Problems of proof

4.42       The Terms of Reference for this Inquiry require the ALRC to consider whether there should be a ‘presumption of continuity of acknowledgment and observance of traditional laws and customs and connection’. The ALRC considers that it is not necessary to introduce such a presumption in light of other proposed reforms. It considers that issues with proof of native title should be addressed by amendments to the definition of native title in s 223 of the Native Title Act. These proposed amendments are detailed in subsequent chapters.^[71]

Proof in native title

4.43       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)’.^[72] 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’.^[73]

Proof in native title determination applications

4.44       Native claims are commenced and conducted as legal proceedings in the Federal Court—they are proceedings under the Native Title Act.^[74] 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.^[75] The standard of proof required is the civil standard—the balance of probabilities.^[76]

4.45       Native title matters may also be resolved by consent. 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^[77] and it appears to the Court to be appropriate,^[78] make a native title determination order over the whole or part of a determination area without a hearing.

4.46       In Yorta Yorta,the High Court acknowledged that ‘difficult problems of proof’ face native title claimants when seeking to establish the existence of native title rights and interests—particularly in demonstrating the content of traditional laws and customs as required by s 223(1)(a).^[79] However, it also noted that ‘the difficulty of the forensic task does not alter the requirements of the statutory provision’.^[80]

4.47       A number of the submissions to this Inquiry emphasised the complexity of establishing that native title exists. For example, Queensland South Native Title Services (QSNTS) argued that s 223 is ‘unnecessarily complicated, fragmented and inconsistently interpreted and applied in practice’.^[81] Goldfields Land and Sea Council commented upon the ‘unnecessary technicality and legalism in native title’.^[82]

4.48       However, other stakeholders said that the current legal test for the proof and recognition of native title was not unduly onerous and time-consuming.^[83]

A presumption in relation to proof?

4.49       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.^[84] Justice French considered 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.^[85]

4.50       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.^[86]

4.51       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.^[87] 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.^[88] The amount of evidence required in rebuttal differs between presumptions.^[89] Some may require ‘some’ evidence to be adduced. Others may be rebutted only by adducing evidence ‘sufficiently cogent to persuade the tribunal of fact of the non-existence of the presumed fact’.^[90]

4.52       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;

• 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.^[91]

4.53       Justice French considered that the presumption should operate subject to proof to the contrary.^[92]

4.54       Many stakeholders supported the introduction of a presumption,^[93] and many of these supported the model proposed by Justice French, in whole or in part.^[94]

4.55       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,^[95] and would place some of that burden more appropriately on state and territory respondent parties.^[96] Related to this, a number of submissions argued that a presumption would reduce delay and speed resolution of claims.^[97] Other submissions argued that a presumption would be appropriate on the basis that it is unjust or discriminatory to require native title claimants to prove their customary connection to their territories.^[98]

4.56       However, the ALRC considers that, rather than proposing a presumption—a reform affecting how facts in issue in native title matters are proved—it is preferable to propose amendments to the definition of native title itself. These are detailed in Chapters 5 and 7. The ALRC agrees with the observation of Mr Angus Frith and Associate Professor Maureen Tehan that the benefits of introducing a presumption must substantially outweigh potential disadvantages.^[99] The ALRC considers that such a substantial benefit has not been demonstrated, for a number of reasons. 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. These matters are considered in more detail below.

Effect on resolution of claims by consent

4.57       Introduction of a presumption may affect parties’ practices in ways that are detrimental to claim resolution, particularly in relation to resolution of claims by consent.

4.58       Most claims are now resolved by consent.^[100] For example, the South Australian Government’s submission noted that it has ‘only contested one native title matter since the resolution of De Rose, and that was set down for trial without going through its [consent determination] process. All other determinations have been by consent’.^[101] Similarly, the Northern Territory Government submitted that there had been no substantive litigated claims in the Northern Territory since 2007.^[102]

4.59       Some submissions suggested that a presumption would strengthen the position of claimants in negotiations to resolve native title determination applications.^[103] However, resolution of claims by consent currently occurs in the context of a state or territory respondent party being in a position to be satisfied of the existence of native title rights and interests on the basis of claimants’ provision of ‘connection material’—factual material capable of demonstrating the existence of the claimed native title rights and interests.

4.60       If more limited material sufficient to establish the basic facts of a presumption were to be provided by claimants, the willingness of state and territory respondents to agree to a determination is not clear.^[104] In this, the ALRC agrees with the observation of the National Native Title Tribunal that it is not possible to predict whether introducing a presumption would result in ‘more, or more timely, consent determinations recognising the existence of native title’.^[105]

Will a presumption ‘reduce the burden’ on claimants?

4.61       It is also unclear that the introduction of a presumption will have the effect of reducing the evidentiary burden on claimants. Even some advocates of a presumption conceded that the projected savings of time and resources rely on respondent parties electing not to rebut it.^[106] AIATSIS, for example, cautions that

There is a risk that little will be gained by a presumption that States actively seek to rebut, by adducing evidence that supports an argument of discontinuity and to which claimants would then be forced to mount proof of continuity in any event.^[107]

4.62       The Northern Territory Government submitted that a presumption ‘would not obviate the Northern Territory’s requirement to assess evidence of connection’.^[108] Similarly, the Western Australian Government submitted that it

would still be obliged to undertake a due diligence process in respect of claims if a presumption of continuity was introduced … It is unlikely the State would compromise due diligence by streamlining its connection assessment process, so in a consent determination context it is unlikely that there would be significant time savings … In a contested context, it is likely that the State or other parties (including competing Indigenous parties) would seek to test the various elements comprising the presumption.^[109]

