Native titles

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Native title recognises and protects the rights of Aboriginal and Torres Strait Islander peoples in Australia

Following the High Court of Australia’s decision in the Mabo & Others v Queensland (No.2) (1992) case, the Commonwealth enacted the Native Title Act 1993 (Cth).  Native title is the recognition in law that indigenous property rights may have survived more than two hundred years of European settlement. Native title may continue to exist over land and waters in Australia in accordance with the traditional laws and customs of Aboriginals and Torres Strait Islander peoples.

Where does native title apply in Victoria?

Native title is not a new form of land title, but a legal recognition of an existing right. Native title is held by Aboriginal and Torres Strait Islander people who have maintained a connection with land or waters according to their traditional laws and customs.

Native title can only exist on Crown land and waters if it has not been extinguished by certain acts related to the use of the land.  Areas where native title may apply include:

  • vacant (or unallocated) Crown Land;
  • forests and beaches;
  • national parks and public reserves;
  • some types of pastoral leases;
  • land held by Government agencies;
  • land held for Aboriginal communities;
  • any other public or Crown lands; and
  • oceans, seas, reefs, lakes, rivers, creeks, swamps and other waters that are not privately owned.

Does native title impact on my rights as a landowner?

Native title cannot remove anyone else’s valid rights, including owning a home, holding a pastoral lease or having a mining lease. Where conflict exists between native title rights and the rights of another person, the rights of the other person prevail.

Does native title remove public access rights?

Native title cannot remove public rights to access places such as parks. However, native title does require that all rights and interests in land and waters are taken into account.

How is a native title claim processed?

Aboriginal and Torres Strait Islander people can apply to have their native title rights recognised by Australian law by filing a native title application (Claim) with the Federal Court. Applications are required to pass a test to gain certain rights over the area covered in the application. Once an application is registered the National Native Title Tribunal (NNTT) notifies relevant parties and invites them to become involved to reach an agreement that respects everyone’s rights and interests. If the parties cannot agree, the NNTT refers the application to the Federal Court for the parties to argue their case before the Court.  The requirements of the Native Title Act 1993 (Cth) must be complied with whether or not the land is under claim.

What is an Indigenous Land Use Agreement (ILUA)?

An ILUA is an agreement between a native title group and others about the use and management of land and waters. ILUAs allow people to negotiate flexible, pragmatic agreements to suit their particular circumstances.  ILUAs bind all parties and native title holders to the terms of the agreement.

ILUAs may be made with regard to such matters as:

  • native title holders agreeing to a future development;
  • how native title rights coexist with the rights of other people;
  • access to an area;
  • extinguishment of native title;
  • compensation.

What is a “Future Act” under the Native Title Act 1993 (Cth)?

A future act is any activity affecting any native title rights or interests that occurs on Crown land after the commencement of the provisions of the Native Title Act 1993 (Cth). It can be:

  • a legislative act such as the making of or amendment of Acts of Parliament;
  • an administrative act such as the issue of a licence to use Crown land, the issue of a management plan for a park or reserve, or the sale of Crown land; or
  • a physical act such as the construction of facilities on a Crown reserve.

The Native Title Act describes many types of future acts. Some of them relate to matters of government administration and are often not relevant to somebody who is applying to use Crown land for a specific use with approval from other managers of Crown land. Generally, the following types of future acts are identified as being permissible actions:

  • grazing or horticultural use under licence;
  • water diversion under licence;
  • aquaculture permits and licences;
  • developments on a Crown land reserve in keeping with the purpose of the reservation;
  • construction of some public infrastructure including (amongst others) roads, railways, power, gas and sewerage and drainage and telecommunications facilities;
  • low impact acts which have no lasting effect on native title rights, (for instance temporary use for bee-keeping); and
  • emergency risk mitigation works and works for reclamation or regeneration

Native title must be considered when Government or other Crown land managers (such as Committees of Management) are permitting or carrying out any activity on Crown land. Therefore it is important that such managers address native title issues when developing and implementing management activities on a reserve, and it is the responsibility of the relevant Crown land manager to ensure that native title issues are addressed.

Source: National Native Title Tribunal

Department of Justice, Native Title Unit