Native title rights and interests are those rights in relation to land or waters that are held by Aboriginal or Torres Strait Islander peoples under their traditional laws and customs, and recognised by the common law. Native title was first accepted into the common law of Australia by the High Court of Australia's decision in Mabo (No 2) in 1992.
Australian law recognises that, except where native title had been wholly extinguished by the historical grant of freehold, leasehold and other interests, native title exists where Aboriginal people have maintained a traditional connection to their land and waters substantially uninterrupted since sovereignty. The particular rights and interests vary from case to case, but may include the right to live and camp in the area, conduct ceremonies, hunt and fish, build shelter, and visit places of cultural importance. Some native title holders may also have the right to control access.
The Mabo (No 2) decision overturned the doctrine of 'terra nullius', i.e. that the Australian continent was an 'empty land' which did not belong to anyone at the time of Europeans' arrival. It recognised for the first time that rights possessed by Aboriginal and Torres Strait Islander people under their system of traditional laws and customs survived colonisation.
In response to Mabo (No 2), the Australian Parliament enacted the Native Title Act 1993 (Cth) which gives statutory recognition and protection of native title. It sets out a procedure for making a claim for a determination of native title, provides a regime for governments to do things in relation to land validly notwithstanding the existence of native title, as well as validating some things done in the past. The Native Title Act also provides for compensation to native title holders for the validation of things done in the past, as well as into the future.
Native title can co-exist with other interests in land (such as pastoral leases). However, if native title has been extinguished (see FAQ land tenure extinguishing native title) it cannot be revived except in limited circumstances.
The recognition of native title is fact specific. The nature and extent of a particular group's native title will depend on the traditional laws and customs of those people. Most determinations of native title in WA are made by consent following negotiations between native title claimants, the State Government and other interested parties. Claims are only referred to the Federal Court for determination if agreement has not been possible.
To learn more about native title see our
frequently asked questions or visit the National Native Title Tribunal’s website.