Problems of proof

7.7          As discussed in Chapter 2, the basis on which native title was recognised by the Australian legal system brings with it difficulties of proof. Native title involves the recognition that Aboriginal and Torres Strait Islander peoples had rights and interests in land and waters, possessed under Aboriginal and Torres Strait Islander laws and customs, which pre-existed and survived annexation. The time elapsed between the assertion of sovereignty,[15] and the Australian legal system’s recognition, in 1992, of the existence of native title means that evidencing the survival of those rights over approximately 200 years presents significant challenges.[16] Sackville J in Jango v Northern Territory provides a useful summation of some of these challenges:

Claimants in native title litigation suffer from the disadvantage that, in the absence of a written tradition, there are no indigenous documentary records that enable the Court to ascertain the laws and customs followed by Aboriginal people at sovereignty. While Aboriginal witnesses may be able to recount the content of laws and customs acknowledged and observed in the past, the collective memory of living people will not extend back for 170 or 180 years.[17]

7.8          The Court has also recognised that what written records do exist may have limitations. As Lindgren J noted,

early records made by European amateur and professional ethnographers are limited by the ethnocentric views of the writers and by the limits on their understanding of the language and culture of those about whom they wrote.[18]

7.9          In addition, the recognition of native title involves an ‘intersection of traditional laws and customs with the common law’.[19] There can be difficulties of translation between these two systems of law. Christos Mantziaris and Dr David Martin have noted:

It may be difficult or impossible to render comprehensible to a person located in a non-indigenous system of meaning (system A), the meaning of relations defined in the terms and concepts of the system of traditional law and custom (system B). A practical setting for this problem is where a judge is asked to determine the content of native title rights and interests.[20]

7.10       These challenges have been compounded by the approach to construing the statutory requirements for establishing native title. A number of submissions to this Inquiry emphasised the complexity of these requirements. For example, Queensland South Native Title Services (QSNTS) argued that s 223 is ‘unnecessarily complicated, fragmented and inconsistently interpreted and applied in practice’.[21] Goldfields Land and Sea Council (GLSC) commented upon the ‘unnecessary technicality and legalism in native title’.[22]

7.11       However, other stakeholders said that the current legal test for the proof of native title was not unduly onerous and time-consuming.[23] For example, the Western Australian Government submitted that:

Courts have interpreted the Yorta Yorta requirements broadly and generously. In the State’s experience, the Yorta Yorta requirements have seldom posed a significant barrier to the recognition of native title in a litigated context. In practice, the ‘bar’ is now low for the recognition of native title.[24]

7.12       Discharging the burden of proving that native title existsis a significant undertaking. In Yorta Yorta,the High Court acknowledged that ‘difficult problems of proof’ face native title claimants when seeking to establish native title rights and interests—particularly in demonstrating the content of traditional laws and customs as required by s 223(1)(a).[25] However, it also noted that ‘the difficulty of the forensic task does not alter the requirements of the statutory provision’.[26]

7.13       Native title claimants will rely on a range of sources of evidence to establish native title rights and interests, including, most importantly, evidence from Aboriginal or Torres Strait Islander witnesses.[27] Expert evidence is also routinely adduced, primarily from anthropologists, but also from other experts including linguists and archaeologists.[28] Expert evidence is considered in more detail in Chapter 12.

7.14       The evidence required to establish native title has attracted criticism, as well as calls for reform to ease the burden on claimants. In 2005, the United Nations Committee on the Elimination of Racial Discrimination stated that it was

concerned about information according to which proof of continuous observance and acknowledgement of the laws and customs of Indigenous peoples since the British acquisition of sovereignty over Australia is required to establish elements in the statutory definition of native title under the Native Title Act.… It recommends that the State Party review the requirement of such a high standard of proof, bearing in mind the nature of the relationship of Indigenous peoples to their land.[29]

7.15       Submissions from Native Title Representative Bodies and Native Title Service Providers also drew attention to the heavy burden that lies on the claimants in native title proceedings. For example, Native Title Services Victoria submitted that the current burden of proof in the Act is a significant evidentiary barrier faced by all native title claimants’.[30] The Law Council of Australia noted the ‘considerable’ onus on claimants.[31] The Northern Territory Government submitted that the provision of anthropological evidence was ‘enormously resource intensive’.[32]

Evidence in consent determinations

7.16       When a native title claim is resolved by consent, native title claimants do not have to prove their case in a court hearing, although the Court is still involved in making a formal determination of native title. As noted above, if an agreement between parties to a determination is reached, the Federal Court may, if satisfied that an order consistent with the terms of the agreement would be within the power of the Court[33] and it appears to the Court to be appropriate,[34] make a native title determination order over the whole or part of a determination area without a hearing.

