The communal, group or individual rights and interests of Aboriginal peoples and Torres Strait Islanders in relation to land and waters, where:

• the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples and Torres Strait Islanders; and
• the Aboriginal peoples and Torres Strait Islanders, by those laws and customs, have a connection with the land and waters; and
• the rights and interests are recognised by the common law of Australia.

Native title can be claimed on:

•  vacant crown land (unoccupied or unallocated)
•  some state forests, national parks and public reserves
•  oceans, seas, reefs, lakes and inland waters
•  some leases, such as non-exclusive pastoral and agricultural leases
•  some land held for Aboriginal peoples and Torres Strait Islanders.

Native title can only be claimed in areas where it has not been extinguished.
 

Native title cannot be claimed in areas where it has been extinguished, such as:

•  privately owned land (residential freehold and privately owned freehold farms)
•  residential, commercial or community purpose leases
•  public work areas such as schools, roads or hospitals
•  pastoral or agricultural leases that grant exclusive possession 

An ILUA is a negotiated agreement between native title groups and other parties (such as governments, pastoralists and utility companies) about the use and management of land and waters in a certain area. ILUAs are provided for under the Native Title Act 1993 (Cth) and are used as a mechanism to resolve certain native title issues through a negotiated process as an alternative to expensive, time consuming and often uncertain litigation processes. Importantly, a registered ILUA is legally binding on the parties to the agreement as well as all native title holders for that area.

Established in 1996, the National Native Title Council is the peak body representing Native Title Representative Bodies (NTRBs) and Native Title Service providers (NTSPs) throughout Australia.

The NNTC is the coordinated national voice lobbying for the development of better solutions for resolving native title and securing adequate resources for Native Title Representative Bodies and Native Title Service Providers.

QSNTS is a member of the NNTC.

The Queensland Native Title Liaison Committee was established in 2003 to discuss current native title issues and decide on effective ways to improve and progress the native title system. QSNTS is a representative on the Committee alongside many other organisations such as native title representative bodies, the Federal Court, Queensland Resource Council, the Queensland Indigenous Working Group and local, state and federal governments. The Committee meets twice a year.

In native title, the term ‘burden of proof’ relates to the burden of proving that native title exists. The judicial framework which incorporates the need to apply substantive law requires native title applicants to prove all elements necessary to make out the continuing existence of native title rights and interests within the meaning of the NTA. It has been suggested that a more inquisitorial approach to the judicial resolution of claims would be an advantage to the system and parties involved.

In native title advocacy, shifting the burden of proof refers to the concept that the burden should be shifted to the State (government) to show where native title does not exist. The idea is that by shifting the ‘burden’ to the State, pressure is alleviated from native title claimants, and resources that are accessible to the State are fully utilised as opposed to exhausting service provider funds on researching information that the State may already possess.

This shift in responsibility would also go some way in relieving the evidential burden on claimants that have to deal with:

• Inherent disadvantage caused by the very historical issues at play in native title claims;
• The complexity of running a representative action;
• The enormity of contending with the sheer volume 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;
• The ever changing administrative and legal developments; and
• Confusion associated with inter-cultural arrangements between the Court and the Tribunal.

QSNTS is of the view 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.
 

References: French, Robert. ‘Lifting the burden of native title: some modest proposals for improvement.’ (2009) 9 Reform Native Title 10.

This notion involves the presumption in favor of the continuity of native title rights and interests. It is an acknowledgement that the relevant society has lived according to its laws and customs from sovereignty to the present. Where this is in dispute, the onus would be on the Government or a respondent party to rebut the presumption. The obligation and associated cost of providing evidence would shift to the Government relieving the burden that currently rests with native title claimants.
 

One method of actualising this concept has been put forward by Chief Justice French. His model states that the presumption of continuity is based on the fact that the native title claim group acknowledges laws and observes customs it reasonably believes to be the laws and customs dating back to pre sovereignty allowing for the contingencies of time.
 

Reference: French, Robert. ‘Lifting the burden of native title: some modest proposals for improvement.’ (2009) 9 Reform Native Title 10.

‘Historical Extinguishment’ is a term used to describe when native title rights have been partially or wholly extinguished due to acts or decisions of the government such as passing of laws or the granting of other interests that conflict with the continued enjoyment and exercising of native title rights.

Chief Justice, Robert French put forward a number of suggestions for improvement of the NTA in 2009. One of these proposals was an amendment that would enable the disregarding of historical extinguishment over Crown land or reserves of various types where the native title applicants and the relevant state or territory government agreed that it should.
 

Reference: French, Robert. ‘Lifting the burden of native title: some modest proposals for improvement.’ (2009) 9 Reform Native Title 10.

The notion of broader settlements is based on the understanding that native title has a vital role to play in closing the social and economic gap between Indigenous and non-Indigenous Australians through the acknowledgement of rights and the consequent opportunity of social and economic development. Broader settlements include an array of diverse options that may span beyond native title specific issues to be included in the resolution of claims through agreements. Such examples include the provision of housing and infrastructure to be incorporated into an indigenous land use agreement.

For further information on broader settlement frameworks please visit www.landjustice.com.au

Broader settlements can also be referred to as 'broader land settlements'