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Native Title Report 2002: Recognition of native title

Explore how Australia recognises native title and Indigenous peoples' relationship with land, and the human rights implications of native title law.

Summary

Native title is an intersection of two different legal systems and cultures. The way in which Australia chooses to give recognition to the relationship that Indigenous people have with their land, and the range of options it considers to express that relationship, are matters that affect the human rights of Indigenous people.

Chapter 1: Recognition of native title

Introduction

Human Rights Standards relevant to the Recognition of Native Title

The Legal Recognition of Native Title

Conclusion

Introduction

Native title is an intersection of two different legal systems and cultures. The way in which Australia chooses to give recognition to the relationship that Indigenous people have with their land, and the range of options it considers to express that relationship, are matters that affect the human rights of Indigenous people.

Over fourteen months, from October 2001 to December 2002, the High Court delivered three judgments clarifying the legal criteria for the recognition and extinguishment of Indigenous relationships to land. The Yarmirr , [1] Miriuwung Gajerrong , [2] and Yorta Yorta [3] decisions bring to a close the developmental phase of the law of native title in which alternative positions and interpretations of crucial principles were canvassed and decided upon by lower courts. Emerging from the High Court is a concept of recognition as not simply the law providing a vehicle for Indigenous people to enjoy their cultural and property rights, but rather one where the law becomes a barrier to their enjoyment and protection. It is appropriate, now that the law has been crystallised by the High Court, to consider whether the way in which Australia has chosen to give recognition to Indigenous relationships to land is consistent with the human rights standards Australia has undertaken to uphold.

Human Rights Standards relevant to the Recognition of Native Title

Native title reflects a relationship to land which is the very foundation of Indigenous culture, religion, and economic and governance structures. International human rights standards provide considerable direction on a State’s obligations with respect to the protection of the cultural, religious, property and governance rights of Indigenous people. These standards derive from a wide range of sources including the main human rights treaties, statements from treaty bodies monitoring the implementation of these treaties, United Nations General Assembly resolutions, and the principles emerging from world conferences.

Cultural Rights

The preservation and protection of Indigenous culture is addressed in the International Covenant on Civil and Political Rights [4] (‘ICCPR’) Convention on the Rights of the Child il [5] >[5] Both treaties have similar wording, providing that persons belonging to ethnic, religious or linguistic minorities have the right, in community with their group, to enjoy their own culture and to use their own lan [6] The Human Rights Committee, the international body that monitors the ICCPR’s implementation, has explained the importance of these rights, noting:

[ICCPR] article 27 [protecting minority culture] relates to rights whose protection imposes specific obligations on States parties. The protection of these rights is directed towards ensuring the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole. [7]

ICCPR article 27 is the basis of a number of general principles in relation to the protection of culture of Indigenous communities. Many of these can be understood from the following comment of the Human Rights Committee:

[A]rticle 27...recognise[s] the existence of a “right” and requires that it shall not be denied. Consequently, a State party is under an obligation to ensure that the existence and the exercise of this right are protected against their denial or violation. Positive measures of protection are, therefore, required not only against the acts of the State party itself, whether through its legislative, judicial or administrative authorities, but also against the acts of other persons within the State party. ...

[T]he rights protected under article 27...depend in turn on the ability of the minority group to maintain its culture, language or religion. Accordingly, positive measures by States may also be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practise their religion, in community with the other members of the group. [8]

These principles have been referred to in various decisions of the Human Rights Committee clarifying the operation of article 27. The Human Rights Committee explained that Indigenous people have the right to engage in economic and social activities which are part of the culture of the community to which they belong; [9] that development that threatens the way of life and culture of an Indigenous group breaches article [10] and that protecting the traditional rights of an Indigenous group may weigh against a State enacting general laws permitting public rights (e.g. general rights to hunt or fish). [11] Importantly, the Human Rights Committee emphasised that the right to enjoy culture not only protects traditional means of livelihood, but can also be applied in the use of modern technology. [12]

Guidance on how Australia should be protecting native title interests can be gleaned from the Concluding Observation of the Human Rights Committee in which they express their concerns about the inconsistency between the 1998 amendments to the Native Title Act 1993 (Cwlth) (‘NTA’) and Australia’s obligations under ICCPR article 27:

The Committee is concerned...that the Native Title Amendments of 1998 in some respects limit the rights of indigenous persons and communities, in particular in the field of effective participation in all matters affecting land ownership and use, and affects their interests in native title lands, particularly pastoral lands. The Committee recommends that the State party take further steps in order to secure the rights of its indigenous population under article 27 of the Covenant. The high level of exclusion and poverty facing indigenous persons is indicative of the urgent nature of these concerns. In particular, the Committee recommends that the necessary steps be taken to restore and protect the titles and interests of indigenous persons in their native lands, including by considering amending anew the Native Title Act, taking into account these concerns.

The Committee expresses its concern that securing continuation and sustainability of traditional forms of economy of indigenous minorities (hunting, fishing and gathering), and protection of sites of religious or cultural significance for such minorities, which must be protected under article 27, are not always a major factor in determining land use. [13]

Equality and Non-Discrimination [14]

The guarantees of equality before the law and racial non-discrimination [15] are contained in article 26 of the ICCPR and articles 2 and 5 of the International Convention on the Elimination of All Forms of Racial Discrimination [16] (‘ICERD’). In particular, States have an obligation in article 5 of ICERD to prohibit and to eliminate racial discrimination and to guarantee the right of everyone to equality before the law, including in the enjoyment of the right to equal treatment before the tribunals and all other organs administering j [17] [17] the right to freedom of r [18] [18], and the right to own property alone as well as in association with [19]

In its recent decision in Awas Tingni , [20] the Inter-American Court of Human Rights held that the right of everyone to the use and enjoyment of their property in article 21 of the American Convention on Human Rights: ‘[t]hrough an evolutionary interpretation of international instruments for the protection of human rights … protects property in a sense which includes, amongst other, the rights of the members of the indigenous communities within the framework of communal prop [21] 21">[21] The Court continued: ‘[T]he close ties of indigenous people with the land must be recognised and understood as the fundamental basis of their cultures, their spiritual life, their integrity and their economic survival. For indigenous communities, relations to the land are not merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future [22] href="#f22">[22] The Court ordered Nicaragua to carry out the delimitation, demarcation and corresponding titling of the lands of the Awas Tigni community, within 15 months, with full participation by the community, and taking into account its customary law, values [23]

Under the principles of equality, Australia is required to ensure that people have the ability to enjoy the right to equal participation in cultural activities without discrimination. [24] Often, to ensure equal enjoyment of culture as specified in human rights standards, additional measures are necessary for the members of minority and Indigenous groups. That is, society needs to ensure ‘substantive equality’ (where all groups have equal opportunity to enjoy human rights) rather than just ‘formal equality’ (where equal treatment of all can result in some groups having less opportunity because of relevant differences). Substantive equality is required by international human ri [25] ="#f25">[25] and agreed as an appropriate measure by the Commonwea [26] ="#f26">[26] and current Australi [27] ="#f27">[27] Previous High Court decisions also support a non-formalistic, substantive understandi [28]

An important aspect of Indigenous communities being able to exercise the rights in ICCPR and ICERD is for the communities to have effective participation in, or give prior consent to, decisions that affect them. The United Nations General Assembly emphasises that persons belonging to minorities have the right to participate effectively in cultural, religious, social, economic and public life; [29] as does the Vienna Declaration and Plan of Action calling on states to ‘ensure the full and free participation of indigenous people in all aspects of society, in particular in matters of concern to them [30] Critically, however, the concepts of effective participation and prior informed consent apply not only at a broad level but to individual events affecting individual communities:

States should ensure that no decisions directly relating to the rights and interests of Indigenous people are taken without their informed consent; [31] and

Indigenous communities must have effective participation in decisions that affect the community, especially where culture manifests in a particular way of life assoc with use of land resources (e.g. fishing or hunting and the right to live in reserves protected by law). [32]

The principle of effective participation is one that can apply to decisions made by governments on the policy and legislative regimes they propose for Indigenous people. The formulation of native title policy and legislation was directly referred to in the 1999 decision, of the Committee on the Elimination of Racial Discrimination (‘CERD’), on the amendments to the NTA:

[T]he amended Act appears to wind back the protections of indigenous title offered in the Mabo decision of the High Court of Australia and the 1993 Native Title Act. ... The lack of effective participation by indigenous communities in the formulation of the amendments also raises concerns with respect to the State party’s compliance with its obligations under article 5(c) of the Convention [ICERD]. Calling upon States parties to “recognise and protect the rights of indigenous peoples to own, develop, control and use their common lands, territories and resources,” the Committee[CERD], in its general recommendation XXIII, stressed the importance of ensuring “that members of indigenous peoples have equal rights in respect of effective participation in public life, and that no decisions directly relating to their rights and interests are taken without their informed consent”. [33]

Relationship between equality and rights of minorities to protection of their culture

In international jurisprudence, particular regimes for the preservation of the characteristics and traditions of minorities are accepted as consistent with, and sometimes required to achieve factual or substantive equality. According to the Permanent Court of International Justice, ‘there would be no true equality between a majority and a minority if the latter were deprived of its institutions, and were consequently compelled to renounce that which constitutes the very essence of its being as a minority’. [34] The purpose of particular measures for the protection of minorities is to maintain basic characteristics which distinguish minorities from the majority of the population, and hence institute factual equality between members of the minority group and other individuals.