7.17       In determining whether such an order is appropriate, the Court has stated that it is not required to embark on its own inquiry into the merits of the claim.[35] Instead, its focus is on whether there is an agreement between parties that was ‘freely entered into on an informed basis’.[36] In relation to a state or territory respondent party, this will involve the Court being assured that such a party has ‘taken steps to satisfy itself that there is a credible basis for an application’,[37] or is ‘satisfied as to the cogency of the evidence upon which applicants rely’.[38]

7.18       The Court has considered the appropriate extent of the investigation required by a state or territory respondent party to satisfy itself that there is a credible basis for an application for determination of native title. In Lovett on behalf of the Gunditjmara People v Victoria, for example, North J commented that ‘something significantly less than the material necessary to justify a judicial determination is sufficient to satisfy a State party of a credible basis for an application’.[39]

7.19       In negotiating consent determinations, state and territory respondent parties have developed a practice of requiring evidence about claimants’ connection to an area to be provided to them in the form of a ‘connection report’.[40] Formal guidelines regarding the kind of evidence required have been issued by a number of state governments.[41]

7.20       These guidelines largely reflect the governments’ understandings of the kind of evidence required to satisfy s 223 of the Native Title Act. For example, the Queensland Department of Natural Resources and Mines indicated that its requirements for the content of a connection report draw upon ‘the NTA and current Australian native title case law’, in setting out ‘the broader principles that should be addressed in a connection report to demonstrate the claim group’s native title’.[42] The Western Australian Department of Premier and Cabinet states that ‘the connection material provided in support of a native title claim must satisfy the requirements of ss 223 and 225 of the NTA and developing case law’.[43]

7.21       The Court has stressed that ‘The Act does not intend to substitute a trial, in effect, conducted by State parties for a trial before the Court’.[44] However, as the connection guidelines published by state governments indicate, such assessments are guided by understandings of the requirements of the substantive law in respect of native title. The assessment of connection evidence in consent determinations is considered further in Chapter 12.

A presumption in relation to proof?

7.22       A presumption in relation to proof of native title is perceived as one response to the difficulty of establishing the existence of native title rights and interests. It was first proposed by Justice French (as he then was) in 2008.[45] Justice French suggested that a presumption may ‘lighten some of the burden of making a case for a determination’ by lifting some elements of the burden of proof from native title claimants.[46]

7.23       A presumption has a specific meaning in a legal context, distinct from its ordinary meaning as an assumption of something as true, or a belief on reasonable grounds.[47]

7.24       A presumption of law is a rule of evidence that affects how a fact in issue is proved. A presumption of law operates so that when a fact—the ‘basic fact’—is proved, it must, in the absence of further evidence, lead to a conclusion that another fact—the ‘presumed fact’—exists.[48] In other words, a presumption that a fact exists will arise on proof of a basic fact. The presumption will operate unless rebutted by evidence to the contrary.[49] The amount of evidence required in rebuttal differs between presumptions.[50] Some may require ‘some’ evidence to be adduced, and ‘one way of stating the effect of such presumptions is to say that they shift the evidential burden of proof’.[51] Others may be rebutted only by adducing evidence ‘sufficiently cogent to persuade the tribunal of fact of the non-existence of the presumed fact’.[52] In other words, they can be seen as shifting the persuasive or legal burden of proof.[53]

7.25       An inference is distinct from a presumption of law. Presumptions have a formal role in the proof of a particular fact. By contrast,

An inference is a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law.[54]

7.26       When an inference is drawn, it may satisfy a burden of proof, but the ‘trier of fact decides whether to draw an inference and what weight to give to it’.[55]

7.27       There can be some imprecision in the distinction between presumptions and inferences. Where a fact in issue may be inferred from the proof of another particular fact in a commonly recurring situation, such an inference is often referred to as a ‘presumption of fact’.[56] Unlike a presumption of law, a court is not obliged to draw this inference. A presumption of fact plays no formal role in the allocation of a burden of proof. However, it can be said to cast a provisional, or tactical, burden of disproving the fact on the opponent of the issue.[57] As such, ‘the party proving the basic fact is likely to win on the issue to which the presumed fact relates, in the absence of evidence to the contrary adduced by the other party’.[58]

