A long and winding road: Issues of proof in native title in the second decade of the 21st century

4th Annual Native Title Conference
(Legalwise seminars)

RTF version

1 I pay my respect to the elders, past and present, of the traditional owners of the Nyoongar land on which we meet today to discuss native title.

2 I also thank the conference organisers for their kind invitation to make this presentation to a group of persons who are knowledgeable and experienced in the now well established field of native title law and practice in Australia.

3 What I would like to do in this presentation is, first, mention some of the legal and policy issues that have been left unresolved in recent times and then, secondly, note some of the issues that have been raised by the Australian Law Reform Commission (ALRC) in its current native title reference in relation to proof of native title.^[1]

4 As a serving judge, however, I will not attempt to provide any real answers to some of the questions asked, although I will make some observations about one of them.

5 I am sure, however, that people such as yourselves will, by reason of the knowledge and experience you have gained in the field, be instrumental in influencing the process by which many of these issues will be considered.

6 A range of current native title issues of a legal and policy kind have been identified in a recent article by Mr Nick Duff published in the latest issues of the Australian Indigenous Law Review.^[2]

7 Mr Duff notes that since 2007 the Native Title Act 1993 (Cth) has been amended three times. Two sets of amendments^[3] in 2007 effected the following changes:

• Altering the administrative and funding arrangements for native title representative bodies and service providers.
• Specifying consent determinations may be made over a part of a total claim area.
• Refining the way in which the Tribunal's mediation processes fit within the Court's own case management processes.
• Giving the Tribunal greater oversight functions within mediation.
• Introducing a new "inquiry" power for the Tribunal.
• Giving the Court the power to dismiss applications that have failed the registration test that are unlikely to be registered in the future.
• The amendment of s 66B to include consent, death or incapacity as grounds for replacing the applicant.
• The insertion of s 84D to empower the Court to require an applicant to demonstrate their continuing authorisation and also to allow the Court to hear and determine an application notwithstanding a defect in authorisation.

8 In 2009, a further amendment altered the Tribunal's role in mediating native title claims, allowing the Court to appoint non‑Tribunal mediators and also amended the arrangements for providing assistance to native title respondents and made the consent determination process more flexible.^[4]

9 In 2010 another amendment was made introducing s 24JAA to cover future acts relating to public housing and certain other social infrastructure.^[5]

10 Mr Duff describes these various changes as mostly procedural, technical and administrative, but not reflecting calls for more substantive change. In particular, he says, they did not respond to calls from those who believe native title should be simpler to prove and should provide a more meaningful cultural and economic asset once recognised.

11 Mr Duff notes that an important impetus for some elements of the most recent round of reforms was a 2008 speech by Justice French (as the Chief Justice of Australia then was) who offered three proposals:

1. allowing the Court to rely on statements of facts agreed by the parties when making consent determinations;

2. introducing a rebuttable presumption in favour of the existence of native title, provided certain conditions were met; and

3. disregarding historical extinguishment for example in relation to national parks by consent of the parties.^[6]

12 As we know the first of these proposals was reflected in one of the 2009 amendments. The third was the subject of exposure draft legislation released in 2010 by the then Government, but it has not since been implemented through amending legislation. The second proposal has not been adopted by any government although it was introduced (unsuccessfully) in a private member's Bill. It is also revisited in the ALRC Issues Paper 45, to which I will shortly turn.

13 The proposal by Justice French in relation to historical extinguishment was the subject of proposals in an exposure draft issued by the Attorney‑General's Department in 2010, which proposed the introduction of a new s 47C, which would prevent national parks or conservation reserves from extinguishing native title, but contained two significant limitations. It would apply only to on‑shore areas and would not take effect without the consent of the relevant government. Mr Duff says that while there were many supportive submissions in relation to this proposal, the State of Western Australia opposed the proposal. Its objections, he says, related to increased cost and complexity in managing the conservation estate, raised expectations among native title claimants and the Commonwealth's failure to assist the State in bearing its compensation burden.

