Australian Indigenous Law Reporter
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Australian Indigenous Law Reporter |
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Monika Ciolek[*]
Section 223(1) of the Native Title Act 1993 (Cth) (‘NTA’) defines ‘native title’ or ‘native title rights and interests’ as:
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.
Paragraphs 223(1)(a) and (b) create questions of fact.[1] To be successful in their claim, applicants in a native title determination must – among other things – prove ‘connection’ according to paragraph (b).
‘Connection’ is undefined in the legislation, and Federal Court case law contains lile explicit consideration of what the requirement of ‘connection’ entails.[2] Most oen, where connection is considered by the Court, the term is unelaborated – the meaning or nature of ‘connection’ is taken for granted. The High Court has as yet declined ‘to express a view on the nature of the ‘connection’ that must be shown to exist and, in particular, on when a non-physical connection will sufice.[3]
This article began as a textual analysis of the case law: an aempt to discern the conceptual nature of the ‘connection with land and waters’ which must be made out for a native title claim to succeed. However, in reading the judgments
closely, it became clear that a variety of understandings of s 223(1)(b) connection are being applied to native title determinations.
For example, Sundberg J found in Neowarra v Western Australia (‘Neowarra’) that ‘lile is required to constitute a continuing connection’[4] and that connection of the claimant group to the claim area was amply demonstrated by evidence that the group observed laws and customs many of which had a physical connection with land or waters.[5] When considering connection, no specific reference was made to the particular rights and interests being claimed. In contrast, five months before Neowarra, Nicholson J in Daniel v Western Australia determined whether connection was proven by considering whether the rights and interests claimed ‘resulted in connection to the land or waters’.[6] Connection to distinct parts of the claimed area was said to exist ‘through the right’.[7]
As will be explained below, these two concepts of ‘connection’ rely on diferent interpretations of s 223(1) of the Native Title Act 1993 (Cth), and lead to diferent conclusions as to when a non-physical relationship with the claim area will sufice. Meanwhile, other cases reveal a third approach to s 223(1)(b). In particular, the High Court’s native title decisions contain dicta which imply divergent understandings of ‘connection’.
With a mind to the High Court’s open questions on the topic, this article first describes three main concepts of ‘connection’ at play in the case law, and then considers which should be adopted in future determinations.[8] Before proceeding, two things should be noted.
First, it is important to remember that the discussions concerning claimants’ laws and customs are of course judicial ones and do not always reflect the way that claimants would think about their laws and customs, or their relationship with the claim area.
Second, all the judgments undertook substantially the same set of enquiries when considering their final determination as to whether native title exists. Continuity of laws and customs since sovereignty, genealogical or other links to occupiers at sovereignty, boundaries of the traditional country, continued observance of laws and customs, existence of rights and interests under traditional law and custom, and connection with land and waters were always considered. The variations in views of connection lie in which of these elements were considered when thinking about s223(1)(b), what importance was placed upon them, and how they were configured in relation to one another.
Each view of connection is set out in three parts, starting with the path of reasoning employed by determinations in which that particular view of connection is implied. Second, the corresponding interpretation of s 223(1) of the Act is explained. Third, the practical consequences for claimants of that interpretation are set out: the facts which claimants must prove to make out that view of connection are described. This, in turn afords an answer to the question of where non-physical connection will suffice.
As noted in Part I, Nicholson J, in Daniel v Western Australia addresses ‘connection’ by examining each right and interest individually. He states:
In examining each particular right and interest claimed it is necessary that the Court make findings on whether … the rights and interests were acknowledged as part of a normative society and resulted in connection to the land or waters.[9]
Similarly, Olney J, in his findings in Yarmirr at trial, held that the ‘connection of ownership’ asserted by the claimants must refer to the aggregation of separate rights asserted in respect of the claimed area.[10] His judgment then considers each claimed right in turn. The right is tested for whether the applicants exercise the right, whether the applicants’ ancestors exercised it under law or custom, and whether ‘it is a right in relation to land or waters whereby there is a connection to the area claimed’.[11]
In these two judgments, determining whether the claimants have connection to the area is undertaken by checking each claimed right or interest. The judgements determined connection in this way even though both had previously found that the claimants were culturally and genealogically related to the inhabitants at sovereignty[12] and despite both judgments having already defined the outer limits of the claim area by reference to evidence of something which, without further mention or elaboration, is termed ‘traditional connection’ of the claimants to the claim area.[13]
Yarmirr and Daniel seem to be using a concept of s 223(1) connection in which the relevant relationship with the claim area is constituted by rights and interests. Because ‘connection’ is conceived as a consequence of the rights and interests, these must themselves have the characteristic of connecting to land and waters, in order to qualify for a place in the determination (for example, rights in relation to fish are not native title rights).
Under this view, s 223(1)(b) connection – the requisite relationship of the claimants with land and waters – is conceived of as a set of defined rights and interests.
In Daniel, Nicholson J speaks of connection as existing ‘through the right’.[14] In Yarmirr, Olney J speaks of:
the requirement that the rights and interests defined by s 223 are rights and interests in relation to land or waters whereby the peoples concerned have a connection with the land or waters. Not every traditional law and custom will necessarily relate to a people’s land or waters nor will it necessarily provide a connection with the land or waters.[15]
The manner in which Olney J and Nicholson J find connection to be proven, and the manner in which they speak of the requirement of connection, both correspond with an interpretation of s 223(1) of the NTA in which paragraph (b) is dependent on paragraph (a). It is relevant to repeat the terms of the paragraph, with the linked concepts emphasised:
‘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.
The expression ‘those laws and customs’ in paragraph (b) is understood to refer to particular laws and customs mentioned in paragraph (a), being the specific laws and customs under which rights and interests are possessed. This ‘dependent’ interpretation of s 223(1)(b) is supported by dicta in other judgments.
For example, Mansfield J in Alyawarr read (b) as dependent on (a) when he afirmed that:
The critical question dictated by s 223(1)(b) is whether the claim group, by the traditional laws and customs which give rise to the particular native title rights and interests, has a connection with the claim area.[16]
Similarly, the majority in the High Court’s Yorta Yorta judgment supports a ‘dependent’ reading when it says:
The rights and interests must have three characteristics. The first is that they are possessed under the traditional laws acknowledged and the traditional customs observed by the peoples concerned. … Secondly, the rights and interests must have the characteristic that, by the traditional laws acknowledged and the traditional customs observed by the relevant peoples, those peoples have ‘a connection with’ the land or waters.[17]
The same assertion has also been made by the majority in the High Court’s Yarmirr 18 and Ward judgments.[19] The majority in Ward applied this dependent interpretation when upholding the contention that a right to maintain and protect cultural knowledge is not ‘a right in relation to land’ and is therefore not a native title right. Chief Justice Gleeson, Gaudron, Gummow and Hayne JJ said that the ‘fatal dificulty’ was that that the right did not have the connection with the land required by paragraph (b).20 In so doing, the majority linked (a) and (b) of the definition of native title, and cast connection as a necessary quality of the right.
On this view, the range of traditional laws and customs relevant to proving connection is conceptually restricted to those traditional laws and customs under which claimed rights and interests in relation to land and waters are possessed. As a consequence, the need for acknowledgment and observance of traditional laws and customs is narrowed to acknowledgment and observance of the rights and interests claimed.
