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 and
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 is considered 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 (NTA s 223). While the native title rights recognised will be specific to each determination, they may include as the rights to:
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
have a say in the management or development of the land.
Extinguishment and partial extinguishment
Extinguishment or partial extinguishment of native title (NTA s 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 Wik Peoples v Queensland  HCA 40 (Wik) that the granting of pastoral leases only partially extinguishes 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. Because it was previously believed that the granting of pastoral leases extinguished native title, some acts which took place on native title land between 1 January 1994 when the NTA came into force and 23 December 1996 when Wik was decided may have actually been unlawful. These acts are known as ‘intermediate period acts’ and are validated by the NTA (s 21).
The NTA recognises that Aboriginal and Torres Strait Islander people hold rights and interests in waters according to their traditional laws and customs (NTA s 211). The NTA sets out native title holders’ rights to access and take water without requiring a licence for the purposes of:
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 law, 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.
This page was authored by Michael Cawthorn, consultant anthropologist (updated 31.08.2020).