rights and interests is ‘powerful evidence’ of the existence of those rights, the ultimate question concerns possession of rights, not their exercise.^[30]

6.21       In the Issues Paper, it was noted that in Akiba v Queensland (No 3), the claimant failed to establish connection at the extremities of the claim because there was ‘no evidence of use of, or connection to, those areas’.^[31] The claim over extremities did not fail because there was no evidence of use of the areas, but because there was no evidence at all regarding connection to those areas.^[32] The Court did not require evidence of use, but it did require evidence of connection.

6.22       The Court did confirm that

Islander knowledge of areas when coupled with the deep and transmitted sea knowledge that many of them possess, is itself a potent indicator of connection, and continuing connection at that, to their marine estates—the more so because under their laws and customs they have, and do exercise, traditional rights to use and forage there …^[33]