Case: Kokatha People v State of South Australia [2007] FCA 1057
Outcome: referred to
The onus of proof is on the Land Council, which must satisfy the legal burden on the balance of probabilities, but there is no reason to conclude that if the Land Council establishes a prima facie case of no native title, there is no onus on Worimi to adduce any evidence in support of his assertion of native title. In dealing with the defensive use of native title in Kokatha People v State of South Australia [2007] FCA 1057 , Finn J observed at [52] that a non-applicant native title claimant who is unable to obtain authorisation to make a s 61 claim stands in no different position than any person who claims native title but is unable to institute proceedings to have that claim established. 52 If the elements of native title are established by a non-applicant claimant, it can prevent a determination that native title does not exist, although it cannot secure a positive determination of native title under s 225 of the Act ( Kokatha at [50] per Finn J). However, Worimi's evidence may be sufficient to raise a doubt as to the non-existence of native title without amounting to proof necessary for a claimant application or for a finding that native title exists. 88 In relation to the non-claimant application for a determination that no native title exists over the Land, the following seems to me to apply: &#8226; The Act permits the making of non-claimant applications for determinations that no native title exists over land. &#8226; This allows people with interests in land to ascertain whether native title exists. The Act envisages that determinations of the absence of native title may be made and provides a statutory guarantee of validity to future acts (s 24FA). Section 61(1) provides for non-claimant applications for native title determinations. There is no indication in the Act that there is a presumption that native title exists that must be displaced by an applicant seeking a determination of the absence of native title. &#8226; The Minister has not abandoned his right to participate in these proceedings. The Minister has an interest in these proceedings, namely, to ensure that if the Court is not satisfied that there is no native title over the Land, that the Court does not make findings in relation to matters which would need to be addressed in making a positive determination of native title. The Minister also has an interest in knowing whether or not, and in what way, the Crown's radical title is burdened by native title rights and interests. In any event, the Act does not require the Minister to establish an interest in order to be party to these proceedings. &#8226; These proceedings do not enable Worimi to obtain a declaration that native title exists. In order to establish that native title exists, it is necessary to make an application under the Act and to comply with the Act and the requirements for the establishment of native title ( Kokatha ; Clifton ; Worimi 2007 ). &#8226; An applicant for a determination of the absence of native title has an onus to establish that there is no native title over the land. That onus applies to a civil standard. The applicant must demonstrate on the balance of probabilities that native title does not exist. &#8226; There is no indication in the NSW Act or the Act to indicate that the standard to be applied is other than the ordinary civil standard. &#8226; A respondent to the application may adduce evidence to cast doubt on the applicant's case. As I said in Worimi 2007 at [35], Worimi would need to advance a case that establishes that native title does exist or to cast doubt on the Land Council's evidence. Worimi's assertion of his native title rights and interests may lead to a more informed decision in the non-claimant application ( Worimi 2007 at [30]). &#8226; The decision is based upon the whole of the evidence before the Court including evidence adduced by Worimi. &#8226; The evidence adduced by Worimi should be assessed to determine whether it is sufficient to cast doubt on the Land Council's case such that the Land Council does not satisfy the Court that, on the balance of probabilities, no native title exists over the Land. &#8226; Accordingly, the onus is not on the Land Council to satisfy the Court as to the absence of each element required to prove the existence of native title. The Land Council is not required positively to establish the situation pre-sovereignty and from sovereignty to the present time with expert evidence of laws and customs. It is contrary to logic to say that a person who wishes to establish that there is no native title must first positively prove that there were laws and customs at any stage. &#8226; Worimi is the person who asserts the existence of native title. That necessarily means native title under the Act. The evidence must address the elements of such a claim, in particular the laws and customs and rights and interests from pre-sovereignty or the time of sovereignty to the present. It is not necessary to prove each element of native title but the evidence should be sufficiently cogent with respect to those elements it does address to cast doubt on the assertion that native title does not exist. If the evidence establishes the absence of a necessary element of native title, such as continuous connection with the Land, this would provide support for a determination of the absence of native title. &#8226; The Land Council may call evidence as to the existence or non-existence of laws and customs at each of those stages and as to the existence of a class or persons claiming the communal, group or individual rights. The Land Council may establish that only one necessary element is missing, such as continuous connection. That would be sufficient to establish an absence of native title. &#8226; The subject matter of this application is the land constituted by a single lot, Lot 576. Worimi contends that it is impossible to deal with Lot 576 without also considering the surrounding land. The Land Council has no obligation to demonstrate an absence of native title throughout the Port Stephens area. The evidence needs to concern the Land. However, evidence that relates to an area that goes beyond a recently subdivided lot is likely to be relevant. The question remains, however, whether there are native title rights and interests over Lot 576. &#8226; It is not in dispute that all formal requirements for a non-claimant application for a determination of the absence of native title have been met. In the absence of any evidence as to the existence of native title over the Land, the Land Council would be entitled to the determination it seeks. Both the Land Council and Worimi have adduced evidence addressing the existence of native title. It is necessary to consider the whole of that evidence to ascertain whether the Land Council has established, on the balance of probabilities, that there is no native title or whether sufficient doubt has been cast on the Land Council's case.