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  4. What is Native Title?

What is Native Title?

Native title recognises the traditional rights and interests to land and waters of Aboriginal and Torres Strait Islander people. Under the Native Title Act 1993 (NTA), native title claimants can make an application to the Federal Court to have their native title recognised by Australian law.

Background

Until 1992, Australian law did not recognise that Indigenous people had any rights to land and waters arising from their original ownership under traditional law and custom. The High Court Mabo case changed all of this when it decided in favour of a claim to Murray Island by the Meriam people. For the first time, Australian courts accepted that traditional law and custom could be a basis for claiming land ownership by Aboriginal and Torres Strait Islander Australians.
The Native Title Act 1993 (NTA) established the procedure for making native title claims. The NTA was extensively amended in 1998, with further amendments occurring in 2007 and again in 2009.

Decisions made by the court have impacted native title law, in particular:

  • what is required to prove native title
  • how native title is ‘extinguished’ (lost forever)
  • the type of native title rights which can exist in a specific location.

What are native title rights and interests?

Native title recognises a set of rights and interests over land or waters where Aboriginal and Torres Strait Islander groups have practiced and continue to practice, traditional laws and customs prior to sovereignty (British occupation).

They can also be thought of as a bundle of sticks, each stick representing specific native title rights, such as the right to live and camp in the area, conduct ceremonies, hunt and fish, collect food, build shelters and visit places of cultural importance. Selling or leasing of the land, reduces the size of the bundle of sticks until sometimes nothing is left.

How is native title recognised?

Native title recognises an Aboriginal or Torres Strait Islander people's traditional law and custom. For the courts to recognise native title, there are two key legal questions that must be answered:

Under the traditional laws and customs of the group of Indigenous people claiming native title, are their rights and interests to the claim area based on their traditional connection to the area?
If a connection under traditional law and custom is found, the courts ask the next question:
Has this connection been either entirely or partially ‘extinguished’ (lost) by specific government actions? For example, selling that area of claimed land.

How is native title lost?

How is native title lost?

'Extinguishment' means that all or some native title rights are lost forever in Australian law. Once native title has been extinguished, it cannot be revived except in very limited circumstances.

The extinguishment of native title can be:

  • total extinguishment which takes away all native title rights
  • partial extinguishment which takes away only some native title rights.

Partial extinguishment shows the difference between two categories of native title rights:

  • 'exclusive' allows native title holders to control access to land
  • 'non-exclusive' native title does not allow native title holders to control access to land

 

Useful resources about native title

  • The National Native Title Tribunal (NNTT) has facts sheets explaining native title in detail, along with current information on native title determinations in Australia. 
  • The Native Title Research Unit at AIATSIS has research, information and resources on aspects of native title. 
  • The Federal Court of Australia also has useful information.