In Yarmirr and Daniel, claimed rights could not be considered for a place in the determination if there was no evidence of their current exercise on the area.[21] Therefore, under this view, proving the claimants’ connection necessitates proof that the claimants exercise those particular rights and interests on the claim area – it requires that evidence of observable activities on the area be presented to the court.
Justice Brennan’s remark in Mabo v Queensland (No 2) has been a touchstone in considering connection:
Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connexion with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence.[22]
If according to the first view, connection is a consequence of rights and interests, and connection is proved through observable activities on the claim area which constitute the exercise of claimed rights, then logically, proving continuity of connection requires showing continuity of exercise of those rights and interests. Under this view, it is to the exercise of rights that Brennan J’s proviso of ‘substantially maintained’ applies.
Justices Olney and Nicholson both required that the claimants exercise rights and interests on the claim area that are the same as those which their ancestors exercised under law and custom before sovereignty.[23] Justice Nicholson required proof of continuity of that exercise,[24] although his Honour explained that he was also taking into account the present spiritual connection of the applicants.[25]
This linear concept of maintenance of laws and customs through time is consistent with the High Court’s dicta in Yorta Yorta. In that case, the majority held that, in order to be ‘traditional’, ‘acknowledgment and observance of those laws and customs must have continued substantially uninterrupted since sovereignty’.[26]
Accordingly, on this view, maintenance of connection would depend on evidence of relatively continuous exercise of rights (additionally, since Yorta Yorta, the requirement that the rights have been exercised as part of a normative system of rules which itself has been substantially uninterrupted since sovereignty).[27] Loss of ‘connection by traditional laws and customs’ would be indicated primarily by a suficiently long interruption in the exercise of rights and interests on the claim area. This has significant implications for the suficiency of non-physical connection.
As noted in Part I, in Ward, the majority said:
We … need express no view … on what is the nature of the “connection” that must be shown to exist. In particular, we need express no view on when a ‘spiritual connection’ with the land (an expression oen used in the Western Australian submissions and apparently intended as meaning any form of asserted connection without evidence of continuing use or physical presence) will sufice.[28]
If the High Court were to adopt the approach to connection taken in Yarmirr and Daniel, in which connection is found through claimed rights and interests as exercised, then it would be most unlikely to find connection without evidence of a ‘substantially uninterrupted’ physical relationship of use or presence. A spiritual, cultural or social relationship with the area claimed could never be suficient on its own.
At least seven judgments (The Federal Court’s majority judgment in Ward,[29] and the determinations at trial in Ward, Rubibi (No 1), Rubibi (No 7), De Rose, Neowarra and Lardil )30 seem to understand connection to be the consequence of traditional law and custom viewed as a whole. Each of these judgments required the following to be made out for the native title claim to be successful:
and separately:
It is clear that these approaches consider the relationship between the claimants and the claimed area as having two aspects – rights and interests, as distinct from continuing connection. Since connection by traditional law and custom is not conceived of merely as the set of defined rights and interests being claimed, it may be established by reference to other facts (for example, existence of stories linked to the area).
By considering connection separately from the question of claimed rights and interests, a diferent interpretation of s 223(1) of the NTA is employed. This is an interpretation in which paragraph (b) is parallel to – rather than dependent on – paragraph (a).
This reading understands the phrase ‘those laws and customs’ to refer back to ‘the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders’, rather than specifically to the laws and customs under which rights and interests are possessed. Again, it is relevant to repeat the terms of the sub-section, with the linked concepts emphasised:
‘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
(b) customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(c) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
the rights and interests are recognised by the common law of Australia.
Under this reading, connection does not flow only from some of the rights or interests under (a). Paragraph (a) rights and interests and paragraph (b) connection are each the consequence of traditional laws and customs acknowledged and observed by the claimants. Justice Sundberg explains this interpretation in Neowarra:
Many of the claimants’ laws and customs have a physical connection with land or waters … These laws and customs thus have a connection with land or waters, and their observance by the Aboriginal people gives them a connection with land or waters. They are thus connected to the land or waters ‘by’ their laws and customs.[31]
Or as Weinberg J puts it in Grifiths:
In Ward HC, the High Court observed that s 223(1)(b) required consideration of whether, by the traditional laws acknowledged, and the traditional customs observed, by the peoples concerned, they had a ‘connection’ with the land or waters. In other words, there had to be first an identification of the traditional laws and customs, and next a characterisation of the efect of those laws and customs as constituting a ‘connection’ of the peoples with the land or waters in question.[32]
A range of other dicta support this reading. Justices Branson and Katz impliedly support a ‘parallel’ interpretation when they say in the Federal Court’s Yorta Yorta judgment:
Paragraph 223(1)(b) is similarly drawn in the present tense ... The reference in the paragraph to ‘those laws and customs’ is a reference to ‘the traditional laws acknowledged, and the traditional customs observed’ of which para 223(1)(a) speaks. That is, to currently acknowledged and observed traditional laws and customs.[33]
See also similar statements by Kirby J in Yarmirr[34] and by Gaudron and Kirby JJ in Yorta Yorta.[35]
As noted above, the High Court’s majority judgment in Ward applied a ‘dependent reading’ of s 223(1)(b) to the question on appeal. However, the majority judgment elsewhere provides support for a parallel reading of the paragraph. This is because it explicitly distinguishes the two enquiries in s 223(1)(a) and (b), and independently relates both connection and rights and interests to the general body of ‘laws and customs said to be traditional’:
The question in a given case whether (a) is satisfied presents a question of fact. It requires not only the identification of the laws and customs said to be traditional laws and customs, but, no less importantly, the identification of the rights and interests in relation to land or waters which are possessed under those laws or customs. These inquiries may well depend upon the same evidence as is used to establish connection of the relevant peoples with the land or waters. This is because the connection that is required by par (b) of s 223(1) is a connection with the land or waters ‘by those laws and customs’. Nevertheless, it is important to notice that there are two inquiries required by the statutory definition: in the one case for the rights and interests possessed under traditional laws and customs and, in the other, for connection with land or waters by those laws and customs. … The distinction is critical.[36]
It would seem that the majority judgment of the High Court in Ward supports two divergent concepts of connection, based on two diferent readings of s 223(1).
The evidence that can be drawn on to prove connection is much more extensive than under the first view – it is not conceptually limited to evidence of rights and interests.
