Recommendation 7–1 The Native Title Act 1993 (Cth) should provide guidance regarding when inferences may be drawn in the proof of native title rights and interests. The Act should provide that the Court may draw inferences from contemporary evidence that the claimed rights and interests are possessed under the traditional laws acknowledged and traditional customs observed by the native title claim group.
7.37 The ALRC recommends that the Native Title Act provide guidance regarding when inferences may be drawn in the proof of native title. In particular, the Act should provide that the Court may infer from contemporary evidence that the claimed rights and interests are possessed under the traditional laws acknowledged and traditional customs observed by the native title claim group. Such a provision may assist in proof of native title, particularly in circumstances where there are limited historical records in relation to the claim area.
7.38 The kinds of inferences that might be drawn from contemporary evidence include, for instance, that present day laws acknowledged and customs observed by the native title claim group have adapted or evolved from those acknowledged and observed at sovereignty. The ALRC recommends that the Native Title Act make clear that it is not necessary to establish that acknowledgment and observance of laws and customs has continued substantially uninterrupted since sovereignty: Recommendations 5–2 and 5–3. However, if these recommendations are not implemented, Recommendation 7–1 may assist in clarifying that the inference that acknowledgment and observance of laws and customs has continued substantially uninterrupted since sovereignty may also be drawn from contemporary evidence.
7.39 Legislative guidance for the drawing of inferences is consistent with the beneficial purpose of the Native Title Act. It is also consistent with acknowledging the importance of the recognition of native title, one of the ALRC’s guiding principles for reform. It will operate to provide legislative affirmation of the practice of the Federal Court in drawing inferences in relation to proof of native title. Further, it will indicate to state and territory respondent parties that it is appropriate to draw inferences from contemporary evidence when assessing whether a credible basis exists for an application for determination of native title in negotiating determinations of native title by consent.
Why recommend guidance for inferences rather than a presumption?
7.40 As detailed above, a presumption is a rule of law that requires the trier of fact to draw a conclusion that a fact in issue exists on proof of another fact or facts. An inference, on the other hand, is a conclusion that may be drawn by the trier of fact on the proof of another fact or facts. Unlike a presumption, the trier of fact is not required to draw this conclusion.
7.41 The ALRC did not make a proposal regarding inferences in the Discussion Paper, so received no submissions on this specific point. However, the Law Council of Australia explicitly submitted that guidance for the drawing of inferences should be provided in the Act. Other submissions to the Issues Paper provided some support for the utility of providing guidance for the drawing of inferences. As noted earlier, there may be evidential ‘gaps’ that exist when seeking to establish, as required by the substantive law of native title, that the laws and customs under which rights and interests are possessed have their origins in those acknowledged and observed at sovereignty. Submissions highlighted this issue. For example, GLSC drew attention to difficulties in bringing evidence to establish native title, noting that:
In many parts of Australia there is simply a lack of sufficient ethnographic research and other documentary evidence covering the relevant historical periods. And by the time claims come to trial, key witnesses may have died or be otherwise incapable of giving evidence. This means that native title claimants are at an automatic disadvantage in meeting the legal test, for reasons entirely unconnected with the merits of their claim.
7.42 Central Desert Native Title Services, in a submission supporting the introduction of a presumption, noted that a presumption would be beneficial
where there are gaps in the documentary evidence but where reasonable evidence of contemporary connection could be extrapolated to continuity of connection since sovereignty, for example where connection of grandparents and great grandparents to a particular area are within claimants’ living memories.
7.43 The ALRC considers that legislative guidance for inferences would be similarly beneficial in such instances, in providing explicit endorsement that such facts may found an inference as to the existence of facts satisfying s 223. Indeed, the ALRC considers that drawing an inference from contemporary evidence that the claimed rights and interests are possessed under the traditional laws acknowledged and traditional customs observed by the native title claim group can be seen as a ‘presumption of fact’—a fact in issue that may be inferred from the proof of another particular fact in a commonly recurring situation. As such, a provisional burden will fall on respondent parties in native title matters to bring evidence to challenge the drawing of such an inference. However, the formal evidential and persuasive burden of proof remains on claimants.
7.44 The ALRC considers that this recommendation, in conjunction with the recommendations to amend the definition of native title, provide much of the benefit of a presumption. It also accords with developing Federal Court jurisprudence on inferences in native title, detailed further below.
Inferences in native title cases
7.45 In Yorta Yorta it was observed that in many—perhaps most—native title cases, claimants will invite the Court to draw inferences about the content of traditional laws and customs at times earlier than those described in the claimants’ evidence. It is not possible, however, to offer any ‘single bright line test’ for deciding what inferences may be drawn or when they may be drawn.
