21 March 2023 Katrina 33 Haig Street Normanton QLD 4890 Dear Katrina, Re: Native Title Application for North-Western Queensland Indigenous Group The following letter of advice outlines what your Indigenous group will need to demonstrate in relation to the possession of your rights historically, and how that could be demonstrated. Traditional Laws Acknowledged and Customs Observed As defined in the Native Title Act 1993 (Cth) ('the Act'), 'native title' is derived from traditional laws acknowledged and customs observed,1 which demonstrate a connection with land or waters.2 In order to be considered laws or customs, practices must have normative content: mere evidence of practices or behaviours does not necessarily determine that they are laws or customs or that they constitute rights.3 Furthermore, native title does not depend on how claimants' use or occupy the relevant land, but rather is determined by the laws or customs followed and the rights one has over the land.4 The existence of traditional laws and customs, the manner in which they demonstrate a connection to the land or waters and the maintenance of these laws and customs are matters of fact to be determined by the court.5 There are three requirements for native rights to be lawfully recognised as being derived from 'traditional' law and custom. The law or custom must:6 1 Native Title Act 1993 (Cth) 223(1)(a). 2 Ibid 223(1)(b). 3 De Rose v South Australia (2003) 133 FCR 325 [162]. 4 Ibid [173]-[176]. 5 Commonwealth v Yarmirr (2001) 208 CLR 1 [79]. 6 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 [46]; De Rose v South Australia (2003) 133 FCR 325 [165], [166]; Far West Coast Native Title Claim v South Australia (No 7) [2013] FCA 1285 [38], [39].
1) have been passed down from generation to generation; 2) have originated before the British sovereignty was imposed; and 3) be part of a system that has maintained a continuous existence and vitality since sovereignty. The requirement for laws or customs to have continuity since the British imposition of sovereignty has several ramifications. In the absence of an observant society, the laws or customs cease to exist and cannot be later revived, resulting in the erasure of native title.7 Furthermore, no new native title rights or interests can arise after the British imposition of sovereignty.8 To determine whether your Indigenous group's current practices amount to native title, the court will need to determine what relevant Indigenous laws or customs existed at the time the British imposed sovereignty.9 Additionally, native title claims may be supported by evidence of laws or customs being acknowledged or observed after a claim has been lodged, provided these activities are genuine and are not contrived.10 A biological link is not required between the current generation of your Indigenous group and those who occupied the relevant land at the time of British imposition of sovereignty.11 The absence of ancestors on the relevant land at the time of imposition of British sovereignty is not determinative of native title;