Throughout Australia the native title claims of Aboriginal and Torres Strait Islander people are resolved primarily through negotiated consent determinations, whereby the court recognises native title following the agreement of the parties, rather than through contested litigation. Negotiations leading up to a consent determination often raise two separate legal questions: firstly, is the claimants’ case so strong that they would succeed in contested litigation; and, secondly, is the claimants’ case strong enough to justify the government respondent party agreeing to recognise native title without a trial? The first question tells the government respondent whether agreement is advisable; the second tells them whether it is permissible.
This paper presents a summary of case law on particular aspects of section 223(1) of the Native Title Act. It seeks to identify the ‘minimum’ legal requirements for a court to make a determination of native title. The purpose is to locate the points of flexibility within the law on native title ‘connection’, which can in turn inform discussions about the circumstances in which governments may (as opposed to must) enter into consent determinations.