Native title, rights and interests
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What is native title?
The Native Title Act 1993 (Cth) is a law passed by the Australian Parliament that recognises the rights and interests of Aboriginal and Torres Strait Islander people in land and waters according to their traditional laws and customs.
History of the Native Title Act
Native title was first recognised in Australian law following a claim lodged in 1982 with the High Court of Australia by a group of Meriam people from the Eastern Torres Strait. They sought recognition of their peoples’ occupation and exclusive possession of Mer (Murray Island) according to their own laws and customs since before British sovereignty. Eddie Koiki Mabo was the first named plaintiff in the case, and was joined by Meriam plaintiffs David Passi, Sam Passi, Celuia Mapoo Salee and James Rice. Ten years after the claim was lodged, in 1992, the High Court upheld the claim by the Mabo plaintiffs. The landmark judgement in Mabo vs Queensland (No 2) 1992, acknowledged the pre-existing native title rights and interests of the Meriam people in Murray Island.
The judgements of the High Court in the Mabo case, overturned the legal fiction of terra nullius (land belonging to no one), and acknowledged that Indigenous people have lived in Australia for many thousands of years and enjoyed rights to their land according to their own laws and customs. The Court found that those rights survived colonisation, and they are now recognised and protected by the Australian legal system.
The Native Title Act (NTA) was passed in 1993. It established a process for claiming and recognising native title lands and waters in Australia. The NTA aims to balance Indigenous and non-Indigenous peoples’ rights to land, and sets out how native title rights and interests fit within Australian law.
What are native title rights?
Native title has been described as a ‘bundle of rights’ in land, meaning a collection of rights. For example, such rights may include the right to camp, hunt, use water, hold meetings, perform ceremony and protect cultural sites. When a native title claim is determined, not all rights within the bundle are automatically granted. Rather, the specific rights that are recognised are decided on a case-by-case basis, and depend on the traditional laws and customs of the claimant group, as well as whether acts of government have taken place in the past (prior to the passing of the NTA) that extinguish (remove) native title. In most cases, native title is found to co-exist alongside other non-Indigenous property rights, such as pastoral leases. This form of native title is referred to as non-exclusive possession. Non-exclusive native title rights may include the right to access, hunt and camp on traditional country, but not the right to control access to, and use of, an area.
In some cases, native title rights may include possession of an area to the exclusion of all others (exclusive possession). Freehold, is a form of land ownership that entitles the land holder to possess an area of land for all time, or otherwise do as they wish with it provided that they comply with relevant laws. Exclusive possession may be granted in relation to unallocated or vacant crown land, or certain areas already held by or for Indigenous people. Unlike State and Territory land rights regimes that provide grants of inalienable freehold title or perpetual lease as compensatory measures for historical dispossession, native title does not provide for the grant of freehold title.
Section 225 of the NTA sets out the requirement to identify the native title holders, describe the extent of their rights and interests, and identify the rights and interests of any other party/s in a native title determination area, including whether native title is of an exclusive or non-exclusive nature.
For the purposes of the context of the NTA (section 223), ‘traditional laws and customs’ mean the body of laws and customs observed by the native title holders that existed before British sovereignty and have been passed down from generation to generation within an Aboriginal or Torres Strait Islander society.
Where can native title be claimed?
Native title may be claimed in areas such as:
- Vacant (or unallocated) Crown land;
- Parks and public reserves;
- Some leases (such as non-exclusive pastoral leases);
- Land held by government agencies;
- Some land held for Aboriginal and Torres Strait Islander communities;
- Oceans, seas, reefs, lakes, rivers, creeks and other waters that are not privately owned.
Native title rights cannot be claimed in relation to minerals, gas or petroleum under Australian law. Native title in tidal and sea areas can only be of a non-exclusive nature, as exclusive native title would be inconsistent with other common law rights regarding marine access and navigation.
Claimable rights and interests
The NTA recognises Aboriginal and Torres Strait Islander peoples’ rights over their land and waters, according to their traditional laws and customs (s.223 NTA). While the native title rights recognised will be specific to each determination, they may include such rights as:
- Maintain and protect sites;
- Use the land for hunting or ceremony;
- Camp and live on the land;
- Share in money from any development on the land; and
- Have a say in the management or development of the land.
Extinguishment and partial extinguishment
Extinguishment or partial extinguishment of native title (section 237A) means that native title holders are no longer able to fully exercise their traditional rights in an area. This is referred to as ‘impairment’ of native title rights, and is the result of certain past acts of government (generally prior to 1 January 1994 when the NTA came into force), such as granting of freehold land, granting of leases, or the construction or establishment of public works, that are inconsistent with the ongoing enjoyment of native title rights.
It was recognised in the Wik decision that the granting of pastoral leases have the effect of only partially extinguishing native title. Limited native title rights can coexist and be recognised alongside other rights in land held under pastoral lease. While some native title rights (such as the right to control access to, and use of the land) are extinguished by the granting of pastoral leases, other rights, such as rights to hunt, camp and perform ceremony may continue to be exercised.
The NTA recognises that Aboriginal and Torres Strait Islander people hold rights and interests in waters according to their traditional laws and customs (s.211 NTA). The NTA sets out native title holders’ rights to access and take water without requiring a licence for the purposes of:
- A cultural or spiritual activity; and
- Any other kind of activity prescribed for the purpose of this paragraph.
The NTA only provides native title holders with the same rights to waters as other landholders. Recognition of native title rights in waters does not extend to ownership or rights to commercial use of water. All States and Territories have legislation that sets out the circumstances in which water can be taken, and when licences for taking water are required. Native title water rights can be extinguished or partially extinguished by past acts of government, such as the granting of water rights to third parties.
According to current jurisprudence, native title holders who wish to use water resources for commercial activities, such as commercial irrigation, are required to apply through existing State and Territory water management regimes. Recent favourable court judgements regarding the right to trade in natural resources (see Rrumburriya Borroloola Claim Group v Northern Territory  FCA 776; Willis on behalf of the Pilki People v State of Western Australia (No 2)  FCA 1293; and Akiba v Commonwealth  HCA 33; see Overturning aqua nullius), suggest that commercial use of water resources could be included in future native title applications.
The NTA allows for native title holders to make an application to the Federal Court for compensation on ‘just terms’ (s.51 NTA) for any loss, diminution or impairment of native title caused by past acts of government that have had the effect of extinguishing native title and thereby preventing native title holders from exercising or enjoying their native title rights (s.51 NTA). Past acts are those that took place before the passing of the NTA and are generally determined as having occurred prior to 1 January 1994. Compensation applications can be made by Aboriginal and Torres Strait Islander people who assert that they hold native title rights and interests in an area where native title has been extinguished by past acts of government. Compensation may be sought from the Commonwealth or relevant State or Territory depending on the type of act that had the extinguishing effect on native title.
The Racial Discrimination Act 1975 (Cth) (RDA) is the legislative mechanism that entitles native title holders to seek compensation, because it invalidates acts of government that discriminate against native title holders by extinguishing or impairing their native title rights and interests. Compensation is not payable for past acts of government that affected native title prior to 31 October 1975 (the date the RDA was passed).
The NTA does not state how the amount of monetary compensation should be calculated. The successful compensation claim by the Ngaliwurru and Nungali people in the area of Timber Creek, NT (Griffiths v Northern Territory of Australia (No 3)  FCA 900) is important because it is the first favourable compensation case where the Court set out how compensation may be calculated (see What's New in Native Title newsletter).