‘Substantial interruption’

169. The Terms of Reference direct the ALRC to consider options for reform of the requirement that acknowledgment of traditional laws and observance of traditional customs must have continued ‘substantially uninterrupted’ by each generation since sovereignty. The ALRC is specifically directed to inquire into whether there should be ‘empowerment of courts to disregard substantial interruption or change in continuity of acknowledgment and observance of traditional laws and customs where it is in the interests of justice to do so’.^[211]

170. This section gives an overview of the interpretation of s 223 of the Native Title Act and relevant case law on ‘continuity’ and ‘substantial interruption’. For native title to be established, continuity is required in the acknowledgment of law and observance of custom.^[212] This section also outlines limitations identified by some commentators, and some possible reform options.

Establishing law and custom that is ‘substantially uninterrupted’

171. The Full Court of the Federal Court in Sampi observed that native title applications must be grounded in a particular native title claim group’s history, beliefs and practices. Accordingly, ‘[t]he circumstances of each native title application are different’.^[213] The requirement for native title claimants to establish that the acknowledgment of their traditional laws and the observance of their traditional customs has continued substantially uninterrupted by each generation since sovereignty has caused particular difficulty for claimants in some parts of Australia.^[214] As European settlement occurred at different times, in different ways and with differing results across the country, a view has been raised that

the greater the adoption of modern technology and life-styles (including education, welfare and health services) the greater the chance that a court will find that traditional laws and customs have been abandoned, and that native title has been lost.^[215]

172. Generally speaking, the case law tends to reflect this pattern. In many instances where claimants have not been able to establish continuity of acknowledgment of law and observance of custom due to ‘substantial interruption’, the claims are in closer proximity to areas of concentrated settlement. By contrast, there are other cases, such as Alyawarr (a claim for land and waters south-east of Tennant Creek in the Northern Territory) where the traditional laws and customs observed by the claimants were found to have continued substantially uninterrupted since sovereignty because ‘[t]he evidence to that effect was strong’.^[216]

173. The ALRC is interested in hearing from stakeholders about whether there are any problems associated with the need for native title claimants to establish continuity of acknowledgment and observance of traditional laws and customs that has been ‘substantially uninterrupted’ since sovereignty, and what are these problems.

Overview of the case law

174. Neither the term ‘continuity’ nor ‘substantial interruption’ is used in s 223(1) of the Native Title Act. Rather, the need for native title applicants to demonstrate that, since sovereignty, acknowledgment of their traditional laws and observance of their traditional customs has continued ‘substantially uninterrupted’ stems from the High Court’s construction of s 223(1)(a) in Yorta Yorta.^[217] It has been argued that this approach is not radically different from that taken in Mabo [No 2],^[218] where 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.^[219]

Continuity of acknowledgment and observance of traditional laws and customs required

175. In their appeal to the High Court, the native title claimants in Yorta Yorta contended that the primary judge and the majority of the Full Court of the Federal Court had been wrong to hold that their native title claim, over an area of land and waters in northern Victoria and southern New South Wales, had ‘failed without positive proof of continuous acknowledgment and observance of the traditional laws and customs’.^[220] The majority of the High Court dismissed the appeal, holding that continuity of acknowledgment and observance is a requirement for establishing native title.^[221] The claim by members of the Yorta Yorta Aboriginal community failed as there was no evidence that the claimants had continued to acknowledge and observe the traditional laws and customs, that constituted them as a normative society.^[222]

176. Gleeson CJ, Gummow and Hayne JJ observed that the continuity of the acknowledgment of the traditional laws and observance of the traditional customs (together, ‘the normative rules’)^[223] is determinative:

acknowledgment and observance of those laws and customs must have continued substantially uninterrupted since sovereignty. Were that not so, the laws and customs acknowledged and observed now could not properly be described as the traditional laws and customs of the peoples concerned. That would be so because they would not have been transmitted from generation to generation of the society for which they constituted a normative system giving rise to rights and interests in land as the body of laws and customs which, for each of those generations of that society, was the body of laws and customs which in fact regulated and defined the rights and interests which those peoples had and could exercise in relation to the land or waters concerned.^[224]

177. Accordingly, if the normative society is found to no longer exist, this break in continuity means there can be no determination of native title.

