Government's evidentiary requirements for native title claims
To achieve a determination that native title exists, native title claimants must demonstrate that their claim can be established at law. The criteria required to substantiate a native title claim are found in the Native Title Act 1993 (Cth) and subsequent case law, such as the Hight Court Judgement In Yorta Yorta.
The Guidelines for the Provision of Connection Material - February 2012 (PDF 69KB) or (DOC 75 KB) (Guidelines) assist native title parties involved in the native title process to understand the information the Government requires to make a decision about settling native title applications by consent. The Guidelines also provide guidance to the native title parties on the form and content of the evidence to be provided and how it will be treated and assessed.
The Guidelines should be consulted prior to submitting connection material to the Government for assessment. It is also strongly recommended that the Native Title Applicants (Applicants) consult with the Government prior to the commencement of connection research. Engaging in early consultation about connection research is an opportunity to discuss the potential form and content of the connection materials and the criteria for substantiating a claim.
Evidentiary requirements: claims to extended country and additional claimed rights
Applicants have, in some cases, lodged native title applications over land adjacent to an existing claim or an existing native title determination on the asserted basis that it reflects the true extent of the country of the applicant group. Applicants involved in consent determination negotiations have also sought to have rights recognised in addition to those claimed in their native title application.
In order to comply with the requirements outlined in the Native Title Act 1993 for consent determinations, the Government must be satisfied that there is evidence to support an extended claim to country and/or any additional rights claimed. In some cases the amendments or additions may be limited or ‘technical’ in nature, but the Government still requires supporting evidence to be provided.
The applicants may provide material to support their claim of extended country or additional rights in two ways.
The applicant will need to demonstrate how the claim of extended country or additional claimed right is supported by this material evidence. The Government will then assess the evidence as outlined in the Guidelines.
Guide to Evidentiary Requirements of Occupation under sections 47A and 47B of the Native Title Act 1993 (Cth) - May 2015
Contact the Land, Approvals and Native Title Unit