Physical occupation, continued or recent use

149. The ALRC has been directed to inquire into whether there should be confirmation that ‘connection with the land and waters’ does not require physical occupation or continued or recent use. This section will consider how connection with land and waters is established, and the role of physical occupation, continued and recent use in establishing connection.

Establishing connection

150. The definition of native title in s 223 of the Native Title Act refers to interests in relation to land and waters possessed under traditional laws and customs where Aboriginal peoples or Torres Strait Islanders ‘by those laws and customs, have a connection with the land or waters’. The phrase ‘by those laws and customs’ indicates that the ‘connection’ that must be shown is connection sourced in Aboriginal and Torres Strait Islander laws and customs.[179]

151. The High Court has said that ‘the connection which Aboriginal peoples have with country is essentially spiritual’.[180] It includes both the obligation to care for country and the right to speak for country.[181] The connection can also be cultural or social.[182]

152. Under Aboriginal and Torres Strait Islander laws and customs, people are connected with land or waters by their knowledge of ceremony, song, dance and body painting[183] and their knowledge of the land and the Dreamtime beings that created the land.[184] Evidence of this connection may be given in native title proceedings by performing ceremonies and making inspections of significant sites.[185] Language also connects communities with land or waters.[186]

153. Many Aboriginal and Torres Strait Islander people do not currently physically occupy the land or waters that are the subject of a native title claim, and may not have continuously or recently used them. The absence from the land may be a result of the actions of colonial governments and settlers, of twentieth century government policies of forced removal and resettlement on reserves,[187] the need to make a living elsewhere, or a voluntary decision by an individual to live at a distance from the land. Of those people who do occupy or use the land, they may not necessarily occupy or regularly visit all areas of the land. In relation to waters, regular use of all areas might not be expected.

154. For some Aboriginal peoples, particularly those who live in arid and marginal areas, periodic absence may have been a normal part of the relationship with land, and may not indicate a loss of connection.[188]

155. The next section considers how evidence regarding the occupation and use of land is relevant to the establishment of native title rights and interests.

Physical occupation, continued or recent use, and connection

156. In Western Australia v Ward (‘Ward FFC’)[189] the Full Federal Court considered whether connection with land and waters could be maintained in the absence of physical presence. The Court concluded that, while actual physical presence provides evidence of connection, it is not essential. The essential feature of connection is acknowledgment and observance of traditional laws and customs. The Court stated that

Acknowledgment and observance may be established by evidence that traditional practices and ceremonies are maintained by the community, insofar as that is possible, off the land, and that ritual knowledge including knowledge of the Dreamings which underlie the traditional laws and customs, continue to be maintained and passed down from generation to generation. Evidence of present members of the community, which demonstrates a knowledge of the boundaries to their traditional lands, in itself provides evidence of continuing connection through adherence to their traditional laws and customs.[190]

157. On appeal, the High Court noted that s 223 ‘is not directed to how Aboriginal peoples use or occupy land or waters’, although the way in which land and waters are used may be evidence of the kind of connection that exists.[191] The Court confirmed that the absence of evidence of recent use, occupation or physical presence does not mean that there is no connection with the land or waters.[192]

158. In De Rose v South Australia (No 2) (‘De Rose (No 2)’) the Full Court of the Federal Court confirmed that

It is possible for Aboriginal peoples to acknowledge and observe traditional laws and customs throughout periods during which, for one reason or another, they have not maintained a physical connection with the claim area. Of course, the length of time during which the Aboriginal peoples have not used or occupied the land may have an important bearing on whether traditional laws and customs have been acknowledged and observed. Everything will depend on the circumstances.[193]

159. The Court in De Rose (No 2), as in Ward FFC, indicated that the relevant question is whether the claimant group has continued to acknowledge and observe its traditional laws and customs ‘on which it relies to establish possession of native title rights and interests’.[194]

160. Continued or recent use took on a particular importance in the case of Akiba, a claim over a large area of sea in the Torres Strait. The trial judge found that connection with waters had been established in relation to the main area of the claim, but not at the extremities of the claim, described as Areas 1, 2, 3 and 4. Regarding Areas 2, 3 and 4, Finn J said that ‘there is no evidence of use of, or connection to, those areas’.[195] On appeal, the Full Federal Court also placed weight on the absence of evidence of use of these areas, and concluded that the trial judge was not in error on this point.[196]

Physical occupation and the identification of native title rights and interests

161. A determination of native title must include a determination of the nature and extent of the native title rights and interests in the area.[197] Physical occupation, and continued or recent use may be relevant to proving the particular rights and interests possessed under traditional laws and customs. The content of native title is a question of fact, to be determined on a case by case basis.[198] Evidence of physical possession, occupation and use could be relevant to the question of whether the rights and interests include a right to exclude others,[199] or other rights. For example, in Banjima, the Court said:

There is ample evidence to show that hunting and the taking of fauna in customary ways continues today. Similarly, the customary practice of gathering and taking flora is well established historically and presently. The right to take fish is the subject of less contemporary evidence, but the right to take fish in the claim area is still exercised and clearly established as a right possessed by the claimants both historically and presently. It is not a right or activity that the evidence suggests has been abandoned. Similarly the right to take stones, timber, ochre and water is another right possessed by the claimants even though the evidence of current exercise of those rights is relatively limited.[200]

162. The courts have repeatedly emphasised that, while the exercise of native title rights and interests is ‘powerful evidence’ of the existence of those rights, the ultimate question concerns possession of rights, not their exercise.[201]

Other references to physical occupation or use

163. The Native Title Act includes other provisions that raise issues of physical occupation or recent use.

164. First, s 62 sets out the requirements for a claimant application for determination of native title. In 1997, this provision was amended to provide that the application may contain details of any ‘traditional physical connection with any of the land or waters covered by the application’ that is held by any member of the native title claim group.[202] If any member of the native title claim group has been prevented from gaining access to land and waters, details of those circumstances may also be included in the claim.[203]

165. Secondly, since 1998,[204] the registration test[205] has required the Registrar to be satisfied that the factual basis exists to support the assertion that the native title claim group has an association with the area.[206] The native title claim group must show an association with the entire area claimed, but the association can be physical or spiritual.[207]

166. The registration test in s 190B also requires the native title claim group to show that at least one member of the native title claim group has or previously had a ‘traditional physical connection’ with a part of the land or waters covered by the application, or would have had such a connection if not for things done by the Crown, a statutory authority or a leaseholder.[208] ‘Traditional physical connection’, in this instance, means that the connection is in accordance with the laws and customs of the group.[209]

167. The Native Title Amendment (Reform) Bill 2011 proposed amendments to s 223 relating to the meaning of traditional law and custom. These involved amendments to insert the following:

To avoid doubt, and without limiting subsection (1), it is not necessary for a connection with the land or waters referred to in paragraph (1)(c) to be a physical connection. [210]

168. The ALRC invites comment as to how issues concerning physical occupation, or continued or recent use, arise in relation to connection requirements, and whether any changes to the law are needed in this regard.

Question 16. What issues, if any, arise concerning physical occupation, or continued or recent use, in native title law and practice? What changes, if any, should be made to native title laws and legal frameworks to address these issues?

Question 17. Should the Native Title Act include confirmation that connection with land and waters does not require physical occupation or continued or recent use? If so, how should it be framed? If not, for what reasons?