Native title, rights and interests

What is native title?

The Native Title Act 1993 (Cth) (NTA) is legislation 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

For a timeline of events related to the development of native title law in Australia please click here.

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 had complex legal systems in place prior to colonisation and and enjoyed rights to their land according to their own laws and customs. The Court found that those rights survived colonisation, in certain circumstances, 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 over 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.

Charles Passi talks about the importance of the Mabo case in the following video.

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. The types of rights that are recognised in a native title determination depends on the particular laws and customs of the native title claim group, and what they can prove.  

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.  

Exclusive and non-exclusive native title

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 native title 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 provide similar rights. However, unlike freehold title, exclusive native title rights do not amount to full legal ownership of land or waters and they cannot be sold.

Commercial native title rights

Native title rights and interests are commonly limited to 'personal, domestic or communal purposes' but it is possible to have rights recognised 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 where it has not been extinguished, 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 the rights to:

  • maintain and protect sites

  • use the land for hunting or ceremony

  • camp and live on the land

  • take resources from the land and waters

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. 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 that are inconsistent with the ongoing enjoyment of native title rights.

The High Court in Western Australia v Ward (2002) 213 CLR 1 said that native title could be extinguished in whole or part. To determine whether native title is extinguished, 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. 

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).

Where native title was extinguished after the enactment of the Racial Discrimination Act 1975 (Cth) native title holders are entitled to compensation under the NTA. See the PBC compensation webpage for more information.

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. Native title rights relating to water can include rights to:

  • fish

  • hunt

  • take other resources from the water

  • access water

  • take water for certain purposes, including cultural or spiritual activities

A handful of native title determinations have also recognised exclusive possession native title over inland water and the right to take water for commercial purposes (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).

However, the exercise of native title rights to water still has to comply with relevant legislation, even where exclusive native title has been recognised (see e.g. Rrumburriya Borroloola Claim Group v Northern Territory [2016] FCA 776). 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.  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. 

In some circumstances, native title water rights may be completely or partially extinguished by past acts of government, such as the granting of water rights to third parties.

This page was authored by Michael Cawthorn, consultant anthropologist (updated 31.08.2020) and updated on 11 May 2023 by AIATSIS’ Indigenous Country and Governance Unit.

Further resources