Continuity—not absolute, but a high hurdle?

178. Continuity in acknowledgment and observance of the normative rules from sovereignty to the present need not be absolute in order to meet the requirement. Gleeson CJ, Gummow and Hayne JJ stated that

some interruption of enjoyment or exercise of native title rights or interests in the period between the Crown asserting sovereignty and the present will not necessarily be fatal to a native title claim.^[225]

179. Yorta Yorta has been described as producing ‘a discernible hardening of the arteries of the Native Title Act’.^[226] The need to establish continuity—in its different senses^[227]—for a determination of native title has attracted criticism on a number of grounds.

180. The Australian Human Rights Commission suggests that ‘[t]he application of the tests for continuity, derived from Yorta Yorta … has had a detrimental effect on native title claims’.^[228]

181. The Aboriginal and Torres Strait Islander Social Justice Commissioner has remarked:

Although referring to the text of s 223 as the basis for its decision, the majority in Yorta Yorta made a policy choice, although not expressly, in favour of a restricted entitlement to a determination of native title.^[229]

182. The Commissioner has observed that ‘there is little room to raise past injustice as a counter to the loss of, or change in, the nature of acknowledgment of laws or the observance of customs’.^[230]

183. Others identify a tension in the nature of the recognition of native title. The way in which recognition is conceived as an intersection between two normative systems means that there is ‘no room for a parallel system of Indigenous governance’.^[231]

184. When considering whether there has been continuity of acknowledgment of traditional laws and observance of traditional customs, courts have, since Yorta Yorta, inquired whether that acknowledgment and observance has continued ‘substantially uninterrupted’.

‘Substantially uninterrupted’

185. The qualification ‘substantially’ is important in ‘substantially uninterrupted’. In Yorta Yorta two reasons were given for why the qualification ‘must be made’.^[232] First, in order to recognise the great difficulty of proving continuous acknowledgment and observance of oral traditions over the many years since sovereignty. Secondly, to recognise the ‘most profound effects’ of European settlement on Aboriginal societies. This means that it is ‘inevitable that the structures and practices of those societies, and their members, will have undergone great changes’.^[233]

186. Yet ‘the inquiry about continuity of acknowledgment and observance does not require consideration of why, if acknowledgment and observance stopped, that happened’.^[234] If the requirement is not met, then ‘examining why that is so is important only to the extent that the presence or absence of reasons might influence the fact-finder’s decision about whether there was such an interruption’.^[235] In Bodney v Bennell, the Full Court of the Federal Court remarked that, ‘[w]e understand the last sentence of that passage to be a reference back to the expression “substantially uninterrupted”’.^[236]

187. With respect to how change in acknowledgment or observance is to be dealt with, the Court in Bodney v Bennell stated:

European settlement is what justifies the expression ‘substantially uninterrupted’ rather than ‘interrupted’. It explains why it is that the common law will recognise traditional laws and customs that are not exactly the same as they were at settlement. But if … there has been a substantial interruption, it is not to be mitigated by reference to white settlement. The continuity enquiry does not involve consideration of why acknowledgment and observance stopped.^[237]

188. Recognising that the concept of ‘traditional’ is fundamental to defining the threshold of entitlement with respect to native title, the Court in Bodney v Bennell continued:

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.^[238]

Define ‘substantial interruption’?

189. In the ‘Native Title Report 2009’, the Aboriginal and Torres Strait Islander Social Justice Commissioner recommended legislative amendments to address the courts’ inability to consider the reasons for interruptions in continuity that establish connection.^[239] The Commissioner suggested that ‘a definition or a non-exhaustive list of historical events’ could be provided in the Native Title Act in order ‘to guide courts as to what should be disregarded’. Two possible examples were given: the forced removal of children and the relocation of communities onto missions.^[240] Other examples may be relevant.

190. The ALRC is interested in views on whether the phrase ‘substantial interruption’ should be defined in the Native Title Act.