Evidence seen to support or prove connection included the following:
• • Justice Lee in Ward held that the pronouncement of spiritual beliefs and obligations in respect of Dreaming sites and tracks was evidence of the claimants’ acknowledgement of traditional laws, customs and practices,[37] and that the Dreaming ‘provides a connection between the present claimants, their ancestors, and particular parts of the claim area’.[38] So too did use of local resources, and hunting and fishing activities.[39]
• Justices Beaumont and Von Doussa in the Federal Court’s Ward decision, with North J agreeing on these points, held that evidence of maintained connection included:
• All three judges also agreed that evidence from present members of the community demonstrating knowledge of the boundaries to their traditional lands, in itself provides evidence of their continuing connection through adherence to their traditional laws and customs.[41]
• In his interim judgment Rubibi (No 1), Merkel J considered connection with the area to be made out, according to an expert witness’ anthropological criteria:
• In the reasons for determination in Rubibi (No 7), His Honour reiterated the finding that ‘by almost all of the traditional laws and customs acknowledged and observed by the members of the Yawuru community, the members of that community have always maintained, at the communal level, the requisite spiritual, cultural and social connection to the land and waters in the Yawuru claim area.’[43]
• Justice O’Loughlin in De Rose at trial found the following evidence to be relevant when assessing the question of connection: knowledge of Dreamings, passing on of traditions to children, visits to country, participation in ceremonies or other cultural activities, knowledge of kin and kinship systems, and knowledge of boundaries of country.[44]
• In Neowarra, Sundberg J extensively canvassed laws and customs currently acknowledged and observed such as ceremonial rituals, widow law and mourning, kinship relations, passing on of stories to children, knowledge of boundaries and songlines. A key consideration was the claimants’ acknowledgement of Wanjina, beings believed to be the original occupiers of the region, and who continue ‘to be physically manifested as topographic features, rain clouds and celestial bodies in the region’.[45]
• Justice Cooper in Lardil held that the claimants’ connection to seas, seabed, subsoil and sea resources was through spirituality[46] as evidenced by Dreaming stories and traditional access restrictions.[47] Ancestors’ connection at sovereignty was established on the basis of anthropological evidence of extent of country at sovereignty, and of the spiritual, and physical connection of the original peoples to country. Also, hunting practices at sovereignty, and certain laws and customs governing acquisition of rights in country and the right to speak for country were taken into account.[48]
• Finally, Justice Weinberg in Grifiths was
‘satisfied that the land and waters of the claim area occupy an important role in the claimants’belief system. Many claimants reside in the area itself. Others visit it frequently. They use the land for hunting, fishing, and gathering food, and for ceremonial activities and they acknowledge and observe a body of traditional laws and customs which connect them to the land. Their ancestors acknowledged and observed essentially that same body of laws and customs. The evidence suggests that these laws and customs have been in existence for generations, since well before sovereignty’.[49]
From the examples above it can be seen that, for the second view, the relevant evidence is that of the continued existence and vitality of a body of norms (social, linguistic and spiritual) linking the claimants to the area. This is clear from the fact that all of the judgments above explicitly consider the relevance and importance of Dreaming stories to the claimants when assessing connection.[50]
Thus, under the second view, connection is conceptualised as the objective result of traditional laws and customs as a whole; it is the consequence of the claimants’ social organisation, the group’s body of social norms. As Beaumont and Von Doussa JJ explain, connection with the land is ‘spiritual, cultural and social’.[51]
On this view, proof of connection does not concentrate exclusively on rights and interests, made out by evidence of their exercise on the area. Indeed, proof of exercise of the rights may even be dispensed with when considering connection, if it can otherwise be shown that traditional laws and customs currently acknowledged and observed by the claimants connect them to the area (see Neowarra for an example). Where it advocates an inclusive approach to relevant evidence, the majority in the High Court’s Ward decision provides further support for the second view of connection:
In its terms, s 223(1)(b) is not directed to how Aboriginal peoples use or occupy land or waters … the absence of evidence of some recent use of the land or waters does not, of itself, require the conclusion that there can be no relevant connection.[52]
If connection is a consequence of the body of traditional law and custom as a whole, then it is the continuity of that body which amounts to continuity of connection. It is this body – not the exercise of rights and interests – which must have the necessary quality of being ‘substantially maintained’[53] – hence the emphasis in the cases above on the present and continuing vitality of a normative body of rules adhered to by the claimants.
Loss of connection would accordingly be indicated by two things.
First, it could be indicated by the inadequate present state of the laws and customs: that is, if the body of law and custom currently acknowledged and observed is not extensive enough, if it is too frayed to be suficiently connective with the claim area. An example is the finding by O’Loughlin J in De Rose:
in my opinion, it is appropriate to conclude that there is a lack of connection between the claimants and the claim area … there has been a breakdown in the acknowledgment of the traditional laws and in the observance of the traditional customs; that breakdown is fatal to their claim.[54]
Similarly, Madgwick J found that native title did not exist in the Gale application. Central to this finding was his conclusion that
there is now no real doubt that for a long time there has been no acknowledgment and observance by any known person, including members the claimant group, of anything like the body of traditional laws and customs that regulated pre-1788 Aboriginal life, including people’s relations to and in respect of land. A few beliefs, stories, values and family traditions, which it is fair to call vestigial, and some surviving practical bush knowledge in relation to gleaning food and medicine from the land… do not begin to amount to such a body.[55]
Second, the requirement of connection could also fail to be fulfilled if acknowledgment and observance of the body of laws and customs had been interrupted since sovereignty, and thus were no longer ‘traditional’ according to the High Court majority’s reasoning in Yorta Yorta.[56] On the reasoning of Mansfield J in Risk, this was the reason for which the Larrakia claim in the Darwin region could not succeed.
The Larrakia community of 2005 is a strong, vibrant and dynamic society. However, the evidence demonstrates an interruption to the Larrakia people’s connection to their country and in their acknowledgement and observance of their traditional laws and customs so that the laws and customs they now respect and practice are not ‘traditional’ as required by s 223(1) of the [Native Title] Act.[57]
It seems that establishing connection on this view requires ‘substantial maintenance’ both as a question of extent in the present, and as a question of linear continuity through time.
If the broader approach to connection (applied in the third view cases) were adopted by the High Court, then there would be no need, in proving connection, to show contemporary evidence of observable behaviours done on the claim area. Where people no longer occupied the claim area, or were prevented from visiting it, evidence of a spiritual, social, or cultural relationship alone could sufice to make out connection; but only on the two conditions mentioned above. First, the body of law and custom which relates to that area must be traditional (that is, continued through time substantially uninterrupted, as per Yorta Yorta). Second, it must be substantially maintained (that is, suficient laws and customs are still acknowledged and observed by the claimants) so that the laws and customs can be held to constitute a connection between the applicants and the claim area.
A third view of connection seems to have been applied in the recent cases of Gumana, Sampi, by the Federal Court in De Rose, as well as in a segment of Sundberg J’s decision in Neowarra. This emerging approach accepts the importance of the elements in the second view (continuity of the body of law and custom, suficient extent of laws and customs presently acknowledged and observed). Nevertheless, it carries a diferent understanding of what ‘connection’ is, and how it is proved.
As we saw above, in Neowarra, Sundberg J found connection to exist for the group of claimants who lived on their country because:
Many of the claimants’ laws and customs have a physical connection with land or waters … These laws and customs thus have a connection with land or waters, and their observance by the Aboriginal people gives them a connection with land or waters. They are thus connected to the land or waters ‘by’ their laws and customs.[58]
However, for those who did not live on the area, he found connection using a different path of reasoning:
I am satisfied that the Mowanjum claimants have maintained their connection with their countries, even though they are located away from them. They maintain that connection by practising their laws and customs at Mowanjum, and by asserting claims to country inherited from their forebears and having that assertion respected by their peers. I find that it is a characteristic of their laws and customs that a connection with country can be maintained by way of that assertion and acceptance.[59]
On this approach, connection is not thought of as a consequence of the rights and interests claimed, nor is it thought of as the direct result of the judge’s assessment of the efect of traditional laws and customs. Connection is the claimants’ own traditional relationship to country, and is maintained by the claimants’ continuing, and successful assertion of their claims to country.