7.28       In Justice French’s model, the facts necessary to satisfy s 223(1) would be presumed to exist on the proof of certain basic facts, namely, that:

  • the native title claim group defined in the application applies for a determination of native title rights and interests where the rights and interests are found to be possessed under laws acknowledged and customs observed by the native title claim group;

  • members of the native title claim group reasonably believe the laws and customs so acknowledged to be traditional;

  • the members of the native title claim group, by their laws and customs, have a connection with the land or waters the subject of the application; and

  • 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.[59]

7.29       Justice French considered that the presumption should operate subject to proof to the contrary.[60]

7.30       Many stakeholders supported the introduction of a presumption.[61] A number of proponents of a presumption argued that it would reduce the resource burden on claimants to establish the elements necessary to prove the existence of native title,[62] and would place some of that burden more appropriately on state and territory respondent parties.[63] Related to this, a number of submissions argued that a presumption would reduce delay and speed resolution of claims.[64] The National Native Title Council made both these points, arguing that:

the adoption of a rebuttable presumption would help reduce the resource burden on the system (especially where continuity is undisputed), helping facilitate the expeditious resolution of native title claims.

Moreover, by reversing the onus of proof, the evidential burden is placed more appropriately on the State, which, by virtue of its ‘corporate memory’, is in a better position to elucidate on how it colonised or asserted its sovereignty over a claim area.[65]

7.31       Other submissions argued that a presumption would be appropriate on the basis that it was unjust or discriminatory to require native title claimants to prove their customary connection to their territories.[66] The National Congress of Australia’s First Peoples argued:

the current onus of proof mechanism is racially discriminatory as it rests on Aboriginal and Torres Strait Islander Peoples to claim and prove that we have customary connection to our territories. It also prevents Aboriginal and Torres Strait Islander Peoples from exercising and enjoying our rights and freedoms. This procedural requirement merely serves as a barrier to justice and an ongoing defensive mechanism for shielding the historical theft of lands, territories and resources.[67]

7.32       The ALRC considers that the extent of evidence required to establish native title is in tension with the Native Title Act’s object to recognise and protect native title.[68] However, the ALRC concludes that, rather than introducing a presumption—a reform affecting how facts in issue in native title matters are proved—it is preferable to amend the definition of native title itself.

7.33       In this regard, the ALRC makes a number of recommendations for change to the legal test for establishing native title, detailed in Chapter 5. The ALRC recommends that the Native Title Act make clear that:

  • traditional laws and customs may adapt, evolve or otherwise develop (Recommendation 5–1);

  • it is not necessary to establish continuity of acknowledgment and observance of traditional laws and customs substantially uninterrupted by each generation since sovereignty (Recommendations 5–2 and 5–3);

  • establishing the existence of a society united in and by its acknowledgment and observance of traditional laws and customs is not an independent element of establishing native title (Recommendation 5–4);

  • native title rights and interests may be transmitted, transferred between Aboriginal or Torres Strait Islander groups, or otherwise acquired in accordance with traditional laws and customs (Recommendation 5–5).

7.34       The ALRC considers that these changes will contribute to lessening the difficulty of the forensic task for claimants, and produce efficiency gains in the native title process, while maintaining the integrity of the doctrinal basis of native title.

7.35       While a presumption in relation to proof of native title has some merit, particularly in light of the difficulties in evidencing circumstances as they existed at sovereignty, the ALRC considers that the benefits of introducing a presumption do not substantially outweigh potential disadvantages, for a number of reasons.[69] It is not clear what effect a presumption would have on a number of aspects of native title proceedings, including the resolution of claims by consent, the resources involved in native title matters, and claimants’ control of evidence. The ALRC also considers that the development of native title jurisprudence, as well as case management in native title proceedings, has rendered the case for a presumption less compelling. The ALRC canvassed these issues in detail in the Discussion Paper.[70]

7.36       However, while the ALRC has not recommended that a presumption in relation to proof of native title be introduced into the Native Title Act, it considers that there is utility in providing some guidance in the Act as to when inferences in relation to proof of native title may be drawn. This is detailed further below.