A determination of native title is a decision that native title does or does not exist in a particular area of land and/or waters (the determination area).
Determinations of native title are made by the Federal Court of Australia, the High Court of Australia or another recognised body, who then notify the Native Title Registrar for entry onto the National Native Title Register (NNTR).
The National Native Title Tribunal classifies determinations according to the process by which the determination is ultimately reached. There are three broad processes which can lead to a determination of native title.
Consent
If the parties involved reach an agreement, usually through mediation, about native title, a consent determination may be made by the court or recognised body.
Litigated
When a native title application is contested the parties put forward their case in a trial process for determination by a judge.
Unopposed
If no one contests a native title application, the court or recognised body may make an unopposed determination.
Any single determination can be the result of different but interrelated processes. For example, the High Court's 2002 Ward decision is characterised as a consent determination even though the parties reached final agreement after a long period of litigation.
Determinations may cover the entire area of an application, or only part of the area of an application. Sometimes the court may decide that native title rights exist over one part of the determination area, but do not exist over another part. At other times, the court may decide that the people who hold native title have different rights and interests in relation to different parts of the determination area.
The court may also decide that native title rights over the determination area (or part of the determination area) are conditional upon some future event occurring, for example, the registration of an indigenous land use agreement or the establishment and registration of a prescribed body corporate (PBC). In that case the determination, or relevant part, will not be registered on the NNTR until the condition has been met.
When searching determinations of native title, please note that there is no direct one-to-one relationship between the number of decisions about native title determinations made by a court or recognised body and the number of native title applications affected by a determination of native title. This is because a determination of native title may cover one or more native title applications, or only part of an application. In cases when only part of an application is covered, the remainder of the application may be dismissed, discontinued, withdrawn or it may remain active for determination at a later date.
Summary information is provided about each determination. To access more detailed information and find out whether an area of land and/or water is affected by a determination of native title, you can ask the Tribunal to search the National Native Title Register.
View a map of current determinations.
As at 23 December 2008
| Total number of decisions about determinations of native title made by a court or other recognised body: |
117 |
| Consent determinations: |
71 |
| Litigated determinations: |
22 |
| Unopposed determinations: |
24 |
| Determinations in the appeal process: |
1 |
|
| Determinations that native title exists in the entire determination area or in parts of the determination area: |
82 |
| Determinations that native title does not exist in the entire determination area: |
35 |
|
| Total number of native title applications that are affected in whole or in part by a determination of native title |
145 |
| Claimant applications affected by a determination: |
117 |
| Compensation applications affected by a determination: |
1 |
| Non-claimant applications affected by a determination: |
27 |
Following the determination in September 2008 of the Prescribed Body Corporate in relation to the Rubibi determination, the Tribunal considered its approach to reflecting that determination, and two other earlier conditional determinations [Miriuwung Gajerrong (Western Australia) and Mandingalbay Yidinji] on the National Native Title Register (NNTR). It was decided that the NNTR entries should be amended to reflect a single entry per court decision, rather than separate entries for parts of the determination which cames into effect on different dates.
Accordingly, statistics in relation to determinations of native title have changed as the affected NNTR entries have been consolidated. The NNTR entries for Rubibi and Miriuwung Gajerrong (Western Australia) and Mandingalbay Yidinji have been updated to reflect a single entry for each judgement, and the statistics have been updated accordingly.