Disregarding substantial interruption or change in continuity?

7.70       The Terms of Reference ask the ALRC to inquire into and report on connection requirements for the recognition and scope of native title rights and interests. In its Inquiry, the ALRC is directed to a number of options for reform but can examine connection more broadly. In the context of a general examination of connection requirements, this section considers whether the Native Title Act and legal frameworks should be amended, to allow the empowerment of courts to disregard substantial interruption or change in continuity of acknowledgment and observance of traditional laws and customs, where it is in the interests of justice to do so.

7.71       The requirement that acknowledgment and observance of law and custom must have occurred substantially uninterrupted by each generation since sovereignty is discussed in earlier chapters.^[87] The requirement has arisen from the statutory construction of s 223(1)(a) of the Native Title Act. Proposal 5–3 provides that the Act should be amended to make clear that it is not necessary to establish that:

• acknowledgment and observance of law and custom has continued substantially uninterrupted since sovereignty; and
• laws and customs have been acknowledged and observed by each generation since sovereignty.

7.72       That is, Proposal 5–3 addresses the degree or frequency of continuity of acknowledgment and observance of traditional laws and customs that is required to meet s 223(1)(a). The terms ‘continuity’ and ‘substantially uninterrupted’ do not appear in the text of s 223 of the Act.

7.73       In this section of the chapter, the ALRC examines other questions about whether the Act should be amended in relation to ‘substantial interruption or change in continuity of acknowledgment and observance of traditional laws and customs’. These questions are directed primarily, but not entirely, to the function that ‘connection’ performs in s 223(1)(b) of the Act.^[88] That section states: ‘the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters’.

7.74       The ALRC asks whether in determining connection under s 223(1)(b), there can be regard to historical factors around the displacement of Aboriginal peoples and Torres Strait Islanders that may affect the manner of the connection with land or waters. The ALRC considers that such an approach is consistent with the recognition and protection of native title and gives effect to the beneficial purposes of the Act.

Relevant law

7.75       The extent to which the effects of European settlement can be taken into account in determining whether s 223 is established is reflected in two areas. First, in considering the degree to which there can be change or evolution in law and custom. Secondly, it is relevant in respect of whether acknowledgment of law and custom has been interrupted or ceased.

7.76       The Full Court of the Federal Court in Bodney v Bennell set out the relationship between:

• the level of continuity of acknowledgment and observance of traditional laws and customs required by s 223(1)(a); and
• the level of continuity of connection required by s 223(1)(b).

7.77       The court in that respect stated

the laws and customs which provide the required connection are ‘traditional’ laws and customs. For this reason, their acknowledgment and observance must have continued ‘substantially uninterrupted’ from the time of sovereignty; and the connection itself must have been ‘substantially maintained’ since that time.^[89]

7.78       The qualification of ‘substantially’ reflects the impacts of European settlement, as the High Court explained in Yorta Yorta:

It is a qualification that must be made to recognise that European settlement has had the most profound effects on Aboriginal societies and that it is, therefore, inevitable that the structures and practices of those societies, and their members, will have undergone great change since European settlement.^[90]

7.79       Further, the High Court held that, to describe ‘the consequences of interruption in acknowledgment and observance of traditional laws and customs as “abandonment” or “expiry” of native title was apt to mislead’ because it involved imputing an intention to abandon law and custom on the part of Indigenous peoples.^[91]

7.80       Nonetheless, the High Court emphasised that

the inquiry about continuity of acknowledgment and observance does not require consideration of why, if acknowledgment and observance stopped, that happened … If it is not demonstrated that that condition was met, examining why that is so is important only to the extent that the presence or absence of reasons might influence the fact-finder’s decision about whether there was such an interruption.^[92]

7.81       Accordingly, the High Court left open the permissibility of examining why acknowledgment and observance may have ‘stopped’ in confined circumstances. Subsequently, the Full Federal Court in Bodney v Bennell, when discussing continuity, stated:

if… there has been a substantial interruption, it is not to be mitigated by reference to white settlement. The continuity enquiry does not involve consideration of why acknowledgment and observance stopped.^[93]

7.82       After this Full Federal Court decision, it could be said that the law is unclear as to whether consideration of the reasons why acknowledgment and observance may have ‘stopped’ is permitted at all.

