Removing ‘traditional’

7.6          In the Issues Paper the ALRC asked whether there should be a definition of traditional or traditional laws and customs in s 223 of the Native Title Act, and if so, what this definition should contain.^[4] Chapter 5 proposes that the Act clarify that traditional laws and customs may adapt, evolve or otherwise develop.^[5] Many submissions attested to the difficulties of interpretation of the term.

7.7          The ALRC proposes that the term ‘traditional’ be removed from the text of s 223(1)(a). The term has been assigned multiple functions in the jurisprudence. It is a characterisation of Aboriginal and Torres Strait Islander law and custom, but also the means to locate law, custom and connection in a pre-sovereignty timeframe. In Chapter 5, the proposal regarding ‘traditional’ centres on how traditional law and custom, and native title rights and interests in land and waters, can evolve and adapt over time.^[6] ‘Traditional’ also plays a role in the identification of the ‘right people for country’.

7.8          Proposal 7–1 removes the word ‘traditional’ from s 223 of the Native Title Act. First, deletion of the term is suggested in view of the complexity of its interpretation in case law. Secondly, the term is often associated with rigid concepts, such as rights ‘frozen in time’.^[7] Thirdly, the term ‘traditional’ may not reflect contemporary views of Aboriginal and Torres Strait Islander law and custom.^[8] Finally, the proposal has regard to Australia’s statement of support for the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).^[9]

7.9          If the term is removed, it could be replaced by a phrase that locates the origins of law and custom in the period prior to the assertion of sovereignty.^[10] The amended definition focuses on current law and custom in line with the present tense of the wording in s 223(1)(a), while operating in conjunction with an amended definition of connection in s 223(1)(b).

7.10       The term ‘traditional’ is not simply a description of law and custom. Case law establishes several requirements emanating from s 223(1)(a). Evidence must establish the existence of the claim group’s laws and customs which have normative content.^[11] Typically, some evidence is required of the detail of law and custom to identify the ‘nature and content’ of native title,^[12] and for proving connection with land and waters.^[13]

7.11       In addition to proving that the claimants currently acknowledge law and observe custom, those laws and customs must be ‘traditional’.^[14] ‘Traditional’ has been a general basis for legal recognition of Aboriginal and Torres Strait Islander peoples.^[15]

7.12       The movement to integrate aspects of Aboriginal and Torres Strait Islander law and custom within the Australian legal system has been a gradual process. The ALRC Report, Recognition of Customary Law, was an important milestone in this regard.^[16] Writing in 1986, the ALRC noted:

the fact remains that the recognition of Aboriginal customary laws by the general law has continued to be erratic, uncoordinated and incomplete.^[17]

7.13       The ALRC concluded that ‘the arguments in favour of recognition establish a case for the appropriate recognition of Aboriginal customary laws by the general legal system’.^[18] The ALRC, however, ‘treated the question of customary rights to land as outside the scope of its inquiry’.^[19] Since then native title has been recognised, and the concept finds expression in the Native Title Act.

7.14       The concept of ‘traditional’ marks the threshold of entitlement with respect to native title, as the Full Federal Court in Bodney v Bennell stated:

If this were not the case, a great many Aboriginal societies would be entitled to claim native title rights even though their current laws and customs are in no meaningful way traditional.^[20]

7.15       Currently, therefore, the process of recognition of native title is strongly aligned to the requirement that the laws and customs be ‘traditional’.^[21] Chapter 5 indicates that, in Yorta Yorta, ‘traditional’ has been held to comprise three components:

Means of transmission: the laws and customs are passed from generation to generation, usually by word of mouth and common practice.

History: the origins are to be found in the normative rules of the societies that existed before the Crown’s assertion of sovereignty; and

Continuity: i.e. a normative system that has had a continuous existence and vitality since sovereignty.^[22]

7.16       The alignment of traditional with a particular means of transmission of laws and customs, on an intergenerational basis, has ramifications for proof of native title.^[23] It has particular relevance for evidence in relation to the adaptation, revitalisation and potential loss or abandonment of law and custom.^[24] The law relating to adaptation and continuity are addressed in Chapter 5.

Removal of traditional?

7.17       The Law Council of Western Australia cautioned against statutory amendment of this kind:

The Society is of the view that it would not assist the process of developing the meanings of ‘traditional’ and ‘society’, for the legislature to attempt to intervene and add words to the NTA, which in turn would need to be interpreted by the courts in future cases.^[25]

7.18       However, difficulties occur at a practical level as the ‘traditional’ character of law and custom must be ascertained afresh with each claim.^[26] Just Us Lawyers noted problems in complying with ‘traditional’:

Given that Indigenous Australians were not credited with even possessing laws or systems of land tenure giving rise to ownership for most, if not all, of the 19th century, it is often very difficult to find a useful account of their laws and customs from the pre-sovereignty era. This is coupled with the impossibility of obtaining direct (ie. affidavit evidence) about observance by the relevant pre-sovereignty society of such laws and customs.^[27]

7.19       Such practical difficulties may contribute to lengthy time frames for resolution of claims and consequent resource, capacity and financial burdens on claimants and on parties with responsibilities for assessing connection.

