The civil standard of proof is required—the balance of probability. 7.6 Native title disputes can be settled with mutual consent—in fact, this is the most usual way a native title determination is made. If both parties cannot agree, then the dispute may be decided by a court. The court will only decide on the facts before it; it cannot give an opinion on whether or not the claimant has met the burden of proof.
In Australia, there are two systems for determining native title: federal law and state law. Under federal law, to establish native title you must show that you have "aboriginal title" to the land. Aborigine means "original people," so aboriginal title means original title or right. The federal government uses three methods to determine if you have aboriginal title: discovery, trade, and agreement. Under discovery, you can claim native title if you are a member of a recognized tribe. With trade, if you provide evidence that your family had possession of the land for more than 50 years then you can claim native title. Finally, under agreement, one party can grant another party native title if they work out a deal. For example, one party might give something valuable to the other party (such as money or goods) in return for native title rights.
State laws on native title are different from federal laws on native title.
A native title determination is a Court judgement on whether or not native title exists in connection to a certain region of land or water. Whether the native title rights and interests grant the native title holders exclusive possession, use, use, and enjoyment of the land or waterways. If so, the territory will be known as a "native title area". Otherwise, the territory will be part of the public domain.
Native title exists when specific indigenous groups are identified as having historic connections to the land, along with ongoing identification as eligible for benefits under the Native Title Act 1993.
The existence of native title does not require government approval, but cannot be asserted against the Crown without its consent. The federal government gives its agreement by signing the Native Title Agreement with Australia's eight major traditional owners: Aboriginal and Torres Strait Islander peoples.
Under the Native Title Act, any person who claims native title may make an application to have their claim determined. This can only happen if the claimant meets certain requirements, such as being a descendant of one of the first inhabitants of Australia. The applicant must also show that they hold the title directly from the sovereign or its representative body. If these conditions are met then the court will conduct a hearing to determine whether the title should be recognized as valid.
Native Title recognizes Aboriginal peoples' rights and interests in their lands and waters through traditional laws and customs; Native title recognizes Indigenous peoples' traditional rights to speak for the country; however, native title does not provide Indigenous peoples with ownership of the land or...
Native title is a system used by some Commonwealth countries to recognize indigenous people's rights over specific areas known as territories. The territories may be large (such as a state or a province) or small (such as a park or a reserve). Within each territory, individuals or groups can claim ownership of parts of the territory. These claims may be based on historical use, agreement, or treaty. If the government agrees that someone has met the criteria to be recognized as having native title, they will be given exclusive rights within their territory. They may also have input into how the territory is managed.
In Australia, native title is defined in section 92 of the Constitution. It exists to "recognize Aboriginal and Torres Strait Islander peoples' rights over their own lives, their property and their cultural connections to land".
Native title cannot be sold, leased, or licensed. This means that it can only be granted to individuals or groups who can prove that they have native title status. A person cannot simply claim native title; rather, there are criteria which must be met to be awarded native title.