7.46 Since Yorta Yorta, the Federal Court has given consideration to circumstances in which inferences may be drawn as to, for example, whether laws and customs are ‘traditional’, or whether such laws and customs have been continuously acknowledged and observed. In situations where the historical record is limited, or silent, in relation to a claim area, there is, as Barker J noted in CG (Deceased) on behalf of the Badimia People v Western Australia, ‘a question about what reasonable inferences may be drawn by the Court in respect of key issues from the evidence led at trial’.
7.47 Such difficulties of proof are not unique to native title law. Similar issues arise in proof of customary rights under English common law. To establish the existence of a custom enforceable at common law required, among other things, proof that the custom had existed since ‘time immemorial’. The difficulty of establishing the existence of a custom from time immemorial was eased by the courts’ willingness to infer from ‘proof of the existence of a current custom that that custom had continued from time immemorial’.
7.48 In Gumana v Northern Territory, Selway J noted the similarities between proof of the existence of traditional laws and customs for the purposes of establishing native title rights and interests, and proof of custom at common law. He observed:
There is no obvious reason why the same evidentiary inference is not applicable for the purpose of proving the existence of Aboriginal custom and Aboriginal tradition at the date of settlement and, indeed, the existence of rights and interests arising under that tradition or custom.
7.49 Selway J considered that, where there is
a clear claim of the continuous existence of a custom or tradition that has existed at least since settlement;
supported by credible evidence from persons who have observed that custom or tradition; and
evidence of a general reputation that the custom or tradition had ‘always’ been observed;
then, in the absence of evidence to the contrary, there is an inference that the tradition or custom has existed at least since the date of settlement.
7.50 The approach to the drawing of inferences set out in Gumana has been adopted in a number of subsequent cases. For example, in AB (deceased) (on behalf of the Ngarla People) v Western Australia (No 4), Bennett J accepted the claimants’ submission that
the Court is entitled to draw inferences about the content of the traditional laws and customs at sovereignty from contemporary evidence and that if the evidence establishes a contemporary normative rule, it may be reasonable to find that such a normative rule existed at sovereignty.
7.51 A similar approach is adverted to by Sackville J in Jango v Northern Territory, who noted:
If the indigenous evidence consistently favoured a particular set of laws and customs, an inference might well be available that the laws and customs described by the witnesses have remained substantially intact since sovereignty, or at least that any changes have been of a kind contemplated by pre-sovereignty norms.
7.52 The ALRC considers that Recommendation 7–1, if implemented, will have a flow-on effect to the approach taken by state and territory respondent parties in assessing connection evidence. Submissions and consultations in this Inquiry have indicated that state and territory respondent parties, in some circumstances, are willing to draw inferences in relation to the existence of certain facts when assessing connection evidence provided with a view to resolving a native title determination by consent. Indeed, John Catlin observed that ‘consent determinations invariably are a product of a combination of agreed facts and beneficial inferences about the available evidence’. Recommendation 7–1 will operate to provide further impetus to this approach.
7.53 For example, the South Australian Government submitted that it was willing, where appropriate, to draw inferences relating to information that is:
genealogical—many asserted relationships are accepted by the State without detailed analysis;
historical—the State often relies on historical assertions made by applicants where there is no other evidence;
anthropological—the State often accepts that contemporary differences from the historical description of a group’s traditional law and custom at sovereignty reflect an adaptation rather than a break in those traditions.
7.54 In reasons accompanying a determination of native title by consent in Lander v South Australia,Mansfield J agreed with the State of South Australia’s assessment that the evidence supported
the inference that the pre-sovereignty normative society has continued to exist throughout the period since sovereignty, and whilst there has been inevitable adaptation and evolution of the laws and customs of that society, there is nothing apparent in the Evidence to suggest the inference should not be made that the society today (as descendents of those placed in the area in the earliest records) acknowledges and observes a body of laws and customs which is substantially the same normative system as that which existed at sovereignty.
7.55 In relation to the western desert region of Western Australia, Central Desert Native Title Services (CDNTS) noted that Western Australia had generally accepted continuity of connection on the basis of evidence from ‘current senior claimants who have living memories of their grandparents and great grandparents’. In this regard, CDNTS submitted, ‘there effectively exists an unstated “presumption of continuity” for native title claims in the region’.
7.56 The Northern Territory Government also submitted that ‘in practice, a rebuttable presumption operates in the context of resolution of pastoral estate claims’. Additionally, the Northern Territory Government detailed the development of its streamlined process to resolve pastoral estate claims, which includes ‘not disputing the existence of native title holding group at sovereignty (subject to extinguishment)’.