7.83       A further complexity is that some commentators draw a distinction between the effects of European settlement in respect of adaptation, and thereby change, in law and custom, as compared with a substantial interruption. According to this view, Bodney v Bennell ‘should be treated with caution insofar as it suggests that evidence of European influence is irrelevant to the question of change, as opposed to interruption’.^[94]

Should consideration of the reasons for interruption be permissible?

7.84       The ALRC’s Issues Paper did not ask specifically about consideration of the reasons why acknowledgment and observance may have changed or ‘stopped’. Nevertheless, submissions expressed a range of views about whether factual matters relating to European settlement, such as dispossession from lands, missionary activity, removal of Indigenous peoples to reserves, should be raised.

7.85       As the North Queensland Land Council put it, ‘European settlement which occurred pursuant to British and Australian law inhibited the observance of traditional laws and customs in areas of closer settlement’.^[95] Similarly, Frith and Tehan submitted that state or settler acts—such as being forced to move off country to missions or reserves—often denied groups ‘the right or ability to acknowledge and observe their laws and customs’.^[96] In its submission to a Senate Committee Inquiry, the Kimberley Land Council said:

The movements of Aboriginal and Torres Strait Islander persons from their traditional lands was, in many cases, either directly or indirectly forced upon them—either through government activities such as the removal of children or, as was common in the Kimberley region, the movement of traditional owners off their lands into the relative safety of the missions to escape violence perpetrated by pastoralists.^[97]

7.86       Yet, as the Aboriginal and Torres Strait Islander Social Justice Commissioner has observed, ‘there is little room to raise past injustice as a counter to the loss of, or change in, the nature of acknowledgment of laws or the observance of customs’.^[98]

7.87       Several submissions commented on the ‘apparent unconscionability of the State or Territory effectively relying on its own actions to the detriment of native title groups’ assertion of native title’.^[99] Just Us Lawyers submitted that the strict application of ‘substantial interruption’ effectively downplays the practical impacts of colonisation and dispossession.^[100] Some submissions stated that the current position does not accord with the beneficial objects of the Native Title Act.^[101]

7.88       A number of submissions supported reform so that courts could consider the reasons for interruptions in continuity.^[102] Frith and Tehan submitted that

the Court should be given the discretion to consider the reasons for any such interruption in considering its relevance to its determination of whether traditional laws and customs have been acknowledged and observed.^[103]

7.89       Governments did not directly mention this issue but rather made general submissions that the system was working well and that there was no need for significant statutory amendments, particularly given that courts interpreted the requirements for connection and continuity flexibly.^[104] The South Australian Government submitted:

The Federal Court takes into account that extensive loss or modification of traditional law and custom was almost inevitable in the face of colonisation and has, on occasion, found in favour of groups that have long been absent from their lands or whose culturally active membership has, at various times in history, numbered very few individuals.^[105]

7.90       The ALRC is interested in stakeholder views on the issue of whether the reasons for any displacement of Aboriginal peoples or Torres Strait Islanders should be considered in the assessment of whether ‘the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters’.

Reform options

7.91       A number of reform proposals have been advanced as to how the influence of European settlement could be considered in the determination of native title. The Aboriginal and Torres Strait Islander Social Justice Commissioner, in Native Title Report 2008, argued that ‘the law about continuity of traditional connection needs to be brought back into line with the overall logic of Mabo’.^[106] The Commissioner proposed a legislative amendment so that the courts would have capacity to take into account the reasons for interruption to the acknowledgment of the traditional laws and the observance of the traditional customs.^[107]

7.92       In Native Title Report 2009, the Commissioner suggested that,

[s]uch an amendment could empower Courts to disregard any interruption or change in the acknowledgment and observance of traditional laws and customs where it is in the interests of justice to do so.^[108]

7.93       Further, the Commissioner suggested that ‘a definition or a non-exhaustive list of historical events’ could be provided in the Native Title Act in order ‘to guide courts as to what should be disregarded’.^[109] The Native Title Amendment (Reform) Bill 2011 proposed amendments that were broadly consistent with these recommendations.^[110]

7.94       The Native Title Amendment (Reform) Bill 2014 differed in some key respects to the 2011 Bill.^[111] The reform proposed in the 2014 Bill is for courts to be conferred with discretion—not mandated to ‘treat as relevant’ particular reasons for the substantial interruption. New s 61AB, as proposed in the 2014 Bill, would provide

A court may determine that subsection 223(1) has been satisfied, despite finding that there has been:

(a)     a substantial interruption in the acknowledgment of traditional laws or the observance of traditional customs; or

…

if the primary reason for the substantial interruption or the significant change is the action of a State or a Territory or a person or other party who is not an Aboriginal person or a Torres Strait Islander.

