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Exactly what is native title? 

Des Brickey
The Western Yalanji People, of north Queensland, were the first in Australia to reach a native title agreement over a pastoral property. Later, the Federal Court found they held native title rights and interests over a further 200sq km of the same property. Said Elder Des Brickey of the historic day:"I have young people ready to go, who want to go back and learn about their culture. We can create something really good." Read the story.

Native title rights and interests

Native title is the recognition by Australian law that some Indigenous people have rights and interests to their land that come from their traditional laws and customs.

The native title rights and interests held by particular Indigenous people will depend on both their traditional laws and customs and what interests are held by others in the area concerned. Generally speaking, native title must give way to the rights held by others. The capacity of Australian law to recognise the rights and interests held under traditional law and custom will also be a factor.

Native title rights and interests may include rights to:

  • live on the area
  • access the area for traditional purposes, like camping or to do ceremonies
  • visit and protect important places and sites
  • hunt, fish and gather food or traditional resources like water, wood and ochre
  • teach law and custom on country.

In some cases, native title includes the right to possess and occupy an area to the exclusion of all others (often called ‘exclusive possession’). This includes the right to control access to, and use of, the area concerned. However, this right can only be recognised over certain parts of Australia, such as unallocated or vacant Crown land and some areas already held by, or for, Indigenous Australians.

Native title rights and interests differ from Indigenous land rights in that the source of land rights is a grant of title from government. The source of native title rights and interests is the system of traditional laws and customs of the native title holders themselves.

Native Title Act 1993 (Cwlth) Section 223

Native title

Common law rights and interests

(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

c) the rights and interests are recognised by the common law of Australia.