In Sampi, connection was found on the following grounds:
There was suficient evidence of ongoing visitation and the assertion of the relevant relationship to country by Aboriginal witnesses to establish that the requisite connection of the Bardi people, as a whole, exists.[60]
Likewise, in Gumana the question ‘whether the relevant people have a continuous connection with the relevant land or water by those traditions and customs’[61] was answered in the afirmative because the claimants now live on the area, and there is clear evidence even throughout the ‘mission period’ that the people continued to visit the area, that they treated it as their country, and that no one else moved onto the country or sought to exercise any rights in relation to it during that time.[62]
Finally, the Full Court in De Rose applied a similar path of reasoning to that employed in the instances above (though it elsewhere used the language of rights as a link to the land). The Full Court held that the primary judge had erred because he made his own assessment of whether connection had been abandoned. His error lay in ‘not ask[ing] whether, according to the traditional laws acknowledged and customs observed by him, Peter De Rose had a connection with the land’.[63] Connection was established on appeal, on the basis that the claimants acknowledged and observed the traditional laws and customs which conferred the status of Nguraritja on certain individuals among them[64] – ‘Nguraritja’ was used as an equivalent of ‘traditional owner’.[65]
These judgments difer in two respects from those applying the first and second views of connection. First, the requirement of connection is considered to be fulfilled by the claimants’ continuing afirmation or assertion of a relationship to the claim area. Second, the court looks to the claimants’ laws and customs to define that relationship, and/or to check its continued existence. This qualitative diference in the concept of connection corresponds to a third interpretation of the definition of native title.
In the judgments which seem to espouse the third view, the expression ‘the peoples, by those laws and customs, have a connection with the land or waters’ in s 223(1)(b) is not seen to indicate connection as a consequence exclusively of laws and customs under which rights and interests are possessed, as in the first view. Nor is it understood to mean ‘as a consequence of observing and acknowledging traditional laws and customs’ more generally, as in the second view. Under the third view, the word ‘by’ is not read as a marker of causation: ‘by laws and customs’ is taken to mean ‘according to, defined by, laws and customs’. As French J says in Sampi:
the connection requirement involves the continuing internal and external assertion by the group of its traditional relationship to the country defined by its laws and customs.[66]
Connection is determined by looking to subjective as well as objective criteria; it includes the understandings of the claimants, in addition to the fixed criteria which are assessed by judges.
As well as the dicta from Neowarra, De Rose and Gumana extracted above, dicta in the Federal Court’s Alyawarr decision support this ‘subjective’ reading. Justices Wilcox, French and Weinberg said on the question of connection:
‘connection’ is descriptive of the relationship to the land and waters which is, in efect, declared or asserted by the acknowledgment of laws and observance of customs which concern the land and waters in various ways … It involves the continuing assertion by the group of its traditional relationship to the country defined by its laws and customs.[67]
On the third view, the claimants’ law and custom is apprehended by the court not as a fact which causes connection, but as a system which defines ‘connection’ – and its continued existence – on its own terms.[68]
Thus, the continued existence and vitality of a body of traditional law and custom is neither the cause nor the substance of the required legal connection. It is a precondition to the existence of that traditional connection and that of the claimed rights and interests (since a body of law and custom must exist in order to define those traditional relationships).
For example, in Sampi, the Jawi group did not have connection independently of the Bardi, because it no longer had its own system of law: the Jawi were considered by French J to have become part of the contemporary Bardi society.[69]
In Alyawarr, the Full Federal Court makes explicit the role of traditional law and custom as a precondition for connection. The Full Court cautioned that:
the word ‘connection’ should not be taken as qualifying or limiting the range of rights and interests arising under traditional law and custom which are native title rights and interests for the purposes of the NT Act. The existence of connection, in the sense explained, is a condition of their existence for the purposes of the NT Act. It does not limit their content.[70]
This statement accords with dicta in Fejo.[71] On the third view, the definition and content of ‘connection’ is subjective, but the continuity of traditional laws and customs is determined objectively. 72
For the third approach to connection, the primary emphasis of the enquiry is not on the nature, detail, and extent of the traditional relationship, but on its continuity. The sorts of evidence which were considered determinative of connection in these third-view cases are as follows:
This approach difers from the first and second views, in that it does not place emphasis on the continuous exercise of rights, nor does it rely on a broad ranging, ethnographic style of enquiry into the claimants’ law and custom. The evidence relevant and necessary for connection to be found is three-fold:
1. Evidence of body of law and custom, uninterrupted since sovereignty (that is, the Yorta Yorta requirement of traditionality and normativity);
2. Evidence of a relationship (defined by that body of law and custom) of the claimants with the claim area; and
3. Evidence that, since sovereignty, there has been continued assertion of that traditional relationship by the claimant group.
This view seems to see connection as a conceptually uncomplicated requirement, since the question is disposed of simply and without lengthy comment. The precise scope of what constitutes evidence of ‘assertion’ includes a broad range of empirical behaviours, ranging from afirmations by witnesses in court (Sampi), to showing general maintenance of rules for use of land (Alyawarr the Federal Court), to still acknowledged and observed the customs which evidence that other Aboriginal groups accept the applicants’ conferred the status of traditional owner over the claims over country (Neowarra, Gumana).
If the third approach to connection were to be endorsed, then so long as it was possible to prove a physical relationship with the claimed area in the past, a contemporary non-physical relationship would be suficient when the three numbered points above were satisfied, as for the Mowanjum in Neowarra.
In the reasons for judgment in Bennell v State of Western Australia,[79] the word ‘connection’ is used ambiguously, and the path of reasoning followed does not provide clues to the manner in which connection is understood in that judgment. Nevertheless, when considering the nature of the relationship between the claimants and the claim area, the decision regarding the Single Noongar claim over Perth shares the broad characteristics and preoccupations of Gumana, Sampi, Neowarra and the Federal Court’s decisions in De Rose and Alyawarr.
Justice Wilcox’s reasoning was structured around three questions. Was there a single Noongar community at sovereignty? Has there been a continuation of Noongar laws and customs from sovereignty until the present day? And what native title rights exist today? The issue of connection was implied in the second question; the applicants asserted that the Noongar community has connection to the claim area because:
the members of that community have continued, and still continue, to define themselves as Noongars, to share a body of beliefs and to acknowledge and observe some traditional laws and customs, including in relation to land and waters.[80]
Having found continuity in the acknowledgement of laws and customs since sovereignty, and having established the continuing observance of rules in relation to land, His Honour held that
the critical question is whether the State and the are correct in arguing there is no longer a normative system for allocating rights and interests in land, within the Noongar community, or, if there is, that system is not a continuation of the normative system that existed at date of sovereignty.
It is clear that the emphasis throughout the determination is on continuity of a system of laws and customs relating to land, and on the continuing assertion of a traditionally defined and regulated relationship to the claim area. This focus is borne out by the evidence which was considered to be particularly persuasive in support of the claim.
First, the identification evidence from each of the witnesses, which was found to show:
[t]he continuing importance aached to land … Each one of the 30 Aboriginal witnesses identified his or her boodja, or ‘country’. This was an area, special to the witness, in which he or she felt at home and could move about freely without need of anybody’s permission.[81]
Second, the continued maintenance of ‘the rules that dictated how a person acquired rights over particular land and waters’:
The witnesses answered in various ways, but each of them gave evidence that, in substance, may be summarised as follows:
(i) there must be a connection, by birth or family, with the particular area;
(ii) the person must seek to associate himself or herself with that area, by living within, or frequently visiting, that area and learning about it; and
(iii) the person must be recognised by other Noongars as being connected with it.’[82]
Finally, the evidence that:
although each Aboriginal witness expressed the maer in his or her own way, overwhelmingly they claimed the existence of a rule about seeking ‘permission’ to visit another’s country, the importance of that rule and the tradition that, if permission is asked, it is not usually refused … it is apparent that the rule is regarded as extant and its breach strongly disapproved. [83]
All this is evidence of continuing assertion, by the claimants, of their traditional relationship with country. From both the focus of the reasoning and from the evidence relied upon, it would seem that Bennell applied a third-view concept of connection to the determination in favour of the Single Noongar claimants.
