The Commonwealth government’s proposed amendments to the Native Title Act have attracted some mixed responses. But has the government missed a major opportunity to overhaul the act?

In a widely reported speech, Paul Keating criticised the government’s timidity, arguing it should instead have sought to remove the requirement that native title claimants prove a continuous association with claimed land and waters.

This is not the first time the former PM has made this call — in 2011 he argued that the “onerous burden of proof” placed on claimants had “substantially slowed the right of redress by Aboriginal people to adequate recognition of their rights in respect of land, water and other natural resources”.

What do claimants have to prove under existing legislation?

Native title law is notoriously complex, but four key elements are a connection to country; the continuity of this connection; and the traditional nature, both of the laws and customs under which rights are held, and of the society that acknowledges and observes the laws and customs.

The Native Title Act defines “native title” as “the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters”. It also provides that rights and interests must be possessed under traditional laws and customs and that the claimants must have a connection with the area through those laws and customs.

In the much-criticised 2002 Yorta Yorta decision, a majority of the High Court found that connection must have been continuous since the assertion of British sovereignty in the relevant area such that “acknowledgement and observance of … laws and customs must have continued substantially uninterrupted” (emphasis added).

The court also found that the society under whose laws and customs the native title rights are claimed to exist must have had a continuous existence and vitality since the assertion of British sovereignty.

Why is this so hard to prove? 

Meeting the onus is difficult owing to the realities of colonisation. The law makes no allowances for the reason continuity may have been interrupted — even if land was taken at gunpoint or indigenous groups were prevented from practising their laws.

The onus is particularly difficult to meet in the “settled south”, as demonstrated in the 2008 case Bodney v Bennell, in which the full Federal Court overturned a finding that the Noongar people held rights and interests in and around Perth (the question of how many of these rights had been extinguished was to have been determined at a later stage).

Among other things, the court considered that the trial judge had failed to ask whether there had been “unacceptable change” within Noongar society such that “the current rights and interests are no longer those that existed [in 1829], and thus not traditional”.

What would it mean to reverse the onus, as Keating suggests?

Reversing the onus of proof (sometimes more accurately referred to as creating a presumption of continuity) would mean that where a claim meets certain requirements, there is a presumption that claimants hold native title.

Therefore, instead of claimants proving that they did have a continuing connection, other parties — such as state and federal governments and mining companies and pastoralists with interests in the area — would have to prove claimants did not have such a connection.

However, given the extent of dispossession, this might not be too hard for other parties to prove: a great deal has been done since 1788 to fracture traditional laws and customs and interrupt connection.

Therefore, Greens Senator Rachel Siewert’s recent Private Member’s Bill not only proposed to reverse the onus, but also specifically provided that a court could overlook a substantial interruption in the acknowledgement and observance of traditional laws and customs where the “primary reason for the substantial interruption … is the action of a state or a territory or a person or other party who is not an Aboriginal person or a Torres Strait Islander”. It therefore seeks to make allowances for the damage wrought by colonisation.

The bill also defines “traditional laws” and “traditional customs” to allow for change over time, removes the requirement of continuity and states that a connection to land and waters need not be physical.

What about overlapping claims?

Governments, companies and pastoralists are not the only entities that can oppose a native title claim — two or more claim groups will often assert exclusive rights over the same area. A threshold test would therefore need to be met before a presumption of continuity could apply.

What do claimants get when they prove they hold native title?

When claimants are successful, the court makes a determination that recognises them as native title holders and sets out the rights and interests they hold (such as to hunt, fish, camp and conduct ceremonies), whether or not these rights are exclusive, and the area over which these rights exist.

Peter Fray

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