Connection requirements

Project status: 
Past

The management of native title claims through proof of connection to final determination continues to be a central concern to native title stakeholders and there is a need for critical discussion of the requirements of proof and the processes involved in establishing native title and resolving claims. Additional questions are raised in the context of consent determinations and alternative agreements.

The Native Title Research Unit has created and gathered relevant resources on connection issues in native title as well as convened and been involved in workshops relating to these matters.

This project has involved collaboration with the National Native Title Tribunal and the Agreements, Treaties & Negotiated Settlements Project  (University of Melbourne).

Background information

The following papers discuss issues associated with proving native title connection:

The NTRU has prepared a Reading List of material relevant to connection requirements. Where available the list includes hyperlinks to material including submissions to government inquiries, reports of government inquiries, on-line publications and presentations from the national Native Title Conference.

State connection requirements

Information about current state and territory connection requirements is summarised in Appendix 3 of the Getting Outcomes Sooner: Report on a native title connection workshop (see above). Some jurisdictions have Connection Guidelines available online, links to these documents are provided below, where available.

Other sources of information

Australian Native Title Studies is an umbrella 'location' for a number of initiatives in native title at Adelaide University. 

Legislation and Policy

Relevant Legislation: Sections 223 and 225

Section 223 governs what applicants for native title determinations must establish in order to obtain a determination which recognises native title. Section 225 must be read together with the definition of native title in Section 223.

Section 223 provides:

  1. The expression native title or native title rights and interests means the communal, group or individual rights  and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
    1. the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
    2. the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and the rights and interests are recognised by the common law of Australia...

Section 225 provides:

A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

  1. who the persons, or each group of persons, holding the common or group rights compromising the native title are; and
  2. the nature and extent of the native title rights and interests in relation to the determination area; and
  3. the nature and extent of any other interests in relation to the determination area; and
  4. the relationship between the rights and interests in paragraph (b) and (c) (taking into account the effect of this Act); and
  5. to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease - whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of others.

Role of native title tribunal and federal court in reviewing connection material

In 2007, several amendments were made to expand the role of the National Native Title Tribunal (NNTT) in the mediation of native title applications. One of these amendments gave the NNTT the function of reviewing connection material in the context of mediation including whether a native title claim group holds native title rights and interests, in particular, issues surrounding connection with land or waters in the application area. Within this amendment, the NNTT may only refer connection for review if it arises in the course of the mediation, and after consultation with the parties. The NNTT does not have the power to compel parties to attend a review or for parties to produce documents for a review.  The findings of a review are not binding on the parties. The objective of a review is to help the parties to reach agreement. 

The Native Title Research Unit has collated resources pertaining to the NNTT and Federal Court review of connection material:

Workshop papers and presentations

2012

Anthropologies of change: Theoretical and methodological challenges
A workshop for native title anthropologists, University of Sydney, August 2011

This report documents key proceedings from the Anthropologies of Change: Theoretical and Methodological Challenges professional development workshop co-convened by the University of Sydney, the Native Title Research Unit of AIATSIS and the Centre for Native Title Anthropology at the Australian National University. The two-day event, held at the University of Sydney 25-26 August 2011, was funded primarily by a grant awarded under the 2010-11 Attorney General Department's 'Native Title Anthropologist Grants Program'.

2009

Australian Anthropological Society Conference, Sydney, December 2009

The panel discussions from the native title stream of the 2009 Australian Anthropological Society Conference have been published into a collection of papers edited by Toni Bauman. These papers demonstrate the range of of dilemmas for anthropologists in native title, whose role is to address Indigenous claims under s 223 of the Native Title Act 1993 (Cth) by preparing connection materials and giving expert evidence in Federal Court hearings. The papers provide a critical but constructive analysis of a range of these dilemmas, and have significant implications for claimant groups, the disciplines of law and anthropology, and policy makers.

Native Title Conference, Melbourne, 2-5 June 2009

A panel discussion on the issue of proof and continuity under s223 was held at the National Native Title Conference in Melbourne on 4 June 2009

Native Title Act Workshop, University of Melbourne, 5-6 March 2009

A workshop concerning interpretations of Section 223 emerging from the Adelaide discussions was held on 5-6 March 2009 at the University of Melbourne. The workshop was sponsored jointly by the NTRU, ATNS, Rio Tinto, and the Australian Government.

The workshop examined the direction in which the courts have taken native title, with the goal of a non-discriminatory native title jurisprudence. The workshop focused on the difficulties of s223 and the approach of the courts in Bennell. The possibilities offered by legislative change were examined as well as a number of other options. For the purposes of comparison, the development of aboriginal title in other common law countries was considered, specifically, Canada and South Africa.