7.57 The ALRC considers that an inference from contemporary evidence that the claimed rights and interests are possessed under the traditional laws acknowledged and traditional customs observed by the native title claim group is not prevented from being drawn when there exists any conflicting or equivocal historical evidence. While weight should be attached to such evidence, the ALRC considers that the correct approach is that contended for by the claimants in CG (Deceased) on behalf of the Badimia People v Western Australia:
where the ethnographic record is capable of more than one interpretation and on one interpretation it is consistent with other evidence in the proceeding (here the Aboriginal evidence) but on the other interpretation it is not, then the interpretation which is consistent with the other evidence should be preferred.
7.58 The ALRC considers that, similarly to proof of custom at common law, it is appropriate to make clear in the Native Title Act that the inference that the claimed rights and interests are possessed under traditional laws and customs is available from contemporary evidence. Such an approach is consistent with the ALRC’s guiding principles for reform in this Inquiry, allowing for due recognition of the rights of Aboriginal and Torres Strait Islander peoples, as well as assisting in the resolution of native title claims. Moreover, this approach to the drawing of inferences is increasingly necessary if the beneficial purpose of the Act is to be sustained as the date of Crown assertion of sovereignty grows more distant.
Australian Law Reform Commission, Review of the Native Title Act 1993, Discussion Paper No 82 (2014).
Law Council of Australia, Submission 35.
Australian Law Reform Commission, Review of the Native Title Act 1993, Issues Paper No 45 (2013).
Goldfields Land and Sea Council, Submission 22.
Central Desert Native Title Services, Submission 26.
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422,  (Gleeson CJ, Gummow and Hayne JJ). The Court has been prepared, in some native title cases, to draw an inference of continuity of generational transmission of law and custom, or of the claimant group’s descent from the original inhabitants of an area at sovereignty, and that the original inhabitants of an area were a society organised under traditional laws and customs: Neowarra v Western Australia  FCA 1402(8 December 2003) ; Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory (2004) 207 ALR 539, –; Sampi on behalf of the Bardi and Jawi People v Western Australia (2010) 266 ALR 537, – (North and Mansfield JJ).
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422,  (Gleeson CJ, Gummow and Hayne JJ).
CG (Deceased) on behalf of the Badimia People v Western Australia  FCA 204 (12 March 2015) .
Such customary rights may include, for instance, the use of an access path to a local church: Brocklebank v Thompson  2 Ch 344; or the playing of sports and other pastimes on a piece of land: New Windsor Corporation v Mellor  Ch 380. See also LexisNexis, Halsbury’s Laws of England, Vol 32 (2012) Custom and Usage.
LexisNexis, Halsbury’s Laws of England, Vol 32 (2012) Custom and Usage. See also Ulla Secher, Aboriginal Customary Law: A Source of Common Law Title to Land (Hart Publishing, 2014) 305.
Gumana v Northern Territory (2005) 141 FCR 457, .
Selway J stated that ‘evidence of a “custom” or tradition including evidence of what is believed about a custom or tradition … can be treated as evidence of “reputation” … Evidence can be given … of the “reputation” of the existence, nature and extent of Aboriginal custom by those subject to Aboriginal custom and by those who have studied it over a long period’: Ibid .
Sampi on behalf of the Bardi and Jawi People v Western Australia (2010) 266 ALR 537, –; Griffiths v Northern Territory (2006) 165 FCR 300, ; Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) (2007) 238 ALR 1, ; Wyman on behalf of the Bidjara People v Queensland (No 2)  FCA 1229 (6 December 2013) ; Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v Queensland (No 2)  FCA 528 (23 May 2014) –; AB (deceased) (on behalf of the Ngarla People) v Western Australia (No 4)  FCA 1268 (21 November 2012) .
AB (deceased) (on behalf of the Ngarla People) v Western Australia (No 4)  FCA 1268 (21 November 2012) .
Jango v Northern Territory (2006) 152 FCR 150, . In that case, Sackville J found that this evidence was not consistent: .
John Catlin, ‘Recognition Is Easy’ in Toni Bauman and Lydia Glick (eds), The Limits of Change: Mabo and Native Title 20 Years On (AIATSIS, 2012).
South Australian Government, Submission 34.
Lander v South Australia  FCA 427 (1 May 2012) .
Central Desert Native Title Services, Submission 26.
Ibid. However, there was also some criticism that state respondent parties were not readily drawing inferences as to continuity of connection: see Queensland South Native Title Services, Submission 24.
Northern Territory Government, Submission 31.
As contended by the State of Western Australia in CG (Deceased) on behalf of the Badimia People v Western Australia  FCA 204 (12 March 2015) .