5837

2008-2009

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

Native Title Amendment Bill 2009

 

 

(Amendment to be moved by Senator Siewert on behalf of the Australian Greens in committee of the whole)

(1)     Schedule 6, page 52 (after line 5), after item 12, insert:

12A  After section 61

Insert:

61AA  Presumptions relating to applications

             (1)  This section applies to an application for a native title determination brought under section 61 of the Act where the following circumstances exist:

                     (a)  the native title claim group defined in the application applies for a determination of native title rights and interests where the rights and interests are found to be possessed under laws acknowledged and customs observed by the native title claim group;

                     (b)  members of the native title claim group reasonably believe the laws and customs so acknowledged to be traditional;

                     (c)  the members of the native title claim group, by their laws and customs have a connection with the land or waters the subject of the application;

                     (d)  the members of the native title claim group reasonably believe that persons from whom one or more of them was descended, acknowledged and observed traditional laws and customs at sovereignty by which those persons had a connection with the land or waters the subject of the application.

             (2)  Where this section applies to an application it shall be presumed in the absence of proof to the contrary:

                     (a)  that the laws acknowledged and customs observed by the native title claim group are traditional laws and customs acknowledged and observed at sovereignty;

                     (b)  that the native title claim group has a connection with the land or waters by those traditional laws and customs;

                     (c)  if the native title rights and interests asserted are capable of recognition by the common law then the facts necessary for the recognition of those rights and interests by the common law are established.

[burden of proof]