Additional Comments from the Australian Greens
1.1
The Australian Greens support the findings of the majority report of the
Senate Standing Committee on Legal and Constitutional Affairsbut do not
believe that either the legislation or the committee report go far enough in
addressing the need for more fundamental reform to the Native Title Act. In
particular, we share the concerns of a number of witnesses (including the
National Native Title Council (NNTC) and the Australian Human Rights Commission
(AHRC)) that these relatively minor amendments represent a missed opportunity
to address the current limitation of the Native Title Act and to deliver on the
intent of the Act to deliver justice and tangible benefits to Australia's first
peoples[1].
1.2
Native title should offer an opportunity for Aboriginal Australians and
Torres Strait Islanders to participate in the management of their land,
maintain and enhance their cultural responsibilities and spiritual connection
to it, and benefit from the sustainable use of its resources. The fact that the
system of native title law to date has not enabled them to do so is an
indictment on the legal framework for native title, and the way it has
facilitated misuse of its processes by state and territory governments to
frustrate the rights of the traditional owners of the land.
Proposed Amendments
1.3
The amendments proposed in the Native Title Amendment Bill 2009 were
considered to be minor and non-controversial by most of the witnesses to the
inquiry, with the National Native Title Tribunal (NNTT) raising some concerns
over how the changes would potentially impact on their ongoing operations.
1.4
As Tony McAvoy on the NNTC put it:
...the amendments that are proposed in this amendment bill are
not controversial. They may make some small difference but they are not going
to make any vast change in the way in which native title matters are dealt
with. There is not going to be any rush of settlement of native title
applications as a result of any of these amendments.[2]
1.5
These comments reflect the recent analysis of (now) Chief Justice Robert
French, who argues that the heavy burden on the principal parties to native
title litigation is a result of these claims being proceedings conducted in the
Federal Court and so '... their resolution is, to a degree, constrained by the
judicial framework...' particularly its requirement that '...applicants prove all
elements necessary to make out the continuing existence of native title rights
and interests within the meaning of the NTA and their recognition by the
common law.'[3]
1.6
The AHRC also argued that further reforms were necessary to realise the
human rights of Aboriginal and Torres Strait Islander peoples and to enact our
international commitments. The Australian Greens consider that the amendments
suggested by the AHRC have merit, and recommend that the Government consider
their adoption.
1.7
The AHRC also drew to the attention of the committee the latest
statement from the United Nation's Human Rights Committee, which '...notes with
concern the high cost, complexity and strict rules of evidence applying to
claims under the Native Title Act. It regrets the lack of sufficient steps
taken by the State party to implement the Committee’s recommendations adopted
in 2000.'[4]
1.8
The small number of submissions to this inquiry by Aboriginal
organisations possibly reflects both the minor nature of these changes and the
short timeframe the inquiry allowed for submissions. Given the current
problems, costs and delays faced by parties to the native title process and the
significant concerns with other aspects of the native title process that have
been highlighted over the last decade it is disappointing that more significant
reforms have not been brought forward by the Rudd Government at this point.
Burden of Proof
1.9
The most significant relatively simple amendment that could be made at
this time to help with actually '...achieving more negotiated native title
outcomes in a more timely, effective and efficient fashion'[5]
(as the Attorney General claims is the intent of this Bill) was, in the view of
the vast majority of the witnesses who addressed this issue the burden of proof
placed onto native title claimants to prove connection and continuity.
1.10
The AHRC argues that:
It cannot be disputed that Indigenous peoples lived in
Australia prior to colonisation and that the Crown was responsible for the
dispossession of Indigenous peoples throughout Australia. It has also been
acknowledged by governments over time through various policies, laws and
statements of recognition, including the creation of land rights regimes and
other mechanisms, that Indigenous peoples are the Traditional Owners of the
land.