The recognition and protection of the distinct rights of Indigenous peoples is also implicit in the concept of equality. CERD has recognised as aspects of the principle of equality the obligations of States to protect Indigenous culture. CERD explained that States must ensure that Indigenous communities can exercise their rights to practise and revitalize their cultural traditions and customs and to preserve and to practise their languages. [35]

[T]he provisions of ... [ICERD] apply to indigenous peoples. The Committee [CERD] is conscious of the fact that in many regions of the world indigenous peoples have been, and are still being, discriminated against and deprived of their human rights and fundamental freedoms and in particular that they have lost their land and resources to colonists, commercial companies and State enterprises. Consequently, the preservation of their culture and their historical identity has been and still is jeopardized. The Committee calls in particular upon States parties to... ensure that indigenous communities can exercise their rights to practise and revitalize their cultural traditions and customs and to preserve and to practise their languages. [36]

Freedom of Religion and Belief

The High Court, in the Miriuwung Gajerrong decision, recognised the relationship between Indigenous people and their land as a spiritual one. Native title, as a recognition of Indigenous relationships to land encompass this spiritual dimension.

[T]he connection which Aboriginal peoples have with “country” is essentially spiritual. ... The difficulty of expressing a relationship between a community or group of Aboriginal people and the land in terms of rights and interests is evident. Yet that is required by the NTA [Native Title Act]. The spiritual or religious is translated into the legal. This requires the fragmentation of an integrated view of the ordering of affairs into rights and interests which are considered apart from the duties and obligations which go with them. [37]

The right to freely practice one’s religion and belief is protected at international law. Article 18 ICCPR states:

Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to… manifest [t]his religion or belief in worship, observance, practice and teaching. [38]

The Human Rights Committee has clarified the requirements of this article, emphasising:

  • ‘belief’ and ‘religion’ are to be broadly construed [39] ="#f39">[39] – the protection of article 18 is not confined only to institutio [40] and

  • ‘worship’ includes ritual and ceremonial acts giving direct expression to beliefs, as well as the various practices integral to such acts. [41]

Article 18(2) of the ICCPR provides an important protection to the freedom of belief, in prohibiting coercion from impairing the freedoms to have the religion or belief of one’s choice. There is commentary suggesting that the human right to freedom of religion and belief provides support for protection of sites that are sacred or significant to Indigenous people. [42]

Justice Kirby, in the Miriuwung Gajerrong decision, emphasised the lack of attention, in native title cases, that has thus far been given to the freedom of religion, [43] which is protected not only in international human rights standards, but under the Australian Constitution. [44] His Honour indicated that freedom of religion could provide greater protection of Indigenous interests than has, to date, been accorded:

There is one further possibility that I should mention. It concerns the possible availability of a constitutional argument for the protection of the right to cultural knowledge, so far as it is based upon the spirituality of Australia’s indigenous people. That involves the application of s 116 of the Constitution, which provides a prohibition on laws affecting the free exercise of religion. The operation of that section has not been argued in these appeals. ... The full significance of s 116 of the Constitution regarding freedom of religion has not yet been explored in relation to Aboriginal spirituality and its significance for Aboriginal civil rights. ... One thing is certain – the section speaks to all Australians and of all religions. It is not restricted to settlers, their descendants and successors, nor to the Christian or other organised institutional religions. It may be necessary in the future to consider s 116 of the Constitution in this context. [45]

Self Determination [46]

Native title has its origins in a system of law and custom in which the land plays a fundamental role. A recognition of the relationship between Indigenous people and their land must also include a recognition of the law-making and governance structures in which land plays a fundamental role. These structures form the basis to a right of self determination.

The right of self-determination is enshrined in Article 1 of the ICCPR and the International Covenant on Economic, Social and Cultural Rights [47] (‘ICESCR’). Australia is a party to both of these covenants and is bound to act in compliance with their terms. Common Article 1 reads as f [48]

Article 1

1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realisation of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

Recent practice by the Human Rights Committee and the Committee on Economic, Social and Cultural Rights (i.e., the two committees that operate under and interpret the standards in the two international covenants) clearly identifies self-determination as a right held by Indigenous peoples, including in Australia. This can be seen from the following concluding observations and jurisprudence of the committees.

Human Rights Committee

  • Concluding observations on Australia , [49] which states that ‘The State party should take the necessary steps in order to secure for the Indigenous inhabitants a stronger role in decision making over their traditional lands and natural resources (article 1, para 2) [50] [50] The List of Issues of the Committee had asked included ‘What is the policy of Australia in relation to the applicability to the Indigenous peoples in Australia of the right of self-determination of all [51]

  • Concluding observations on Canada . [52] In this observation, the Human Rights Committee emphasised the link between the control of land and resources and self-determination. The committee called for Canada’s decisive and urgent action toward land and resource allocation, and also recommended the country cease extinguishing inherent aboriginal rights as such a practise is incompatible with article 1 of ICCPR.

  • Concluding Observations on Norway , which provides that ‘the Committee expects Norway to report on the Sami people’s right to self-determination under Article 1 of the Covenant, including paragraph 2 of that arti [53]

  • Concluding observations on Sweden . [54] The Human Rights Committee indicated its concern at the limited extent to which the Sami Parliament can have a significant role in the decision-making process on issues affecting the traditional lands and economic activities of the indigenous Sami people, such as projects in the fields of hydroelectricity, mining and forestry, as well as the privatization of land. The Committee recommended the State party take steps to involve the Sami by giving them greater influence in decision-making affecting their natural environment and their means of subsistence. [55]

  • Ominayak (Lubicon Lake Band) v Canada ; [56] and

  • Marshall & or’s on behalf of Mikmaq tribal society v Canada . [57]

Committee on Economic, Social and Cultural Rights

  • List of Issues: Australia: ‘What are the issues relating to the rights of indigenous Australians to self-determination, and how have these issues impeded the full realisation of their economic, social and cultural rights [58]

  • Concluding observations on Canada (see also the List of issues: Canada [59]). The comments of the Human Rights Committee, in its observations on Canada, are equally relevant to Australia: ‘The Committee views with concern the direct connection between Aboriginal economic marginalization and the ongoing dispossession of Aboriginal people from their lands... [P]olicies which violate Aboriginal treaty obligations and the extinguishment, conversion or giving up of Aboriginal rights and title should on no account be pursued by the State Par [60]

  • Concluding observations on Columbia . The Committee on Economic, Social and Cultural Rights, in its comments on Colombia, emphasised how the principle of informed consent operates to protect indigenous culture. The committee’s directions to Colombia are equally important for Australia, in urging the country ‘...to ensure that indigenous peoples participate in decisions affecting their lives. The Committee particularly urges the State party to consult and seek the consent of the indigenous peoples concerned prior to the implementation of timber, soil or subsoil mining projects and on any public policy affecting [61]

The Legal Recognition of Native Title

The way in which Indigenous people obtain recognition of their traditional rights to land is through the legal system. Under the NTA, Indigenous people must apply to the Federal Court to obtain a determination that native title exists, that particular persons or a group of persons hold the title and that the title gives rise to particular rights and interests in relation to a particular area of land. [62] Where the claim coincides with other non-Indigenous interests, the relationships between the two sets of rights must be set out in the determination. A determination may take place by consent, or it may be the conclusion to a lengthy hearing.

For instance, the Yorta Yorta case commenced in February 1994, with the first directions hearings being held in October 1995. The trial began in October 1996 with opening submissions and concluded one and a half years later in May 1998. Altogether the trial Judge sat on 114 days and heard 201 witnesses – the transcript exceeded 11,500 pages. The decision was delivered in December 1998. Miriuwung Gajerrong case commenced in April 1994, with the first directions hearings commencing in March 1995. The trial began in February 1997, occupied 83 days, and the Judge’s decision was delivered in November 1998.

In order to get a determination that native title exists, Indigenous people must prove all the elements of the title contained in section 223(1) of the NTA. The elements of the statutory definition of native title are as follows: [63]

  • Native title is comprised of the rights and interests of Indigenous people.
  • The rights and interests comprising native title may be communal, group or individual rights and interests.
  • The rights and interests must be in relation to land or waters.
  • The rights and interests must be possessed under the traditional laws acknowledged and the traditional customs observed by the peoples concerned: NTA s223(1)(a).
  • 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 claimed: NTA s223(1)(b).
  • The rights and interests in relation to the land or waters must be recognised by the common law of Australia: NTA s223(1)(c).

These elements and their application to a particular claim are the subject of High Court decisions in Yarmirr and, more recently, Miriuwung Gajerrong and Yorta Yorta . The recent Federal Court decision in De Rose [64] also provides direction on these issues. It is now clear that the standard and burden of proof required to establish the elements of the statutory definition of native title are so high that many Indigenous groups are unable to obtain recognition of the traditional relationship they continue to have with their land. In turn, their cultural, religious, property and governance rights, recognised at international law and embodied in this relationship, fail to be recognised and protected under Australian law. The elements of the definition, and the court’s interpretation of these elements, that cause me concern are as follows:

  • First, the process of recognising rights and interests arising from Indigenous laws and customs into native title rights and interests recognised under the NTA is not a neutral process but is based on a number of assumptions which transform and diminish the rights arising from Indigenous law and custom rather than providing a vehicle for their enjoyment.
  • Second, the requirement under s223(1)(a) of the NTA that rights and interests must be possessed under the traditional laws acknowledged and the traditional customs observed by the peoples concerned, has been interpreted by the courts to require proof of continuous observance and acknowledgement of those laws and customs since sovereignty. The standard and burden of proof in relation to s223(1)(a) is a significant barrier to Indigenous people gaining recognition and protection of their traditional rights and interests in land as they are observed and acknowledged in contemporary society.
  • Third, the requirement in NTA s223(1)(b), 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 claimed requires has been interpreted by the courts to require not only maintenance of cultural knowledge but a high level of connection to a specific area of land.
  • Fourth, the requirement of NTA s223(1)(c), that the rights and interests in relation to the land or waters must be recognised by the common law of Australia has been interpreted to exclude important rights to sea country where these rights could have been recognised albeit regulated or impaired to allow other non-Indigenous interests to be enjoyed.