The draft titles of papers delivered at the workshop are listed below. These papers are not yet publicly available. However, the workshop Agenda is available.

  • Pearson, N, ‘A brief overview of the ‘problem’ and ‘Land is Susceptible of Ownership’ in Honour Among Nations.’
  • Hughston, V, ‘An overview of the Bennell decision and the application of the Yorta Yorta case.’
  • Young, S, ‘The meaning given to ‘tradition’ and ‘traditional’ in the context of s223: the problems associated with this interpretation; alternative interpretations.’
  • Yarrow, D, ‘A discussion of why a ‘society’ is needed, how it is to be found and the attributes it must exhibit.’
  • Hughston, V, ‘Meaning of ‘have a connection with land’ in s223;interpretation in the cases; issues in the application.’
  • Godden, L and Dorsett, S, ‘The philosophical basis of the ‘normative system’ view in Yorta Yorta’
  • North, A, ‘Amending S223.’
  • McNeil, K, ‘Common law aboriginal title: comparative models – Canada.’

2008

Practice issues in applied anthropological research in Central Australia & the Northern Territory, Alice Springs, 14-17 May 2008

The Central Land Council and the Anthropology School at the University of Queensland co-sponsored a workshop on ‘Practice issues in applied anthropological research in Central Australia and the Northern Territory’ in Alice Springs, 14-17 May 2008. This conference was attended by Grace Koch.

Tradition, Adaptation, the ‘tide of history’ Workshop: Issues for Anthropology in Research for Native Title Claims and their Aftermath, Brisbane, 23-24 June 2008

The University of Queensland hosted a workshop which explored anthropological issues in native title research, titled ‘Tradition, Adaptation, the ‘tide of history’ Workshop: Issues for Anthropology in Research for Native Title Claims and their Aftermath’. The workshop was hosted and facilitated by the Anthropology School on 23-24 June 2008 at the University of Queensland St Lucia Campus in Brisbane. The workshop considered how legal decisions, negotiated outcomes and related commentary have indicated that establishing native title rights does not require an unchanging body of traditional law and custom, and how this, in practice, remains a difficult and contested area for anthropological research. It considered how further challenges are encountered in the implications of changing law and custom for managing and implementing acknowledged rights arising from claims.

Federal Court National Native Title User Group, Adelaide, 9 July 2008

On 9 July 2008, the Federal Court hosted a Native Title User Group workshop in Adelaide to discuss rethinking procedural elements of the native title framework. In particular, the workshop focused on how improvements could be made to Section 225 of the Native Title Act 1993. Section 225 sets out the details which must be met in order to make a determination which recognises native title. The workshop discussed ways in which Section 225 and Section 223 could be met in improving the operation of the Act, such as lifting the burden of proof from applicants, using Federal Court case management conferences to focus on contentious issues, changing attitudes towards collaborative approaches and using early evidence.

2007

National Native Title Conference, Cairns, 6-8 June 2007

At the National Native Title Conference 2007, in a session on 'Notions of group identity' on Friday 8 June, Dr Kingsley Palmer presented a paper discussing anthropologist's use of the terms 'community' and 'societies' in a native title legal context. The paper has since been revised and is available as an issues paper:

Getting Outcomes Sooner: A Workshop on Native Title Connection, Barossa Valley, 24-26 July 2007

From 24 to 26 July 2007, the Native Title Research Unit and the National Native Title Tribunal (NNTT) co-convened a workshop in the Barossa Valley in South Australia to discuss ways of getting better outcomes from native title connection processes.

The Getting Outcomes Sooner workshop focussed on issues in processing connection with the aim of identifying best practice approaches and exploring options for reaching agreement faster and more efficiently without compromising common law standards. The workshop aimed to identify how to improve the current system of connection research and assessment with more inventive and constructive models for settling matters of native title proof within mediation.

A balance of research, legal and government policy skills and experience was sought by organisers in determining attendance at the workshop which was attended by around 40 participants. Participants included two representatives from each State or Territory, representatives of the Federal Court, the Attorney-General’s native title branch, Native Title Representative Bodies (NTRBs) and Native Title Service Providers (NTSPs) from across the country, and independent barristers and consultant researchers. Workshop participants were asked to attend as technically-informed experts with an open mind, rather than as spokespersons for particular institutional viewpoints.

A recurring theme that emerged during the workshop was the need for connection processes to be scoped with all parties at the commencement of mediation processes and managed by an independent third party NNTT member. Another recurring theme was the need for building relationships between those involved in connection processes whilst acknowledging power differentials between State and Territory representatives and NTRBs/NTSPs representing the applicants.

Notes on the PowerPoint presentations that were made in plenary sessions at the workshop are available on request from toni.bauman@aiatsis.gov.au. A report on the workshop has been completed.