Central Land Council

The Native Title Act

The Native Title Act is a piece of Australian Commonwealth legislation which recognises and codifies the rights and interests Aboriginal people have over their lands dating from long before European settlement of Australia.

The Native Title Act was enacted in 1993 after these rights were recognised by the Australian High Court in the Mabo judgement of 3 June 1992.

Until then, the legal system in Australia had wrongly assumed that the land of Australia had belonged to no one, or was terra nullius, when the British arrived in 1788.

The common law, originally founded on custom and tradition, is the British system of judge-made law, based on precedent. Native title is not a new type of land grant but a common law right that pre-dates the European settlement of Australia.

The Mabo judgment found that a native title to land existed in 1788 and may continue to exist provided it has not been extinguished by subsequent acts of government and provided Indigenous groups continue to observe their traditional laws and customs.

The High Court's Wik judgment (December 1996) decided an issue left unresolved by the Mabo judgment when it determined that native title could coexist with other rights on land held under a pastoral lease.

To give statutory recognition to Indigenous common laws rights and resolve a number of land management issues, the Commonwealth legislated the Native Title Act 1993 which was amended by the Coalition Government in 1998.

Following the passage of the Native Title Amendment Act 1998 through the Federal Parliament in July 1998, extensive changes to the Native Title Act 1993 (NTA) were introduced at the end of September and October 1998.

In addition, several important court decisions dealing with native title matters were handed down during the year. The amendments to the NTA rewarded State and Territory governments that had operated outside the Native Title Act, by validating the invalid interests granted by those governments between 1 January 1994 and 23 December 1996.

This regime of extinguishment and validation of titles resulted in the legislative extinguishment of native title over significant tracts of land across the country. The protective mechanisms under the future act regime under the Native Title Act were wound back, and provision was made for State and Territory based schemes of uncertain content to replace the right to negotiate.

A new and onerous registration test was introduced and has been applied retrospectively to all existing native title applications. This raises the real possibility that native title holders will lose the right to negotiate over development and mining proposals, in addition to the loss of their right to have a say in the diversification of the use of pastoral land, as has already occurred under the amendments.

Apart from the introduction of Indigenous Land Use Agreements, there is little in the amendments for native title holders to applaud, and much to cause them distress.

Given the complexity of the legislation and the few benefits that the new NTA provides, the likelihood of further legal challenges and ongoing uncertainty remains high.