The Process of Recognition

The human rights principles outlined above can provide the Court with important guidelines in translating Indigenous laws and customs into rights and interests that can be recognised by the non-Indigenous legal system. These principles require that Indigenous relationships to land be provided with the protection necessary to ensure they can be enjoyed, according to their tenor and to the same extent as non-Indigenous interests in land. Constructed in this way, native title should be a vehicle for the continued enjoyment of Indigenous culture within the protection of the law.

There were positive indications in early court decisions that, in recognising Indigenous relationships to land, the law of native title would retain the essential identity of these relationships as Indigenous. Characterising native title as an inherent right deriving from Indigenous laws and customs, was an important aspect of the Mabo decision [65] and represented a breakthrough from other forms of statutory recognition given to Indigenous land rights. Consistent with this decision the definition of native title under the NTA does not simply replace the rights that arise from traditional laws and customs with statutory rights. Rather it seeks to retain within the definition the origins of native title in the traditional laws and customs acknowledged and observed by Indigenous peoples.

These were signs that the non-Indigenous law would not unnecessarily limit the recognition of Indigenous relationships to land but would simply provide a vehicle to transport these relationships into contemporary society. The relationship between the Indigenous and non-Indigenous legal systems was conceived in the Fejo decision [66] as ‘an intersection of traditional laws and customs with the common law [67] This indicated that native title would be a location or space for recognition rather than a boundary confining recognition to particular rights and interests falling within it.

While the majority decision of the High Court maintained the analogy of ‘intersection’ in considering the claim of the Yorta Yorta people, [68] it was clear by the time of this decision that the law was not simply a recognition space and many claims would remain outside the protection of native title law.

A critical factor in understanding the way in which native title law confines the recognition of the rights and interests arising from Indigenous laws and customs is by uncovering the assumptions underlying the Court’s conception of sovereignty and the consequences it attributes to the acquisition of sovereignty by the British Crown. To do this it is necessary to examine the reasoning, not only in the Miriuwung Gajerrong /em> Yorta Yorta /em> decisions but also in the decision where the relationship between British sovereignty and the recognition of Indigenous rights to land is first discussed, Mabo decision.

Sovereignty and the recognition of native title

The Mabo decision is usually associated with overturning terra nullius as the basis of the acquisition of British sovereignty which in turn allowed the courts to recognise native title. Yet there is a troubling disjuncture in the reasoning of the High Court in Mabo decision is usually associated with overturning terra nullius as the basis of the acquisition of British sovereignty which in turn allowed the courts to recognise native title. Yet there is a troubling disjuncture in the reasoning of the High Court in

Confirming the principle in the Seas and Submerged Lands case [69] that the ‘acquisition of territory by a sovereign state for the first time is an act of state which cannot be challenged, controlled or interfered with by the Courts of that state [70] [70] Justice Bre Mabo abo identified the extent of the court’s power as merely ‘determining the consequences of an acquisition [of sovereignty] under m [71]

The assertion in Mabo of supreme and exclusive sovereign power residing in the State has been confirmed in the Miriuwung Gajerrong and Yorta Yorta decisions. In the Miriuwung Gajerrong and Yorta Yorta decisions. In the

An important reason to conclude that, before the NTA, native title was inherently fragile is to be found in this core concept of a right to be asked permission and to speak for country. The assertion of sovereignty marked the imposition of a new source of authority over the land. Upon that authority being exercised, by the creation or assertion of rights to control access to land, the right to be asked for permission to use or have access to the land was inevitably confined, if not excluded. But because native title is more that the right to be asked for permission to use or have access (important though that right inevitably is) there are other rights and interests which must be considered, including rights and interests in the use of the land. [72]

It can be seen in the Miriuwung Gajerrong decision, as in the Mabo decision, that the construction of native title at common law as an inherently fragile and inferior interest in land, originates from an assumption that the nature of the power asserted by the colonizing state is singular, total and all-encompassing. The consequences of this for the extinguishment of native title are discussed in chapter 2. The Yorta Yorta decision illustrates the consequences of this for the recognition of native title.

Upon the Crown acquiring sovereignty the normative system which then existed [Indigenous laws and customs] could not thereafter validly create new rights, duties or interests. Rights or interests in land created after sovereignty and which owed their origin and continued existence only to a normative system other than that of the new sovereign power, would not and will not be given effect by the legal order of the new sovereign. [73]

The implications of the Mabo decision, that native title does not give recognition to the economic political and legal systems of Indigenous people, as a people, are fully realised in the Yorta Yorta decision.

[W]hat the assertion of sovereignty by the British Crown necessarily entailed was that there could thereafter be no parallel law-making system in the territory over which it asserted sovereignty. [74]

The basis for limiting native title to the recognition of rights and interests and not the laws and customs from which these emanate can be found in this paragraph. The monopoly on law-making held by the new sovereign renders the law-making capacity of the Indigenous legal system defunct upon sovereignty being acquired. For this reason the recognition of native title rights and interests is limited to those created prior to the acquisition of sovereignty.

To hold otherwise would be to deny the acquisition of sovereignty and as has been pointed out earlier, that is not permissible. Because there could be no parallel law-making after the assertion of sovereignty it also follows that the only rights and interests in relation to land or waters, originating otherwise than in the new sovereign order, which will be recognised after the assertion of that new sovereign order are those that find their origin in pre-sovereignty law and custom. [75]

In fastening the recognition of native title to a pre-sovereign system of laws, every claimant group must satisfy a court that the contemporary expression of their culture and their religion, does not emanate from Indigenous laws or customs that were created after sovereignty. Whenever present beliefs or practices appear in any way to differ from past beliefs and practices, the issue of whether these differences can be seen as evidence of a new set of laws and customs or adaptations of the pre-sovereign set of laws is raised and subject to proof. The difficulties of proving this distinction are discussed below. What is important to note here is the concept of sovereignty on which this distinction is based and how this concept limits the recognition of contemporary expressions of Indigenous culture.

Yet the assumption of exclusive sovereignty by a colonial power over Indigenous people is not shared in the world view of Indigenous people nor at international law. The evolution of the principle of self-determination at international law challenges the notion that the non-Indigenous state has exclusive jurisdiction over traditional land, not by replacing it with exclusive Indigenous jurisdiction, but by challenging the foundations on which the assertion of paramount control by one group to the exclusion of all others rests. [76]

Any conception of self-determination that does not take into account the multiple patterns of human association and interdependency is at best incomplete and more likely distorted. The values of freedom and equality implicit in the concept of self-determination have meaning for the multiple and overlapping spheres of human association and political ordering that characterize humanity. Properly understood, the principle of self-determination, commensurate in the values it incorporates, benefits groups – that is, ‘peoples’ in the ordinary sense of the term – throughout the spectrum of humanity’s complex web of interrelationships and loyalties, and not just peoples defined by existing or perceived sovereign boundaries. [77]

The right to self-determination forms the basis on which Indigenous people may share power within the existing state. It gives Indigenous people the right to choose how they will be governed.

While, within Australian jurisdiction, the notion that Indigenous peoples may continue to exercise law-making power within a colonial state breaches what is referred to by the High Court as a ‘cardinal fact’ [78] [78] a very different approach has been adopted in Canadian jurispruden Campbell v Attorneys-General & The Nisga’a Nation ion [79] [79] the terms of a treaty which gave legislative (and thus law-making) power to the Nisga’a people in relation to education, the preservation of their culture and the use of their land and resource were challenged as a breach of the Canadian Constitution. One basis of the challenge was that any right to self-government or legislative power was extinguished at the time of Confederation following the enactment British North America Act ica Act (now Constitution Act 1867 ).

Even though Aboriginal laws did not emanate from a central print oriented law-making authority, the Court confirmed, as it has in Australia, that the Aboriginal peoples of Canada had legal systems prior to the arrival of Europeans. In the case of the Nisga’a people these legal systems, although diminished, were found to have continued after contact.

Johnson v M’Intosh The next question was whether these functioning legal systems can be recognised under Canada’s common law. The British Columbia Court reviewed previous North American authorities including Johnson v M’Intosh os [80] [8 Cherokee Nation v Georgia gi [81] [81] Worcester v Georgia g [82] [82] . In these cases, the then Chief Justice Marshall had assessed historical relations between British authorities and aboriginal peoples in North America prior to the American Revolut Johnson v M’Intosh ;Intosh, Chief Justice Marshall concluded that the Indigenous peoples’ right to govern themselves had been “diminished” but not extinguished. The Chief Justice’s statements on this matter were Van der Peet te [83]

In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle that discovery gave exclusive title to those who made it. [84]

A review of the Canadian authorities also demonstrated that there was judicial authority, since Confederation, for the recognition of Indigenous customary law. Consequently the Canadian court found that the right to self-government and the power to make laws had survived Confederation, and were capable of recognition as part of Aboriginal title.

Native title as a bundle of rights and interests

The construction of native title as a bundle of rights and interests, confirmed in the Miriuwung Gajerrong decision, also reflects the failure of the common law and the NTA to recognise Indigenous people as a people with a system of laws based on a profound relationship to land. Native title as a bundle of separate and unrelated rights with no uniting foundation is a construction which epitomises the disintegration of a culture when its law-making capacity, that is its sovereignty, is neatly extracted from it.

In the Yorta Yorta decision, the High Court considered the distinction made in the NTA between the law-making system of Indigenous people and the rights and interests that emanate from this system. It is only the latter which is recognised as native title, even though, in order to obtain this recognition, Indigenous people must prove they have acknowledged and observed their traditional laws and customs continuously since sovereignty. This requirement is discussed in the following section.

