Native Title (Australia)
SummaryNative title is the recognition in Australian law, under common law and the Native Title Act 1993 (Cth), of Indigenous Australians' rights and interests in land and waters according to their own traditional laws and customs.
Unlike freehold titles or leases, native title is not a grant or a right that is created by governments. Native title may be recognised in places where Indigenous people continue to follow their traditional laws and customs and have maintained a link with their traditional country.
The native title of a particular group will depend on the traditional laws and customs of those people and will vary between different groups as well as from place to place. Native title rights may include the possession, use and occupation of traditional country or non-exclusive native title rights such as the right to access and camp or the right to hunt and fish on traditional country. Native title rights do not extend over minerals or petroleum.
Extended DefinitionWhen Indigenous Australians make a native title claimant application they are seeking recognition under Australian law of their native title rights. An application for a determination of native title can only be made in areas where it has not been extinguished (removed). Native title may exist on:
- Unallocated Crown Land;
- State forests, national parks, public reserves and certain land reserved for particular purposes or uses;
- Some kinds of Crown-to-Crown grants, including grants from a State/Territory to a local Council (except land validly granted and held and privately owned by Council);
- Land set aside for the benefit of or granted to Aboriginal and Torres Strait Islander People;
- Oceans, seas, reefs, lakes and inland waters (where not privately owned);
- Some leases such as non-exclusive pastoral and agricultural leases, depending on the State/Territory legislation under which they were issued.
People who hold native title have a particular right to continue to practice their law and custom over traditional lands and waters. This may include a variety of rights and interests, such as living, hunting, gathering, fishing, ceremonial, rights of access, use and occupation, and visiting to protect important places. It may also include the right to be consulted about decisions or activities that could affect the enjoyment of native title rights and interests.
Native title may also vary depending on the rights of other people in the same area. For example, where people have leases, licences or a right of public access, native title may exist alongside these other rights. This is often called ‘coexistence’. Native title cannot take away anyone else's valid rights to land, including owning a home, holding a pastoral lease or having a mining licence. Australian law does not recognise native title over places where people have exclusive possession of the land, like privately owned freehold land.
The common law dealing with native title is still evolving. The decisions made by the Federal and High Courts in native title cases will continue to clarify the extent to which native title rights and interests can be recognised and protected by common law.
A determination of the existence of native title by a court or other recognised body can be made by consent between the parties or by a litigated determination. A determination finds what sort of native title rights and interests exist in an area and who holds these.
Native title may be partly or wholly extinguished by Australian law. When native title is wholly extinguished it means there can be no native title claim on the land or waters. Native title is extinguished on privately owned land (including family homes and freehold farms), on residential, commercial and certain other leases and in areas where government has built roads or other public works.
In general, full native title resembling anything like ownership will only be available over some unallocated Crown land, certain Aboriginal reserves and some pastoral leases held by native title holders. This means that, for most of the areas where native title is determined by the Federal Court to exist, it will co-exist with the rights and interests of others.