7.20       Further, concerns were raised that adherence to ‘traditional’ in s 223 does not reflect the reality of the distribution of Aboriginal peoples and Torres Strait Islanders that has resulted from European settlement.^[28] Underpinning definitions of native title may be skewed toward remote Indigenous communities.^[29] As Toni Bauman and Gaynor Macdonald stated:

Native title jurisprudence has been slow in reflecting the complexities of Aboriginal lives in both settled and remote areas and anthropologists working across Australia are faced with the difficult task of explaining how cultural change is commensurate with continuing tradition. Although other important post-Yorta Yorta decisions have applied, clarified and refined the High Court’s reasoning in Yorta Yorta in both the Federal Court and the full court of the Federal Court on appeal, the High Court decision continues to provide the definitive benchmark for many of those involved in preparing and assessing the connection of claimants.^[30]

7.21       Other commentators raised concerns about the removal of traditional from s 223 of the Native Title Act. As David Martin noted, ‘it is tradition which grounds and legitimates claims to country from the perspective of Indigenous people, not mere connection’.^[31]

[R]emoving the concept of ‘tradition’/‘traditional’ from s 223, while well intentioned, would actually cause more conflict and confusion within claimant groups. [To do so] ignores the deep significance accorded to traditional connections within Indigenous societies’. The legal construction of tradition is, in my view, a translation (if in rather impoverished form) of a set of deeply embedded and highly significant values within much of Indigenous Australia. To remove the requirement for laws and customs to be traditional denies this important value.^[32]

7.22       Similarly, some submissions indicated that deletion of ‘traditional’ from s 223 would remove an extremely important differentiator between different kinds of assertions of Indigenous rights—for example, those based on historical occupation in contrast to native title.^[33] Some submissions raised the possibility that any amendment to ‘traditional’ could increase conflicts within Indigenous communities, with consequent ramifications for community cohesion and for third parties who must deal with native title claimants.^[34]

7.23       The ALRC notes that matters of identifying native title group membership and composition must be informed by culturally sensitive ways of group identification. The availability of other models for identifying the ‘right people for country’ in non-native title frameworks suggests that alternative approaches may be beneficial. Better resourcing of the existing processes for identifying the claim group also may contribute to the robustness of both the ‘right people for country’ and connection processes.

7.24       The ALRC invites comment about the utility of providing greater legal formality to the group structure prior to the final determination of native title.

7.25       Section 224 of theAct defines a native title holder to mean:

(a)        if a prescribed body corporate is registered on the National Native Title Register as holding the native title rights and interests on trust—the prescribed body corporate; or

(b)       in any other case—the person or persons who hold the native title.

7.26       The ALRC also asks whether it would be appropriate to develop a set of guidelines for identifying the right people for country for inclusion within the Native Title Act.

7.27       If ‘traditional’ were removed from s 223 of the Native Title Act,then the section might operate in conjunction with ‘threshold guidelines’ similar to the Traditional Owner Settlement Act 2010 (Vic) (TOSA). The Victorian Department of Justice has developed ‘Threshold Guidelines’ for traditional owner groups seeking a settlement under the TOSA. These Guidelines set out the process for assessing threshold requirements, which includes lodgement by the claim group of a two-part threshold statement, evaluation by the Victorian Government Native Title Unit and thereafter notifying the broader traditional owner community and seeking feedback on its adequacy.^[35]

7.28       The ALRC seeks comment on the feasibility of this approach.

Substitution of another term for traditional?

7.29       Of the three components of ‘traditional’ in Yorta Yorta, the requirements related to the age of law and custom have particular significance for the native title rights and interests that can be recognised. As the court stated in Yorta Yorta:

it also follows that the only rights or interests in relation to land or waters, originating otherwise than in the new sovereign order, which will be recognised after the assertion of that new sovereignty are those that find their origin in pre-sovereignty law and custom.^[36]

7.30       In light of the requirement that the native title rights and interests claimed cannot constitute a greater burden on the Crown title than at the assertion of sovereignty,^[37] the ALRC asks, if traditional is removed from s 223, whether it is appropriate to substitute a term that fulfils the ‘history’ function that has been attributed to ‘traditional’.

7.31       The ALRC asks stakeholders to consider whether the phrase, ‘since prior to the assertion of sovereignty’, should be inserted in s 223(1)(a) to indicate that the rights and interests have origins in the pre-sovereignty period. If adopted, any such phrase would be regarded as consistent with proposals in Chapter 5 to allow for law and custom to adapt, evolve and develop.