Native Title Law
Traditional law and custom
The body of law and practices maintained by an Aboriginal or Torres Strait Islander group from before British sovereignty, which forms the basis of their native title claim. Courts assess whether these laws and customs have been maintained continuously to the present.
The body of law and practices maintained by an Aboriginal or Torres Strait Islander group from before British sovereignty, which forms the basis of their native title claim. Courts assess whether these laws and customs have been maintained continuously to the present.
Traditional law and custom is the body of laws, customs, rules and practices that an Aboriginal or Torres Strait Islander group has maintained from before the acquisition of British sovereignty over Australia. It is the source of native title rights: native title arises under and is acknowledged by the traditional laws and customs of the relevant group, not under Australian property law. For a native title determination to succeed, the claim group must establish that their traditional laws and customs have been maintained substantially in the same form from before sovereignty to the present. Courts do not require proof of a frozen or unchanging culture; traditional laws and customs can adapt and evolve while retaining their essential character. What must be shown is a normative system of rules that has been maintained within the community. Evidence of traditional law and custom is a central component of connection evidence and is addressed in the anthropological reports and oral evidence submitted in native title proceedings.
Related terms
Native Title Law
Native title
The recognition by Australian law of Aboriginal and Torres Strait Islander peoples' rights and interests in land and waters, held under traditional laws and customs. Recognised under the Native Title Act 1993 (Cth) where those rights have been maintained since before British sovereignty and have not been extinguished.
Native Title Law
Connection evidence
Evidence that a native title claim group has maintained their traditional laws, customs and connection to the claim area from before British sovereignty to the present. A fundamental requirement for a successful native title determination.
What this means in practice
Native title law uses a specialist vocabulary. Understanding what a term means in its legal context helps Traditional Owner groups, PBCs and community members follow their matter, and ask better questions of their lawyer.
If the definition above raises a question specific to your claim, compensation matter or PBC, David Saylor is available to discuss it directly.