The meaning of ‘traditional’

97. The Terms of Reference ask the ALRC to consider clarification of the meaning of ‘traditional’ to allow for the evolution and adaptation of culture and recognition of ‘native title rights and interests’.

98. Tradition plays a central role in the definition of native title in s 223 of the Native Title Act. Case law has provided guidance on its meaning in that section.[111] This part of the Issues Paper sets out the interpretation of the meaning of traditional and traditional laws and traditional customs, including the extent to which evolution and adaptation is possible. It also considers criticism of the requirements associated with proof of traditional laws and customs, and asks for submissions on options for reform.

The use of ‘traditional’ in s 223

99. Native title is defined in s 223 of the Native Title Act. Section 223(1)(a) states that native title rights and interests are possessed under the traditional laws acknowledged, and traditional customs observed, by the relevant Aboriginal peoples or Torres Strait Islanders.

100. The High Court in Yorta Yorta embarked on a detailed analysis of s 223(1), including what is meant by the term ‘traditional’ in s 223(1)(a). The interpretation of ‘traditional’ is central to Yorta Yorta.

101. In a joint judgment, Gleeson CJ, Gummow and Hayne JJ stated that ‘traditional’ in the context of its use in relation to laws and customs carries a number of elements. The first is the means of transmission of laws and customs. ‘Traditional’ laws and customs are those which have been ‘passed from generation to generation of a society, usually by word of mouth and common practice’.[112]

102. The second relates to the age of the laws and customs. Traditional laws and customs ‘must be understood to refer to the body of law and customs acknowledged and observed by the ancestors of the claimants at the time of sovereignty’.[113]

103. The third element relates to the requirement that rights and interests be ‘possessed’ under traditional laws and customs. Gleeson CJ, Gummow and Hayne JJ held that this means that the

normative system under which the rights and interests are possessed (the traditional laws and customs) is a system that has had a continuous existence and vitality since sovereignty.[114]

104. Gleeson CJ, Gummow and Hayne JJ also found that there was an ‘inextricable’ link between a society and its laws and customs. Society, in this context, was to be understood as ‘a body of persons united in and by its acknowledgment and observance of a body of laws and customs’.[115] Therefore, related to the requirement that traditional laws and customs must have had a continuous existence and vitality since sovereignty is a requirement that the society continues to exist as a group which acknowledges and observes traditional laws and customs. If the society ceases to exist, ‘those laws and customs cease to have continued existence and vitality’.[116]

105. The following sections will consider a number of concepts associated with the notion of traditional in s 223(1), including the concept of ‘society’, and the extent to which traditional laws and customs can evolve and adapt. Some criticisms of the approach taken to the interpretation of traditional are also considered. The requirements of generational transmission of laws and customs and continuity of acknowledgment and observance of traditional laws and customs are detailed in the section, ‘Substantial interruption’.

‘Society’

106. The existence of a society is a discrete element to be established in native title claims.[117] It has been described as ‘a fundamental threshold question for native title claimants’.[118]

107. The relevant society for native title purposes has been the subject of significant consideration by the Federal Court. The Full Federal Court in Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (‘Alyawarr’) has stated that the term ‘society’ does not require ‘arcane construction’:

It is not a word which appears in the NT Act. It is a conceptual tool for use in its application. It does not introduce, into the judgments required by the NT Act, technical, jurisprudential or social scientific criteria for the classification of groups or aggregations of people as ‘societies’.[119]

108. The Full Federal Court in Sampi on behalf of the Bardi and Jawi People v Western Australia (‘Sampi’) provided further guidance on the meaning of ‘society’. It noted that the central consideration for whether a group constitutes a society is ‘whether the group acknowledge the same body of laws and customs relating to rights and interests in land and waters’.[120] This could be so ‘notwithstanding that the group was composed of people from different language groups or groups linked to specific areas within the larger territory which was the subject of the application’.[121]

109. A native title claim group may also assert that it holds individual or group rights under the traditional laws and customs of a larger society or community of which they are a part.[122]

110. There may be some difficulties with the requirement that a native title claim group must identify its membership of a society united in and by their acknowledgment and observance of a body of accepted laws and customs. For example, difficulties with the society requirement may also arise where there has been succession to land by one group of Aboriginal or Torres Islander peoples from another group.[123]

111. The need to establish the existence of a society to satisfy s 223 of the Act has has been said to have created an ‘enormous grey area in the requirement of proof’.[124] The Hon Justice Paul Finn, writing extra-curially, commented that the society requirement has created a ‘problematic and quite time consuming distraction’ in native title litigation.[125] He refers to his own judgment in a claim over the Torres Strait, Akiba v Queensland (No 3) to illustrate this difficulty, noting that

The Islanders’ primary case was that they were one society; the Commonwealth’s, that they were four societies, these representing the four island groups involved in the hearing; and the State of Queensland alleged there were thirteen societies, each being one of the thirteen inhabited islands.[126]

112. Finn J found that the applicant had established its case that it comprised one society. However, he noted that:

There is an irony in this… answers to the question of native title rights and interests—which is, after all, the concern of the NT Act—would in all probability be the same whether my conclusion had been one, or four, or thirteen societies.[127]

113. The need to identify membership of a society will also be important to the composition of the native title claim group. This is discussed further in the section, ‘Authorisation’.

