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What is native title?

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.

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 not withstanding the existence of native title, as well as validating some acts done on land in the past.  The Native Title Act  also provides for compensation to native title holders for the validation of things done i the past, as well as into the future.

Australian law recongises that, except where native title has 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 to the land.

Native title can co-exist with other interests in land (such as pastoral leases).  However, if native title has been extinquished (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 lawas 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. 

 

Who are the parties to a native title claim proceeding? 

 When an Aboriginal group file a native title application in the Federal Court over a particular area of land or waters in Western Australia, the State of Western Australia automatically becomes a responding party to the proceedings and is referred to as 'First Respondent'.  Any persons or organisation/body who hold an interest that may be affected by a determination of native title for the claimed area may become a party to the Federal Court Proceedings.

Parties may be:

  • The Commonwealth
  • Pastoralists
  • Mining Companies
  • Local government authorities
  • Private landowners.

 

What kind of land tenure extinguishes native title?

Freehold and other exclusive possession tenures extinguishes native title.  Some other forms of land tenure may also extinguish native title.  For example, in August 2002 the High Court found that the vesting of reserves under section 33 of the Land Act 1933 totally extinguishes native title in Western Australia.

 

What is exclusive possession/non-exclusive possession native title? 

When the Federal Court makes a determination of native title establishing if/where native title rights and interests exist in the area climed, it also determines the level of rights and interests the native title claimants possess over the area claimed i.e. exclusive or non-exclusive rights.

Exclusive possession native title can only be granted across certain areas of Australia such as unallocated crown land or areas that were previously held or owned by Aboriginal people.  Example of exclusive possession native title include the right to possess and occupy an area to the exclusion of all others.

Native title rights and interests are non-exclusive when they co-exist with other interests (such as pastoral leases) or are shared with another party. 

 

What is a future act?

A "future act" is a proposed activity or development on land and/or waters that may affect native title, by extinguishing it or by creating interests that are inconsistent with the existence or exercise of native title. Common examples of future acts in Western Australia are grants of resources or land titles by the Department of Mines, Industry Regulation and Safety and the Department of Planning, Lands and Heritage respectively. 

For further information read the About Future Acts page.

 

What is an Indigenous Land Use Agreement?

An Indigenous Land Use Agreement (ILUA) is a voluntary agreement between native title groups and others about the use and management of land and waters. What distinguishes an ILUA from other kinds of agreements is that it must be registered on the Register of Indigenous Land Use Agreements which is held by the National Native Title Tribunal. A registered ILUA binds all persons who hold native title over the area covered by the ILUA to the terms of the agreement, whether they were parties to the agreement or not.

 

What is a Native Title Representative Body/Native Title Service Provider?

A Native Title Representative Body (NTRB) or Native Title Service Provider (NTSP) is a statutory organisation funded by the Australian government to represent native title applicants rights and interests, unless the applicants choose to be represented independently.

For further information see the Native Title Representative Bodies page.

 

What is connection evidence?

Connection evidence is information provided by the native title applicants to the State to support their native title claim. Connection evidence can be presented in a mixture of media or forms.  This include the use of photographic, video and audio recordings as well as print material.  On country meetings with the claimants who are able to explain particular aspects of their connection to country to respondent parties is also encouraged.

A connection report in the form of a single 'book' where connection material is outlined and analysed is not a pre-requisite.

For furhter information see the Connection Material and Research page.