WHAT IS NATIVE TITLE?

Native title is the recognition by the Australian law that Aboriginal and Torres Strait Islander people have rights and interests to land and waters according to their traditional laws and customs. Native title is governed by the Native Title Act 1993 (Cth).

Native title became part of Australian law as a result of the historic Mabo decision in which the High Court ruled that Australia was not terra nullius - a land belonging to no-one - at the time of European colonisation. This decision recognised Aboriginal and Torres Strait Islanders as being Australia’s first people and that their rights and interests in land and waters continued to exist despite colonisation.

Native title may include rights and interests to:

  • Live on the area and erect shelters and structures

  • Access the area for any purpose, including camping or for ceremonies

  • Visit and protect important places and sites to hunt, fish and gather food or resources like bush medicines, water, ochre and wood

  • Teach law, custom and engage in cultural activities.

Native title comes in two forms: exclusive possession and non-exclusive possession.

Native title can co-exist with non-Indigenous property rights such as pastoral leases, reserves, or licences, and this is known as non-exclusive native title – or native title in areas where another party also has rights.

Exclusive possession native title is the right to possession, occupation, use and enjoyment of an area to the exclusion of all others. Exclusive possession native title can only be recognised in areas such as unallocated Crown land, and in some areas where the only other interest holders are Aboriginal people, such as Aboriginal owned pastoral leases.

Native title process

Native title requires Aboriginal people to prove they have had a continuous and unbroken connection to their country since colonisation, which in Western Australia was 1829.

If an Aboriginal person or group claims to hold native title rights and interests in an area, they can make an application for legal recognition of these rights. This application is made to the Federal Court, and if the Federal Courts makes orders recognising native title, this is called a “determination”.

HOW NATIVE TITLE IS RECOGNISED - A step-by-step GUIDE:

  • A native title application (or “claim”) is made to the Federal Court by one or more people who are authorised by the people on whose behalf the claim is made – called the “claim group”. The people who make the application are the Applicant.

  • The Federal Court sends the native title application to the National Native Title Tribunal to assess the application against the registration test. The “registration test” is a high level check of the application to make sure there is some evidence to support the native title claim, and there are no legal road blocks that would stop the native title claim (such as native title already being recognised over the same area).

  • If the application passes the registration test, the Native Title Act gives the Applicant and the claim group legal rights if anyone else makes an application for a lease, licence, permit or other interest in the area. This is the “future act” process and it gives the Applicant legal rights to be notified, to have a say (a right to comment), or a right to negotiated before the other interest can be granted. The type of future act right the Applicant gets depends on the type of future act.

  • After the registration test is completed, the National Native Title Registrar publicly advertises the native title application and people with an interest in the area can apply to become a respondent party to the claim.

  • The Federal Court begins to manage the native title application. This is called “case management” and it can include mediation. Mediation is the preferred way to resolve native title claims and involves all parties agreeing that native title should be recognised in the claim area.

  • If all parties agree that native title should be recognised in the claim area, they can apply to the Federal Court to make a consent determination of native title. The Federal Court may hold a special court hearing on country to make the orders recognising native title under the Australian law.

  • If the parties cannot reach agreement on how native title should be recognised, the native title application will go to trial and the Federal Court will make a decision about whether the native title claim group has native title rights or interests in the claim area or not.

In July 2019, the KLC released the Native Title Story, a native title information booklet for Kimberley Traditional Owners. The information booklet provides information about the native title process and the role of PBCs in our region.

For further information on the native title process visit the National Native Title Tribunal website.