Question

Under s 223 of the Native Title Act 1993 (Cth) Aboriginal and Torres Strait Islander claimant groups need to prove continuity in the observance of traditional laws and customs and in their connection with the land and waters claimed. How did the court apply s 223 in both the Yorta Yorta case and Yanner v Eaton?

Answer 1

Answer) Section 223 of the Native Title Act provides a definition of native title, based on Brennan J’s judgment in Mabo [No 2].^[9] Section 223(1) provides that

(1)     The expression 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.

Section 223 of the Native Title Act currently requires that claimants ‘have a connection with the land or waters’ that is the subject of the claim, and have such a connection by virtue of their traditional law and customs.The Commission considers that addressing issues concerning the onerous standards of proof required for Aboriginal and Torres Strait Islander peoples to prove native title over their lands, territories and resources is a key priority for native title reform

For Aboriginal and Torres Strait Islander peoples, establishing their claims to native title involves extensive requirements for proving their identity and their connection to country.

Section 223 of the Native Title Act currently requires that claimants ‘have a connection with the land or waters’ that is the subject of the claim, and have such a connection by virtue of their traditional law and customs. Section 190B of the Act requires that the native title claim group show that at least one member of the claim group has or previously had a ‘traditional physical connection’ with a part of the land or waters covered by the application, or would have had such a connection if not for things done by the Crown, a statutory authority or leaseholder.[30]

The high standards for proving continuity, as derived from the High Court decision in Yorta Yorta v Victoria[35], have had a detrimental impact on native title claims. For example, the Larrakia people were unable to prove their native title claim over vacant Crown land in Darwin because the Federal Court found their connection to their land and their acknowledgement and observance of their traditional laws and customs had been interrupted – even though they were, at the time of the claim, a ‘strong, vibrant and dynamic society’.[36]