How could the influence of European settlement be considered?

7.95       Two reform options were raised for consideration in the Issues Paper:

• whether courts should be empowered to disregard substantial interruption or change in the continuity of acknowledgment and observance of traditional laws and customs where it is in the interests of justice to do so;^[112] and
• whether substantial interruption should be defined in the Act.^[113]

7.96       Neither of these options for reform are proposed in this Discussion Paper for the reasons set out below. Rather, the ALRC asks for views about how the influence of European settlement should be considered in the determination of native title.

The empowerment of courts

7.97       The ‘empowerment’ of courts indicates the statutory conferral of discretion.^[114] This can be contrasted with an earlier model.^[115]

7.98       A number of submissions expressed support for the empowerment of courts to disregard substantial interruption or change in continuity of acknowledgment of traditional laws and observance of traditional customs, where it is in the interests of justice to do so.^[116] The Law Society of Western Australia submitted that such a reform would be ‘consistent with the beneficial purposes for which the NTA was enacted, particularly where the interruption is caused by circumstances outside the control or intent of the relevant members of the relevant society’.^[117] Similarly, the Australian Human Rights Commission submitted that such a reform would be ‘[i]n furtherance of the purposes of the Act’, and referred to the Preamble to the Act.^[118]

7.99       However, a number of stakeholders were opposed to this reform option.^[119] Even stakeholders who were critical of the current law concerning substantially uninterrupted continuity raised some concerns about this approach, preferring other options instead.^[120]

7.100   Concerns that such reform:

• ‘would likely place greater emphasis than there is presently on the fact and nature of any substantial interruption’;^[121]
• would be of uncertain effect;^[122]
• may not be in claimants’ interests as it may lead to increased debate about issues as well as increased costs and delay;^[123] and
• is problematic because of uncertainty about the meaning of ‘in the interests of justice’.^[124]

7.101   Judicial discretion is, by its very nature, one to be exercised in relation to the circumstances of an individual case. Therefore, the circumstances enlivening the discretion will be variable. A general empowerment of courts may therefore be quite uncertain in its effect and operation.^[125] Questions may arise whether any such ‘empowerment’ would operate as a procedural matter or would form part of the substantive area of law interpreting s 223 of the Native Title Act.

7.102   Other submissions focused on ‘in the interests of justice’. The term typically indicates that courts retain discretion. In a more general sense, it could be implemented in varying ways.^[126] A number of concerns were expressed about defining it in the Act.^[127] NSW Young Lawyers submitted that

The phrase [‘in the interests of justice’] could import considerations of the overall circumstances of the case, including the present circumstances of the Claimants or the Respondents, or difficulties being experienced between multiple claim groups. There is a possibility that a decision may be taken to not disregard ‘substantial interruption’ in order to assist a poor or disadvantaged respondent due to the ‘interests of justice’.^[128]

7.103   In their view, the ‘appropriate’ focus for ‘the interests of justice’ should be the actual causes of substantial interruption.^[129]

7.104   Notwithstanding the breadth of the phrase ‘in the interests of justice’, there was little support for a definition of it in the Act. However, some submissions expressed the view that some guidance may be useful^[130] or necessary.^[131] The South Australian Government submitted that the phrase

is usually utilised to provide a court or a decision maker with a discretion to act if the particular facts of the matter justify it. It provides flexibility but is to be applied in a judicial manner. However, were it to be included in the NTA as suggested here, there would need to be clear guidance on appropriate use.^[132]