Each of the three main approaches to connection relies on a diferent reading of the phrase ‘connection by those laws and customs’, and each has an idiosyncratic evidentiary focus.
The first view – ‘connection by rights and interests’ – concentrates on the rights and interests claimed. Connection is the objective consequence of rights and interests; it is an abstract relationship of assorted entitlements. Evidence is relevant to the question of connection if it constitutes observable behaviours which are the exercise of rights and interests on the claim area, so loss of connection is tested for primarily by checking the continuity of exercise of rights and interests on the claim area. A continuous non-physical relationship with the claim area would not be suficient to establish connection under s 223(1)(b).
The second view – ‘connection by the body of law and custom’ – looks to traditional law and custom as a body of norms. Claimants are objectively considered to have connection to the claim area as a consequence of observing these laws and customs. Evidence is relevant if it is probative of a living body of traditional law and custom providing a range of links to the area. Maintenance of connection is tested for by examining both the extent and vitality of the traditional laws and customs acknowledged and observed, and the continuity of acknowledgement of laws and customs as a whole. As long as suficient vitality and continuity are present, a physical relationship between the claimants and the claim area is not necessary.
The third view – ‘connection as continuing assertion of traditional relationship to the area’ – looks to the claimants’ traditional law and custom in order to define and confirm the existence of ‘connection’, namely the traditional relationship to the claimed territory. Section 223(1)(b) is the requirement for continuity of that relationship back to sovereignty. The contemporary relationship between the claimants and the claim area need not be a physical one: evidence is relevant if it is probative of a traditional relationship, under a body of laws and customs which has been substantially uninterrupted since sovereignty, plus evidence of continued assertion of the subjectively defined traditional relationship. Maintenance of connection is continued assertion of connection.
The High Court has insisted that the starting point in considering native title is the Native Title Act 1993 (Cth).[84] In the interests of consistent statutory interpretation and consistent application of the law, it would be desirable for a single view of connection to be seled upon. The following Part aims to identify which approach to s 223(1)(b) is to be recommended.
Native title is located at the ‘intersection’ of two ‘normative systems’.[85] The bridgehead between the two, to adapt Justice Gummow’s phrase in Yanner v Eaton[86] , is the claimants’ relationship with land and waters. The way in which claimants’ relationships with country are thought of by the court – that is, what view of ‘connection’ is used – can afect the manner in which ‘native title’ itself is thought about.
In an efort to determine which of the three views is preferable, this Part further explores the three approaches to connection: what are their logical implications for ‘native title’?
The first view of connection – connection as the result of the rights and interests claimed – is problematic for a number of reasons.
First, in looking only to claimed rights as exercised to prove connection, the first view does not sit well with the High Court’s caution that ‘s 223(1)(b) is not directed to how Aboriginal peoples use or occupy land or waters’.[87] Nor does it fit with the Court’s stipulation that the statutory questions in s 223 are ‘directed to possession of the rights or interests, not their exercise’.[88]
Second, by seeing spiritual connection as peripheral to the enquiry into s 223(1)(b) connection, this view does not take into account long-standing, widespread judicial acknowledgement of the spiritual aspects of Indigenous peoples’ relationships to land and waters.[89]
Third, this view of connection does not adequately distinguish the diferent concepts mentioned in section 223(1) of the NTA. It allows ‘native title’, ‘rights and interests’, ‘traditional laws and customs’, ‘connection’ and ‘recognition’ to collapse into an efective equivalency.
That is, the first view understands connection to be the consequence of, and constituted by, claimed rights and interests in relation to land and waters. It also posits connection as a necessary characteristic of all those rights which qualify for a place in the final determination. Logically then, under the first view ‘connection’ is efectively no diferent to the rights and interests which gain protection under the NTA at the end of the claim process.
In addition, the first view encourages the assumption that the rights and interests protected by the NTA are the same as the traditional rights and interests under claimants’ Law at sovereignty, merely transposed into the determination on the condition that they satisfy certain evidentiary and legal criteria. That is, the first view encourages a conceptual merger between
In both Daniel and Yarmirr, native title rights and interests in the determinations are conceptualised as segments of the Indigenous relationship to land which pre-date contact and sovereignty.[90]
The second view of connection allows the concepts of ‘native title’, ‘rights and interests’, ‘traditional laws and customs’, ‘connection’ and ‘recognition’ to fan out as distinct elements. Rights and interests are distinguished from the claimants’ broader connection with the claim area. Also, antecedent relationships with country under traditional laws and customs are distinguished from the product of the determination process – that is, those rights and interests which have been recognised by the Australian legal system, and which are enforceable under it. This is beneficial. Mantziaris and Martin argue that:
Conceptual clarity demands that a distinction be drawn between the subject of legal recognition and the product of legal recognition. From the standpoint of the Australian legal system, the subject of legal recognition is the set of indigenous ‘relations’ ordered by the system of traditional custom … the product of recognition is the native title itself. This comprises rights and interests enforceable within the Australian legal system.[91]
According to Mantziaris and Martin, in the native title context recognition is achieved through a process of translation from the categories of Indigenous systems to the categories of the Australian legal system.[92]
By allowing the necessary distinctions to be made, the second view of connection accounts for the failure of certain traditional rights and interests to gain protection under the NTA. All else being equal, those rights and interests in relation to land or waters which remain unprotected are those which cannot be translated and/or those which are not recognised by the common law (for example because they are antithetical to common law principles,[93] or because extinguishment intervenes).[94]
This explanation is something which the first view of connection cannot do, since it cannot refute the assumption – fostered by the draing of s 223(1)[95] – that what is recognised and protected by the NTA is traditional rights and interests in relation to land, which in turn are native title, which is by definition recognised (by the common law, per s 223(1)(c) of the NTA).
The only way to avoid this circularity, and the only way to explain the lack of protection extended to certain otherwise existing and eligible laws or customs, is to distinguish the subject of recognition from the product of recognition.[96] The second view permits s 223(1) to be understood in a manner which solves two potential circularities in the definition of native title:
Thus, the second view permits a more coherent approach to the concept of native title and to s 223(1) as a whole, and is to be preferred to the first view.
Dicta from a range of cases are premised on the second view of connection. A distinction between two diferent normative systems is made in the majority view in Fejo v Northern Territory and in Yanner v Eaton, that traditional connection subsists even where there has been extinguishment or regulation of rights and interests by the Australian legal system.[97] Similarly, the majority in the High Court’s Ward decision held that:
The dificulty of expressing a relationship between a community or a group of Aboriginal people and the land in terms of rights and interests is evident. Yet that is required by the NTA. The spiritual or the religious is translated into the legal. This requires the fragmentation of an integrated view of the ordering of afairs into rights and interests which are considered apart from the duties and obligations which go with them.[98]
Finally, the distinctions implicit in the second view are clearly made by Beaumont and Von Doussa JJ in their majority judgment in the Federal Court’s Ward decision. Their Honours held that ‘the perception of belonging to the land, which in the context of native title would include spiritual, cultural and social connection to the land’[99] is not eligible for inclusion in a determination as ‘the common law applies to protect only the physical enjoyment of rights and interests’.[100]
Once rights and interests that involve the physical use and enjoyment of land are identified, their recognition by the common law gives rise to jural rights under the common law system. Native title rights and interests thus give rise to jural rights which are ‘artificially defined’ under the common law because they arise from the acknowledgment and observance of traditional laws and customs under a diferent legal system … The artificiality is a consequence of the intersection of the common law system of law with traditional laws and customs of the indigenous people.[101]
The third view of connection permits the distinction between NTA-protected rights and interests, and the claimants’ traditional law and custom in which they originate. Consequently, the third view carries the benefits of the second, in that it allows for s 223(1) to be interpreted without circularity.
