Native title is the legal recognition of the individual or communal rights and interests which Aboriginal People have in land and water, where Aboriginal People have continued to exercise their rights and interests in accordance with traditional law and custom since before the British asserted sovereignty over Australia.
In 1992, more than 200 years after the British first arrived in Australia, in the Mabo (No 2) case, the High Court of Australia made an historic decision that the doctrine of terra nullius should not have been applied to Australia and that the common law of Australia would recognise native title. This recognition is enshrined in the Native Title Act 1993 (Cth).
In order for native title rights and interests to be formally recognised under the Native Title Act 1993 (Cth), it must be established that:
1. The native title claim group have rights and interests that
are possessed under traditional laws acknowledged and
traditional customs observed;
2. The native title claim group by those laws and customs, have
a connection with the land or water; and
3. That those rights and interests are capable of being
recognised by Australian law.
See also:
Where Can You Claim Native Title?
Native title cannot be claimed in areas where the law says native title has been extinguished, even if Aboriginal People still have a traditional connection to that land or water. Areas where you may be able to claim native title include:
- Vacant Crown land;
- National Parks;
- State Forests;
- Crown reserves;
- Some types of non-exclusive leases;
- Land covered by permissive occupancies & licences; and
- Inland waters and the sea.
Native title rights and interests, if recognised, must co-exist with any interests other people have in the same land and water.
Identifying the Native Title Claim Group
Native title is a communal title, and any determination that native title exists should include all of the Aboriginal People who have native title rights and interests in land or water. The law requires that you use an objective test to identify the members of your native title claim group in your native title application. This can be done by naming every member of your native title claim group but it is most often done by naming the ancestors from which each member of your native title claim group descends. The native title claim group must be united, or bound together, by their system of traditional law and custom.
Authorising a Native Title Application
The law also requires that your native title application is properly authorised by the Aboriginal People who have native title rights and interests in the claim area. Decisions to authorise a native title application need to be made according to a traditional method of decision making if the traditional method is appropriate for decisions of that kind. If there isn’t a traditional method of decision making, or if it isn’t appropriate to use in the native title process, then the native title claim group can adopt another method of decision making, such as discussion and voting.
What sort of evidence is required?
Following this, the native title application is usually referred to mediation or case management. The approach taken by the state government in mediation or case management is that the native title claim group needs to provide evidence to the state government for assessment before negotiations can begin about any settlement of the application. Native title claim groups usually need to provide evidence about:
- The identity of the claimants;
- The traditional language of the claimants;
- The claimants’ connection to country and responsibilities to country;
- The claimants’ social and cultural system – the body of law and custom which is acknowledged and observed;
- The claimants’ rights and interests in land and water;
- Traditional activities carried out by claimants on their country; and
- The relationship between the rights and interests and the law and custom of the claimants of the native title claim group.
What Type of Outcomes Can Be Achieved?
A range of outcomes can be achieved through the native title process including:
- Memoranda of Understanding (MOUs);
- Future Act agreements;
- Indigenous Land Use Agreements (ILUAs);
- Consent Determinations; and
- Litigated Determinations.
What is a Future Act?
More information about the Future Act provisions of the Native Title Act and NTSCORP’s Future Act and Agreement Making services can be found here.
What is an Indigenous Land Use Agreement?
An Indigenous Land Use Agreement (ILUA) is an agreement negotiated between native title claim groups and other parties about a range of issues including the use and management of land and waters in a certain area.
An ILUA is designed to be flexible so that parties reach an agreement tailored to their needs and circumstances. ILUAs can be made about matters such as mining development, joint management of Crown land such as national parks, and exercising native title rights and interests. An ILUA may provide agreement terms in relation to employment, compensation and culture and heritage.
Because ILUAs are negotiated agreements, they can be made with or without a native title claim being made in the Federal Court.
Once agreed, and registered with the National Native Title Tribunal (NNTT), an ILUA is legally binding on all parties. It is important to note that a registered ILUA binds all persons who hold native title in the area, even where they were not involved in negotiating the agreement. As a consequence of this, parties to an ILUA need to conduct thorough enquiries and research to ensure that everyone who may hold native title in the area is consulted and is part of the ILUA process.
The role of NTSCORP Limited
NTSCORP Limited performs functions under section 203B-BK of the Native Title Act 1993 (Cth) which include:
- Facilitation and assistance;
- Dispute resolution;
- Agreement making;
- Internal review; and
- Other functions.
NTSCORP provides specialised legal, research, strategic development and community facilitation services to native title claim groups and Traditional Owners across NSW and the ACT.
As NTSCORP does not receive an adequate level of funding to provide services to all Traditional Owners in NSW and the ACT, NTSCORP must prioritise those matters in which it can provide assistance. To ensure decisions about assistance are made in an open and transparent way, NTSCORP considers applications for assistance in accordance with the criteria contained in NTSCORP’s Facilitation and Assistance Policy.
Where can I find more information?
The National Native Title Tribunal’s website contains additional information about native title. If you are a Traditional Owner, proponent or community member from NSW or the ACT seeking additional information about native title, please contact us.
The above is intended to provide general information only and should not be relied on as legal advice.
