What is Native Title?
Native title is often described as a ‘bundle of rights’ in land, meaning a collection of rights. These rights may include the right to camp, hunt, use water, hold meetings, perform ceremony and protect cultural sites. It is important to note that native title only recognises the right to perform certain activities which come from traditional laws and customs but does not recognise those traditional laws and customs themselves. When a native title claim is determined, not all rights within the bundle are automatically granted.
The High Court in Western Australia v Ward (2002) 213 CLR 1 said that native title could be extinguished in whole or part. Each right therefore needs to be considered separately to determine whether any past acts of government are inconsistent with the continued existence of that right. Examples of acts which can extinguish native title include the grant of a freehold lease or the construction of public works such as a telephone line or a road.
In most cases, native title is found to exist alongside other non-Indigenous property rights, such as pastoral leases. This form of native title is referred to as non-exclusive possession because others also have rights to the land. Non-exclusive native title rights may include the right to access, hunt and camp on traditional country, but not the right to control access to, and use of, an area. In some cases, native title rights may include possession of an area to the exclusion of all others. These are called exclusive possession native title rights which are valued like freehold title (Griffiths) and are recognised in other forms of legislation (such as in carbon farming)
Native title is inalienable, meaning it cannot be sold or transferred freely, and can only be surrendered to the Crown (or extinguished). However, there are some options for non-extinguishing leasing of native title lands.
Recently native title rights and interests have been described in broader terms. For example, in Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia [2013] HCA 33 (Akiba), the High Court said that the native title claim group had the right 'to take for any purpose resources in the native title areas’. This meant that the native title holders could continue to sell and trade fish as they had done under their traditional laws. It was the first time that native title rights were found to include commercial rights. Later decisions including State of Western Australia v Willis on behalf of the Pilki People [2015] FCAFC 186 and BP (Deceased) on behalf of the Birriliburu People v State of Western Australia [2014] FCA 715 have continued this 'broad brush' approach. Nevertheless, debate continues about whether native title rights and interests have the same protections under Australian law as other interests in land, or whether native title is 'radically different' because it based on traditional laws and customs rather than the common law. The High Court could not agree on this issue in the 2015 decision of Queensland v Congoo [2015] HCA 17. Recently, however, in Northern Territory v Griffiths [2019] HCA 7, the High Court said that compensation for loss or damage to native title should not be reduced because native title land cannot be sold or freely transferred. This suggests that native title rights are just like any other right in land recognised in Australia.
Native title and Aboriginal land rights
Both native title and Aboriginal land rights are ways of recognising Aboriginal rights and interests in land. However, they are different systems and provide different rights. In some cases Native title and Aboriginal land rights can co-exist over the same piece of land. Groups should consider which scheme might be better for their needs.
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Land Rights |
Native Title |
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Law |
There are statutory schemes in all States and Territories bar Western Australia. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA) Aboriginal Land Trusts Act 1966 (SA) Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) Maralinga Tjarutja Land Rights Act 1984 (SA) Aboriginal Land Act 1991 (Qld) Torres Strait Islander Act 1991 (Qld) Aboriginal Land Rights Act 1983 (NSW) Aboriginal Land (Northcote Land) Act 1989 (Vic) Aboriginal Land (Manatunga Land) Act 1992 (Vic) Aboriginal Lands Act 1991 (Vic) Aboriginal Lands Act 1995 (Tas) Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth) |
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Origins |
The ALRA was the first Act to create a mechanism for the grant of lands to Indigenous people. It was the culmination of decades of fighting for land rights. The ALRA operated only in the Northern Territory, but other states and territories enacted similar legislation. Many of these have come before native title and the Mabo decision. |
The High Court decision in Mabo v Queensland (No 2) (1992) 175 CLR 1 overturned the idea of terra nullius ('land belonging to no-one') and recognised the existence of native title. Parliament passed the NTA in 1993 to provide a statutory mechanism for recognition of native title and processing of claims. |
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Claim or Grant? |
Lands can either be claimed or given directly, depending on the state or territory legislation. |
Native title must be claimed and recognised under the NTA. |
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Who can make a claim? |
Aboriginal Land Councils (ALCs) Local Aboriginal Land Councils (LALCs) constituted under the relevant legislation or |
A native title claim group, made up of people who declare they hold native title rights and interests in the land claiming according to their traditional laws and customs. |
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What can be claimed? |
Crown (government) land not in use, owned by someone else or the subject to a registered native title claim or determination. |
Native title may be claimed over:
if the group can prove they have rights under their traditional laws and customs which give them a connection to the land or water (NTA s 223(1)). |
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Is traditional connection required? |
No. |
Yes. The native title claim group must demonstrate that the acknowledgement and observance of traditional laws and customs has continued substantially uninterrupted since sovereignty. |
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Who determines the claim? |
The relevant minister of the state or territory. |
The Federal Court of Australia. Alternatively, parties may reach an agreement by consent. |
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Who holds the rights? |
In most cases LALCs. |
The native title claimant group. After determination, the group is required to form a corporation known as a Prescribed Body Corporate (PBC) to manage their native title rights and interests. PBCs must incorporate under the Corporations (Aboriginal and Torres Strait Islander Act) 2006 (CATSI ACT). |
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What are the rights? |
Generally unalienable freehold title. Free hold title gives land holders the right to exclude others from the land, lease and sell the land. |
The content of native title rights and interests varies, and depends on the traditional laws and customs from which they are derived. Native title is usually (but not always) non-exclusive, meaning it exists alongside other (non-indigenous) rights and interests. Non-exclusive native title rights may include the right to access, hunt and camp on traditional country, but not the right to control access to, and use of, an area. Native title holders and registered native title claimants also have procedural rights in relation to future acts (such as mining and building roads), including the right to negotiate in some cases. |
Further Resources:
- The Commonwealth’s Indigenous land tenure reform agenda: Whose aspirations, and for what outcomes?, E Wensing, AIATSIS, 2016
- Connection to Country: Review of the Native Title Act 1993 (Cth) (ALRC Report 126), Australian Law Reform Commission.
- Native title Story Book, Central Land Council, 2018; a plain English introduction to native title and PBCs explaining the difference of land rights and native title.