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Native title is a form of land title that recognises the unique ties some Aboriginal groups have to land. Australian law recognises that native title exists where Aboriginal people have mainatined a traditional connection to their land and waters, since sovereignty, and where acts of government have not removed it.
Native title was first recognised by the High Court of Australia in 1992 with the Mabo decision. The Mabo decision overturned the idea of 'terra nullius', that the Australian continent did not belong to anyone at the time of Europeans' arrival. It recognised for the first time that indigenous Australians may continue to hold native title and to be uniquely connected to the land.
Aboriginal and Torres Strait Islander people can apply to the courts to have their native title rights recognised under Australian law. Native title holders have the right to be compensated if governments acquire their land or waters for future developments.
Native title can co-exist with other forms of land title (such as pastoral leases) but is extinguished by others (such as freehold).
The native title of a particular group will depend on the traditional laws and customs of those people. The way native title is recognised and practised may vary from group to group, depending on what is claimed and what is negotiated between all of the people and organisations with an interest in that country.
What kinds of land tenure extinguish native title?
Freehold extinguishes native title. Some other forms of land tenure also extinguish native title. For example, in August 2002 the High Court found that the vesting of reserves under section 33 of the Land Act 1933 totally extinguishes native title in Western Australia.
Where can native title co-exist with other forms of land tenure?
Native title can co-exist with some forms of land tenure. In December 1996 the High Court found that native title could co-exist with pastoral leases and where there is conflict, the rights of the pastoralist prevail.
A "future act" is a proposed activity or development on land and/or waters that may affect native title, by extinguishing it or by creating interests that are inconsistent with the existence or exercise of native title.
Common examples of future acts in Western Australia are the proposed grants of mining or land titles by the Department of Industry and Resources and the Department of Planning and Infrastructure respectively.
If an act does not affect native title rights and interests or if native title does not exist in the relevant area, the act can be done without reference to the Native Title Act 1993 ("NTA"). If native title probably exists and is likely to be affected, then the provisions of the NTA should be followed in order to ensure the act is valid.
What has the State done to streamline the future act process?
Through the Heritage Protection Working Group, the State has developed regional heritage agreements. These agreements provide a streamlined set framework for future acts in the different regions.
The heritage protection agreements speed up access to land by explorers while also addressing Aboriginal heritage protection.
How do regional heritage agreements work?
Key elements of the agreements include:
Is there funding for processing future act applications?
The Government sees the need to speed up all stages in the processing of future act applications. This means funding Government departments to notify native title holders or applicants about future acts and also funding the legal bodies representing native title holders and applicants to negotiate about future acts. The Government has provided $2.8 million over four years to employ future act officers in the State's Native Title Representative Bodies and the Department of Industry and Resources.
What is an Indigenous Land Use Agreement?
An Indigenous Land Use Agreement (ILUA) is a voluntary agreement between native title groups and others about the use and management of land and waters. What distinguishes an ILUA from other kinds of agreements is that it may be registered on the Register of Indigenous Land Use Agreements which is held by the National Native Title Tribunal. A registered ILUA binds all persons who hold native title to the terms of the agreement, whether they were parties to the agreement or not.
What is a Native Title Representative Body?
A Native Title Representative Body (NTRB) is an organisation representing native title applicants. NTRBs are funded by the Commonwealth through the Native Title Act. Some applicants are independently represented.
How does the State deal with native title?
The State Government recognises that native title is of particular importance in Western Australia. Government policy is based on acknowledging the concept of native title, negotiating native title issues positively and genuinely making the Native Title Act work, in order to produce practical solutions to native title. The State deals with native title through the Office of Native Title.
The Government mediates the determination of native title applications rather than taking them to court. The emphasis is on reaching agreements about where native title exists. Where it is not possible to reach agreements about native title, the State may provide alternative, non-native title land outcomes.
Where are there native title claims in Western Australia?
In Western Australia registered and determined native title claims cover 98% of the State, with some also covering inter-tidal zones and sea. There are approiximately 125 outstanding native title applications in Western Australia.
A connection report is material provided by the native title applicants to the State to support their native title claim. The report outlines the evidentiary basis of the native title application.
Reports are usually written by expert historians, anthropologists or linguists after consultation with the Aboriginal people claiming native title rights.
The Office of Native Title provides guidelines to applicants on connection reports.
What is the Future Act Working Group?
On 15 April 2003, the Office of Native Title held the first meeting of the Future Act Working Group. This group has representatives from the Departments of Industry and Resources, Planning and Infrastructure, Fisheries, Indigenous Affairs and the State Solicitor's Office. The purpose of the working group is to consider all matters relating to native title decisions so that the Government can formulate consistent policy on future act matters.
How does native title differ from land rights?
Native title is similar to - but not exactly the same as - land rights.
Last Updated: 5-Nov-2009
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