This separation of rights and interests from the laws they originate in was recognised by the High Court as fragmenting an otherwise integrated order. This construction however was considered necessary by the legislation governing the recognition process. In the Miriuwung Gajerrong case, the High Court could see that:

[T]he connection which Aboriginal peoples have with “country” is essentially spiritual. ...It is a relationship which sometimes is spoken of as having to care for, and being able to “speak for” country. “Speaking for” country is bound up with the idea that, at least in some circumstances, others should ask for permission to enter upon country or use it or enjoy its resources, but to focus only on the requirement that others seek permission for some activities would oversimplify the nature of the connection that the phrase seeks to capture. The difficulty of expressing a relationship between a community or 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 religious is translated into the legal. This requires the fragmentation of an integrated view of the ordering of affairs into rights and interests which are considered apart from the duties and obligations which go with them. [85]

In this fragmented form, every right and interest for which recognition is claimed needs to be identified. An issue that arose in the Miriuwung Gajerrong decision, in relation to identifying native title rights and interests, was whether the translation from their context in Indigenous law to ones recognisable by the common law was possible without diminishing their original meaning. The Court’s difficulty in giving culturally appropriate meaning to the core Indigenous concepts of ‘a right to be asked and speak for country’ illustrates this point.

[I]t may be accepted that the right to be asked for permission and to speak for country is a core concept in traditional law and custom. As the primary judge’s findings show, it is, however, not an exhaustive description of the rights and interests in relation to land that exist under that law and custom. It is wrong to see Aboriginal connection with land as reflected only in concepts of control of access to it. To speak of Aboriginal connection with ‘country’ in only those terms is to reduce a very complex relationship to a single dimension. It is only to impose common law concepts of property on peoples and systems which saw the relationship between the community and the land very differently from the common lawyer. [86]

Having recognised that Aboriginal connection to country might be different to a property right to control the land, reflecting a deeper spiritual relationship with the land, the Court promptly explains how the core concepts of a right to be asked permission and to speak for country are rightly expressed in common law terms as rights to possess, occupy, use and enjoy the land to the exclusion of all others.

The expression of these rights and interests in these terms [the right to exclusive possession occupation use and enjoyment of the land] reflects not only the content of a right to be asked permission about how and by whom country may be used, but also the common law’s concern to identify property relationships between people or things as rights of control over access to, and exploitation of, the place or thing. [87]

Having found the common law equivalent for these core concepts of traditional law and custom the Court is able to determine the extent to which the creation of rights to control access to land under the non-Indigenous property system would extinguish them.

An important reason to conclude that, before the NTA, native title was inherently fragile is to be found in this core concept of a right to be asked permission and to speak for country. The assertion of sovereignty marked the imposition of a new source of authority over the land. Upon that authority being exercised, by the creation or assertion of rights to control access to land, the right to be asked for permission to use or have access to the land was inevitably confined, if not excluded. But because native title is more that the right to be asked for permission to use or have access (important though that right inevitably is) there are other rights and interests which must be considered, including rights and interests in the use of the land. [88]

Thus even though Indigenous relationships to land, in their cultural context, may be unique and incommensurable, through the native title process they are given a meaning which renders them comparable to non-Indigenous property rights and thus able to be extinguished.

The result of this approach is that even though Aboriginal people continue to maintain a spiritual connection with the land, the common law will consider their native title rights to be extinguished where inconsistency occurs. This disjuncture between Aboriginal law and culture and common law recognition was acknowledged in the High Court decision.

[T]he recognition may cease where, as a matter of law, native title rights have been extinguished even though, but for that legal conclusion, on the facts native title would still subsist. [89]

Between the fact of the continuing connection of Indigenous people with their land and the protection of this relationship in contemporary society are the legal processes of recognition and extinguishment. Together these processes impair the extent to which Indigenous people are able to enjoy their cultural and property rights.

The Relationship between the Recognition and Extinguishment of Native Title

A bundle of rights approach to recognition creates an inherently weak title that is able to be eroded, piece by piece. The relationship between the identification of native title as a bundle of rights and interests and their extinguishment through the inconsistency of incidents test is noted in chapter 2. In identifying native title rights and interests, the Court was not content to leave their identity indeterminate or ambiguous where an unresolved question of extinguishment might exist.

[T]o find that, according to traditional law and culture, there is a right to control access to land, or to make decisions about its use, but that the right is not an exclusive right, may mask the fact that there is an unresolved question of extinguishment. At least it requires close attention to the statement of “the relationship” between the native title rights and interests and the “other interests” relating to the determination area. [90]

In ensuring that the identity of native title rights contained no unresolved questions of extinguishment it was important to identify any exclusive rights that might imply a measure of control by Indigenous groups over access to land. Describing native title rights to ‘possession’ as distinct from possession to the exclusion of all others was considered misleading in that it ‘invites attention to the common law content of the concept of possession and whatever notions of control over access might be thought to be attached to it, rather than the relevant task, which is to identify how rights and interests possessed under traditional law and custom can properly find expression in common law terms’. [91] ="#f91">[91] Similarly, identifying a non-exclusive right to make decisions about the use and enjoyment of land was consider [92]

As I explain in chapter 2 [93] the characterisation of native title rights that best survive once all other interests are given full enjoyment are ones which are expressed at a high level of specificity; [94] are limited to the conduct of activities on the land rather than the control of activities on the land; [95] and confine those activities to traditional rather than contemporary ones.

Thus, for example, a right to dig for ochre was better able to survive the grant of a mineral lease on the same land than a right to utilise the resources of the land. Similarly a right to hunt and gather was better able to survive the grant of a pastoral lease than a right to control access to the land or make decisions about the use of the land. To find its place in the gaps and crevices of non-Indigenous interests, native title must be small, flexible and harmless.

The Miriuwung Gajerrong and the Yorta Yorta decisions together elucidate the fundamental principles on which the Court decide not only the way in which native title is recognised and extinguished, but the relationship between them. The Miriuwung Gajerrong and the Yorta Yorta decisions together elucidate the fundamental principles on which the Court decide not only the way in which native title is recognised and extinguished, but the relationship between them. The

Justice Callinan expressed the view in the Miriuwung Gajerrong decision that the way in which the law of native title resolves ‘the chasm between the common law and native title rights’ has reduced native title to ‘little more than symbols’:

I do not disparage the importance to the Aboriginal people of their native title rights, including those that have symbolic significance. I fear, however, that in many cases because of the chasm between the common law and native title rights, the latter, when recognised, will amount to little more than symbols. It might have been better to redress the wrongs of dispossession by a true and unqualified settlement of lands or money than by an ultimately futile or unsatisfactory, in my respectful opinion, attempt to fold native title rights into the common law. [96]

The ‘attempt to fold native title rights into the common law’ in the Miriuwung Gajerrong case meant native title gave way to non-Indigenous interests every time. Justice McHugh also commented in that decision upon the injustice of a system in which the comparison of competing legal rights inevitably results in the further dispossession of Indigenous interests:

The dispossession of the Aboriginal peoples from their lands was a great wrong. Many people believe that those of us who are the beneficiaries of that wrong have a moral responsibility to redress it to the extent that it can be redressed. But it is becoming increasingly clear – to me, at all events – that redress can not be achieved by a system that depends on evaluating the competing legal rights of landholders and native title holders. The deck is stacked against the native title holders whose fragile rights must give way to the superior rights of the landholders whenever the two classes of rights conflict. [97]

Observing and Acknowledging Traditional Laws and Customs under NTA s223(1)(a)

Section 223(1)(a) of the NTA requires that the rights and interests that can be recognised as native title must be possessed under the traditional laws acknowledged and the traditional customs observed by the peoples concerned. This has been interpreted by the Court in the Yorta Yorta decision to require proof of continuous observance and acknowledgement of those laws and customs since sovereignty. The Court’s interpretation of s223(1)(a) establishes it as a significant barrier to Indigenous people gaining recognition and protection of their traditional rights and interests in land as they are observed and acknowledged in contemporary society.

In the previous sections I commented on the fragmentation caused by the separation of the rights and interests that the law of native title recognises from the laws and customs in which they originate. [98] While the notion of sovereignty relied on by the Court prevents the recognition of Indigenous legal systems and their law-making capacity after the acquisition of sovereignty, claimants nevertheless have to show in s223(1)(a) that the rights and interests which are capable of recognition are possessed under traditional laws acknowledged and traditional customs observed by them. The difficulty of this task is due to the interpretation the Court gives to the meaning of the term ‘traditional laws and customs’ in s223(1)(a).

A fundamental tenet of the Court’s interpretation of s223(1)(a) in the Yorta Yorta /em> case is that the laws and customs of Indigenous people are a body of norms or a normative system under which rights and interests are creat [99] This, it says, follows f Mabo /em> and the NTA itself. The effect of the British Crown acquiring sovereignty is that the Indigenous normative system that created rights and interests could not validly continue to do so after this date. Upon sovereignty, it was replaced by the imposition of a new normative order. Thus recognition of native title rights and interests is restricted either to those created by the new normative system or to those created by the Indigenous normative system of laws and customs before sovereign [100] The Court confirmed that the native title rights to which the NTA refers are rights and interests created before sovereignty by Indigenous laws and customs. This is what is to be understood as ‘traditional’ in the phrase ‘traditional laws and customs’ in s223(1)(a). As pre-sovereign rights and interests they are the relics of a legal system that no longer functions or at [101] functions in the contemporary world.

A further condition placed by NTA s223(1)(a) on the recognition of native title rights and interests stems from the relationship between the normative system of laws and the society that creates it. A normative system of laws, it is said, gets its identity from being observed and acknowledged by a society. Moreover it is the observation and acknowledgement of laws and customs that define a particular society. The two, laws and society, are thus inextricably linked:

Laws and customs arise out of, and in important respects, go to define a particular society. In this context, “society” is to be understood as a body of persons united in and by its acknowledgement and observance of a body of law and customs… To speak of rights and interests possessed under an identified body of laws and customs is, therefore, to speak of rights and interests that are the creatures of the laws and customs of a particular society that exist as a group which acknowledges and observes those laws and customs. [102]

Based on this interdependent relationship between laws and society, the recognition of rights and interests possessed under traditional laws and customs, as required by s223(1)(a) of the NTA, is said to be dependent on there being a society which observes and acknowledges this body of laws and customs. Thus, in order to prove rights and interests are possessed under traditional laws and customs, a claimant group must also prove that the observance and acknowledgement of the traditional laws and customs that create those rights and interests is by a body of persons united as a society. Once the society no longer exists then nor do the laws that are the foundation of the rights and interests requiring recognition. To have native title rights and interests recognised by a court the proof of the continuous existence of a society which observes and acknowledges the tradition laws and customs is required. Given the important role that the interdependent relationship between law and society, posited by the High Court, plays in the recognition and proof of native title, it requires a critical appraisal.