7.105   Stakeholders who were opposed to a statutory definition of ‘in the interests of justice’ considered that it was ‘better left to the Court in each case’.^[133] North Queensland Land Council submitted that a statutory definition of the phrase may attract ‘many years’ of judicial interpretation. It was of the view that ‘[b]y not including a definition of this term, the courts would have a greater range for finding that it is in the interests of justice to disregard substantial interruption’.^[134]

7.106   The ALRC is not proposing the ‘empowerment of courts to disregard substantial interruption or change in continuity of acknowledgment and observance of traditional laws and customs where it is in the interests of justice to do so’ as identified in the Terms of Reference. This is due to the concerns expressed above. Rather, the ALRC asks a question about how the influence of European settlement should be considered in the determination of native title.^[135]

Statutory definition of ‘substantial interruption’

7.107   While originally a statutory definition of ‘substantial interruption’ was conceived as linked to the empowerment of courts to disregard substantial interruption,^[136] some submissions to this Inquiry conceived of a statutory definition as a separate option in itself.^[137] As outlined earlier, the two issues could be conceived as different reform options for how the influence of European settlement could be considered.

7.108   A number of submissions expressed support for a statutory definition of the factual matters that could be related to ‘substantial interruption’.^[138]

7.109   A variety of stakeholders considered the non-exhaustive nature of the list to be important.^[139] Stakeholders who supported a statutory definition of substantial interruption considered a non-exhaustive list necessary because what constitutes a substantial interruption is unsettled.^[140]

7.110   However, a number of stakeholders opposed a statutory definition of ‘substantial interruption’.^[141] Governments were opposed,^[142] viewing such a reform option as:

• unnecessary;^[143]
• ‘impractical’, given that it is ‘a question of fact and degree’;^[144]
• making the test for recognising native title ‘unduly complicated’;^[145] and
• tending to ‘shift the focus of native title inquiries onto historical matters, without necessarily achieving any time savings’.^[146]

7.111   A statutory definition of ‘substantial interruption’ was also opposed by some stakeholders who were in favour of law reform.^[147] AIATIS, for example, acknowledged that

A strong argument exists for including a non-exhaustive list of historical events upon which the courts could be guided with respect to disregarding the requirement for continuing connection without substantial interruption.^[148]

7.112   However, AIATSIS reiterated its comment to the Senate Inquiry concerning the provisions of the 2011 Bill, that

It may not always be possible to prove a direct correlation between a demonstrated interruption or change and the effect of government policies and individual behaviour on the movements of individuals or families. Indigenous agency in responding to such forces is not always easily articulated and reasons for certain actions may form part of the implicit rather than explicit knowledge of claimants. In these circumstances, respondent rebuttal might argue that a particular move was voluntary as the subtleties and long terms effects of policies remain invisible. There are also many other factors, such as cataclysmic events, drought, flood, war and the like, which could, prima facie, indicate a substantial period of dislocation, but which might fall outside the protection of s 61AB(2).^[149]

7.113   Some stakeholders favoured other reform options instead.^[150]

7.114   The ALRC considers that amendment of the Act to provide a statutory definition of ‘substantial interruption’ has limitations due to the difficulty of defining substantial interruption in a conclusive manner. Rather, the ALRC has suggested consideration of other ways of addressing these issues. Proposal 5–3 provides that the Act be amended to make clear that it is not necessary to establish acknowledgment and observance of laws and customs has continued substantially uninterrupted since sovereignty. In the discussion below the ALRC raises the issues around acknowledgment of the influence of European settlement and suggests a potential option for reform.

Other models for reform

7.115   The ALRC invites comment on what other options for reform may be appropriate. The sequence of questions below is a guide. Question 7–4 asks for possible models and Question 7–5 outlines a suggested model.

7.116   The ALRC noted the limitations raised in respect of the models for reform that were outlined for consideration in the Issues Paper. Therefore, the ALRC is interested in views on how else reform could be appropriately implemented. The ALRC offers one possible model for consideration, as set out above. This model draws upon drafting precedents in the Native Title Act. For example, the construction of the provision is similar to that outlined in s 82(2) of the Act^[151] and the expression ‘European settlement’ reflects the language in the Preamble. The ALRC welcomes views on this model and associated issues. For example, should such a statement be a section or only a note to the Act? The ALRC also welcomes comment on other models that may be appropriate.