Proposal 7–2 The definition of native title in s 223 of the Native Title Act should be further amended to provide that:
The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a) the rights and interests are possessed under the laws acknowledged, and the customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a relationship with country that is expressed by their present connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.
7.32 In addition to removal of ‘traditional’ in s 223(1)(a), the ALRC proposes amendment to the term ‘connection’ in s 223(1)(b). The meaning of this term has become opaque and its meaning open to various interpretations. Accordingly, it presents significant practical difficulties for parties in bringing evidence in support of the claim, and in ascertaining proof of connection.
7.33 Section 223(1)(b) of the Native Title Act states ‘the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters’. The case law on connection is covered in Chapter 6. That chapter considered 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 ALRC has concluded that amendment of the 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.
7.34 The proposal here examines a broader question about the meaning of connection in s 223(1)(b) of the Native Title Act and its interpretation. The ALRC suggests that the definition of ‘connection’ in s 223(1)(b) of the Native Title Act should be amended to state that connection is the relationship with land and waters claimed. That relationship is expressed in the present form of acknowledgment of laws and observance of customs.
7.35 The proposal could be read against further possible amending statements that, ‘connection with land and waters means the holistic relationship that Aboriginal people and Torres Strait Islanders have with land and waters claimed’ and ‘the relationship may be expressed in various ways including but not limited to physical presence on the land’.
7.36 The proposal could operate in conjunction with either an amended definition of traditional, or with the removal of traditional from s 223 of the Native Title Act and its substitution.
What is connection?
7.37 ‘Connection’ reflects the view that ‘native title … [is] ascertained according to the laws and customs of the indigenous people who, by those laws and customs, have a connection with the land’.
7.38 In Members of the Yorta Yorta Community v Victoria, the High Court noted:
[I]t would be wrong to confine the inquiry for connection between claimants and the land or waters concerned to an inquiry about the connection said to be demonstrated by the laws and customs which are shown now to be acknowledged and observed by the peoples concerned. Rather, it will be necessary to inquire about the relationship between the laws and customs now acknowledged and observed, and those that were acknowledged and observed before sovereignty. 
7.39 The focus for the amended definition would be to emphasise that the starting point in determining connection is the ‘present relationship with country’ that the claimant group has with the relevant land and waters.
7.40 Secondly, the amended definition is intended to give ‘connection’ some meaningful content in the definition of native title. In De Rose v South Australia (No 1), the Full Federal Court stated
At first glance, it may not be evident what par (b) of s 223(1) adds to par (a). If Aboriginal people possess rights and interests in relation to land under the traditional laws acknowledged and the traditional customs observed by them, it would seem to be a small step to conclude that the people, by those laws and customs, have a connection with the land.
7.41 The courts typically have aligned connection with continuity of acknowledgment of law and observance of law and custom. Alternatively, the independence of s 223(1)(a) and 223(1)(b) has been emphasised. At other points, the concept of ‘recognition’ under s 223(1)(c) has been aligned with ‘connection’.
7.42 Courts have dealt with the concept of connection in a variety of ways; reflecting some uncertainty in its interpretation. In Neowarra v Western Australia, the court considered matters pertaining to land and waters referable to law and custom, as well as factual inquires about links to specific places in the claim area.
7.43 Therefore, precisely which elements of Aboriginal peoples and Torres Strait Islanders’ law and custom can give effect to ‘connection’ can be relatively indeterminate. At one level, this reflects the need for native title to be determined in accordance with the unique factual circumstances for each claim. At another level, it renders the test for connection ‘unbounded’, thereby generating difficulties for what is to be deemed as ‘sufficient’ factual evidence of law and custom constituting connection.
7.44 The proposed amendment seeks to re-emphasise the relationship to land and waters as the primary focus when connection is interpreted—reflecting the actual text of s 223(1)(b).
7.45 The reference to a ‘holistic relationship’ in regard to connection (expressed in Ward as an integrated view of the ordering of affairs), is intended to overcome uncertainties in the interpretation of the Act. There have been uncertainties over whether the relationship comprises ‘physical’, ‘spiritual’, ‘economic’ and ‘cultural’ elements in favour of a more broadly-conceived concept. In this sense, the interpretation of connection might align to the view in Bodney v Bennell that claimants must assert ‘the reality of their connection’ to their land and waters.