4.63       Stakeholders who supported the presumption noted that claimants would still need to undertake research in the preparation of a claim, including research to establish that the claim group are the right people for the claim area.^[110] Time and resources will be needed to investigate these issues. Some stakeholders considered that this would still involve a reduction in overall time and expense spent on claim preparation.^[111] However, QSNTS considered that

no decline in the requisite work to prove native title may occur, at least in the short to medium term upon the presumption’s introduction. … We suggest that it is sound legal strategy for the claim group to still nevertheless prepare its material in case it needs to evidence facts required to be shown pursuant to ss 223(1)(a)­–(b) of the Act in those circumstances where the State is able to provide evidence to rebut that presumption.^[112]

Effect on quality of applications

4.64       State and territory governments also expressed concern that a presumption may, variously, promote applications by those who do not hold traditional rights and interests in an area,^[113] or affect the quality of the evidence establishing the group and the rights and interests held.^[114] The South Australian Government submitted that, in contested matters,

the Court would not be in receipt of anthropological and historical material explaining the basis of the rights sought and the structure of the native tile group asserting native title. Such a situation does not seem appropriate to deliver just decisions (for either the applicants or the respondents).^[115]

Claimants’ control of evidence of relationship to land and waters

4.65       The ALRC considers that the introduction of a presumption may have an unfavourable effect on claimants’ control of the narrative of their connection to land and waters. AIATSIS raised concerns that, if state and territory respondent parties seek to rebut a presumption, ‘claimants will likely be asked to respond to anthropological research by State-commissioned researchers’. They considered that this could ‘undermine cohesion within Indigenous communities’, and may involve an engagement with claimants, ‘without responsibility or capacity to resolve disputes or to understand their location within the broader dynamics of a claimant group or its neighbours’.^[116]

4.66       AIATSIS’s concerns echoed those raised by the Centre for Native Title Anthropology, which has warned that Aboriginal and Torres Strait Islander people involved in native title claims may lose the ‘capacity to control the circumstances in which research about their history and culture occurs … and how it is to be managed in the future’.^[117] Such control may be particularly important in factual circumstances such as claims in relation to urban areas, or where there has been significant historical removal of groups from claimed areas. In such cases, it may be beneficial to claimants to themselves contextualise and structure the evidence of their connection to land or waters.^[118]

4.67       The South Australian Government also expressed concerns about the role of a respondent party in gathering evidence to rebut a presumption, submitting that, in present negotiations to settle native title matters,

Claimants are prepared to release their information knowing it will be handled sensitively and on the basis that it will not be disclosed further without their consent … On occasion, State representatives have gone on country with claimants and their representatives to fill gaps in the material.^[119]

4.68       However, it observed that ‘it is unlikely that this collaboration would be offered if it were for the State to disprove presumptions of continuity’.^[120]

Federal Court case management

4.69       The Federal Court’s submission detailed case management strategies that have been adopted by the Court to assist parties to reach agreement on connection issues. For example,

• In South Australia and Queensland the Court has, in particular claims, facilitated case management conferences at which the experts for the Applicant and State confer to identify the issues likely to be most contentious prior to the commencement of anthropological field work. …

• In the Northern Territory, Western Australia, South Australia, Victoria and Queensland the Court has in various matters made orders that the experts confer under the supervision of a Registrar of the Court to identify those matters and issues about which their opinions are in agreement and those where they differ. These conferences have usually taken place in the absence of the parties’ lawyers and have been remarkably successful in narrowing connection issues, often resulting in agreement between the experts on all matters.^[121]

4.70       In light of this information, the ALRC considers that some of the assistance that a presumption would provide in narrowing the issues in contention in native title matters has been accomplished through other means.

Inferences in relation to proof of native title

4.71       The ALRC also notes the preparedness of the Court, where appropriate, to draw inferences as to the existence of facts satisfying s 223. Additionally, submissions to this Inquiry suggest that there is an increased preparedness on the part of state and territory respondent parties to draw inferences in the context of agreeing to consent determinations. The ALRC considers that this approach to proof of native title rights and interests is appropriate, and that the increased willingness to draw inferences to satisfy the burden of proof makes the case for the introduction of a formal presumption in native title matters less compelling.

4.72       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.^[122]

4.73       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’.^[123]

4.74       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’.^[124] Unlike a presumption of law, a court is not obliged to draw this inference. However, ‘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’.^[125]

4.75       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.^[126] 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.^[127]

4.76       Cases since Yorta Yorta have elaborated on the 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 this, guidance has been taken from the approach to proof of customary rights at English common law.^[128]

4.77       To establish the existence of a custom enforceable at common law required, among other things, proof that the custom had existed since ‘time immemorial’.^[129] 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’.^[130]

4.78       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.^[131] He observed that

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.^[132]

4.79       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.^[133]

4.80       The approach to the drawing of inferences set out in Gumana has been approved in a number of subsequent cases.^[134] 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.^[135]

4.81       State and territory respondent parties, in some circumstances, are also willing to draw inferences in relation to proof of certain facts in native title matters. Indeed, Mr John Catlin has observed that ‘consent determinations invariably are a product of a combination of agreed facts and beneficial inferences about the available evidence’.^[136] For example, the South Australian Government submitted that it is 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.^[137]

4.82       In reasons accompanying a determination of native title by consent in Lander v South Australia,Mansfield J agreed with 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.^[138]

4.83       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’.^[139]

4.84       The Northern Territory Government also submitted that ‘in practice, a rebuttable presumption operates in the context of resolution of pastoral estate claims’.^[140] 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)’.^[141]

4.85       The ALRC considers that it is appropriate for the Court and respondent parties to accept that a ‘presumption of fact’, or inference, arises on proof of the circumstances set out in Gumana. Such an approach to the drawing of inferences will increasingly be necessary if the beneficial purpose of the Act is to be sustained as the date of Crown assertion of sovereignty grows more distant.