Central Land Council

Native Title

What is Native Title?

Native title is the name used by the Australian High Court to describe the rights and interests Aboriginal people have over their lands and dating from long before European settlement of Australia.

These rights and interests are called 'common law' Indigenous property rights and were recognised by the High Court in the Mabo judgment (3 June 1992) and made into legislation in 1993.

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.

The Native Title Act

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.

More information about the Native Title Act

Aboriginal Land

The Northern Territory Aboriginal Land Rights Act (Northern Territory) 1976 is about returning land to Aboriginal people.

The Land Rights Act mainly concerns vacant Crown Land outside towns and Aboriginal owned pastoral stations.

When Aboriginal people get Land Rights Act title to country, they own that land under Australian Law. Both Aboriginal law and Australian law say that the traditional owners of that land are the only ones who can speak up about it.

A Land Rights Act title is called Aboriginal freehold title and it's inalienable which means it can't be bought or sold and is owned collectively by an Aboriginal land trust.

The Land Rights Act began in 1976 but no new claims under this legislation have been able to be made since 1997 due to a 'sunset clause' introduced by the Hawke Government. That means only Aboriginal people who already have Land Rights title for their country or who made a Land Claim before 1997 can use it.

Native Title Land

The Native Title Act is about rights to country, which can co-exist with the rights of non-Aboriginal people. It's different to the Land Rights Act because the claimants don't get Aboriginal freehold title to that land. Native title may exist on vacant Crown land, national parks, public reserves, other public lands and also on pastoral leases. Native title cannot be claimed on land where there are privately owned homes or other private property such as commercial or residential property under freehold title

Although native title is not a strong title like title under the Land Rights Act it can exist even if the claimants country is a pastoral lease, a mining lease or even a town.

If native title is proven to exist on land, activities like pastoralism or mining can still continue. Native Title gives Aboriginal people a limited say about what activities can occur on that country.

Who has native title?

Native title is held by Aboriginal and Torres Strait Islanders peoples who have maintained a 'continuing connection' with their lands and waters, in accordance with their traditions.

Connection may involve responsibilities for land in ways not envisaged by Western systems of land ownership. Connection may be maintained in many ways other than mere physical association.

The CLC as a representative body

The CLC was given the functions of a representative Aboriginal/Torres Strait Islander body under the Native Title Act on 1 January 1994.

Since that time a dedicated Native Title Unit has been established to protect and advance the rights and interests of native title holders within the CLC's region. The Native Title Unit now employs staff with expertise in a range of areas including Aboriginal languages, cross-cultural communication, anthropology, history, research, administration and law.