7.46 It is likely that no statutory construction can entirely reflect Aboriginal and Torres Strait Islander understanding of connection:
No English words are good enough to give a sense of the links between an Aboriginal group and its homeland … A different tradition leaves us tongueless and earless towards this other world of meaning and significance.
7.47 By contrast, general legal scholarship has been used to provide insights into how Aboriginal and Torres Strait Islander law and custom constitutes a normative society.
7.48 The Law Council of Australia explained the inadequacy of the current legal model in terms of capturing Indigenous relationships with country.
7.49 At one level, it may be appropriate to provide a broad frame for connection requirements. At another, the task may be unrealistic, compressing a richly-textured world into legal forms.
The difficulty of expressing a relationship between a community or group of Aboriginal people and the land in terms of rights and interests is evident. Yet that is required by the NTA. The spiritual or religious is translated into the legal. This requires the fragmentation of an integrated view of the ordering of affairs into rights and interests, which are considered apart from the duties and obligations which go with them.
7.50 The view that the ‘translation’ of Aboriginal and Torres Strait Islander peoples’ connection necessarily requires fragmentation has been questioned:
Is there really, in the words of s 223, the compulsion apparently felt by the plurality [in Ward] to further fragment what is holistic by translating it into Western legal terms in a diffuse rather than organically cohesive way… It is suggested that the disaggregating impact of the words in the statute at s 223 has been overstated and the task of translation, difficult though it is, could be approached in a less atomising way.
Proof of connection
7.51 The complexity involved in bringing evidence to establish ‘connection’ derives in part from the particular model for proof adopted under the Native Title Act. In Mabo [No 2], several bases for proving Indigenous peoples’ connection with land and waters were canvassed. Deane and Gaudron JJ, and Toohey J discussed a possessory title drawing on Canadian jurisprudence. A title founded on the basis of possession or occupation places less emphasis on the legal inquiry into the traditional laws and customs of Indigenous peoples. Deane and Gaudron JJ in Mabo [No 2] accepted that occupation of land and waters may constitute adequate evidence of the continued maintenance of traditional law and custom.
7.52 The Northern Territory land rights claims process is another potential model. Case law interpreting the Native Title Act has not examined alternative bases for structuring evidence to establish native title. Some submissions noted that there may be advantages in considering possessory or occupation models. Scholarship has identified other potential models, for example, common law Aboriginal title to land.
7.53 The ALRC Inquiry under its Terms of Reference is to focus on the current Native Title Act and therefore makes no proposal in relation to alternative models.
7.54 Further the difficulties of translating Aboriginal and Torres Strait Islander peoples’ connection into Australian law find resonance in the past. In Banjima People v Western Australia (No 2) (‘Banjima’) the Federal Court noted the incommensurability of two different cultures:
It may readily be inferred from the evidence in this proceeding that upon their arrival in the Swan River Colony the agents of the British Sovereign and the first British settlers had no detailed knowledge of the circumstances and social organisation, laws and customs of the indigenous people. It may also be inferred from that same evidence that the indigenous people were oblivious to the social organisation, laws and customs of the new settlers when they first encountered them.
7.55 This underscores the difficulties of accurately ‘reaching back’ to establish past ‘connection’:
At most, a right in the past might be juxtaposed against current rights in order to better understand how they came to be shaped and asserted in the present. But to interpose rights from the past into the present and expect their nature and extent to be unchanged requires a similitude between conditions in the past and the present that gives a false notion of history.
7.56 Other submissions noted that the historical record is often incomplete or ad hoc in terms of the evidence of connection or genealogy that has survived. In Banjima, the court noted that
The evidence of early seafarers, explorers, pastoralists, ethnographers and anthropologists, which falls into an historical category, may also be relevant in any proceeding and have evidentiary value in relation to matters in issue, although depending on the circumstances and context in which it was gathered, and by whom it was gathered, it may need to be treated with care.
