Presumption of continuity

62. The process for determining whether native title exists in any particular case has often proved to be lengthy and costly.^[60] The substantive law requires native title claimants to prove continuity in the acknowledgment and observance of traditional laws and customs and the continued existence of the rights and interests which derived from those laws and customs from sovereignty through until the present day. This imposes a significant forensic burden on native title claimants.

63. The Terms of Reference direct the ALRC to consider whether there should be a presumption of continuity of acknowledgment and observance of traditional laws and customs and connection. This section sets out background to understanding how a presumption of continuity may affect the process for establishing native title. It outlines the process of proof in native title matters. It then explains the function of presumptions in legal proceedings, and asks questions about how a presumption of continuity might operate in native title matters.

Proof in native title

64. 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)’.^[61] 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’.^[62]

Proof in native title determination applications

65. The Native Title Act is designed to encourage parties to take responsibility for resolving native title claims without the need for litigation.^[63] The preamble indicates the legislative preference for resolving native title claims by negotiation.^[64] Nonetheless, native claims must still be commenced and conducted as legal proceedings in the Federal Court.^[65] In those proceedings, the Federal Court must apply the substantive law under which claimants must prove all of the elements necessary to establish the existence of native title as defined in s 223.^[66] The standard of proof required is the civil standard—the balance of probabilities.^[67]

66. In a non-claimant application, the party making the application seeks a determination that no native title exists in a particular area.^[68] In such an application, the legal burden of establishing that no native title exists lies on the non-claimant applicant.^[69]

Proof in consent determinations

67. Native title matters may be resolved by consent between parties. If an agreement between parties to a determination is reached, the Federal Court may, if it is satisfied that an order consistent with the terms of the agreement would be within the power of the Court^[70] and it appears to the Court to be appropriate,^[71] make a native title determination order over the whole or part of a determination area without a hearing.

68. In determining whether the order is appropriate, the Federal Court has stated that it is not required to embark on its own inquiry into the merits of the claim.^[72] Instead, its focus is on whether there is an agreement between parties that was ‘freely entered into on an informed basis’.^[73] In relation to State parties, this will involve the Court being satisfied that the State has taken steps to satisfy itself that there is a credible basis for an application for determination of native title.^[74]

69. In negotiating consent determinations, State 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’.^[75] Formal guidelines regarding the level of evidence required have been issued by a number of state governments.^[76]

70. The Federal Court has considered the appropriate extent of the investigation required by a State 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’.^[77]

Options for reform: a presumption of continuity?

71. 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).^[78] However, it also noted that ‘the difficulty of the forensic task does not alter the requirements of the statutory provision’.^[79]

72. Associate Professor Sean Brennan has summarised the effect of the judicial interpretation of what is needed to prove the existence of native title. Brennan suggests that to satisfy s 223 requires establishing ‘continuity’ in a number of senses:

• continuity of a society from sovereignty to the present;

• continuity in the observance of law and custom; and

• continuity in the content of that law and custom.^[80]

73. The difficulty of proving the existence of native title has attracted comment. For example, the concluding observations of the United Nations Committee on the Elimination of Racial Discrimination in 2005 stated:

The Committee is 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.^[81]

74. It has been suggested that one way to ‘ease the burden’ of establishing native title is to introduce certain rebuttable presumptions of law in relation to proof.^[82] In particular, it has been argued that there should be a rebuttable ‘presumption of continuity’ or a ‘presumption of continuous connection’ for native title.^[83]

75. Proponents of a legal presumption of continuity have argued that there are principled bases for its introduction. For example, it has been argued that it is ‘fundamentally discriminatory’ to require that Indigenous people who were dispossessed of land bear the burden of proof of connection to land and waters.^[84] The Law Council of Australia has argued that a presumption of continuity is consistent with the beneficial purpose of the Native Title Act.^[85]

What is a presumption?

76. Presumptions of law are rules of evidence that affect how a fact in issue is proved. Presumptions of fact, on the other hand, are not true presumptions at all, rather they are nothing more than inferences drawn from established facts.^[86]

77. How presumptions operate can be confusing. Former Justice of the High Court, the Hon John Dyson Heydon AC QC, describes them as causing ‘extraordinary perplexity’.^[87] Despite this, they are a convenient method of proving otherwise elusive facts.^[88] This section sets out some of the technical operation of presumptions generally, to provide a basis for considering how a presumption might work in native title matters.

78. 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.^[89] In other words, a presumption that a fact exists will arise on proof of a basic fact. The presumption will then operate unless rebutted by evidence to the contrary.^[90]

79. Once other evidence is called, however, the presumption has no inherent superadded weight.^[91] Judicial statements concerning the amount of rebutting evidence required vary from presumption to presumption and they sometimes differ with regard to the same presumption.^[92] In some cases, it is said that the presumption stands until ‘some’ evidence to the contrary is given. In other cases, it is said that the rebutting evidence must be ‘clear’, ‘strong’ or even ‘conclusive’.^[93]

80. As noted above, a presumption of law is distinct from an inference (sometimes called a presumption of fact). While presumptions have a formal role in the proof of a particular fact,

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.^[94]

81. 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’.^[95] 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.^[96] 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.^[97]

How could a presumption of continuity be formulated?