Evolution and adaptation of law and custom

114. As explained above, native title rights and interests must find their origin in the laws and customs acknowledged and observed at sovereignty—it is these laws and customs that are ‘traditional’.[128]

115. However, the High Court has acknowledged that some evolution and adaptation of law and custom may occur. In Yorta Yorta, Gleeson CJ, Gummow and Hayne JJ stated that some change to, or adaptation of, traditional laws and customs will not necessarily be fatal to a native title claim.[129]

116. The judgment of Gaudron and Kirby JJ also considered that adaptation to law and custom may occur and still be considered traditional:

What is necessary for laws and customs to be identified as traditional is that they should have their origins in the past and, to the extent that they differ from past practices, the differences should constitute adaptations, alterations, modifications or extensions made in accordance with the shared values or the customs and practices of the people who acknowledge and observe those laws and customs.[130]

117. Different views have been expressed about the extent to which the current approach to traditional laws and customs allows for evolution and adaptation. The Western Australian Government has argued that change or adaptation to laws and customs may occur under the current understanding of traditional.[131] Notwithstanding such views, the Jumbunna Indigenous House of Learning Research Unit suggests that ‘judicial interpretations of “traditional” laws and customs have created an edifice around continuity, which has imposed a frozen rights approach or a museum mentality’.[132]

Commentary on emphasis on tradition

118. The approach to tradition taken in Yorta Yorta has received some criticism. Professor Simon Young has argued that the emphasis on the maintenance of pre-sovereign law and custom is inconsistent with Australian legal and social history:

Traditional Aboriginal Law and custom has been actively and effectively repressed and discouraged for much of Australia’s European history … Moreover, the history of dispossession demonstrates that the very laws and customs most focused upon by the native title doctrine, namely the detail and incidents of the Aboriginal relationship with land and waters, have been the most interfered with, ignored and constrained.[133]

119. The result, for Young, is that the native title claims of those Indigenous peoples most severely affected by non-Indigenous settlement are unlikely to be recognised.[134]

120. Dr David Martin considers that the requirement to demonstrate traditionality is at odds with Indigenous peoples’ contemporary lives:

Regardless of the fact that in various ways, and to varying degrees, the contemporary lives of native title claimants involve multiple forms of engagement with the wider society … their identities as Indigenous people—as well as those of their groups—must be constructed for the purposes of claiming native title in a singular and traditionalist modality.[135]

121. The ALRC invites comment on any difficulties associated with the need to establish that native title rights and interests are possessed under traditional laws and customs.

Question 10. What, if any, problems are associated with the need to establish that native title rights and interests are possessed under the traditional laws acknowledged and traditional customs observed by the relevant Aboriginal or Torres Strait Islander people? For example, what problems are associated with:

(a) the need to demonstrate the existence of a normative society ‘united in and by its acknowledgment and observance’ of traditional laws and customs?

(b) the extent to which evolution and adaptation of traditional laws and customs can occur?

How could these problems be addressed?

Definition of the meaning of traditional?

122. Any definition of the term ‘traditional’ may have a significant impact on the interpretation of s 223 in the Native Title Act. It may also affect the operation of other parts of the Act.[136] This part of the Issues Paper notes some previous suggestions that have been made to clarify the meaning of traditional in the Act—in particular, to clarify that laws and customs may change over time. It also considers some uses of the concept of traditional in other legislation, and invites comment as to whether there should be definition of ‘traditional’ in s 223 of the Native Title Act.

123. The Native Title Amendment (Reform) Bill 2014 has proposed amendments to s 223 relating to the meaning of traditional law and custom. These involve amendments to insert the following:

(1A) Without limiting subsection (1), traditional laws acknowledged in that subsection includes such laws as remain identifiable through time, regardless of whether there is a change in those laws or in the manner in which they are acknowledged.

(1B) Without limiting subsection (1), traditional customs observed in that subsection includes such customs as remain identifiable through time, regardless of whether there is a change in those customs or in the manner in which they are observed.[137]

124. Other legislation in Australia has taken a variety of approaches to the question of tradition in relation to Aboriginal and Torres Strait Islander people. For example, ‘Aboriginal tradition’ is defined in the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).[138]

125. ‘Traditional owner group’ is defined in the Traditional Owner Settlement Act 2010 (Vic) to include those people recognised by the Attorney-General as traditional owners, based on their traditional and cultural associations with the land.[139] Victoria has published threshold guidelines detailing what the state views as amounting to traditional and cultural association. These guidelines state that ‘traditional’:

Denotes linkages with the past that are actively kept alive by the traditional owner group members. It is not restricted to features or activities understood to be fully continuous with, and identical to, such activities or features in pre-contact Aboriginal society.[140]

126. The ALRC invites comment on whether there should be a definition of the term traditional, or traditional laws and customs in the Native Title Act.

