3.53 The increasing numbers of consent determinations since 2011 is a positive trend. However the ALRC does not consider this trend, and the small number of ‘no native title’ determinations, to be sufficient evidence to conclude that the connection requirements of the Native Title Act provide for the appropriate recognition and protection of native title.
3.54 Increasing numbers of consent determinations could indicate that in certain areas of Australia, the current connection requirements do not pose any barrier to the recognition of native title. However, those requirements might present significant evidential difficulties in other areas, perhaps areas more affected by the actions of settlers and governments.
3.55 While the Native Title Act operates across all states and territories, the extent to which native title is recognised, and the scope of native title rights and interests recognised, varies considerably across Australia.
3.56 Historical factors relating to the timing of British sovereignty and the dispossession or displacement of Aboriginal and Torres Strait Islander people are relevant to that variation. In turn, different patterns of settlement may influence the extent to which evidence of connection is available in any particular part of Australia. Anthropological material and historical records also may vary in availability across the country. Therefore, in some locations, the requirements for connection in s 223 of the Native Title Act may be more readily met than in other parts of Australia. These factors have a bearing on whether consent determinations are pursued.
3.57 The prevalence of consent determinations may reflect the willingness of some state governments to enter into consent determinations in situations where claimants would not meet the stringent tests set out in Yorta Yorta. However native title holders are entitled to the protection of law, rather than to depend on the good will of governments. It would not be reasonable to leave the protection of native title on this basis. Central Desert Native Title Services said:
although some governments may take a practical approach with regards to continuity, the actions of government can vary significantly depending on both the particular government, and the people within it.
3.58 Other stakeholders raised concerns about variation in state respondents’ policies regarding connection requirements and settling native title claims. Some variation is to be expected, but this variation highlights the need for negotiations to be conducted in the context of law that appropriately recognises and protects native title and sets a fair and reasonable standard of proof of native title.
3.59 Very few native title claimants have received a determination that native title does not exist. The ALRC does not consider this to be evidence that the connection requirements are aligned with the objects of the recognition and protection of native title. Presumably claim groups with claims that might not meet the statutory criteria would not go to a hearing where extensive proof is required, where they would risk having their claims dismissed and determinations made that native title does not exist. Instead, a claimant might enter into a negotiation for a consent determination with the poor bargaining position that comes from the awareness of both sides that the claimant is likely to fail at hearing. Compromises would be likely regarding such things as boundaries, the extent and nature of native title rights and interests, and compensation for extinguishment. AIATSIS reported that
resource intensive challenges to native title claims are at times avoided only by the applicant agreeing to enter an arrangement with the respondent, whereby many of the rights that could be gained from a determination are abrogated. 
3.60 Consent determinations in those circumstances may be less advantageous (from a claimant perspective) than a consent determination reached in the context of a reformed s 223 (as recommended in Chapter 5). The confidentiality associated with negotiations for consent determinations means that these propositions cannot be fully tested. But it is a normal part of negotiations that parties bargain ‘in the shadow of the law’.
Aboriginal and Torres Strait Islander Social Justice Commissioner, ‘Social Justice and Native Title Report’ (Australian Human Rights Commission, 2013) 81.
See for example the discussion of the settlement of the ‘waste lands’ of Queensland in Wik v Queensland (1996) 187 CLR 1, –.
Aboriginal and Torres Strait Islander Social Justice Commissioner, ‘Social Justice and Native Title Report’ (Australian Human Rights Commission, 2013).
The requirements for proof of native title are discussed in Chs 4 and 7.
Central Desert Native Title Service, Submission 48.
Queensland South Native Title Services, Submission 24; North Queensland Land Council, Submission 17; Just Us Lawyers, Submission 2.
AIATSIS, Submission 36.
Queensland South Native Title Services, Submission 24; Robert N Mnookin and Lewis Kornhauser, ‘Bargaining in the Shadow of the Law: The Case of Divorce’ (1979) 88 Yale Law Journal 950. Government respondents have common law model litigant obligations and in some jurisdictions, these obligations are expressed in legislation and policy. Some concerns have been expressed about compliance with these rules and the lack of enforcement options: Productivity Commission, Access to Justice Arrangements (2014) 429–440.