The relationship proposed by the High Court between law and society can be understood in two different ways. If the Court is proposing that law is an external condition for the existence of society, the identity of a particular society being the result of its members observing a particular set of laws, then the law cannot at the same time be a product of that society or an internal aspect of the identity of that society. Similarly, if society is proposed as an external condition for the existence of a body of laws, any particular body of laws being a product of the norms of that society, then the society cannot at the same time be a product of that law, or an internal aspect within the definition of that law. On this analysis the relationship that the Court is positing between law and society is circular and difficult to support.

Perhaps, however, the Court is describing a more dynamic relationship between law and society whereby each interacts with the other so that society affects laws which in turn affect society and so on. On this understanding neither law nor society is a primary determinant of the other but they interact over time to produce changes in each other.

If the Court is affirming this dynamic relationship between law and society then it must also affirm that it is the open and incomplete nature of these two elements, law and society, that allow each to redefine themselves through changes in the other. Laws do not exist as a complete body of norms but are constantly negotiated and interpreted within a social arena. Society also cannot be finally determined through the laws it observes but exists in a plurality of legal and political spaces, assuming different identities as the context, including the legal context, changes.

While this dynamic view of the relationship between law and society as unstable, incomplete and dynamic accords with contemporary notions this is not the relationship that Indigenous people must establish to obtain recognition of native title. Indeed this type of relationship, which recognises a plurality of identity is anathema to the Court’s understanding. The Court’s view of society is one that is given complete identification through the laws it observes. Moreover, in the same tautological way that society and law are given existence, so too their existence ceases. Society ceases being a society once it ceases observing the laws that define it and once society ceases observing the laws they cease to be laws:

And if the society out of which the body of laws and customs arises ceases to exist as a group which acknowledges and observes those laws and customs, those laws and customs cease to have continued existence and vitality. [103]

The consequence of the Court’s view of the relationship between law and society for Indigenous applicants is that, under NTA s223(1)(a), this closed circle of identification between Indigenous laws and society must be maintained from sovereignty to the present. The claimants must establish that there has been continuous observance and acknowledgement of the laws and customs of Indigenous people since sovereignty. In order to show this they must also show that, since sovereignty, the society observing these Indigenous laws and customs did not cease to exist.

However the real difficulty that makes the task of proving s223(1)(a) of the NTA almost impossible is the combination of requiring proof of a vital and ongoing relationship between the Indigenous law and Indigenous society while at the same time denying the law making function of the Indigenous legal system. By definition the vitality necessary to sustain this mutually identifying relationship from sovereignty to the present day has been denied, or at least the normative system of laws and customs. Inevitably, like Indigenous laws, Indigenous society must follow quickly behind to become a relic of a once vital and functioning society. To then expect that these entities, that have been relegated to a previous era can go on interacting in a self sustaining fashion possessing rights and interests, observing traditional laws and customs, defies credibility and more importantly, proof.

In this context, real evidentiary difficulties arise for Indigenous applicants seeking recognition of native title. The questions that arise and which they must satisfy include: What is the content of pre-sovereign laws and customs? [104] ; Are the rights and interests presently possessed, rights and interests possessed under pre-sovereign laws and customs?; [105] Are differences between the rights and interests presently possessed and those possessed before sovereignty differences which result from developments of or alterations to the traditional laws and customs or are they differences that result from new laws and customs that are generated after sovereignty? [106] When does an interruption to the observance of traditional laws and customs amount to cessation of their observance?; [107] When can it be said that the observance of laws and customs is by a new society even though the laws and customs are similar to or even identical with those of pre-sovereign society? [108]

The Court recognises that these difficult evidentiary questions are made even more difficult by the fact that the traditional laws and customs are transmitted orally from generation to generation. In the cultural context in which proof of these very difficult elements are required, the amendments to s82 of the NTA can be seen as a further denial of the rights of Indigenous people to cultural equality. Under the original NTA a court was ‘not bound by technicalities, legal forms or rules of evidence’ [109] 109] and was bound to ‘pursue the objective of providing a mechanism of determination that is fair, just, economical, an [110] #f110">[110] Under the amendments, a new s82 provides that a court is bound by the rules of evidence ‘except to the extent that the Court o [111] The difficulty of building a base for the court to draw inferences on the content of traditional laws and customs prior to sovereignty, their ongoing transmission from generation to generation by oral form and their present possession is, under these amendments, almost insurmountable.

Establishing Connection to Country under s223(1)(b)

The second of the criteria required by the NTA to satisfy the definition of native title or native title rights and interests that are possessed under the traditional laws and customs acknowledged and observed by the Aboriginal peoples or Torres Strait Islanders is set out in s223(1)(b):

the Aboriginal peoples of Torres Strait Islanders, by those laws and customs, have a connection with the land or waters.

Yorta Yorta, the NTA sets out that the source of connection is traditional law and custom, not the common law.[112]However, the NTA gives no further guidance as to what is required by ‘connection’ for native title to be recognised through a determination, either by consent or through litigation. Some indication of the Parliament’s intention may be given in the section setting out the conditions for registration of a claim. Despite the status of the registration process as an administrative test only, these conditions require the Native Title Registrar to make an assessment of the factual basis for claimed n[113]3">[113] and to be satisfied that at least one member of the native title claim group ‘currently has or previously had a traditional physical connection with any part of the land or waters covered by the [114] ef="#f114">[114] Justice Callinan referred to this provision of the NTA in his reas [115] ef="#f115">[115] although the courts have explicitly rejected the need for ‘on-going or continual physical occupation of the land’ by the cla De Rose e [116] m> Miriuwung Gajerrong [117]

Despite the clear finding of the High Court in Yarmirr , [118] Yorta Yorta , [119] and Miriuwung Gajerrong [120] that the NTA, rather than the common law, is the primary basis for deciding the scope of recognition of native title, the development of the concept of connection, and the standard of proof to be met by claimants, are not to be found in the NTA. In practice, the courts, along with State governments, have played a key role in elaborating the meaning of s223(1)(b) and therefore the standard of proof for connection to be met by claimants. State governments have done this in the mediation process by insisting, as a prerequisite to their effective entry into mediation, on a connection report that meets their published requirements. [121] The courts have taken the approach that the ultimate burden of proof rests with the claimants. [122]

In taking this approach, the Courts have themselves noted a number of problems arising from ‘the intersection of traditional laws and customs with the common law’ [123] 123] and with the Miriuwung Gajerrong ong, the High Court points out ‘the difficulty of expressing a relationship between a community or group of Aboriginal people and the land in terms of rights and interests’ but notes that this is required by the NTA. The Court concludes that ’the spiritual or religious is translated [124] a href="#f124">[124] In addition to the evidentiary difficulties of proving the e [125] a href="#f125">[125] De Rose Loughlin in De Rose deals at some length with the evidentiary problems that are seen as peculiar to native title claims, particularly in what is normally re [126] e. [126] Although bound by NTA s82(1), His Honour sets out his reasons for accepting hearsay evidence – that is, what Aboriginal witnesses, with an oral history, were told about traditional laws and customs, particularly by older generations De Rose m identified in De Rose is the deficiency of the adversarial process, in which the court’s decision can only be made on the basis of the evidence presented, without being able to assess whether the evidence [127] adequate. [127] As O’Loughlin J observes ‘If that evidence was inadequate to deal properly with the subject, it could mean that the findings that I make [128] This is a critical issue for the recognition of native title, both because of the acknowledged difficulties of ‘expressing a relationship between a community or group of Aboriginal people and the land in terms of rights and interests’, but also because of the accessibility and quality of legal representation for the claimants, a point to which I shall return below.

In order to achieve recognition of their native title through a determination of native title therefore, claimants must meet the requirement of NTA s223(1)(b) that they have a connection with the land or waters claimed, by their traditional laws and customs. This means that, for a consent determination, they must satisfy other parties – but particularly State or Territory governments and, increasingly, the Commonwealth [129] – that they have this connection and, for a litigated determination, the courts. The courts have mentioned the requirement for connection in a number of the most recent cases, but it is dealt with at greatest le De Rose ose, where the judge saw it as the central issue in d [130]

Interpretation of connection to country in De Rose v South Australia

The claimants in De Rose were ‘those Yankunytjatjara people who have historical, spiritual and ancestral relationship to the claim area [131] 131] The area claimed was over three pastoral leases, known collectively as De Rose Hill Station, in the far north-west of South Australia. The Court heard evidence from twenty-six Aboriginal people, many of whom lived and worked on the Station at some stage of their lives, at least up until 1978, when the last Aboriginal stockmen left the property. The judge found that native title over the Station has not been extinguished by legis [132] 132] and that therefore a determination of non-exclusive native title was available to the claimants. His Honour accepted much of the evidence of the Aboriginal witnesses. The Court took evidence on country at thirteen sites on or near the Station. These sites were among sixty-five possible sites identified by the claimants as significant, forty-six of which are on De Rose Hill S [133] 133] The Judge accepted that ‘what I saw and observed satisfied me that the witnesses and participants showed that they possessed knowledge of the particular sites and knowledge of the activities in which they engaged at tho [134] #f134">[134] Referring to the High Court& Miriuwung Gajerrong uw [135] ef="#f135">[135] Justice O’Loughlin held that a physical connection to the land is not a requirement for a [136] a href="#f136">[136] His Honour also rejected the need for a strict test of biological [137] a href="#f137">[137] and accepted that it would be possible to make a finding of substantial maintenance of continuity of connection from sovereignty, even where there may have been ‘significant gaps’ in the chronol [138]