However, the third view has three further advantages. It gives the statutory requirement of connection a function in the determination process. It also allows native title processes to be more consistent with both common law principles, and those of claimants’ Law. Finally, it accords best with the words of the Preamble to the NTA.
In the first-view cases which consider connection to be the consequence of the claimed rights and interests in the area, it is hard to see a use for the requirement of connection. If rights and interests are equated with connection, then as the Full Court of the Federal Court noted in De Rose, when people are identified as having rights in relation to an area of land, it is a small step to conclude that those people also have connection to that land.[102]
Under the second view and its distinction between traditional Law and protected rights, connection is thought of as the source of the protected rights and interests. Theoretically, connection (the consequence of traditional laws and customs) is both the subject of legal recognition and translation, and the moral foundation for the NTA’s protection of the resultant rights and interests. Again however, there is no role for connection in the determination process itself, beyond authenticating the claimant group as the traditional owners of that area – and again this question can equally well be addressed through the inquiry into whether the claimants have rights and interests in the area under traditional law and custom.
Under the first and second views, connection is the mechanical consequence of the existence of rights and interests, or of a body of laws and customs: it is a necessary but undefined conclusion. Traditional laws and customs are considered by the Court as objective facts capable of causing an assessable level of connection with the claim area. Only evidence of ‘observable behaviours’[103] is considered, either in the form of exercise of rights under the first view,[104] or in the form of acknowledgement and observance of laws and customs under the second.[105]
In contrast, under the third view, connection is not a finding of fact which can be found by the judge, if she or he has been presented with enough evidence and explanation of the claimants’ behaviour. Third-view connection is considered to be fulfilled by the claimants’ continuing afirmation or assertion of a relationship to the claim area. The court looks to the claimants’ laws and customs to define that relationship, and/or to check its continued existence.
Thus, the third view makes section 223(1)(b) a legal test of continuity of traditional relationship to the claim area. Continuity of connection provides the legal justification for giving traditional rights and interests the contemporary protection of the NTA.
The third view of connection is unique in that it brings s 223(1)(b)’s element of connection into its own, by distinguishing it from ‘traditional laws and customs’, and by charging it with a specific legal function in the determination process.
The third view is also truer to the notion of an intersection between two systems. This is because the assessment of fact as to whether or not the claimants have connection actually takes into account claimants’ Law. It takes into account the claimants’ own definition of traditional relationship to the claim area, and it takes into account whether, under claimants’ Law, there is continuing connection.
In allowing for native title to be a truer ‘intersection’ between the Australian system and that of the claimants, the third view also creates the possibility for native title processes to be more consistent with each system individually.
On one hand, the determination process may accord beer with claimants’ Law, since traditional legal and customary evaluations of whether a relationship subsists between the claimants and the land are taken into account. Under the third view, propositions of traditional Law are relevant evidence in themselves. On the other hand, the third view harmonises the reasoning in a determination with Anglo-Australian property law.
As enunciated by Gray and Gray, the common law tends to see the substance of artificial, jural relationships with land (‘property as right’) as residing in ‘positive claims of abstract entitlement’.[106] Meanwhile the idea of ‘property as a fact’ which generally intermingles with the idea of property as right, locates the substance of the relationship with land in both empirical, behavioural data, and in evidence of self-identification of a relationship with the land – the ‘perception of the propriety of one’s nexus with the land’.[107]
Unlike the other views, the third view takes into account not merely behavioural data, but also positive claims of abstract entitlement and self-identification of a relationship with the terrain. The third view afords protection for bundles of rights on the precondition (inter alia) that there has been continuing assertion by the applicants of their traditional claims over the area. It therefore brings native title reasoning neatly into line with Anglo-Australian land law’s own tradition. To common law lawyers, it makes more sense to protect defined rights and interests in land as a consequence of a group’s continuous assertion of a relationship with an area, than to protect them because a group has continuously observed and acknowledged many customs and laws which relate specifically to that area. As French J puts it, the aim is to ensure that rights and interests are protected for those who have never abandoned their claims:
The origin of the term ‘connection’ in the native title context however is to be found in the judgment of Brennan J in Mabo. One of the rules for the recognition of native title rights and interests there set down was that the group said to hold native title must show a continuing connection with the land in question. The emphasis … may have been on continuity rather than connection and intended to exclude the case where the land had been abandoned …
The use of connection in the sense which emphasises continuity of association under traditional law and custom fits best with its origins in the Mabo judgment and has work to do in the definition of native title rights and interests.[108]
Where a section in an Act can bear a number of meanings, the Preamble may validly be used to find the true meaning of that section. A final argument in favour of the third view of connection is that it accords beer with the Preamble to the NTA than do the other views.[109] By including an assessment of the claimants’ traditional relationship to land on traditional terms, and by afording the claimants’ Law the scope to define the nature of connection, the third view fits with the Preamble’s reafirmation that ‘native title … reflects the entitlement of indigenous inhabitants of Australia, in accordance with their laws and customs, to their traditional lands’.[110]
Section 223(1)(b) has been interpreted in at least three ways. Each interpretation calls for diferent sorts of evidence to prove connection. Or conversely, each interpretation is the result of the court having relied on diferent sorts of evidence in considering whether connection is made out.
Whatever the causal link, the variations in the way ‘connection’ has been approached betray deeper inconsistencies in the way ‘native title’ itself is conceptualised. ‘Connection with land and waters’ is the hub around which turn the meanings (and the relationships between) all the other elements of s 223(1). Though subtle, such a central role for the concept of connection is hardly surprising, given that Indigenous land rights, and indeed all property in land, are necessarily premised on some particular relationship with a defined area.
Clarifying the requirement of connection will do much to clarify the law of native title more generally. For this reason, third view connection should be preferred over the first and second views. Section 223(1)(b) should not be read to mean that connection is the objective consequence of the existence of rights and interests, or of traditional laws and customs. As recent cases have shown, if the definition of native title is understood to require continuing connection according to traditional law and custom, then the key concepts in native title law can be approached in a more considered manner.
* BA (Hons), LLB. This article is an edited and updated version of a research thesis written in 2005, to complete a Bachelor of Laws at the University of New South Wales. Many thanks go to Sean Brennan for his steady guidance as supervisor.
[1] Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 [58] (Beaumont and Von Doussa JJ);Gumana v Northern Territory of Australia [2005] FCA 50; (2005) 141 FCR 457 [146] (Selway J).
[2] There has of course been extensive anthropological, ethnographic and other discussion of Indigenous relationships to land and waters. This has not been considered here, as the paper focuses on legal perspectives.
[3] Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 [64] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
[4] Neowarra v Western Australia [2003] FCA 1402 (8 December 2003) [350].