The ‘generation by generation’ test of native title

191. The Full Court’s decision in Risk v Northern Territory^[241] can be seen as authority for the proposition that the acknowledgment and observance of the laws and customs must have continued substantially uninterrupted by each generation since sovereignty.^[242]

192. The ‘generation by generation’ test was also discussed in Bodney v Bennell, which concerned the Noongar people’s claim over an area of land and waters in the south-west of Western Australia, including the area in and around Perth.

193. At first instance, the trial judge had determined—subject to matters of extinguishment—that the native title claimants held native title rights over the claim area.^[243] On appeal, the Full Court overturned this finding, stating that the correct question is ‘whether the laws and customs have continued to be acknowledged and observed substantially uninterrupted by each generation since sovereignty’.^[244]

194. The application of the ‘generation by generation’ test of native title in Bodney v Bennell prompted calls for reform as there was a ‘perception that the courts had again imposed greater strictures on the requirements of proof’.^[245]

Revitalisation of laws and customs

195. Risk v Northern Territory concerned the Larrakia^[246] people’s claim over certain land and waters, including part of metropolitan Darwin and its surrounds. At first instance, the application for a determination of native title was dismissed.^[247] The Court 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.^[248]

196. The Court specifically referred to a lack of evidence about the passing on of knowledge of the traditional laws and customs from generation to generation during much of the twentieth century.^[249] Accordingly, the Court did not find that current laws and customs were ‘traditional’ in the sense required by s 223(1) of the Native Title Act.^[250] There was a finding that there had been a substantial interruption in the ‘practice’ of the traditional laws and customs.^[251]

197. On appeal, the Larrakia people argued that the trial judge had mis-applied Yorta Yorta.^[252] The Full Court found it had been clear on the evidence that there had been a substantial interruption^[253] and that no error had been shown.^[254]

198. Concerns have been raised about the Larrakia case as ‘[a] break in continuity of traditional laws and customs for just a few decades was sufficient for the court to find that native title did not exist’.^[255] 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 … ^[256]

199. For some, revitalisation of Indigenous laws and customs is clearly outside the bounds of what can be recognised as native title.^[257] However, others view the construction of native title, specifically with respect to substantial interruption, as creating ‘insurmountable barriers to cultural resurgence’.^[258] 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.^[259]

Decisions in other cases

200. There are other cases where the relevant State has contended that the chain of possession since sovereignty has been broken by a substantial interruption in the acknowledgment of traditional laws and the observance of traditional customs but where the relevant court has found there to be no substantial interruption.^[260]

201. In Banjima, which concerned a claim over land and waters in the east Pilbara region of Western Australia, the Federal Court stated that the evidence showed that there had been no substantial interruption of the connection of the Banjima with their country, over that time, by their laws and customs:

No doubt, as the evidence discloses, the introduction of pastoral industry in the 1880s had a real impact on the way in which the Banjima lived their lives and that they were obliged to adapt to accommodate those impacts, but that does not mean, and the evidence does not disclose, that the connection of the Banjima, by their laws and customs, with their traditional country was substantially interrupted between the 1880s and today.^[261]

202. Rather, the Court found that:

They knew who they were, they spoke their own language and they inculcated their children and grandchildren in the traditional ways of the Banjima. Practice of the ritual and ceremonial laws of the Banjima did not cease.^[262]

203. The Court found that there had been continuity of the acknowledgment and observance of the traditional laws and customs.

204. The ALRC seeks comment on whether, and how, the Native Title Act should be amended to address substantial interruption and change in continuity of acknowledgment and observance of traditional laws and customs that establish native title.

Options for reform

205. The Terms of Reference direct the ALRC to consider at least one possible reform proposal—the empowerment of courts to disregard substantial interruption or change in continuity of acknowledgment and observance of traditional laws and customs where it is in the interests of justice to do so.

206. The ‘empowerment’ of courts suggests the conferral of discretion;^[263] however, a model previously proposed constituted more of a direction to courts.^[264] ‘In the interests of justice’ is a broad phrase so similarly could be implemented in varying ways.