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Onus of proof a matter of truth and justice

Onus of proof a matter of truth and justice

Dr Pita Sharples, Co-leader
15 June 2011

Maori Party Co-leader Dr Pita Sharples has welcomed the call by former Australian Prime Minister Paul Keating for the onus of proof in Aboriginal native title claims to land to be reversed.

“Paul Keating has called for Australian law to presume that Aboriginal customary land titles still exist, unless they are proven to have been extinguished,” said Dr Sharples.

“This is the position that the Maori Party secured in negotiations over the Marine and Coastal Area (Takutai Moana) Act, that the onus of proof should fall on those who say that customary interests have been abolished,” he said.

“It is one of the key differences between the new legislation, and the old Foreshore and Seabed Act – which said Maori had to prove unbroken exercise of customary rights and interests since 1840 to make a claim.

“Unbroken use of foreshore and seabed is very difficult for most hapu to prove, especially if their land adjoining the coast has been confiscated or lost.

“A presumption that customary rights continue unbroken puts the onus on the Crown to prove they have been extinguished. So reversing the burden of proof in the new law was a major victory for the Maori Party.

“Paul Keating said that Australian Native Title Act did not create customary title, it simply confirmed that native title existed before colonisation, and it could be recognised in Australian common law.

In his Lowitja O’Donoghue Oration, Paul Keating praised Lowitja O’Donoghue as an outstanding Aboriginal leader, who saw the opportunity created by the Mabo land rights decision, and who stepped up at a critical moment to lead negotiations with the Australian Federal government to consolidate Aboriginal land rights in the Native Title Act.

“Mr Keating took up the theme of his watershed Redfern Speech in 1992, as Prime Minister of Australia, that recognising the truth of Aboriginal native title to land would lay a foundation of justice for the future,” said Dr Sharples.

“The Maori Party’s view is that removing the injustices of the Foreshore and Seabed Act, including the presumption of Crown title, the abolition of rights of access to the Courts, and an unfair onus of proof, would open the way to further negotiations and future resolution based on truth and justice,” said Dr Sharples.

Marine and Coastal Area (Takutai Moana) Act 2011

s106 Burden of proof
• (1) In the case of an application for recognition of protected customary rights in a specified area of the common marine and coastal area, the applicant group must prove that the protected customary right—
o (a) has been exercised in the specified area; and
o (b) continues to be exercised by that group in the same area in accordance with tikanga.
(2) In the case of an application for the recognition of customary marine title in a specified area of the common marine and coastal area, the applicant group must prove that the specified area—o (a) is held in accordance with tikanga; and
o (b) has been used and occupied by the applicant group, either—
(i) from 1840 to the present day; or
(ii) from the time of a customary transfer to the present day.
(3) In the case of every application for a recognition order, it is presumed, in the absence of proof to the contrary, that a customary interest has not been extinguished.


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