Question 11. Should there be a definition of traditional or traditional laws and customs in s 223 of the Native Title Act? If so, what should this definition contain?

[111] Elsewhere in the Native Title Act, the term ‘traditional activity’ is defined in the context of providing for rights of access to non-exclusive agricultural or pastoral leases for certain native title claimants: Native Title Act 1993 (Cth) ss 44A, 44B.

[112] Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [46] (Gleeson CJ, Gummow and Hayne JJ).

[113] Ibid [86] (Gleeson CJ, Gummow and Hayne JJ). The High Court’s approach to the age of ‘traditional’ laws and customs is informed by its assessment of the nature of recognition of native title by the common law—that is, recognition involves an ‘intersection’ of two normative systems at the point of assertion of sovereignty by the Crown: Ibid [37]–[38] (Gleeson CJ, Gummow and Hayne JJ). See further the section ‘The concept of connection in native title law’.

[114] Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [47] (Gleeson CJ, Gummow and Hayne JJ).

[115] Ibid [49].

[116] Ibid [50].

[117] See, eg, the formulation of the requirements of s 223 in Lander v South Australia [2012] FCA 427 (1 May 2012) [33].

[118] Lisa Strelein, ‘From Mabo to Yorta Yorta: Native Title Law in Australia’ (2005) 19 Washington University Journal of Law and Policy 225, 259–260.

[119] Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442, [78].

[120] Sampi on behalf of the Bardi and Jawi People v Western Australia (2010) 266 ALR 537, [51].

[121] Ibid [71]. See, eg, Neowarra v Western Australia [2003] FCA 1402 (8 December 2003); Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory (2004) 207 ALR 539; Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442; Akiba v Queensland (No 3) (2010) 204 FCR 1.

[122] Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442, [80]; Bodney v Bennell (2008) 167 FCR 84, [145]–[146]. This was the case in De Rose, in which the claim group did not assert that they constituted a discrete society or community. Instead, they asserted that they held rights and interests under the traditional laws and customs that they shared with a wider society of Aboriginal people of the Western Desert Bloc: De Rose v South Australia (No 1) (2003) 133 FCR 325, [275].

[123] See Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [44]; Dale v Moses [2007] FCAFC 82 (7 June 2007) [120]; Western Australia v Sebastian (2008) 173 FCR 1, [94]–[104].

[124] Lisa Strelein, ‘From Mabo to Yorta Yorta: Native Title Law in Australia’ (2005) 19 Washington University Journal of Law and Policy 225, 259.

[125] Paul Finn, ‘Mabo into the Future: Native Title Jurisprudence’ (2012) 8 Indigenous Law Bulletin 5, 6.

[126] Ibid.

[127] Ibid 7, quoting Akiba v Queensland (No 3) (2010) 204 FCR 1.

[128] Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [46] (Gleeson CJ, Gummow and Hayne JJ).

[129] Ibid [83].

[130] Ibid [114].

[131] Western Australian Government, Submission No 18 to Senate Committee on Legal and Constitutional Affairs, Parliament of Australia, Inquiry into Native Title Amendment (Reform) Bill 2011, August 2011.

[132] Jumbunna Indigenous House of Learning Research Unit, UTS, Submission No 17 to Senate Committee on Legal and Constitutional Affairs, Parliament of Australia, Inquiry into Native Title Amendment (Reform) Bill 2011, July 2011.

[133] Simon Young, Trouble with Tradition: Native Title and Cultural Change (Federation Press, 2008) 361–362.

[134] Ibid 363.

[135] David Martin, ‘Alternative Constructions of Indigenous Identities in Australia’s Native Title Act’ in Toni Bauman and Lydia Glick (eds), The Limits of Change: Mabo and Native Title 20 Years On (AIATSIS, 2012) 356.

[136] For example, it may affect the interpretation of s 211 of the Act.

[137] Native Title Amendment (Reform) Bill 2014 cl 18.

[138] The definition is: ‘the body of traditions, observances, customs and beliefs of Aboriginals or of a community or group of Aboriginals, and includes those traditions, observances, customs and beliefs as applied in relation to particular persons, sites, areas of land, things or relationships’: Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 3. See also Aboriginal Land Act 1991 (Qld) s 7.

[139] Traditional Owner Settlement Act 2010 (Vic) s 3. A traditional owner group is also defined in that section to mean a group of Aboriginal persons who authorise certain Indigenous Land Use Agreements under the Native Title Act, or native title holders.

[140] Department of Justice, Threshold Guidelines for Victorian Traditional Owner Groups Seeking a Settlement Under the Traditional Owner Settlement Act 2010 (2013) 32.