The registration test

6.31       Section 190B(7) of the registration test includes a requirement that at least one member of the claim group demonstrate a ‘traditional physical connection’, except in certain circumstances. The ALRC considers that such a requirement is inconsistent with s 223 and the courts’ interpretation of that section and proposes that it should be removed.

6.32       Part 7 of the Native Title Act establishes a Register of Native Title Claims and sets out conditions for registration. If a claim satisfies all of the conditions, it must be entered in the Register.^[45] The native title claim group is then entitled to certain rights, including the right to negotiate under Native Title Act s 31.

6.33       The registration test requires the Registrar to be satisfied that the factual basis exists to support the assertion that the native title claim group has an association with the area.^[46] The native title claim group must show an association with the entire area claimed, but it has been held that the association can be physical or spiritual.^[47]

6.34       Section 190B(7) adds a requirement that the Registrar must be satisfied that at least one member of the native title claim group has, or previously had, a traditional physical connection with any part of the land or waters, or would have had such a connection if not for things done by the Crown, a statutory authority of the Crown, or any holder of a lease.^[48] ‘Traditional physical connection’, in this instance, means that the connection is in accordance with the laws and customs of the group.^[49]

6.35       Information about a claim group member’s presence on, or use of, the land or waters, is relevant to whether the factual basis exists for a claim. However, the requirement in s 190B(7) that an application include information about ‘traditional physical connection’ is inconsistent with the case law that has established that physical occupation or use is not required to establish connection. The requirement could result in a claim group with ample evidence of connection being denied registration and the procedural rights that are associated with registration.

6.36       Further, the reference in s 190(7)(b) to ‘things done’ by the Crown, a statutory authority of the Crown, or a leaseholder suggests that those things are relevant to the question of whether connection has been maintained. However, the courts have indicated that the reasons for an absence of connection are not relevant.^[50]

6.37       This element of the registration test is also inconsistent with the reality of the lives of Aboriginal and Torres Strait Islander people who have moved away from their country in order to access employment, health services and education.

6.38       Section 190B(7) is one of the few parts of the Act that acknowledges that acts of the Crown, and others, have interfered with the connection between Aboriginal and Torres Strait Islander peoples and their lands and waters. While this acknowledgment may have some value, the ALRC considers that it is important that the registration test is consistent with s 223 and the case law regarding physical occupation and continued and recent use.