Proof of native title

7.2          The Native Title Act is designed to encourage parties to take responsibility for resolving native title claims without the need for litigation.[1] The Preamble indicates the legislative preference for resolving native title claims by negotiation.[2] Nonetheless, native title claims are commenced and conducted as legal proceedings in the Federal Court of Australia—they are proceedings under the Native Title Act.[3]

7.3          In those proceedings, claimants bear the persuasive burden[4] of proving all of the elements necessary to establish the existence of native title as defined in s 223.[5] As detailed in Chapter 4, native title claimants are required to show that, as a matter of fact, they possess communal, group or individual rights and interests in relation to land or waters under traditional laws acknowledged and customs observed by them, and that, by those laws and customs, they have a connection with the land or waters claimed.[6] Additionally, the native title rights and interests must be able to be recognised by the common law.[7] Whether they can be recognised is a question of law.

7.4          Aboriginal and Torres Strait Islander peoples may also claim compensation for the extinguishment of native title.[8] Doing so requires proving that native title was in existence before being extinguished.[9]

7.5          Native title must be proved in accordance with the rules of evidence, except to the extent otherwise ordered by the Court.[10] The standard of proof required is the civil standard—the balance of probabilities.[11]

7.6          Native title matters may be resolved by consent between parties—in fact, this is the most common means by which a native title determination has been reached.[12] 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[13] and it appears to the Court to be appropriate,[14] make a native title determination order over the whole or part of a determination area without a court hearing.