42. The phrase ‘connection requirements for the recognition and scope of native title rights and interests’, is a construct of many elements of native title law that are interwoven. Integral to native title is the concept of recognition of Aboriginal and Torres Strait Islander laws and customs by which means connection to land and waters is established. Connection requirements for the recognition and scope of native title in this sense comprise a shorthand reference to a complex of statutory provisions in the Native Title Act (principally s 223 and s 225); and associated case law, policy and practices, such as connection reports. This section explains the concepts of ‘recognition’ and the ‘scope’ of native title, and introduces the definition of native title as set out in s 223 of the Native Title Act.
The definition of native title in the Native Title Act
43. Section 223 of the Native Title Act defines the native title rights and interests that are the subject of a determination of native title under s 225 of the Act. In s 223(1), the term ‘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 traditional laws acknowledged, and the traditional 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 connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.
44. Section 223 has been the subject of extensive judicial interpretation. As interpreted by the Court, native title claimants must address a number of requirements to satisfy s 223. Justice Mansfield of the Federal Court has summarised these in the following way:
A threshold requirement is that the evidence shows that there is a recognisable group or society that presently recognises and observes traditional laws and customs in the Determination area. In defining that group or society, the following must also be addressed:
(1) that they are a society united in and by their acknowledgement and observance of a body of accepted laws and customs;
(2) that the present day body of accepted laws and customs of the society is in essence the same body of laws and customs acknowledged and observed by the ancestors or members of the society adapted to modern circumstances; and
(3) that the acknowledgement and observance of those laws and customs has continued substantially uninterrupted by each generation since sovereignty, and that the society has continued to exist throughout that period as a body united in and by its acknowledgment and observance of those laws and customs.
The claimants must show that they still possess rights and interests under the traditional laws acknowledged and the traditional customs observed by them, and that those laws and customs give them a connection to the land.
Recognition of native title
45. While s 223 sets out the manner in which native title rights and interests claimed can be established:
It is a necessary condition of their inclusion in a determination that the rights and interests are recognised by the common law of Australia. That condition flows from s223(1)(c). ‘Recognise’ in this context means that the common law ‘will, by the ordinary processes of law and equity give remedies in support of the relevant rights and interests to those that hold them’.
In Mabo [No 2] the High Court held that when the British Crown asserted sovereignty over Australia it acquired a radical title. Acquisition of the radical title was held to be consistent with the recognition of native title in that native title ‘burdened’ the radical title of the Crown. However, while native title was held to burden the radical title of the Crown, native title rights and interests do not have their source in the common law. As the High Court stated in Fejo v Northern Territory:
Native title is neither an institution of the common law nor a form of common law tenure but it is recognised by the common law.
46. While native title does not derive from the common law, it coexists with the common law and statute that determines how other peoples’ interests are granted and governed within the Australian legal system. The High Court in Commonwealth v Yarmirr stated:
The concept of radical title provides an explanation in legal theory of how the two concepts of sovereignty over land and existing native title rights and interests co-exist.
47. The idea of two systems has significance for determining continuity of native title from the pre-sovereign period time. Continuity in acknowledgment and observance of the laws and customs of an Indigenous society since pre-sovereignty is ‘essential’, because it is the normative quality of those rules which the common law has subsequently recognised as effecting a burden on the Crown at the time of sovereignty. Accordingly, the normative system—from which the traditional laws and customs stem—must be that of the particular society that was to be found pre-sovereignty, not that of some other, different, society.
48. In this manner, native title is the product of an intersection of two systems of law. As the High Court in Members of the Yorta Yorta Aboriginal Community v Victoria (‘Yorta Yorta’) stated, recognition
is a requirement that emphasises the fact that there is an intersection between legal systems and that the intersection occurred at the time of sovereignty. The native title rights and interests which are the subject of this Act are those which existed at sovereignty, survived that fundamental change in regime, and now, by resort to the processes of the new legal order, can be enforced and protected. It is those rights and interests which are ‘recognised’ in the common law.
