Native title, rights and interests

What is native title?

The Native Title Act 1993 (Cth) (NTA) is a law passed by the Australian Parliament that recognises the rights and interests of Aboriginal and Torres Strait Islander people in land and waters according to their traditional laws and customs.

History of the Native Title Act

Native title was first recognised in Australian law following a claim lodged in 1982 with the High Court of Australia by a group of Meriam people from the Eastern Torres Strait. They sought recognition of their peoples’ occupation and exclusive possession of Mer (Murray Island) according to their own laws and customs since before British sovereignty. Eddie Koiki Mabo was the first named plaintiff in the case, and was joined by Meriam plaintiffs David Passi, Sam Passi, Celuia Mapoo Salee and James Rice. Ten years after the claim was lodged, in 1992, the High Court upheld the claim by the Mabo plaintiffs. The landmark judgement in Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo), acknowledged the pre-existing native title rights and interests of the Meriam people in Murray Island.

The judgements of the High Court in Mabo overturned the legal fiction of terra nullius (land belonging to no one), and acknowledged that Indigenous people have lived in Australia for many thousands of years and enjoyed rights to their land according to their own laws and customs. The Court found that those rights survived colonisation, and they are now recognised and protected by the Australian legal system.

The NTA was passed in 1993. It established a process for claiming and recognising native title lands and waters in Australia. The NTA aims to balance Indigenous and non-Indigenous peoples’ rights to land, and sets out how native title rights and interests fit within Australian law.

What are native title rights?

Native title is often described as a ‘bundle of rights’ in land, meaning a collection of rights. These rights may include the right to camp, hunt, use water, hold meetings, perform ceremony and protect cultural sites. It is important to note that native title only recognises the right to perform certain activities which come from traditional laws and customs but does not recognise those traditional laws and customs themselves. When a native title claim is determined, not all rights within the bundle are automatically granted.

The High Court in Western Australia v Ward (2002) 213 CLR 1 said that native title could be extinguished in whole or part. Each right therefore needs to be considered separately to determine whether any past acts of government are inconsistent with the continued existence of that right. Examples of acts which can extinguish native title include the grant of a freehold lease or the construction of public works such as a telephone line or a road.

In most cases, native title is found to exist alongside other non-Indigenous property rights, such as pastoral leases. This form of native title is referred to as non-exclusive possession because others also have rights to the land. Non-exclusive native title rights may include the right to access, hunt and camp on traditional country, but not the right to control access to, and use of, an area. In some cases, native title rights may include possession of an area to the exclusion of all others. These are called exclusive possession native title rights which are valued like freehold title (Griffiths v Northern Territory of Australia (No 3) [2016] FCA 900) and are recognised in other forms of legislation (such as in carbon farming).  

Native title is inalienable, meaning it cannot be sold or transferred freely, and can only be surrendered to the Crown (or extinguished). However, there are some options for non-extinguishing leasing of native title lands.  

Recently native title rights and interests have been described in broader terms. For example, in Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia [2013] HCA 33, the High Court said that the native title claim group had the right ‘to take for any purpose resources in the native title areas’. This meant that the native title holders could continue to sell and trade fish as they had done under their traditional laws. It was the first time that native title rights were found to include commercial rights.

Where can native title be claimed?

Native title may be claimed in areas such as

  • vacant (or unallocated) Crown land

  • parks and public reserves

  • beaches

  • 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 [1996] 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).

Water rights

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:

  • hunting

  • fishing

  • gathering

  • a cultural or spiritual activity

  • any other kind of prescribed activity.

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 [2016] FCA 776Willis on behalf of the Pilki People v State of Western Australia (No 2) [2014] FCA 1293; and Akiba v Commonwealth [2013] 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).