Despite all this, the De Rose decision was that no native title exists in the claim area. Justice O’Loughlin’s reason for that finding was the failure of the claimants to satisfy him that ‘they now have any connection with the land and waters within the cl [139]

In reaching this finding, Justice O’Loughlin focuses on the absence of the claimants from De Rose Hill Station for the last twenty years and what he concludes was not just a physical absence but their failure over that period to attend to any ‘religious, cultural, or traditional ceremony or duty’ on the Station. [140] 0">[140] His Honour noted that, ‘although a spiritual or cultural connection only may suffice for the purposes of [NTA] s223(1)(b), the assessment of whether the requirement has been met will always be a que [141] ef="#f141">[141] He also emphasised that connection to coun [142] ef="#f142">[142] and that a ‘mere’ connection with land or waters is insufficient; as set out in NTA 223(1)(b), the connection must be ‘by those laws and customs’ – that is ‘because of’ or ‘as a result of’ tradition [143] traditional customs observed. [143] His finding in relation to almost all of the Aboriginal witnesses is that they [144]

In accepting that the Aboriginal witnesses still retain knowledge of their traditional laws and customs – have indeed retained their culture [145] – Justice O’Loughlin makes a distinction between ‘adherence to’ and ‘knowledge of’ traditional laws and customs and concludes that the claimants’ ‘a [146] 45;eroded away’. [146] This conclusion is to a significant extent based on two factors. One of these is the Judge’s assessment that twenty years – less than one generation – is an adequate period on which to draw conclusions about loss of connection, despite continuity of knowledge and the competence o [147] 145;two very remarkable ceremonies’. [147] Secondly, his conclusion is based on his analysis of the reasons for people having left the Station as being principally associated not with ‘their Aboriginal lifestyle, traditions o [148] spects of ‘European social and work practices’. [148] He puts forward that the two main reasons why the Aboriginal people left De Rose Hill were the opening of the community centre at Indulkana in 1968 and the loss of work after the Pastoral Award in 1968. Both of those reasons, in His Honour [149] presence of a continuing native title connection with the area’. [149] This theme of incompatibility between ‘non-Aboriginal factors such as [150] a claimant’s] daughter’s education’ and ‘Aboriginal law or customs’, [150] and therefore of loss of connection, recurs throughout the reasons for judgement. It sits with the occasional observation such as finding  [151] of the women witness’s claims that the lack of a car has been Anangu not visiting her land, [151] or that a spiritual connection with the [152]

The inclusion of such remarks in the reasons for judgement and the assumptions underlying them about the exotic character of traditional laws and customs suggest that the expansion of the concept of connection in De Rose goes well beyond the requirements both of the NTA and of the common law. They also raise concerns about the extent to which the Court in De Rose has unnecessarily expanded the NTA’s requirement for connection and interpreted it in a way that may infringe on the right enshrined in human rights instruments to participate in the cultural life of the communit [153]

The De Rose judgement is now under appeal to the Full Federal Court. The grounds of appeal include Justice O’Loughlin’s finding that the claimants had no connection or had abandoned their connection to the claimed area. In the light of the High Court’s clear indication that the principle source of recognition of native title is the NTA rather than the common law, the courts have the opportunity to revisit the interpretation of connection in a way that better reflects both the traditional laws and customs of Aboriginal peoples and Torres Strait Islanders on the one hand, and human rights law on the other.

Interpretation of connection to country in Kennedy v Queensland

Kennedy [154] was a non-claimant application by the holder of a pastoral lease near Winton in Queensland that native title does not exist over the property. [155] Because the application was unopposed, the Federal Court made the order, as permitted under certain conditions in the NTA, that native title does not exist over the area. In his reasons for judgement, however, Justice Sackville noted that the Koa People had initially lodged a claimant application in response to the non-claimant application, that they subsequently withdrew that application, and that they also withdrew as parties to the non-claimant application. On that basis, and in the absence of any evidence from the Koa People, he concluded that ‘there are indeed no native title interests over Castle Hill’ and that ‘any connection that may have existed between the Aboriginal peoples of the area and Castle Hill, in accordance with traditional laws and customs, has not been ma [156]

One of the Judge’s reasons for his finding was the evidence presented by Mr Kennedy that, since commencing occupation on Castle Hill in December 1951, he had never seen Aboriginal people carrying out any traditional activities on the property and that no Aboriginal people had been present on the property except for work, and that that ceased after 1962. The evidence was that there had been no physical presence of Aboriginal people on Castle Hill for over forty years. The Judge’s acceptance of physical absence as a sufficient reason for loss of connection [157] 157] is at variance with the findings in other courts, including the Full Federal C Miriuwung Gajerrong o [158] 158] current at the time Kennedy decision and confirmed more recently by the High Court, as discussed earlier.

Justice Sackville identified a second reason for being satisfied that the withdrawal of the claimant application by the Koa People demonstrated their loss of connection to the area. This was that the Koa People had the benefit of legal advice and representation arranged by the Gurang Land Council, a Native Title Representative Body [159] (‘NTRB’). Unfortunately, this assumption made by His Honour cannot be justified, given the current situation of NTRBs. The inadequacy of resources and resultant limits on the ability of NTRBs to perform their statutory functions appropriately has been drawn to the attention both of the courts and of the Commonwealth on a number of different occ [160] 160] Although there was an increase in this funding in the 2002 Federal budget, it remains inadequate to meet the onerous demands placed on NTRBs. This has serious implications for the recognition and protection of native title under the NTA, and also for the protection under human rights law of people’s right to enj [161]

At one level, the decision in Kennedy is of limited relevance to other native title claims because of the particular circumstances of its being an unopposed non-claimant application. On another level, the Judge’s finding of loss of connection for the reasons he sets out raises some concerns about the direction of the courts in limiting even further the scope of recognition of native title.

Limitations set by the Courts on the Protection of Cultural Knowledge

The judgement in De Rose illustrates a further way in which recent court decisions have dealt with the question of connection in the context of its relation to cultural knowledge. In De Rose , the claimants sought a limited right to protect their cultural knowledge by preventing ‘the disclosure otherwise than in accordance with traditional laws and customs of tenets of spiritual beliefs and practices (including songs, narratives, rituals and ceremonies) which relate to areas of land or waters, or places on the land or waters [162] 162] Justice O’Loughlin rejected this with reference to the Full Court and High Court de Miriuwung Gajerrong jerrong that ‘matters of spiritual beliefs and practices are not rights in relation to land and do not give the connection to the land that is required by s22 [163] ef="#f163">[163] This finding seems inconsistent with the High Court’s statements that ‘the connection which Aboriginal peoples have with “country [164] iritual’, [164] a proposition [165] 6;Loughlin agreed. [165] It is also at odds with traditional law and custom, and Miriuwung Gajerrong e High Court in Miriuwung Gajerrong that ‘to some degree, for example respecting access to sites where artworks on rock are located, or ceremonies are performed, the traditional laws and customs which are manifested at these sites answer the requirement of connec [166] as set out in s223 Miriuwung Gajerrong ] Nevertheless, in Miriuwung Gajerrong, the High Court took the view that recognition of the right as asserted in that case w [167] and indicated that protection of cultural knowledge is to be sought not in the NTA but in other statutes and cases relating, for example, to intellectual property or copyright. Cultural heritage laws offer a further avenue for protection.

This approach by the courts makes clear that it is unlikely that the NTA will be seen as a vehicle for the protection of cultural knowledge, even though the High Court in Miriuwung Gajerrong identified some of the conditions under which this might be possible.

Recognition by the Common Law under s223(1)(c)

The NTA, in its definition of native title in s223(1)(c), requires that any rights or interests sought to be recognised as ‘native title’ must ‘be recognised by the common law’. This phrase was directly addressed in the High Court’s decision in The NTA, in its definition of native title in s223(1)(c), requires that any rights or interests sought to be recognised as ‘native title’ must ‘be recognised by the common law’. This phrase was directly addressed in the High Court’s decision in in Yarmirr where the High Court explained that the common law cannot recognise Indigenous rights where the two [168]

In Yarmirr the High Court found that an exclusive right to control access to the sea could not be recognised because it was inconsistent with the public right of navigation and fishing and Australia’s international obligation to permit innocent passage of ships through Australia’s territorial sea. Exclusive rights to traditional sea country, constituted by an elaborate system of laws and customs, were not given recognition. In relation to the exploitation of their sea country, particularly commercial fishing and petroleum exploration, native title holders are thus relegated to bystanders in the major natural resource developments taking place in their sea country.

An alternative approach suggested by Justice Kirby, that the rights of control over the sea were qualified or regulated by the rights of navigation and innocent passage [169] but still able to be recognised, was not adopted by the majority. [170] This approach seeks to maintain, wherever possible, Indigenous culture while at the same time allowing full expression to the rights recognised by the common law. It is also consistent with a human rights approach to the recognition of native title rights and interests. Instead the Court found that where there was any element of inconsistency, native title would be extinguished.