82. Any presumption introduced into the Native Title Act would involve a change in the way in which proof currently operates in native title matters. However, the legal test for establishing native title would not be affected. If a presumption were introduced, the persuasive onus of proof of certain basic facts would lie on native title claimants. Once these basic facts have been proved, the presumed fact would be found to exist unless rebutted. In other words, respondents in native title matters would be required to adduce evidence to rebut the existence of the presumed fact.

83. The way in which a presumption would operate in native title matters will vary significantly depending on how it is formulated. Such a presumption could be formulated in a number of different ways by varying:

• the basic facts required to be established;

• the facts that are presumed upon proof of the basic facts; or

• the way in which a presumption could be rebutted.

84. One model for a presumption in native title matters was offered as a basis for discussion by French J (as he then was) in 2008:

(1) This section applies to an application for a native title determination brought under section 61 of the Act where the following circumstances exist:

(a) 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;

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

(c) 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;

(d) 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.

(2) Where this section applies to an application it shall be presumed in the absence of proof to the contrary:

(a) that the laws acknowledged and customs observed by the native title claim group are traditional laws and customs acknowledged and observed at sovereignty;

(b) that the native title claim group has a connection with the land or waters by those traditional laws and customs;

(c) if the native title rights and interests asserted are capable of recognition by the common law then the facts necessary for the recognition of those rights and interests by the common law are established.^[98]

85. In French J’s model, the basic facts to be proved are those contained in cls (1)(a)–(d). The onus would remain on the claimants to make these out. The presumed facts are those contained in cls 2(a)–(c). When the basic facts are made out, the presumed facts will also be found to exist, unless rebutted by proof to the contrary: that is, French J’s model is a persuasive, rather than an evidentiary presumption.^[99]

86. It appears that the intent of such a provision would be to provide that, when the basic facts are made out, the facts required to satisfy ss 223(1)(a)–(c) will be presumed to exist. If this were the case, the presumption could be rebutted by evidence that goes to disprove the existence of any of these elements. To recall Associate Professor Brennan’s formulation, this could involve adducing evidence that establishes, on the balance of probabilities, that there has not been:

• continuity of a society from sovereignty to the present; or

• continuity in the observance of law and custom; or

• continuity in the content of that law and custom.^[100]

87. The ALRC is interested in comment on whether a presumption of continuity should be introduced into the Native Title Act. It also invites submissions addressing how a presumption could be framed. While stakeholders are welcome to comment on French J’s draft presumption, the ALRC is particularly interested in discussion of a range of ways in which a presumption of continuity could be formulated.

Possible effects of a presumption of continuity

88. The introduction of a presumption of continuity may have a number of possible effects on native title proceedings. Some stakeholders have suggested, for example, that the cost and resources involved in the preparation of connection reports on behalf of claimants would be reduced.^[101] However, others have noted that claimants will still be required to establish that the claim group are the right people for the claim area. Resources and research will still be needed to investigate these issues.^[102]

89. If a presumption were introduced, it may be anticipated that respondent parties would undertake research into claimants’ connection to a claim area to decide whether to challenge a presumption, and to gather evidence for rebuttal. The National Native Title Council (NNTC) has argued this is an appropriate allocation of resources, because state respondent parties are in a better position to provide evidence about ‘how it colonized or asserted its sovereignty over a claim area’.^[103]

90. The Centre for Native Title Anthropology has expressed concern about the prospect of respondent parties becoming ‘commissioners of native title research’.^[104] It warned that this may result in Aboriginal and Torres Strait Islander people involved in native title claims losing the capacity to ‘control the circumstances in which research about their history and culture occurs … and how it is managed in the future’.^[105]

91. Different views have been expressed about the possible effect of a presumption of continuity on the settlement of claims by consent. For example, it has been suggested that a presumption may prompt respondents to be ‘more inclined to settle claims with a strong prospect of success’.^[106] The NNTC has contended that, with a presumption, state governments might be ‘more inclined to negotiate earlier and more openly with the aim of spending less on the process and more on possible opportunities for Traditional Owners’.^[107]

92. However, the National Native Title Tribunal has warned that it is not possible to predict the impact that a presumption may have on the approach of respondent government parties and, in particular, whether there would be ‘more, or more timely, consent determinations recognising the existence of native title’.^[108]

93. The Western Australian Government has suggested that a presumption of continuity would ‘disrupt radically the existing processes for resolving claims’.^[109] It has stated that a presumption would have a ‘counter-productive’ effect, by requiring ‘State and Territory Governments to place renewed emphasis on identifying the flaws in connection evidence’.^[110]

94. The ALRC seeks comment about the effects that a presumption of continuity might have on practices in native title proceedings.

The presumption and overlapping claims

95. It is possible for more than one application for determination of native title to be registered over the same area of land or waters. In such cases, depending on how a presumption of continuity is formulated, it may be possible for more than one native title claim group to take the benefit of a presumption of continuity. The ALRC seeks comment about what procedure should deal with the operation of a presumption of continuity where there are overlapping native title claims.

96. The ALRC also seeks stakeholder views about whether a presumption of continuity should not be available in certain circumstances.