About native title
Native title is the recognition in Australian law that some Indigenous people continue to hold rights to their land and waters, based on their traditional laws and customs.
By legal definition, it means ‘the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters’.
A landmark High Court decision in 1992 led to the recognition and protection of native title across Australia through the introduction of the Native Title Act 1993 (Cth). In the Mabo decision, the court recognised that the Meriam People of the Torres Strait held native title over part of their traditional lands. This decision paved the way for Aboriginal and Torres Strait Islander peoples to have their native title recognised under Australian law and discarded the old idea that Australia was ‘terra nullius’ (land belonging to no one) at the time of European settlement.
Conditions requiredFor native title to apply, the relevant Indigenous people must:
- possess the rights and interests under the traditional laws currently acknowledged and the traditional customs currently observed. Those laws and customs must have been acknowledged and passed down from generation to generation from the time of settlement until now
- have a ‘connection’ with the area in question by those traditional laws and customs
- have rights and interests recognised by the common law of Australia.
Native title facts
- Native title claims can only be made on certain areas of land or water—for example, on vacant or unallocated State land but not on residential freehold land or public works like roads, schools or hospitals.
- Governments do not grant native title. It is usually recognised through a determination made by the Federal Court of Australia under the Native Title Act 1993 (Cth).
- Native title usually exists alongside, and subject to, the rights of other people in the same area.
- Where certain past acts of government—such as granting of freehold land, granting of leases, or the construction or establishment of public works—is inconsistent with the ongoing enjoyment of native title rights, native title over a particular area can be extinguished (refused recognition).
Native title rights
Native title is understood more typically as a bundle of rights, rather than a title to land. The rights recognised will depend on the native title holders’ traditional laws and customs and Australian law’s capacity to recognise the rights and interests they hold.
Native title rights and interests can be categorised as either exclusive or non-exclusive.
Exclusive native title—the right to possess, occupy and use an area to the exclusion of all others. In other words, it allows native title holders to control access to lands.
Non-exclusive native title—rights co-exist alongside other property rights, which means native title holders don’t control access to lands. Non-exclusive rights can include the right to live and camp in the area, build temporary shelters, hunt and fish on the area, collect food, conduct ceremonies and maintain and protect places of cultural importance.
All native title rights are subject to the laws of the State and the Commonwealth.