7.2 The Native Title Act is designed to encourage parties to take responsibility for resolving native title claims without the need for litigation. The Preamble indicates the legislative preference for resolving native title claims by negotiation. 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.
7.3 In those proceedings, claimants bear the persuasive burden of proving all of the elements necessary to establish the existence of native title as defined in s 223. 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. Additionally, the native title rights and interests must be able to be recognised by the common law. 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. Doing so requires proving that native title was in existence before being extinguished.
7.5 Native title must be proved in accordance with the rules of evidence, except to the extent otherwise ordered by the Court. The standard of proof required is the civil standard—the balance of probabilities.
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. 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 and it appears to the Court to be appropriate, make a native title determination order over the whole or part of a determination area without a court hearing.
Lovett on behalf of the Gunditjmara People v Victoria  FCA 474 (30 March 2007) .
North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595,  (Brennan CJ, Dawson, Gaudron, Toohey and Gummow JJ).
Native Title Act 1993 (Cth) ss 13(1), 61(1).
In a legal proceeding, a party may bear a ‘burden’ or ‘onus’ of proof of different kinds. A ‘legal’ or ‘persuasive’ burden of proof is ‘the obligation of a party to meet the requirement of a rule of law that a fact in issue be proved (or disproved)’: J D Heydon, LexisNexis, Cross on Evidence, Vol 1 (at Service 164) . An evidential burden of proof is ‘the obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue’: .
Western Australia v Ward (2000) 99 FCR 316, – (Beaumont and von Doussa JJ); Daniel v Western Australia  FCA 666 (3 July 2003) ; Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) (2007) 238 ALR 1, . In a non-claimant application, the party making the application seeks a determination that no native title exists in a particular area. In such an application, the legal burden of establishing that no native title exists lies on the non-claimant applicant: Worimi Local Aboriginal Land Council v Minister for Lands (NSW) (No 2)  FCA 1929 (18 December 2008) . A non-claimant applicant may alternatively assert that no native title rights exists in the relevant land because any such rights and interests have been extinguished: Gandangara Local Aboriginal Land Council v A-G (NSW)  FCA 646 (3 July 2013).
Native Title Act 1993 (Cth) s 223(1)(a)–(b).
Ibid s 223(1)(c).
Ibid ss 50(2), 61(1).
See, eg, Jango v Northern Territory (2006) 152 FCR 150. Not all extinguishing acts can be compensated under the Native Title Act.Compensation is dealt with in Native Title Act 1993 (Cth) pt 2 div 5.
Native Title Act 1993 (Cth) s 82. The Evidence Act 1995 (Cth) recognises the unique circumstances involved in providing evidence of Aboriginal and Torres Strait Islander laws and customs, and provides exceptions to the hearsay and opinion rules in relation to evidence of the existence or non-existence or the content of such laws and customs: Evidence Act 1995 (Cth) ss 72, 78A. These exceptions were included in the Evidence Act in 2008, implementing recommendations from the joint ALRC, NSWLRC and VLRC Inquiry into Uniform Evidence Law: Evidence Amendment Act 2008 (Cth); Australian Law Reform Commission; New South Wales Law Reform Commission; Victorian Law Reform Commission, Uniform Evidence Law, ALRC Report No 102 (2006) Recs 19–1, 19–2.
Milirrpum v Nabalco  ALR 65, 119–20; Mason v Tritton (1993) 70 A Crim R 28, 42; Evidence Act 1995 (Cth) s 140.
See Ch 3 for an overview of the disposition of claims by consent or contested hearing.
Native Title Act 1993 (Cth) ss 87(1)(c), 87A(4)(a).
Ibid ss 87(1A), (2), 87A(4)(b), (5)(b).