Summary

6.1          Section 223(1)(b) of the Native Title Act 1993 (Cth) requires an Aboriginal or Torres Strait Islander claim group to show that, by their traditional laws and customs, they have a connection with the land and waters claimed.

6.2          The ALRC has been directed to inquire into whether there should be confirmation that ‘connection with the land or waters’ in s 223(1)(b) does not require physical occupation or continued or recent use. The courts have consistently stated that connection is maintained by the continued acknowledgment of traditional laws, and by the observance of traditional customs.^[1] Evidence of acknowledgment and observance may include activities on the land, but the courts have been clear that physical presence is not necessary.^[2] The ALRC has concluded that amendment of the Native Title Act on this issue is not necessary, as there is no lack of clarity in the Act or in the courts’ interpretation of the Act.

6.3          The Native Title Act contains two references to ‘physical connection’, in sections of the Act concerning affidavits in support of an application, and the registration of claims. The ALRC proposes that these references should be removed, to promote consistency with the courts’ interpretation of s 223(1)(b).