49. The relationship that Aboriginal and Torres Strait Islander people have with land and waters through their laws and customs, however, still remains even without recognition by the Australian legal system. As French CJ and Crennan J stated in Leo Akiba on behalf of the Torres Strait Regional Sea Claim Group (Akiba):
Extinguishment is the obverse of recognition. It does not mean that native title rights and interests are extinguished for the purposes of the traditional laws acknowledged and customs observed by the native title holders. By way of example apposite to this case, the plurality pointed out in Yanner v Eaton that to tell a group of Aboriginal people that they may not hunt or fish without a permit:
“does not sever their connection with the land concerned and does not deny the continued exercise of the rights and interests that Aboriginal law and custom recognises them as possessing.”
50. French CJ, writing extra-curially, described recognition as a form of ‘mapping’ of Aboriginal and Torres Strait Islander people’s relationship to land and waters onto the common law:
Consistently with the notion of ‘mapping’ traditional relationships to land onto the common law universe, recognition may be seen as a present declaration of a mapping that, from the point of view of today’s common law, came into existence at the time of annexation … The identification of indigenous groups today, the rules by which they are defined, the content of their traditions and customs and their relationship to the land and waters which comprise their ‘country’ may be described and interpreted by evidence in court proceedings given by the members of such groups, anthropologists and other experts. The things of which they speak constitute the subjects of the common law of native title. The common law establishes the judge-made rules for determining whether native title rights and interests exist. These are the rules of recognition.
51. A native title determination can occur either as a result of litigation involving a contested hearing or it can be made by consent of the parties involved. The Native Title Act sets out the ways in which native title intersects with many other interests in Australian society. The native title held, ‘by particular Indigenous people will depend on both their traditional laws and customs and what interests are held by others in the area concerned’.
52. In general terms, connection requirements relating to the recognition and scope of native title rights and interests, working in conjunction with authorisation and joinder provisions, raise issues involving:
What is necessary, as a matter of law and fact, to establish a native title claim?
What is the scope (nature and content) of the native title rights and interests that are determined?
Who may bring a claim (application for determination of native title)?
Who may contest an application for a determination of native title?
53. The requirement that the laws and customs acknowledged and observed by Aboriginal and Torres Strait Islander people claiming native title can be described as ‘traditional laws and customs’ is discussed further under options for reform in the section relating to the meaning of ‘traditional’. The requirement for continuity of acknowledgment and observance of traditional laws and customs is the focus of discussion around options for reform in relation to ‘substantial interruption’.
Scope of native title rights and interests
54. The scope of native title is often referred to as the nature and content of native title. As native title rights and interests have their source in Aboriginal or Torres Strait Islander laws and customs, the specific native title rights and interests asserted will be grounded in fact and vary between claims. Identifying the traditional laws and customs of the claimant group is significant not only to determine the rights and interests concerned, but thereby to establish connection to land and waters under s 223(1)(b).
55. The scope of native title and native title rights and interests is determined on the basis of the factual material that provides evidence of traditional laws and customs. What is required to demonstrate, under s 223(1)(b), that Aboriginal or Torres Strait Islander people, by their traditional laws and customs, have a connection with the land or waters is discussed further when considering options for reform related to ‘physical occupation and continued or recent use’. Native title is a ‘unique’ interest.
56. Not all rights arising under Aboriginal and Torres Strait Islander people’s traditional laws and customs are recognised by the Australian legal system. Rights and interests arising under traditional laws and customs cannot be recognised if they ‘fracture a skeletal principle’ of the law, or if they are held to be inconsistent with established ‘public rights’. The primary category of native title rights and interests found to be ‘inconsistent’ are those characterised as ‘exclusive’ in nature’.
57. A determination of native title sets out the specific native title rights and interests that are recognised in a particular area that is claimed. An order for a determination of native title must cover a set of designated elements under s 225 of the Native Title Act. If native title is established, there is a determination of
(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b) the nature and extent of the native title rights and interests in relation to the determination area; and
(c) the nature and extent of any other interests in relation to the determination area; and
(d) the relationship between the rights and interests in paragraphs (b) and (c); and
(e) whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.
