Where can native title be claimed?
Native title may be claimed in areas such as:
- Vacant (or unallocated) Crown land;
- Parks and public reserves;
- Some leases (such as non-exclusive pastoral leases);
- Land held by government agencies;
- Some land held for Aboriginal and Torres Strait Islander communities;
- Oceans, seas, reefs, lakes, rivers, creeks and other waters that are not privately owned.
Native title rights cannot be claimed in relation to minerals, gas or petroleum under Australian law. Native title in tidal and sea areas can only be of a non-exclusive nature, as exclusive native title would be inconsistent with other common law rights regarding marine access and navigation.
Claimable rights and interests
The NTA recognises Aboriginal and Torres Strait Islander peoples’ rights over their land and waters, according to their traditional laws and customs (s.223 NTA). While the native title rights recognised will be specific to each determination, they may include such rights as:
- Maintain and protect sites;
- Use the land for hunting or ceremony;
- Camp and live on the land;
- Share in money from any development on the land; and
- Have a say in the management or development of the land.
Extinguishment and partial extinguishment
Extinguishment or partial extinguishment of native title (section 237A) means that native title holders are no longer able to fully exercise their traditional rights in an area. This is referred to as ‘impairment’ of native title rights, and is the result of certain past acts of government (generally prior to 1 January 1994 when the NTA came into force), such as granting of freehold land, granting of leases, or the construction or establishment of public works, that are inconsistent with the ongoing enjoyment of native title rights.
It was recognised in the Wik decision that the granting of pastoral leases have the effect of only partially extinguishing native title. Limited native title rights can coexist and be recognised alongside other rights in land held under pastoral lease. While some native title rights (such as the right to control access to, and use of the land) are extinguished by the granting of pastoral leases, other rights, such as rights to hunt, camp and perform ceremony may continue to be exercised.
The NTA recognises that Aboriginal and Torres Strait Islander people hold rights and interests in waters according to their traditional laws and customs (s.211 NTA). The NTA sets out native title holders’ rights to access and take water without requiring a licence for the purposes of:
- A cultural or spiritual activity; and
- Any other kind of activity prescribed for the purpose of this paragraph.
The NTA only provides native title holders with the same rights to waters as other landholders. Recognition of native title rights in waters does not extend to ownership or rights to commercial use of water. All States and Territories have legislation that sets out the circumstances in which water can be taken, and when licences for taking water are required. Native title water rights can be extinguished or partially extinguished by past acts of government, such as the granting of water rights to third parties.
According to current jurisprudence, native title holders who wish to use water resources for commercial activities, such as commercial irrigation, are required to apply through existing State and Territory water management regimes. Recent favourable court judgements regarding the right to trade in natural resources (see Rrumburriya Borroloola Claim Group v Northern Territory  FCA 776; Willis on behalf of the Pilki People v State of Western Australia (No 2)  FCA 1293; and Akiba v Commonwealth  HCA 33; see Overturning aqua nullius), suggest that commercial use of water resources could be included in future native title applications.
The NTA allows for native title holders to make an application to the Federal Court for compensation on ‘just terms’ (s.51 NTA) for any loss, diminution or impairment of native title caused by past acts of government that have had the effect of extinguishing native title and thereby preventing native title holders from exercising or enjoying their native title rights (s.51 NTA). Past acts are those that took place before the passing of the NTA and are generally determined as having occurred prior to 1 January 1994. Compensation applications can be made by Aboriginal and Torres Strait Islander people who assert that they hold native title rights and interests in an area where native title has been extinguished by past acts of government. Compensation may be sought from the Commonwealth or relevant State or Territory depending on the type of act that had the extinguishing effect on native title.
The Racial Discrimination Act 1975 (Cth) (RDA) is the legislative mechanism that entitles native title holders to seek compensation, because it invalidates acts of government that discriminate against native title holders by extinguishing or impairing their native title rights and interests. Compensation is not payable for past acts of government that affected native title prior to 31 October 1975 (the date the RDA was passed).
The NTA does not state how the amount of monetary compensation should be calculated. The successful compensation claim by the Ngaliwurru and Nungali people in the area of Timber Creek, NT (Griffiths v Northern Territory of Australia (No 3)  FCA 900) is important because it is the first favourable compensation case where the Court set out how compensation may be calculated (see What's New in Native Title newsletter).