Sentences with phrase «traditional customs observed»

The first of these is that the rights and interests claimed as native title must be possessed by the claimants under the traditional laws acknowledged, and the traditional customs observed, by Aboriginal peoples or Torres Strait Islanders.

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

(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

whether the primary reason for any demonstrated significant change to the traditional laws acknowledged and the traditional customs observed by the Aboriginal peoples or the Torres Strait Islanders is the action of a State or Territory or a person who is not an Aboriginal person or Torres Strait Islander.

Native title is the legal recognition given to the traditional laws acknowledged by, and the traditional customs observed by, Indigenous people.

Native title rights and interests must be «possessed under the traditional laws acknowledged, and the traditional customs observed» by the claimants.

amending the definitions of «traditional laws acknowledged», «traditional customs observed» and «connection with the land or waters» in s 223 (1) of the Native Title Act [20]

Proposed s 223 (1A) and s 223 (1B), if passed, will define «traditional laws acknowledged» and «traditional customs observed» to encompass laws and customs that «remain identifiable through time».

amending the definitions of «traditional laws acknowledged», «traditional customs observed» and «connection with the land or waters» in s 223 (1) of the Native Title Act (item 13)

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.

[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.

[141] He also emphasised that connection to country must be current [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» traditional laws acknowledged and traditional customs observed.

Is the change or adaptation of such a kind that it can no longer be said that the rights or interests asserted are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples when that expression is understood in the sense earlier identified?

Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory.

[the Yorta Yorta] approach to the recognition of native title was dependent upon the existence of an authentic form of aboriginal culture — an argument which can be seen to flow from the original Mabo ruling which argued that «native title has its origins in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory».

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For these reasons the case fell short of showing that the contemporary laws and customs observed by people were traditional in the required sense.20

This difficulty is compounded by the fact that traditional laws and customs are transmitted orally from generation to generation, so evidence of these may be restricted or inadmissible under the hearsay rule.137 This is an issue that has been identified by the Australian Law Reform Commission in its Review of the Uniform Evidence Act 1995.138 The Commission proposes that the uniform Evidence Acts should be amended to provide an exception to the hearsay and opinion evidence rules for evidence relevant to Aboriginal or Torres Strait Islander traditional laws and customs.139 The Commission also observed that there are strong arguments that the NTA should be amended as the relevant provision does not provide sufficient guidance on or certainty on the admissibility of evidence in native title proceedings.140 However, legislative amendment to the NTA falls outside the terms of reference of this review.

The test for the recognition of native title was determined by the High Court's decision in Yorta Yorta.136 There the Court confirmed that to prove native title, claimants must show that the traditional owners group has existed as a community continuously since the acquisition of sovereignty by the British, and that in all that time they have continued to observe the traditional laws and customs of their forebears.

However, as I noted above, he concluded that the modifications to traditional law and custom that he observed were within the parameters of acceptable change and adaptation.

Instead of enquiring whether the laws and customs have continued to be acknowledged and observed substantially uninterrupted by each generation since sovereignty, [Justice Wilcox] asked whether the community that existed at sovereignty continued to exist over subsequent years with its members continuing to acknowledge and observe at least some of the traditional 1829 laws and customs relating to land.

Negotiation threshold tests (28) differ from state to state but essentially require the claimants to provide to the state evidence that they are the biological descendants of the traditional owners, (29) that they can demonstrate continuing connection with the land of their forebears, and that they have continued to observe their traditional laws and customs.

The ALRC observed that the central difficulty for proof of traditional laws and customs presented by the rules of evidence arises from the distinction between matters of fact and matters of opinion.

The trial judge thus refused to recognise traditional laws and customs unless they replicated the observed practices of the original inhabitants.

For instance in the Yorta Yorta (97) case the High Court left open the question of whether a change in the way in which a community acknowledges and observes their traditional laws and customs constitutes a break from those laws and customs or whether it constitutes an adaptation to changing circumstances.

He stressed that oral traditions in themselves will only «get you back so far», whereas native title claimants still have to prove traditional law and customs were observed by every generation back to the date of sovereignty which is nearly 200 years.

In particular the Court has left open the question of whether a change in the way in which a community acknowledges and observes their traditional laws and customs constitutes a break from those laws and customs or whether it constitutes an adaptation to changing circumstances.

In the Yorta Yorta decision the Court confirmed that to prove native title, claimants must show that the traditional owners group has existed as a community continuously since the acquisition of sovereignty by the British, and that in all that time they have continued to observe the traditional laws and customs of their forebears.

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.

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.

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.

The full Court holds that the NTA (ss.223 (1)-RRB- 40 does not require that every member of the native title claimant community must acknowledge and observe the relevant traditional laws and customs, nor that the claimants must necessarily establish they have continuously discharged their responsibilities under traditional law and custom.

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.

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):

In Yorta Yorta the High Court confirmed that the applicants must show that the traditional owner community has existed as a community continuously since the acquisition of sovereignty by the British and that in all that time they have continued to observe the traditions and customs of their forebears.

Were that not so, the laws and customs acknowledged and observed now could not properly be described as the 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].

ii) that the traditional laws and customs, the acknowledgment and observance of which provided the foundation of native title, have at no time since the acquisition of sovereignty by the Crown ceased to be acknowledged and observed [19]; and

i) that the holders of native title are members of an identifiable community which has, continuously since the acquisition of sovereignty by the Crown, been an identifiable community the members of which, under its traditional laws observed and traditional customs practised, have possessed interests in the relevant land [18];

In particular, the Commission seeks leave to challenge as erroneous and inconsistent with the enunciated human rights standards the following aspects of the approach of the trial judge, Olney J, in finding that before the end of the 19th century the claimant group had ceased to acknowledge and observe traditional laws and customs:

(a) the emphasis placed by the trial judge on the traditional laws acknowledged and customs observed by the original inhabitants of the area at the time radical title vested in the Crown, and the need to establish that those laws and customs continued to be observed until the present time, rather than on the traditional laws acknowledged and customs observed by the claimant group, contrary to the emphasis in paras 223 (1)(a) and (b) of the NTA on the present tense [9];

(e) by Branson and Katz JJ, that the burden on the Crown's radical title is the fact of native title and that the present day content of native title is to be ascertained by reference to the traditional laws and customs, as currently acknowledged and observed.

The claimants continue to observe a system of laws and customs derived from the system of traditional laws and customs of their ancestors; and

(a) that the laws acknowledged and customs observed by the native title claim group are traditional laws and customs acknowledged and observed at sovereignty

The system of traditional laws and customs observed by the group connects with the land and waters claimed.

(d) the members of the native title claim group reasonably believe that persons from whom one or more of them was descended, acknowledged and observed traditional laws and customs at sovereignty by which those persons had a connection with the land or waters the subject of the application.