The recent High Court decision in Yorta Yorta has also provided further direction on the Court’s interpretation of s223(1)(c). There the Court made clear that this subsection does not invite incorporation of the entire body of the common law into the NTA. Instead there are two main purposes that the section serves:

First, the requirement for recognition by the common law may require refusal of recognition to rights or interests which, in some way, are antithetical to fundamental tenets of the common law. ... Secondly, however, recognition by the common law is a requirement that emphasises the fact that there is an intersection between legal systems and that the intersection occurred at the time of sovereignty. The native title rights and interests which are the subject of the Act [NTA] are those which existed at sovereignty, survived that fundamental change in legal regime, and now, by resort to the processes of the new legal order, can be enforced and protected. It is those rights and interests which are “recognised” in the common law. [171]

The second of these features, and its effect on the recognition of contemporary Indigenous culture, has been discussed above in relation to s223(1)(a). The first feature, refusal of recognition to rights that are antithetical to fundamental tenets of the common law, was not elaborated upon in the Yorta Yorta decision but was briefly considered in the Miriuwung Gajerrong decision where the Court referred to ‘the general objective of the law of the preservation and protection of society as a whole [172]

It is difficult to know from the case law so far, the extent to which the requirement by the High Court, that the rights and interests recognised as native title are consistent with the fundamental tenets of the common law, will provide further bases for restricting the enjoyment by Indigenous people of their human rights.

Conclusion

The standard of proof and the burden it places on Indigenous applicants seeking recognition of the contemporary expression of their culture and identity is very high. They must prove a normative system of laws and the seamless transmission of these laws from one society to the next to the present day. Yet what do Indigenous people get from this recognition process once they have overcome these legal hurdles? They don’t get recognition of the laws and customs that generate rights and interests. They don’t get recognition of the systems that keep their culture vital and developing. They don’t get recognition of their spiritual connection with the land or their governance structures.

These are the rights that, at international law, Australia has agreed to protect and maintain. Yet these are not the rights that are recognised by native title law. From native title law, Indigenous people get recognition of a bundle of rights and interests that is extinguished completely or partially whenever their enjoyment is inconsistent with non-Indigenous people’s enjoyment of their rights and interests.

1 Commonwealth v Yarmirr; Yarmirr v Northern Territory [2001] HCA 56 (11 October 2001) (&# Yarmirr ’).

2 Western Australia & o’rs v Ward & o’rs [2002] HCA 28 (8 August 2002) (&# Miriuwung Gajerrong ’).

3 Members of the Yorta Yorta Aboriginal Community v Victoria & o’rs [2002] HCA 58 (12 December 2002) (&# Yorta Yorta ’)

4 999 United Nations Treaty Series (‘UNTS’) 171 (Australia joined 1980) (‘ICCPR’).

5 1577 UNTS 3 (Australia joined 1990).

6 ICCPR, op.cit., art 27, see also Convention on the Rights of the Child , op.cit., art 30.

7 Human Rights Committee, General Comment 23 – The rights of minorities /em>, (1994) para Compilation Of General Comments And General Recommendations Adopted By Human Rights Treaty Bodies , United Nations document number (‘UN doc’) HRI/GEN/1/Rev.5, 26 April 2001, p147.

8 Human Rights Committee, General Comment 23 – The rights of minorities , op.cit., para’s 6.1 & 6.2.

9 Human Rights Committee, Länsman -v- Finland , UN document CCPR/C/52/D/511/1992, 8 November 1994, para 32. and Human Rights Committee, Ominayak -v- Canada , UN document CCPR/C/38/D/167/1984, 10 May 1990, para 32.2

10 Human Rights Committee, Ominayak -v- Canada , op.cit., para 33.

11 Concluding observations of Human Rights Committee: Sweden , UN doc CCPR/C/79/Add.58, 9 November 1995, para 18.

12 Human Rights Committee, Länsman -v- Finland , op.cit., para 9.3.

13 Human Rights Committee, Concluding observation of the Human Rights Committee: Australia , UN doc A/55/40 para’s 498-528, 24 July 2000.

14 See also discussion on discrimination in chapter 3 of this Report.

15 The international legal approach to equality is one of substantive rather than formal equality: G Triggs, ‘Australia’s Indigenous Peoples and International Law’ Melbourne University Law Review Review 372 at 379-Ž also Australian Law Reform Recognition of Aboriginal Customary Laws ry Laws, Report No 31(1986) paras 150, 158. The Committee on the Elimination of Racial Discrimination (‘CERD’) has recognised as aspects of the principle of equality the obligations of States parties to ICERD (inf.) to ensure that no decisions directly relating to the rights and interests of indigenous peoples are taken without their informed consent, as well as to recognise and protect the rights of indigenous peoples to own, develop, control and use their communal lands and territo General Recommendation XXIII – Indigenous Peoples Indigenous Peoples, Compilation Of General Comments And General Recommendations Adopted By Human Rights Treaty Bodies , op.cit., p192.

16 660 UNTS 195 (Australia joined 1975) (‘ICERD’).

17 ibid., art 5(a).

18 ibid., art5(d)(vii).

19 ibid., art5(d)(v).

20 The Case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua , Inter-American Court of Human Rights, 31 August 2001, available at www.corteidh.or.cr/seriecing/serie_c_79_ing.doc> (accessed 15 January 2003).

21 ibid., at [148].

22 ibid., at [149]

23 ibid., at [164].

24 ICERD, op.cit., art 5(e)(v).

25 W McKean, ‘The Meaning of Discrimination in International and Municipal Law’ (1 British Yearbook of International Law Law 178 at 팾º G Triggs, op.cit., at 379-Ž Australian Law Reform Commission, op.cit.,; see also Aboriginal and Torres Strait Islander Social Justice Commis Native Title Report 2000 , Human Rights and Equal Opportunity Commission, Sydney, 2001, pp50-52.

26 Commonwealth Parliament, Sixteenth Report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund: CERD and the Native Title Amendment Act 1998 , Canberra, June 2000, para 3.7.

27 Native Title Report 2000 , op.cit., pp52-53.

28 Street v Queensland Bar Association (1989) 168 CLR 461 per Brennan J at 513-514, and per Gaudron J at 570-71, Ƚ and Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 per Gaudron & McHugh JJ at 478.

29 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities , United Nations General Assembly (‘UNGA’) resolution 47/135, UN doc A/47/49, 18 December 1992, art 2(2).

30 Vienna Declaration and Programme of Action (UN doc A/CONF.157/23, 25 June 1993, endorsed by UNGA on 20 December 1993, UN doc A/RES/48/121, para 2), part I para 20 (also part II para 31).

31 CERD, General Recommendation XXIII – Indigenous Peoples , op.cit., para 4(d).

32 Human Rights Committee, General Comment 23 – The rights of minorities , op.cit., para 7.

33 CERD, Decision 2(54) on Australia , (UN document A/54/18, para 21(2)) 18 March 1999, para’s 8 & 9.

34 Minority Schools in Albania (1935) PCIJ Ser A/B No 64, p also South West Africa Second Phase, Judgment [1966] ICJ Rep 6 at ꀮ4, 305 per Tanaka J; UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, The Main Types and Causes of Discrimination , UN Sales No 49.XIV.3 (1949), paras ᠆ F Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities UN Sales No E.91.XIV.2 (1977), reprinted United Nations Human Rights Study Series No 5 (1991), para ï also UN doc E/CN.4/52 (1947), Section V; A Bayefsky, ‘The Principle of Equality or Non-Discrimination in International Law’ (1 Human Rights Law Journal 1 at Triggs, op.cit., at 379-381.

35 CERD, General Recommendation XXIII – Indigenous Peoples , op.cit., para 4(e).36 ibid., para ‘s 2-4(e).

36 ibid., para ‘s 2-4(e).

37 Miriuwung Gajerrong , op.cit., per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [14].

38 ICCPR, op.cit., art 18.

39 On the characterisation of Aboriginal belief-systems as religions, see M Charlesworth, ‘Introduction’ in M Charleswor Religious Business: Essays on Australian Aboriginal Spirituality , Cambridge University Press 1998 xiii at xv; W Stanner, ‘Some Aspects of Aboriginal Religion’ written 1976, reproduced in Charlesworth, ibid, at 1.

40 Human Rights Committee, General Comment 22: Right to freedom of thought, conscience and religion , (1993) para in Compilation Of General Comments And General Recommendations Adopted By Human Rights Treaty Bodies , op.cit., p144.

41 ibid., para 4.

42 ‘Article 18 [freedom of religion]...might well assist in securing access to and control of sacred sites, skeletal remains, burial artefacts and other items of religious or cultural significance to Indigenous Australians’, S Pritchar Indigenous Peoples, the United Nations and Human Rights hts, The Federation Press, Sydney, 1998, p192. Another commentary indicates that proposing article 18 as supporting the right to exclude people from a place would be ‘new ground’ for this article: ‘It is unfortunate that the HRC [Human Rights Committee] has issued so few consensus comments on the limits to the freedom to manifest religion or belief. It would be instructive, for example, for the HRC to issues opinions on the permissibility of restrictions of such religious activities as polygamy, animal sacrifice, or the exclusion of women from the church hierarchy’: S Joseph, J The International Covenant on Civil and Political Rights , Oxford University Press, Oxford, 2000, at [17.13].

43 Miriuwung Gajerrong , op.cit., at [586].

44 Section 116.

45 Miriuwung Gajerrong , op.cit., per Kirby J at [586].

46 See also Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2002 , chapter 2.47 993 UNTS 3 (Australia joined 1975) (‘ICESCR’).

47 993 UNTS 3 (Australia joined 1975) (‘ICESCR’).

48 For a commentary on these provisions see Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 1999 , Human Rights and Equal Opportunity Commission, Sydney, 2000, pp89- 97.

49 UN doc A55/44, para’s 498-528, 24 July 2000.

50 ibid., tenth para.

51 UN doc CCPR/C/69/L/AUS, 25 April 2000, issue 4.

52 UN doc CCPR/C/79/Add.105, 7 April 1999, paras 7 & 8.

53 UN doc CCPR/C/79/Add.112, 5 November 1999, para see also para 10.

54 UN doc CCPR/CO/74/SWE, 24 April 2002.

55 op.cit., para 15.

