The CLC’s Easy Guide to Native Title
Native title is the name used for recognition by Australia’s laws that Indigenous people had a system of law and ownership of their lands before European settlement.
Native Title recognises that Aboriginal people have rights and interests in their lands and waters through their traditional laws and customs; Native title recognises that Indigenous people have traditional rights to speak for country; but native title does not provide Indigenous people with ownership of the land or stop development like land rights under the Aboriginal Land Rights Act does.
These rights and interests under native title 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.
When is native title extinguished?
The NTA explains when native title is lost. For example: Freehold titles and most leases over land extinguish (or finish) native title completely (except some titles held by Aboriginal people); pastoral leases only partially extinguish native title; and, Aboriginal titles, like land rights title or Aboriginal-owned pastoral stations, will generally have no affect on native title.
Some land titles will generally extinguish (or finish) native title completely, but a pastoral lease will only extinguish some native title rights.
What rights do you get from native title?
Many native title claims are for shared rights to the land with other people who also have an interest in the land. Recognition of native title may give Indigenous people the right to hold ceremony, gather bush tucker or have a say on what development can happen on the land. Examples of native title rights:
More information about the Native Title Act
- The right to protect sites;
- The right to access or hunt;
- In some cases, the right to camp or live on the land and share in money made from the development of the land;
- The right to hold ceremony; and,
- The right to have a say on the management or development of the land.
- Ownership of the land as recognised by white fellas;
- The power to take away other people’s rights to the land, like a pastoralist or a company with a mining licence; or,
- The right to stop developments.
That the future developments covered in the ILUA are valid, and that all Native Title holders groups for the area are bound by the ILUA.
This allows developers to make plans for development and means native title holders can negotiate employment opportunities and compensation and the protection of sacred sites.
Under the NTA, the Government must notify native title holders of any new exploration proposal.
If the government thinks the effect on native title will be minor, it can fast track the proposal. This is usually done for exploration which doesn’t involve much digging on country.
If the fast track is used, the company does not have to negotiate with native title holders and can just carry out the exploration. If the Government decides the fast track does not apply, the company needs to negotiate (or talk) with native title holders about its plan.
In the CLC’s experience, companies have been willing to negotiate ILUAs for exploration so they can build relationships with native title holders even if the native title claim hasn’t been registered.
Native title holders will always have a right to negotiate over the actual mining process as long as they have a registered native title claim.
So native title holders can usually negotiate an agreement about exploration or mining with benefits for employment and the protection of sites, but they will not be able to block any application by a company.