[5] Ibid [352].
[6] Daniel v Western Australia [2003] FCA 666 (3 July 2003) [431].
[7] See, eg ibid [462].
[8] I have considered the reasons for judgment in every litigated Australian native title determination or appeal, from the passage of the NTA until 1 October 2006. Those judgments unmentioned in the discussion have been omitted either because the question of connection was conceded and unconsidered, or because the court did not elaborate on the ambiguous statutory language, and therefore did not give any clues as to precisely what it understood ‘connection’ to mean. An example of a decision in this last category is Jango v Northern Territory of Australia [2006] FCA 318 (31 March 2006). A full list of cases consulted is on file with the author.
[9] Daniel v Western Australia [2003] FCA 666 (3 July 2003) [431].
[10] Yarmirr v Northern Territory [1998] FCA 771 (6 July 1998) [99]–[100].
[11] See, eg, ibid [125].
[12] Yarmirr v Northern Territory [1998] FCA 771 (6 July 1998) [88]; Daniel v Western Australia [2003] FCA 666 (3 July 2003) [387] regarding some members of the third applicant group: [387].
[13] Daniel v Western Australia [2003] FCA 666 (3 July 2003) [113] pp; Yarmirr v Northern Territory [1998] FCA 771 (6 July 1998) [97], [98]. In Yarmirr, ‘traditional connection’ is contrasted with mere physical connection not giving rise to a claim: [89], but the two notions are not elaborated any further.
[14] See, eg, Daniel v Western Australia [2003] FCA 666 (3 July 2003) [462].
[15] Yarmirr v Northern Territory [1998] FCA 771 (6 July 1998) [86].
[16] Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia [2004] FCA 472 (23 April 2004) [324].
[17] Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 [33]–[34].
[18] Commonwealth v Yarmirr [2001] HCA 56; (2001) 208 CLR 1 [9] (Gleeson CJ, Gaudron, Gummow and Hayne JJ, original emphasis.
[19] Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 [17].
[20] Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 [59]–[60] (Gleeson CJ, Gummow and Hayne JJ).
[21] See, eg, Yarmirr v Northern Territory [1998] FCA 771 (6 July 1998) [122]. See also Daniel v Western Australia [2003] FCA 666 (3 July 2003) [307].
[22] [1992] HCA 23; (1992) 175 CLR 1 [66].
[23] See, eg, Yarmirr v Northern Territory [1998] FCA 771 (6 July 1998) [122]. See also Daniel v Western Australia [2003] FCA 666 (3 July 2003) [406], in which Nicholson J also explicitly required evidence that these rights had been exercised continuously since sovereignty: [422], [501], [528].
[24] Daniel v Western Australia [2003] FCA 666 (3 July 2003) [428], [501].
[25] Ibid [422].
[26] Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 [86] (Gleeson CJ, Gummow and Hayne JJ).
[27] Ibid [47].
[28] Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 [64] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
[29] Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 (Beaumont and Von Doussa JJ).
[30] Ward v Western Australia & Ors [1998] 1478 FCA (24 November 1998) (Lee J); Rubibi Community & Anor v The State of Western Australia & Ors [2001] FCA 607; (2001) 112 FCR 409 (Merkel J) and Rubibi Community v State of Western Australia (with Corrigendum dated 10 May 2006) [2006] FCA 459 (28 April 2006) (Merkel J); De Rose v State of South Australia [2002] FCA 1342 (1 November 2002) (O’Loughlin J); Neowarra v State of Western Australia [2003] FCA 1402 (8 December 2003) (Sundberg J); Lardil Peoples v State of Queensland [2004] FCA 298 (23 March 2004) (Cooper J).
[31] Neowarra v State of Western Australia [2003] FCA 1402 (8 December 2003) [352].
[32] Griffiths v Northern Territory of Australia [2006] FCA 903 (17 July 2006) [510].
[33] Yorta Yorta v Victoria [2001] FCA 45; (2001) 110 FCR 244 [142] (Branson and Katz JJ), original emphasis.
[34] Commonwealth v Yarmirr [2001] HCA 56; (2001) 208 CLR 1 [242].
[35] Yorta Yorta v Victoria [2002] HCA 58; (2002) 214 CLR 422 [123].
[36] Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 [18]–[19] (Gleeson CJ, Gummow and Hayne JJ).
[37] Ward v Western Australia & Ors [1998] 1478 FCA (24 November 1998) [536].
[38] Ibid [537].
[39] Ibid [538].
[40] Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 [243].
[41] Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 [243].
[42] Rubibi Community & Anor v The State of Western Australia & Ors [2001] FCA 607; (2001) 112 FCR 409, (Merkel J).
[43] Rubibi Community v State of Western Australia (with Corrigendum dated 10 May 2006) [2006] FCA 459 (28 April 2006) [95].
[44] De Rose v State of South Australia [2002] FCA 1342 (1 November 2002). See generally [572]–[896].
[45] Neowarra v State of Western Australia [2003] FCA 1402 (8 December 2003) [17].
[46] Lardil Peoples v State of Queensland [2004] FCA 298 (23 March 2004) [147].
[47] Ibid [115].
[48] For Cooper J, the most important connection which needed to be established was that of the ‘original peoples’ to the area, at sovereignty. Connection of the claimants was via the ancestors’ connection. For example, for the Lardil peoples’ connection, pinpoint references are: Lardil country at sovereignty [92]; spiritual [97], and physical connection [99] of the original peoples to country; hunting practices at sovereignty [99]; laws and customs governing acquisition of rights in country [106]; the right to speak for country [107]: Lardil Peoples v State of Queensland [2004] FCA 298 (23 March 2004).
[49] Griffiths v Northern Territory of Australia [2006] FCA 903 (17 July 2006) [586].
[50] Anthropologists describe the Dreaming as, inter alia, the locus of normative rules which govern existence. To cite Stanner’s seminal explanation: ‘[a] blackfellow may call his totem, or the place from which his spirit came, as his Dreaming. He may also explain the existence of a custom, or a law of life, as causally due to the Dreaming… Clearly, The Dreaming is many things in one. Among them, a kind of narrative of things that once happened; a kind of charter of things that still happen, and a kind of logos or principle of order transcending everything significant for Aboriginal man’.
See William E H Stanner, ‘The Dreaming’, in William E H Stanner (ed) White Man Got No Dreaming, Essays 1938–1973 (1979) 23, 23–24.
[51] Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 [101]–[102].
[52] Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 [64] (Gleeson CJ, Gummow and Hayne JJ).
[53] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 [66] (Brennan J).
[54] De Rose v State of South Australia [2002] FCA 1342 (1 November 2002) [911]. This finding was overturned on appeal, as it was held that the primary judge had incorrectly relied on his own assessment as to whether there was connection, instead of asking whether, according to law and custom, there was connection: see De Rose v South Australia (2005)133 FCR 325 [313].
[55] Gale v Minister for Land & Water Conservation for the State of New South Wales [2004] FCA 374 (31 March 2004 [127].
[56] Members of the Yorta Yorta Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 [86] (Gleeson CJ, Gummow and Hayne JJ).
[57] Risk v Northern Territory of Australia (with Corrigendum dated 29 August 2006) [2006] FCA 404 (29 August 2006) [839].
[58] Neowarra v State of Western Australia [2003] FCA 1402 (8 December 2003) [352].
[59] Ibid [353].
[60] Sampi v State of Western Australia [2005] FCA 777 (10 June 2005) [1079].