14 Also released in 2010 was a joint discussion paper by the then Attorney‑General and Minister for Families, Housing, Community Services and Indigenous Affairs, "Leading practice agreements: maximising outcomes from native title benefits". Mr Duff points out that, while the paper dealt largely with executive policy matters, it did raise three potential amendments for discussion including reducing the notification period for registering Indigenous Land Use Agreements (ILUAs) and making it more difficult to object to their registration, and strengthening the right to negotiate over future acts by clarifying the definition of "negotiation in good faith".

15 Mr Duff points out that there was wide-ranging support for the proposed changes although the National Native Title Tribunal did not support the amendments to the ILUA provisions and did not support the statutory codification of the current "good faith" indicia, although it did suggest an amendment requiring parties to negotiate over substantive issues. Mr Duff notes the strongest opposition to amending the good faith requirements came from the Western Australian Government, which considered the Court had already provided sufficient certainty and that any more stringent requirements would impose an unacceptable procedural constraint on mining activity. It was less concerned, however, with the ILUA changes.

16 Some of these issues of substance, as Mr Duff has called them, are now the subject of the ALRC reference and raised in its Issues Paper 45, published in March 2014.

17 The terms of reference ask the ALRC to inquire into and report on Commonwealth native title laws and legal frameworks in relation to two specific areas, namely:

(1) connection requirements relating to the recognition and scope of native title rights and interests; and

(2) any barrier imposed by the Native Title Act's authorisation and joinder provisions to claimants', potential claimants' and respondents' access to justice.

18 I am sure that many of you will have already read the Issues Paper and will understand that the ALRC will next issue a discussion paper and eventually provide its final report to the Attorney-General by March 2015.

19 The Issues Paper asks a number of challenging questions, but I will note only some of them. As the questions are posed you will realise that they all cause us to reflect, one way or the other, on the seminal decisions of the High Court in native title, including Mabo v Queensland (No 2);^[7] Western Australia v Ward^[8]and Yorta Yorta.^[9] The more recent decisions of the High Court in Akiba^[10] and Western Australia v Brown^[11] will also come to mind.

20 The issue of connection and recognition concepts in native title law are expressly raised in the Issues Paper and the question is asked whether s 223 of the Native Title Act adequately reflects how Aboriginal and Torres Strait Islander people understand 'connection' to land and waters. If not, how is it deficient?

21 So far as the maintenance of a connection by law and custom since sovereignty is concerned, the question is asked whether a rebuttable 'presumption of continuity' should be introduced into the Native Title Act. If so, how should it be formulated:

(a) What, if any, basic fact or facts should be proved before the presumption will operate?

(b) What should be the presumed fact or facts?

(c) How could the presumption be rebutted?

22 Relevantly, the Issues Paper then asks what effect, if any, there would be on the practices of parties to native title proceedings if a presumption of continuity were introduced.

23 The Issues Paper further asks, what, if any, problems are associated with a need to establish that native title rights and interests are possessed under the traditional laws and customs of claimants. For example, what problems are associated with:

(a) The need to demonstrate the existence of a normative society "united in and by its acknowledgement and observance" of traditional laws and customs?

(b) The extent to which evolution and adaption of traditional laws and customs can occur?

24 The Issues Paper asks how these "problems" could be addressed.

25 Specifically, it asks whether there should be a definition of "traditional" or "traditional laws and customs" in s 223 of the Native Title Act and, if so, what this definition should contain.

26 The Issues Paper also recognises the debate that has revolved around the question of native title having a commercial nature – something touched on in the recent Akiba decision in the High Court – and asks whether the Native Title Act should be amended to state that native title rights and interests can include rights and interests of a commercial nature.

27 The Issues Paper also seeks to grapple with an issue that tends to arise in most native title claims, concerning physical occupation and continued or recent use. In that regard, the question is asked whether the Native Title Act should include confirmation that connection with land and waters does not require physical occupation or continued or recent use and, if so, how it should be framed; and if not, for what reasons.

28 Allied to all of those "connection" issues, the Issues Paper goes on to raise the question of "substantial interruption" – an issue that specifically owes itself to what was said in the High Court in Yorta Yorta, although this same issue was lurking in Mabo.

