Managing Crown Land - Fact Sheet - Native Title
IntroductionNative Title describes the rights and interests of Aboriginal and Torres Strait Islander people in land and waters, according to their traditional laws and customs. In Australia, Aboriginal and Torres Strait Islander people’s rights and interests in land were recognised in 1992 when the High Court delivered its historic judgment in the case of Mabo v the State of Queensland. This decision overturned the legal fiction that Australia upon colonisation was terra nullius (land belonging to no-one). It recognised for the first time that Indigenous Australians may continue to hold native title.
Native Title RightsNative Title rights may include the possession, use and occupation of traditional country. In some areas, native title may be a right of access to the area. It can also be the right for native title holders to participate in decisions about how others use their traditional land and waters. Although the content of native title is to be determined according to the traditional laws and customs of the title holders, there are some common characteristics. It may be possessed by a community, group, or individual depending on the content of the traditional laws and customs. It is inalienable (that is, it cannot be sold or transferred) other than by surrender to the Crown or pursuant to traditional laws and customs. Native Title is a legal right that can be protected, where appropriate, by legal action.
Application of Native TitleNative Title may exist in areas where it has not been extinguished (removed) by an act of government. It will apply to Crown land but not to freehold land. It may exist in areas such as:
- 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
- oceans, seas, reefs, lakes, rivers, creeks, swamps and other waters that are not privately owned.
Other People's RightsNative Title cannot take away anyone else’s valid rights, including owning a home, holding a pastoral lease or having a mining lease. Where native title rights and the rights of another person conflict, the rights of the other person always prevail. When the public has the right to access places such as parks, recreation reserves and beaches, this right cannot be taken away by Native Title. Native Title does not give Indigenous Australians the right to veto any project. It does mean, however, that everyone’s rights and interests in land and waters have to be taken into account.
Native Title ClaimsIndigenous people can apply to have their native title rights recognised by Australian law by filing a native title application (native title claim) with the Federal Court. Applications are required to pass a test to gain certain rights over the area covered in the application. The Native Title Tribunal (NNTT) was established to administer application processes. Once applications are registered, the NNTT will notify other people about the application and will invite them to become involved so all parties can try 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 and the parties argue their cases before the Court.
SummaryAs a common law right, native title may exist over areas of Crown land or waters, irrespective of whether there are any native title claims or determinations in the area. Native Title will therefore be a necessary consideration when Government is proposing or permitting any activity on or relating to Crown land, that may affect native title.
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