[61] Gumana v Northern Territory of Australia [2005] FCA 50; (2005) 141 FCR 457 [225].
[62] Ibid [230].
[63] De Rose v South Australia [2003] FCAFC 286; (2005) 133 FCR 325 [315].
[64] De Rose v South Australia (No 2) (2005) 145 FCR 290. See, eg, [111]–[113].
[65] De Rose v State of South Australia [2002] FCA 1342 (1 November 2002) [898] (O’Loughlin J).
[66] Sampi v Western Australia [2005] FCA 777 (10 June 2005) [1079].
[67] Ibid [88].
[68] In the Federal Court’s De Rose decision, the emphasis was on whether, according to traditional law and custom, the connection was still in existence. See, eg, [315]. In Sampi, the emphasis was instead on whether the connection as defined by traditional law and custom was continuing. See, eg, [1079].
[69] Sampi v Western Australia [2005] FCA 777 (10 June 2005) [4]–[5].
[70] Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 [93].
[71] ‘The underlying existence of the traditional laws and customs is a necessary prerequisite for native title but their existence is not a sufficient basis for recognising native title’: the majority in Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96 [46] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ). References from the original text have been omitted.
[72] This conforms with the requirements stipulated by Branson and Katz JJ in Yorta Yorta Aboriginal Community v Victoria [2001] FCA 45; (2001) 110 FCR 244 [127].
[73] Neowarra v State of Western Australia [2003] FCA 1402 (8 December 2003) [353].
[74] De Rose v South Australia (No 2) (2005) 145 FCR 290 [108], [111]– [113].
[75] Gumana v Northern Territory of Australia (2005) 141 FCR [230].
[76] Sampi v State of Western Australia [2005] FCA 777 (10 June 2005) [1079].
[77] Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 [92].
[78] Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 [88].
[79] Bennell v State of Western Australia [2006] FCA 1243 (19 September 2006).
[80] Ibid [83].
[81] Ibid [685].
[82] Ibid [686].
[83] Ibid [700].
[84] See, eg, Yarmirr v Northern Territory [2001] HCA 56; (2001) 208 CLR 1 [7].
[85] Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 [39], [77] (Gleeson CJ, Gummow and Hayne JJ). For other references to ‘intersection’, see Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96 [46] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ); and Yanner v Eaton (1999) 201 CLR 351 [76] (Gleeson CJ, Gaudron, Kirby and Hayne JJ).
[86] ‘It is the relationship between a community of indigenous people and the land defined by reference to that community’s traditionallaws and customs, which is the bridgehead to the common law’: Yanner v Eaton (1999) 201 CLR 351 [72].
[87] Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 [64] (Gleeson CJ, Gummow and Hayne JJ).
[88] Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 [84] (Gleeson CJ, Gummow and Hayne JJ).
[89] See, eg, Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, 167 (Blackburn J); Re Toohey; Ex parte Meneling Station [1982] HCA 69; (1982) 158 CLR 327, 358 (Brennan J).
[90] See, eg, Yarmirr v Northern Territory [1998] FCA 771 (6 July 1998) [69].
[91] Christos Mantziaris and David Martin, Native Title Corporations: A Legal and Anthropological Analysis (2000), 10, original emphasis.
[92] Ibid 6–7.
[93] State of Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 [20]–[21]; Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 [77].
[94] Noel Pearson, ‘The Concept of Native Title at Common Law’ in Galarrwuy Yunupingu (ed), Our Land is Our Life: Land Rights – Past, Present and Future (1997) 130, 136.
[95] Justice Olney has identified the problem as being that the NTA is drafted so as to create a circularity. The Act says at section 10: ‘native title is recognised, and protected, in accordance with this Act’, while s 223 defines native title as those rights and interests in relation to land and waters which are recognised by the common law’ (Howard Olney, ‘Discussion’, in Mary Edmunds (ed), Claims to Knowledge, Claims to Country: Native Title, Native Title Claims and the Role of the Anthropologist (1994) 27. This places ‘native title’ at both the start and end of the recognition process.
[96] This distinction was posited as a solution to the drafting problems by Mantziaris and Martin, above n 91, 22. Noel Pearson posited the same distinction, when he said that extinguishment is ‘extinguishment of recognition’: Pearson, above n 94, 136.
[97] Fejo v Northern Territory (1998) 198 CLR 96 [46]; Yanner v Eaton (1999) 201 CLR 351 [38]. Also evident in Yanner is the distinction between two concepts: connection on the one hand and the ‘assortments of artificially defined jural rights’ on the other. However, the majority in that case did not place connection and rights on opposing sides of the translation process, and it saw connection as an aspect of the ‘perception of socially constituted fact’, ie as being a function of de facto possession and control of the area.
[98] Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 [14].
[99] State of Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 [102] (Beaumont and Von Doussa JJ).
[100] Ibid [102]. I understand their Honours’ statements differently to Kent McNeil, who read these passages to be saying that proof of laws and customs and proof of physical presence and use was required in order for a claim to be successful: Kent McNeil, ‘The Relevance of Traditional Laws and Customs to the Existence and Content of Native Title at Common Law’, in Kent McNeil (ed),
Emerging Justice? Essays on Indigenous Rights in Canada and Australia (2001) 416, 445. It seems to me that their Honours were not talking about the proof required, but rather were canvassing the content of native title, ie the extent of protection offered under the NTA (see the Federal Court’s decision in Ward [108]). My reading of the majority judgment disposes of the discordance, identified by McNeil, between what their Honours say about the law, and how they later apply it.
[101] State of Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 [107]–[108] (Beaumont and Von Doussa JJ), relying on the majority in Fejo v Northern Territory (1998) 198 CLR 96.
[102] De Rose v South Australia [2003] FCAFC 286; (2003) 133 FCR 325 [305]. I note that in Daniel and possibly Yarmirr the enquiry into connection does have a function – it is used as a method of linking the claimants to particular places within the claim area. However, this role for s 223(1)(b) is unnecessary, since in both cases the claim area had already been identified as falling within the claimants’ traditional country. Daniel v Western Australia [2003] FCA 666 (3 July 2003)
[113] and following paragraphs; Yarmirr v Northern Territory [1998] FCA 771 (6 July 1998) [97], [98]. In Yarmirr, ‘traditional connection’ is contrasted with mere physical connection not giving rise to a claim: [89], but the two notions are not elaborated any further.
[103] See, eg, Daniel v Western Australia [2003] FCA 666 (3 July 2003) [247], where Nicholson J required evidence of ‘observable behaviours … in relation to each … claim[ed right]’.
[104] Ibid.
[105] This may be in order to avoid having to distinguish between the Court’s assertion that the Crown has exclusive sovereignty, and the curially acknowledged fact that for the claimants, two systems of law are operating in parallel.
[106] Kevin Gray and Susan F Gray, ‘The Idea of Property in Land’, in Susan Bright and John Dewar (eds), Land Law: Themes and Perspectives (1998) 15, 18, 27.
[107] Ibid 19.
[108] Sampi v Western Australia [2005] FCA 777 (10 June 2005) [1079]. It is important to note that French J does not equate abandonment with lack of physical presence on the area.
[109] Grigg v O’Connor [1973] 2 NSWLR 677, 680. See Donald J Gifford and Kenneth Gifford, How to Understand an Act of Parliament (8th ed, 1994) 121–2.
[110] Native Title Act 1993 (Cth), preamble (emphasis added).
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