29 The question is asked as to what, if any, problems are associated with the need for native title claimants to establish continuity of acknowledgement and observance of traditional laws and customs that has been "substantially uninterrupted" since sovereignty.

30 In that connection, the further question is asked whether there should be a definition of "substantial interruption" in the Act and, if so, what it would contain. And should any such definition be exhaustive?

31 An interesting further question is asked whether the Court should be empowered to disregard substantial interruption or change in continuity "where it is in the interests of justice to do so."

32 As I said earlier, I do not today propose to attempt to answer any of these challenging questions. I would, however, sincerely encourage each of you to reflect upon these issues and, if you have not taken up the opportunity already, to consider personally or through organisations you are associated with, making an informed contribution to the work of the ALRC.

33 I would observe generally, however, that despite the proof issues identified in the Issues Paper, many determinations of native title have now been recorded in the Federal Court, a number made in contested determinations and many more by consent.

34 There is only one question in relation to which I would make some passing observations. That is one concerning a presumption of continuity. I do so fortified by the fact that it was the current Chief Justice of Australia who, prior to his elevation to that office, in 2008 lent his support to the reform proposal discussed in the Issues Paper. It is an issue that I think has real implications for the negotiation and case management of native title claims in the future.

35 The Issues Paper records the model for a presumption proposed by French J in 2008. It is worth reminding oneself just what this model proposed and to ask why it should not be legislatively adopted in the light of experience since the Act came into operation. His Honour proposed the following provision:

(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.

36 As the Issues Paper notes, at [85], in French J's model, the basic facts to be proved are those contained in (1)(a)‑(d). The onus would remain on the claimants to make these out. The presumed facts are those contained in (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. This model then is, as the ALRC puts it, a persuasive rather than an evidentiary presumption.

37 It may be said, I think, that if such a presumption of continuity were to be adopted then there would be a clear statutory starting point for connection discussions between claimants and respondents, particularly governments. No doubt practical obligations would fall upon claimants to produce primary information for the purpose of encouraging respondent parties not to contest the application of the presumption. At the same time, in a claim in which respondents had reasonable grounds for believing that claimants would have real difficulty in proving connection, they would not be prevented from demanding the claimants prove the existence of their title at a trial.

38 For my part, the question is whether a statutory presumption of continuity would advance the objects of the Native Title Act. In circumstances where respondents today, in native title proceedings throughout Australia, cooperatively seek to explore the possibility of the making of consent, rather than contested, determination of native title, and there is an ever growing number of consent determinations being made, as the State Attorney‑General, the Hon Michael Mischin, recently observed on the making of the consent determination in the Nyikina Mangala claim,^[12] the adoption of a statutory presumption of continuity would constitute a recognition of how native title law and practice has in fact developed in this regard over the past 20 years, and also provide an encouragement to consolidate and build upon that cooperative approach in the future.

39 My special interest as a judge of the Federal Court, having responsibilities in relation to the case management of native title proceedings in the Western Australian Registry of the Court, is to continue to discover and implement innovative ways of dealing with native title proceedings so that all native title proceedings in the Court can be resolved well, but also quickly and at the least possible expense to all the parties involved.

40 As many of you know, I am keen to trial new case management techniques not only to achieve the early resolution of connection issues, but also to identify what are likely to become significant tenure or extinguishment issues, at the earliest possible stage of proceedings. I am hopeful that before long questions of connection and tenure will be seen to go hand in hand and new approaches to their earlier resolution adopted.

41 Today, however, I do not address the tenure and extinguishment questions and I also note but do not discuss the authorisation, joinder and access to justice issues raised by the Issues Paper. Each of those other issues is important and continues to be the subject of consideration in a number of proceedings in the Court.

42 Today, as I say, I am pleased to note the range of connection issues that the ALRC has raised in Issues Paper 45 and, as I have also said, to encourage your active engagement in the process by which they are to be considered by the ALRC.

43 Thank you again to the organisers for your kind invitation to speak today.