56 op.cit.,

57 Decision of the Human Rights Committee, UN doc CCPR/C/43/D/205/1986, 3 December 1991.

58 UN doc E/C.12/Q/AUSTRAL/1, 23 May 2000, Issue 3.

59 UN doc E/C.12/Q/CAN/1, 10 June 1998, issue 23.

60 Committee on Economic, Social and Cultural Rights, Concluding observations: Canada , UN doc E/C.12/1/Add.31, 10 December 1998, para 18.

61 Committee on Economic, Social and Cultural Rights, Concluding observations: Colombia , UN doc E/C.12/1/Add.74, 30 November 2001, para 33.62 Sections 61 and 225.

62 Sections 61 and 225.

63 From Yorta Yorta , op.cit., per Gleeson CJ, Gummow & Hayne JJ at [33]-[35].

64 De Rose v State of South Australia [2002] FCA 1342 (1 November 2002) (&# De Rose ’).

65 Mabo & o’rs v Queensland (No 2) (1992) 175 CLR 1 (&# Mabo ’).

66 Fejo v Northern Territory of Australia (1998) 195 CLR 96.

67 ibid., per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at 128.

68 Yorta Yorta , per Gleeson CJ, Gummow & Hayne JJ at [31] & [38].

69 New South Wales v Commonwealth (1975) 135 CLR 337.

70 ibid., per Gibbs J at 388.

71 Mabo , op.cit., per Brennan J (with whom Mason CJ and McHugh J agreed) at para 32 of His Honour’s judgement.

72 Miriuwung Gajerrong , op.cit., per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [91].

73 Yorta Yorta , op.cit., per Gleeson CJ, Gummow & Hayne JJ at [43].

74 ibid., at [44].75 ibid.

75 ibid.

76 See Social Justice Report 2002 , op.cit., chap 2.

77 SJ Anaya, Indigenous Peoples in International Law , Oxford University Press, New York, 1996, p79.

78 Yorta Yorta , op.cit., per Gleeson CJ, Gummow & Hayne JJ at [55].

79 Campbell & o’rs v Attorney General (British Columbia) & o’rs (2000) BCSC 1123 (Supreme Court of British Columbia, 24 July 2000).

80 21 U.S. (8 Wheat) 543 (1823).

81 30 U.S. (5 Pet.) 1 (1831).

82 31 U.S. (6 Pet.) 515, 8 L.Ed. 483 (1832).

83 R v Van der Peet [1996] 2 SCR 507 at 542.

84 Johnson v M’Intosh, op.cit., at 572-3.85 Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [14].

85 Miriuwung Gajerrong , op.cit., per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [14].

86 ibid., at [90].

87 ibid., at [88].

88 ibid., at [91].

89 ibid., at [21].

90 ibid., at [53].

91 ibid., at [52] & [89].

92 ibid., at [49].

93 See Comparing Rights section, pages 51-53, below.

94 See, e.g. Miriuwung Gajerrong , op.cit., per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [29].

95 ibid., at [52].

96 Miriuwung Gajerrong , op.cit., per Callinan J at [970].

97 Miriuwung Gajerrong , op.cit., per McHugh J at [561].

98 See pages 27-29, above.

99 Yorta Yorta , op.cit., per Gleeson CJ, Gummow & Hayne JJ at [39] & [40].

100 ibid., at [43] & [44].

101 ibid., at [43].

102 ibid., at [49] & [50].

103 ibid., at [50]. 104 ‘The native title rights and interests which are the subject of the Act [NTA] are those which existed at sovereignty, survived that fundamental change in legal regime, and now, by resort to the processes of the new legal order, can be enforced and protected. It is those rights and interests which are “recognised” in the common law. ... It may be accepted that demonstrating the content of that traditional law and custom may very well present difficult problems of proof. But the difficulty of the forensic task which may confront claimants does not alter the requirements of the statutory provision’, ibid., at [77] & [80].

105 ibid., at [86].

106 ‘Upon the Crown acquiring sovereignty, the normative or law-making system which then existed could not thereafter validly create new rights, duties or interests. Rights or interests in land created after sovereignty and which owed their origin and continued existe only to a normative system other than that of the new sovereign power, would not and will not be given effect by the legal order of the new sovereign. ... [A]ccount...[can] be taken of any alteration to, or development of, that traditional law and custom that occurred after sovereignty. Account may have to be taken of developments at least of a kind contemplated by that traditional law and custom. ... But what the assertion of sovereignty by the British Crown necessarily entailed was that there could thereafter be no parallel law-making system in the territory over which it asserted sovereignty. ... Because there could be no parallel law-making system after the assertion of sovereignty it also follows that the only rights or interests in relation to land or waters, originating otherwise than in the new sovereign order, which will be recognised after the assertion of that new sovereignty are those that find their origin in pre-sovereignty law and custom’, ibid., at [43] & [44].

107 ‘[D]emonstrating ... some interruption of enjoyment or exercise of native title rights or interests in the period between the Crown asserting sovereignty and the present will necessarily /em> be fatal to a native title claim. ... [A]cknowledgment and observance of those laws and customs must have continued substantially uninterrupted since sovereignty. Were that not so, the laws and customs acknowledged and obser now /em> could not properly be described as traditional laws and customs of the peoples concerned... [I]t must be shown that the society, under whose laws and customs the native title rights and interests are said to be possessed, has continued to exist throughout that period as a body united by its acknowledgment and observance of the laws and customs’, ibid., at [83], [87] & [89].

108 ibid., at [87].

109 NTA, prior to 1998 amendments, s82(3).

110 ibid., s82(1).

111 NTA, s82(1).

112 Yorta Yorta , op.cit., per Gleeson CJ, Gummow & Hayne JJ at [34].

113 NTA, s190B(5).

114 NTA, s190B(7)(a).

115 Yorta Yorta , op.cit., per Callinan J at [184].

116 op.cit., at [567].

117 op.cit., per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [63]; also Full Federal Court decision in Western Australia v Ward & o’rs [2000] FCA 191 (3 March 2000) per Beaumont & Von Doussa JJ at [245] (with whom North J agreed at [682]).

118 op.cit., per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [7] & [15].

119 op.cit., per Gleeson CJ, Gummow & Hayne JJ at [75].

120 op.cit., per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [25].

121 Department of the Premier and Cabinet, Guidelines for the Provision of Evidentiary Material In Support of Applications for a Determination of Native Title , Government of Western Australia, October 2002. The Queensland Government document Compiling a Connection Report is currently being revised and will be posted back to this site when complete: www.premiers.qld.gov.au/about/nativetitle/newweb/pages/brochures.htm>, accessed 15 January 2003.

122 Coe v Commonwealth (1993) 118 ALR 193 per Mason CJ at Î De Rose at [265] & [913].

123 Fejo , op.cit., per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne & Callinan JJ at [46].

124 Miriuwung Gajerrong , per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [14].

125 See pages 33-34, above.

126 De Rose , op.cit, at [264]-[271].

127 ibid., at [89] & [144].

128 ibid., at [89].

129 The Hon. D Williams, Attorney-General, ‘Native title: the next 10 years Address to Native Title Conference 2002: Outcomes and Possibilities , Geraldton, 4 September 2002, para 38-40.

130 De Rose , op.cit., at [49].

131 ibid., at [31].

132 ibid., at [246]-[247].

133 ibid., at [205].

134 ibid., at [381.

135 Miriuwung Gajerrong , op.cit., per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [64].

136 De Rose , op.cit., at [377].

137 ibid., at [559].

138 ibid., at [570].

139 ibid., at [915].

140 ibid., at [107].

141 ibid., at [569].

142 ibid.

143 ibid., at [891].

144 The reference in [599] of Justice O’Loughlin’s reasons is in relation to the claimant Peter De Rose. The same observation is made by the Judge for each of the following Aboriginal witnesses. The High C Yorta Yorta rta subsequently rejected the use of ‘abandonment’ as a way to describe the consequences of interruption in acknowledgement and observance of traditional la Yorta Yorta subsequently rejected the use of ‘abandonment’ as a way to describe the consequences of interruption in acknowledgement and observance of traditional laws and customs:

145 De Rose , op.cit., at [903].

146 ibid., at [907].

147 ibid., at [903].

148 ibid., at [896].

149 ibid.

150 ibid., at [681].

151 ibid., at [816].

152 ibid., at [892].

153 ICESCR, op.cit., art Universal Declaration of Human Rights (UNGA resolution 217A (III), UN doc A/810 at 71, 10 December 1948), art27(1).

154 Kennedy v State of Queensland [2002] FCA 747 (13 June 2002) (&# Kennedy ’).

155 cf NTA s61(1)(2).

156 Kennedy , op.cit., at [34].

157 ibid.

158 Western Australia v Ward & o’rs [2000], op.cit.,

159 Kennedy , op.cit., at [32].

160 This issue was addressed in some detail in Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2001 , Human Rights and Equal Opportunity Commission, Sydney, 2002, pp67-72. NTRB under-funding has most recently been discussed in Ministerial Inquiry into Greenfields Exploration in Western Australia , Department of Mineral and Petroleum Resources (WA), 2002, p88.

161 Native Title Report 2001 , op.cit., p85.

162 De Rose , op.cit., at [50].

163 ibid., at [51].

164 Miriuwung Gajerrong , op.cit., per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [14].

165 De Rose , op.cit., at [568].

166 Miriuwung Gajerrong , op.cit., per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [59].

167 ibid., at [58]-[60].

168 Yarmirr , op.cit., per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [42].

169 ibid., per Kirby J at [272]-[282].

170 ‘[T]here is a fundamental inconsistency between the asserted native title rights and interests and the common law public rights of navigation and fishing, as well as the right of innocent passage. The two sets of rights cannot stand together and it is not sufficient to attempt to reconcile them by providing that exercise of the native title rights and interests is to be subject to the other public and international rights Yarmirr , ibid., per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [98].

171 Yorta Yorta , op.cit., per Gleeson CJ, Gummow & Hayne JJ at [77].

172 Miriuwung Gajerrong , op.cit., per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [21].

19 March 2003.

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