7.57 Given the practical difficulties in bringing evidence, the vagaries of the historical record and constraints in relation to expert evidence, the ALRC seeks stakeholder comment on the proposed amendments to the existing requirements for establishing connection.
Revitalisation of connection?
Question 7–2 Should the Native Title Act be amended to provide that revitalisation of law and custom may be considered in establishing whether ‘Aboriginal peoples and Torres Strait Islanders, by those laws and customs, have a connection with land and waters’ under s 223(1)(b)?
7.58 This section of the chapter considers whether the law relating to connection to land and waters could include revitalisation of the relationship with country. The case law is clear that revival of native title is not possible. However, the ALRC asks whether it is appropriate to distinguish between revival and revitalisation (meaning renewed vigour as opposed to reinvention) of Aboriginal and Torres Strait Islanders peoples’ connection, based upon acknowledging the various forms in which transmission of culture can take place.
7.59 The ALRC is interested in views on whether the Native Title Act should be amended to provide that revitalisation of law and custom may be a factor that may be considered in establishing the requirement in s 223(1)(b) that ‘Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with land or waters’.
7.60 In Mabo [No 2], Brennan J stated:
when the tide of history has washed away any real acknowledgment of traditional law and real observance of traditional customs, the foundation of native title has disappeared. A native title which has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition.
7.61 By contrast, Deane and Gaudron JJ felt it unnecessary to decide whether native title rights ‘will be lost by the abandonment of traditional customs and ways’.
7.62 The majority of the High Court in Fejo v Northern Territory noted, in the context of explaining the effects of extinguishment, that ‘[t]he argument that native title may revive fails because the rights are extinguished by the grant of freehold title; they are not merely suspended’. The Native Title Act now allows for suspension of native title in respect of certain future acts.
7.63 As discussed in Chapters 4 and 5, native title applicants must demonstrate that, since the assertion of sovereignty, acknowledgment of their traditional laws and observance of their traditional customs have continued ‘substantially uninterrupted’. For example, in Risk v Northern Territory,concerning the Larrakia people’s claim, the court at first instance found that
A combination of circumstances has, in various ways, interrupted or disturbed the presence of the Larrakia people in the Darwin area during several decades of the 20th Century in a way that has affected their continued observance of, and enjoyment of, the traditional laws and customs of the Larrakia people that existed at sovereignty.
7.64 The Court specifically referred to a lack of evidence about the passing on of knowledge of the traditional laws and customs. There was a finding that there had been a substantial interruption in the ‘practice’ of the traditional laws and customs. This was despite a finding by the trial judge that
The Larrakia community of today is a vibrant, dynamic society, which embraces its history and traditions. This group of people has shown its strength as a community, able to re-animate its traditions and customs.
7.65 The factual questions around revitalisation of law and custom, and thereby connection, raise matters about how the impact of European settlement on the transmission of Aboriginal and Torres Strait Islander peoples might be considered. Concerns have been raised that a comparatively short break in continuity was sufficient to find that native title did not exist.
7.66 Some view the current interpretation of the definition of native title, specifically with respect to substantially uninterrupted continuity, as creating ‘insurmountable barriers to cultural resurgence’. A view has been expressed that ‘a comparatively minimal interruption’ to the sharing of culture across the claimant group should not prevent recognition of native title. However, the Western Australian Fishing Industry Council submitted that ‘[i]t is not for the Courts to revive customs that have fallen away’. Similarly, the South Australian Government submitted that ‘[r]ecognising revived or other rights is better left to other policy devices on a local jurisdictional basis’.
7.67 Commentators have noted that the forms for transmission of culture necessarily respond to the circumstances in which Aboriginal and Torres Strait Islander peoples found themselves. Further, there is growing knowledge about how culture is transmitted in Aboriginal and Torres Strait Islander societies that has emerged since early cases were litigated—driven in part by the claims process under the Native Title Act. Proposal 5–1, that traditional laws and customs may evolve, adapt or otherwise develop, is consistent with a view that the transmission of laws and customs may also change, and such change may be a result of making use of available technologies. Thus, revitalisation of culture, through, for example, transmission of knowledge of law and custom through ethnographic, anthropological and biographical texts, may be ‘an unavoidable and acceptable cultural adaptation’. Dr Paul Memmott has argued that
contemporary Aboriginal cultures must be recognised as including textual and digital media, which constitute part of the process of negotiating meaning out of the current socio-economic and cultural circumstances.