It is in this context that the Commission argues that it is
unjust and inequitable to continue to place the demanding burden of proving all
the elements required under the Native Title Act on the claimants.[6]
1.11
The NNTC argued that the burden of proof placed onto native title
claimants unfairly ties them up in long-winded and costly research and
litigation, arguing that in the Federal Court:
The state is a party and is entitled in the way that the law
is presently structured to demand that the party seeking the remedy prove its
case; it is entitled to do that. It can sit in mediation and require the
applicant to prove each point to a level of satisfaction. Whilst in a spirit of
settlement that might seem to be unreasonable, it is a long way short of being
in bad faith or of there being an absence of good faith.[7]
1.12
On these grounds the NNTC argues that improving mediation processes and
referrals or making changes to 'good faith' provisions will not result in a
dramatic increase in the number of successful native title claims or the speed
with which they are resolved, because:
Unfortunately, for many traditional owners, simply reaching
the point of getting into substantive negotiations with any of the respondent
parties is a hurdle that many have been unable to attain as yet. In many cases,
the state will not even talk to them about serious settlement because they have
not presented a connection report.[8]
1.13
The NNTC further argued that:
The longest delay is in getting into discussions and
concluding discussions with the respondent parties, and invariably the primary
respondents are state governments or the Commonwealth. That is where the real
delays and problems are, and that is where this shifting of the onus of proof
will have great effect.
1.14
Instead the NNTC argue for a rebuttable presumption of continuity, along
the lines suggested by Justice French.
...if the parliament is interested in bringing forward
settlement of native title applications and reducing the cost associated with
the hundreds of applications that are presently before the court then a simple
measure—one which is described by Chief Justice French in his paper as a modest
proposal—would be to introduce a presumption of continuity. It would require a
number of small provisions to be inserted into the legislation.
1.15
It is my
submission that having inserted those provisions the initial premise for the
establishment of the presumption could be made out in the application itself
and the section 62(1) affidavit which supports the application, and then the
burden would automatically shift to the states.[9]
1.16
The form of such a provision recommended by Justice French is as
follows:
-
(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.
-
(1) 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.[10]
1.17
As the AHRC argues, such an approach is consistent with the
stated intent of Native Title Act (as expressed in the preamble) and in line
with a number of current Australian laws which shift the burden of proof to the
respondent, including the Sex Discrimination Act 1984 and the Workplace
Relations Act 1996.[11]
Furthermore, given that governments are both the party that granted interests
in traditional lands to others
and are the holders of the vast majority of relevant records, it would seem
both fitting and appropriate that they bear the burden of proof.[12]
1.18
The main procedural benefit of including a presumption of continuity
would be the manner in which it encouraged governments to progress native title
claims without first insisting claimants present comprehensive connection
reports.[13]
It would also provide much greater incentive for them to access their records
and provide to the court at a much earlier point the information they hold that
could clarify areas that are under dispute.[14]
A respondent party, including a state or territory government could choose to
challenge such a presumption and present evidence to make its case, but it
could also choose not to challenge and disregard any substantial disruption in
continuity of acknowledgement of traditional laws and customs should it desire.[15]
1.19
The AHRC says that 'it does not consider that shifting the burden of
proof to the primary respondent in native title cases would result in opening
the 'flood-gates' for native title claims'[16]
provided that existing procedural mechanisms within the Native Title Act that
act as safeguards are retained – such as the current notification provisions
and registration test.
1.20
The existing registration test, which requires claimants to specify the
details and merits of their claim, should act to limit ambit and spurious
claims. The Commission cautions against toughening the existing registration
test, arguing that this would simply shift the current problem to an earlier
stage and place the assessment of evidence outside of the Court.[17]
It recommends instead that that Commonwealth and the National Native Title
Tribunal draft a clear and comprehensive guide to the registration test.
Recommendation 1
1.21
That the Native Title Act is amended to include a rebuttable presumption
of continuity.
Senator Rachel Siewert
Australian
Greens
Navigation: Previous Page | Contents | Next Page