The affidavit supporting a claimant application

Proposal 6–1              Section 62(1)(c) of the Native Title Act should be amended to remove references to ‘traditional physical connection’.

6.27       The Native Title Act includes two references to physical connection that the ALRC considers may be inconsistent with the courts’ interpretation of s 223 on this issue. The ALRC proposes that these references should be removed.

6.28       Claimants are required to provide an affidavit supporting their application. This affidavit must contain

a general description of the factual basis on which it is asserted that the native title rights and interests claimed exist and in particular that … the native title claim group have continued to hold the native title in accordance with those traditional laws and customs.[38]

6.29       Section 62(1)(c) provides that the affidavit may contain details of ‘any traditional physical connection’ with the land or waters had by a member of the native title claim group, or if any member of the native title claim group has been prevented from gaining access, the circumstances in which the access was prevented.

6.30       This section does not require evidence of physical connection. It is consistent with statements of the courts that evidence of the exercise of rights can be adduced to support a claim for the existence of rights.[39] However, the ALRC is concerned that the section specifically refers to physical connection and does not refer to other ways of demonstrating connection, such as observing traditional laws and customs,[40] maintaining traditional customs and ceremonies,[41] maintaining stories and allocating responsibilities,[42] faithfully performing obligations under traditional law[43] and the continuing internal and external assertion by the group of its traditional relationship with country.[44] The inclusion of physical connection in s 62 and the omission of spiritual, social and cultural evidence of connection gives an apparent priority to physical connection that does not reflect the case law or the requirements of s 223.