7.68 The Inquiry is an opportunity to consider whether there may be merit in investigating a distinction between:
abandonment of law and custom and substantial interruption of connection; and
where force of circumstances requires Aboriginal and Torres Strait Islander law and custom to adapt and take different forms over time.
7.69 The ALRC invites comment as to whether a distinction between revival and revitalisation may be useful in this respect.
Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442, .
Sampi v Western Australia  FCA 777 (10 June 2005)  (French J).
See Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442, .
Mabo v Queensland [No 2] (1992) 175 CLR 1, 70.
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, .
De Rose v South Australia (No 1) (2003) 133 FCR 325, .
Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442, .
Western Australia v Ward (2002) 213 CLR 1, –.
Yanner v Eaton (1999) 201 CLR 351, .
Duff, above n 22, 50.
Neowarra v Western Australia  FCA 1402 (8 December 2003) –.
Sean Brennan, ‘Statutory Interpretation and Indigenous Property Rights’ (2010) 21 Public Law Review 239.
Western Australia v Ward (2002) 213 CLR 1, .
Bodney v Bennell (2008) 167 FCR 84, .
WEH Stanner quoted in A Frith and M Tehan, Submission 12.
For example, the Court drew on US Constitutional law theory propounded by HLA Hart as to why people acknowledge law: Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, .
Law Council of Australia, Submission 35.
Western Australia v Ward (2002) 213 CLR 1,  (Gleeson CJ, Gaudron, Gummon and Hayne JJ) quoted in National Native Title Council, Submission 16.
Brennan, above n 49, 259.
Mabo v Queensland [No 2] (1992) 175 CLR 1.
Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Report No 31 (1986) .
See AIATSIS, Submission 36 for a discussion of the Canadian approach.
Kent McNeil, ‘The Onus of Proof of Aboriginal Title’ (1999) 37 Osgoode Hall Law Journal 775.
See Ch 3.
Banjima People v Western Australia (No 2) (2013) 305 ALR 1, .
Alex Reilly and Ann Genovese, ‘Claiming the Past: Historical Understanding in Australian Native Title Jurisprudence’ (2004) 3 Indigenous Law Journal 19, 38. See Ch 5.
AIATSIS, Submission 36; A Frith and M Tehan, Submission 12.
Banjima People v Western Australia (No 2) (2013) 305 ALR 1, –.
Fejo v Northern Territory (1998) 195 CLR 96, – (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).
See, eg, AIATSIS, Submission 36.
Mabo v Queensland [No 2] (1992) 175 CLR 1, 60.
Fejo v Northern Territory (1998) 195 CLR 96, .
See, eg, Native Title Act 1993 (Cth) s 24AA(6).
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422.
Both the judgments at trial and on appeal referred to ‘Larrakia’ as encompassing all the relevant applicants.
Risk v Northern Territory  FCA 404 (29 August 2006) . See Ch 5.
Ibid , .
Aboriginal and Torres Strait Islander Social Justice Commissioner, ‘Native Title Report 2009’ (Australian Human Rights Commission, 2009) 86.
Commonwealth, Parliamentary Debates, Senate, 21 March 2011, 1303 (Rachel Siewert).
Western Australian Fishing Industry Council, Submission 23.
South Australian Government, Submission 34.
S Bielefeld, Submission 6; Australian Human Rights Commission, Submission 1; Aboriginal and Torres Strait Islander Social Justice Commissioner, ‘Social Justice and Native Title Report 2013’ (Australian Human Rights Commission) 108–10.
Paul Memmott, ‘Modelling the Continuity of Aboriginal Law in Urban Native Title Claims: A Practice Example’ in Toni Bauman and Gaynor MacDonald (eds), Unsettling Anthropology: The Demands of Native Title on Worn Concepts and Changing Lives (AIATSIS, 2011) 122, 130.
Ibid. See, eg, the discussion of acquisition of language in Wyman on behalf of the Bidjara People v Queensland (No 2)  FCA 1229 (6 December 2013) –.