Summary

7.1          This chapter completes the sections of the Discussion Paper that are concerned with the definition of native title in s 223(1) of the Native Title Act. The chapter is in two parts. The first considers a partial redefinition of s 223(1). The second part considers the framing of ‘connection’. In that context, it examines whether revitalisation of Aboriginal and Torres Strait Islander laws and customs is to be distinguished from revival of native title. The second part also considers whether facts relating to European settlement may be considered when determining if Aboriginal peoples and Torres Strait Islanders have a connection with the land and waters claimed.

7.2          The proposals outlined in Chapter 5 suggest amendment of s 223(1) of the Native Title Act by clarifying statements directed to the interpretation of terms that exist in the statutory definition.^[1] Those proposals retain the existing text of s 223.

7.3          Proposals in this chapter offer an alternative approach by suggesting changes to the text of the definition in s 223(1).^[2] The changes relate to the terms ‘traditional’ and ‘connection’. These terms are found in the text of s 223 but each has been the source of much confusion.^[3] Each has attracted elaborate jurisprudence in an attempt to comprehensively determine its meaning. The relevant law is outlined in Chapters 4, 5 and 6. These proposed amendments are consistent with defining native title rights and interests in a manner that gives effect to the recognition and protection of native title.

7.4          In the first part of this chapter, the ALRC invites comment about the utility of providing greater legal formality to native title claim group identification and composition prior to the final determination of native title.

7.5          In the second part of this chapter, the ALRC seeks views on whether the law relating to connection should include revitalisation of the relationship with country. The ALRC also asks whether, in determining connection, there should be regard to the reasons for any displacement of Aboriginal peoples and Torres Strait Islanders and, if so, their relevance. The ALRC seeks views on one possible model for reform that would permit the influence of European settlement to be considered.