Native Title Act

Native title is the recognition in Australian law that some Indigenous people have continued to hold rights and interests to their lands and waters, arising from traditional laws and customs that were observed by their ancestors at colonisation of Australia by Europeans. These laws and customs, which vary for each group, must have been acknowledged and observed in a ‘substantially uninterrupted’ way from the time of settlement to the present day.

In 1992, the High Court of Australia recognised that the Meriam People of the Torres Strait held native title rights over part of their traditional lands, this is known as the Mabo decision. This decision paved the way for Indigenous people to have their native title recognised under Australian law, in areas where these rights continue to the present day.

For native title to be recognised, Indigenous people must, among other things, show that they have maintained their traditional connection to the land and waters.

Native title:

• cannot be recognised where government acts have removed (extinguished) any native title rights;
• is not granted by governments – it is recognised through a determination made by the Federal Court, High Court and possibly some State and Territory courts;
• may vary from group to group and will depend on the traditional laws and customs of the particular group; and
• may also vary depending on the rights of other people in the same area, for example where people have leases, licences or a right to public access, native title may partly exist alongside these other rights (this is often called coexistence).

Back to top

A native title determination is a decision by a court or recognised State or Territory body that native title does or does not exist in an area. Where the existence of native title is recognised, the determination will identify the native title holders, and described their native title rights and interests. The determination will also recognise the non-native title rights and interests in the area, and set out the basic grounds for the coexistence of those two sets of rights.

There are four kinds of applications under the Native Title Act 1993 that could lead to a determination of native title:

• Claimant application, which is the most common as it is made by Indigenous Australians seeking a determination recognising native title exists;
• Non-claimant applications by non-Indigenous people seeking a determination that native title does not exist;
• An application to revise or revoke an existing native title determination; and
• An application for compensation for loss or impairment of native title.

Indigenous people can apply to have their native title rights and interests in an area recognised under Australian law by filing a native title determination application with the Federal Court.

Once an application for native title determination is made, the Federal Court first refers the application to the Registrar of the National Native Title Tribunal to apply the Registration Test.

If the application passes the Registration Test then the native title applicants gain certain rights as Registered Native Title Claimants over the area covered by the application, including:

• The right to negotiate over certain proposed developments such as petroleum exploration, production and development (future acts);
• The right of access to some pastoral and agricultural leases if certain conditions are met; and
• Other rights such as the right to be notified or to comment on some proposed developments (future acts).

There are three processes that can lead to a native title determination:

• If no one contests the application, the court can make what is called an unopposed determination;
• If all the parties reach agreement about native title through mediation, then a consent determination can be made; or
• A litigated determination is made after a trial where the parties put forward the case for and against recognising native title.

Under the Native Title Act 1993, native title holders have to establish a body to represent them as a group and manage their native title rights and interests. This body is called a ‘prescribed body corporate’ (PBC). A PBC is a native title corporation that may hold and/or manage native title for the whole group.

Once the corporation is established by the native title holders, and approved by the court, it is entered onto the National Native Title Register as a Registered Native Title Body Corporate.

Back to top

Native title may exist in places where Indigenous people continue to follow their traditional laws and customs and have maintained a link with their country, and where this connection has not been extinguished because of acts done, or allowed by government. The areas where native title may exist include:

• Vacant or unallocated crown land;
• Some reserve lands (such as national parks, forests and public reserves);
• Some types of pastoral lease
• Some land held by or for Aboriginal people or Torres Strait Islanders;
• Beaches, oceans, seas, reefs, lakes, rivers, creeks, swamps and other water that are not privately owned.

The native title rights may include the right to possess and occupy a particular area to the exclusion of all others (often called exclusive possession). This includes the right to control access to, and use of, that area.

In other areas, the native title rights are most likely to be a set of ‘non-exclusive’ rights (which means there is not right to control access to, and use of, the area).
There can be no rights to minerals or petroleum recognised under Australian law and in tidal and sea areas, only non-exclusive native title can be recognised.

Back to top

Native title is not permitted to take away anyone else’s valid rights, and therefore is deemed to be extinguished over certain areas including:

• residential freehold;
• farms held in freehold;
• pastoral or agricultural leases that grant
• exclusive possession;
• residential, commercial or community purpose leases, and
• public works like roads, schools or hospitals.

Back to top

There have been four landmark decisions on native title in Australia since the Mabo decision and the enactment of the Native Title Act 1993. These cases have gone to the High Court and have helped clarify native title law:

• Wik (Wik Peoples v Queensland) 1996 – found that the grants of two Queensland pastoral leases did not necessarily extinguish native title, and that native title may coexist with the rights of some pastoral leaseholders;
• Croker Island (Commonwealth v Yarmirr) 2001 – recognised native title in areas of the sea but the court said that these rights are not exclusive;
• Ward (Western Australia v Ward) 2002 – found that native title is made up of a bundle of rights and that native title can be partially extinguished, for example by the grant of a Western Australian pastoral lease; and
• Yorta Yorta (Members of the Yorta Yorta Community v Victoria) 2002 – found that in order to maintain native title, the claimant group must show that they have practised their traditional laws and customs in nearly the same way since European settlement.

Back to top

Native title rights exist as a bundle of rights and interests in relation to land and waters dependent on the traditional laws and customs of the native title holders, and the capacity of Australian law to recognise these rights and interests.
These rights and interests can be exclusive thereby affording the right to possess and occupy an area to the exclusion of all others, but in this context is limited to unallocated or vacant crown land.

Alternatively, the rights and interests can be non-exclusive which means there is no right to control access and use of the area. The non-exclusive native title rights may include
the right to:

• possess use, occupy and enjoy traditional country;
• control access and use of land, subject to Australian laws;
• access the area;
• participate in decisions about how others use their traditional lands and waters;
• visit and protect important places;
• make decisions about the future use oflands and waters;
• hunt and gather food; and
• collect bush medicines.

Back to top

Acknowledgement is given to the Commonwealth of Australia’s Attorney General’s Department, Native Title Unit and the National Native Title Tribunal as the primary reference sources for the following text.

Back to top