Examining connection requirements for native title
58. Many concerns have been raised about how the law around connection requirements for the recognition and scope of native title is formulated and how it has evolved. Some commentators raise specific concerns about the highly technical character of the requirements necessary for the establishment of native title. The test for establishing native title may be considered too difficult to meet, and the nature and content of the native title rights and interests recognised too limited:
Changes in the law (statutory and jurisprudential) have made it both more difficult for claimants to meet the requirements for proof of native title and limited the nature of the rights and interests that can be recognised. Consequently, there is an increasing disjunct between the contemporary worldviews and aspirations of Aboriginal people and the legal construction of native title.
59. It has been pointed out that ‘native title’ as a legal construct may not accord with Aboriginal and Torres Strait Islander people’s understandings of society, law and custom. Justice Jagot in Wyman on behalf of the Bidjara People v Queensland (No 2) noted:
It should be apparent that the provisions of the NTA involve a construct. That is, the provisions impose a set of requirements which bear no necessary relationship to contemporary Aboriginal Australia or, for that matter, what might ordinarily be considered to be a society and its continuance. Whether native title rights and interests can be established does not necessarily say anything about the existence of any contemporary Aboriginal society (in the sense of a body of persons united in and by its acknowledgment and observance of a body of laws and customs), the content or strength of any norms and values of that society, or the merits or otherwise of those norms and values.
60. The ALRC invites comment on the adequacy of s 223 as a test for establishing the existence of Aboriginal and Torres Strait Islander people’s rights and interests in relation to land and waters.
Question 5. Does s 223 of the Native Title Act adequately reflect how Aboriginal and Torres Strait Islander people understand ‘connection’ to land and waters? If not, how is it deficient?
Options for reform
61. Connection requirements for the recognition and scope of native title rights and interests raise a number of interwoven challenges. The Terms of Reference direct the ALRC to consider five specific options for reform that have been identified, but the Inquiry can be more wide-ranging in its examination of suggested measures. The following sections consider the nature of the challenges posed by native title law and legal frameworks, and the suggested options for reform in detail.
Lander v South Australia  FCA 427 (1 May 2012), –. See also King on behalf of Eringa Native Title Claim Group v South Australia (2011) 285 ALR 454 –; Dodd v South Australia  FCA 519 (22 May 2012) –; Bandjalang People No 1 and No 2 v A-G (NSW)  FCA 1278 (2 December 2013), .
Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth (2013) 300 ALR 1, .
Mabo v Queensland [No 2] (1992) 175 CLR 1, .
Fejo v Northern Territory (1998) 195 CLR 96, .
Commonwealth v Yarmirr (2001) 208 CLR 1, .
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, .
Ibid . See section below, ‘The meaning of “traditional”’.
Ibid – (Gleeson CJ, Gummow and Hayne JJ).
Ibid  (Gleeson CJ, Gummow and Hayne JJ). Section 223(1)(c) may also require ‘refusal of recognition to rights or interests which, in some way, are antithetical to fundamental tenets of the common law’: Ibid.
Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth (2013) 300 ALR 1, .
Justice Robert French and Patricia Lane, ‘The Common Law of Native Title in Australia’ (2002) 2 Oxford University Commonwealth Law Journal 15, 26–27.
See Native Title Act 1993 (Cth) pt 4.
Chief Justice Robert French, ‘Native Title—A Constitutional Shift?’ (Speech Delivered at the JD Lecture Series, The University of Melbourne, 24 March 2009).
Melissa Perry and Stephen Lloyd, Australian Native Title Law (Lawbook Co, 2003) 13.
Commonwealth v Yarmirr (2001) 208 CLR 1, –.
Samantha Hepburn, ‘Native Title Rights in the Territorial Sea and Beyond : Exclusivity and Commerce in the Akiba Decision’ (2011) 34 University of New South Wales Law Journal 159.
The Hon Robert McClelland, ‘Opening Address’ (Speech Delivered at the Negotiating Native Title Forum, Brisbane, 29 February 2008).
David Martin, Toni Bauman and Jodi Neale, ‘Challenges for Australian Native Title Anthropology: Practice Beyond the Proof of Connection’ (Research Discussion Paper 29, AIATSIS, May 2011).
Wyman on behalf of the Bidjara People v Queensland (No 2)  FCA 1229 (6 December 2013) .