It is a basic principle of our adversarial legal systems that, in civil matters, ‘he who asserts must prove’. That is, it is the person seeking the benefit of the law who bears the burden of persuading the court that it should exercise its authority. In native title, the term relates to the requirement that the native title claimant must prove that native title exists.
The way that native title law has developed and the way that the courts have interpreted the Native Title Act means that the claimant must persuade the court that it is more probable than not that:
- At the time of European settlement, the land and waters being claimed were occupied by an identifiable society;
- The society could occupy that land because of the acknowledged system of law and observed customs that governed their lives and their use of the land and waters;
- The society has continued through to contemporary times;
- That the law and custom of the society has been passed generation to generation successively through to contemporary times without break; and
- That the society (or at least members of it) has maintained connection to the specific land and waters through the continued (and continuous) acknowledgment of the system of law and observation of customs similar to those that governed the lives of the ancestral society.
For native title claimants in the QSNTS region, this can be very difficult. Violence associated with European settlement and policies pursued by successive governments meant that large numbers of Traditional Owners were driven away, or forcibly removed from, their traditional country. Many were prohibited from acknowledging the laws and observing the customs that their descendants are now expected to prove they are aware of and follow.
In native title, shifting the burden of proof refers to the concept that the burden of proof should rest with the State (Government) to show where native title does not exist.
The intention behind shifting the ‘burden’ to the State is to reduce pressure on native title claimants and to ensure that resources that are accessible to the State are fully utilised (as opposed to exhausting service-provider funds researching information that the State may already possess).
This shift in responsibility would also go some way in relieving the evidential burden on claimants who have to deal with:
- inherent disadvantage caused by the historical issues including the behaviour of the government;
- the complexity of running a representative action;
- the difficulty of dealing with a large number of respondents;
- the intersection of differing regimes such as cultural heritage, other statutory schemes and at times competing priorities within the native title regime (for instance, prosecuting a claim while simultaneously protecting mining and other future act interests);
- ever-changing administrative and legal developments; and
- confusion associated with inter-cultural arrangements between the Court and the Tribunal.
QSNTS maintains that changing the burden of proof would ameliorate the harshness of these practical impacts and would have a dramatic effect on changing attitudes and behaviours to ensure that settlement options are actively pursued.