Tips for understanding native title

Where native title can be claimed

  • Native title cannot be claimed on freehold land, other than freehold land held by or on behalf of Aboriginal or Torres Strait Islander people.
  • Native title can be claimed on some pastoral or agricultural leases but this will depend on the state or territory legislation under which the lease was granted and the terms of the lease itself.
  • Area descriptions for native title applications refer to the external boundaries of a claim. Inside those boundaries there can be many types of tenure where native title cannot be claimed and those areas are excluded from the area covered by the application. For example, a claim which appears to cover a city, in reality only covers some reserves and unallocated crown land within the city boundaries.

Native title rights and interests

  • Native title is a 'bundle of rights', rather than title to land. The scope of those rights varies according to the traditional laws and customs of the native title claimants, what they can prove, what acts have taken place on the land to diminish the rights and what the law will recognise as native title.
  • The strongest form of native title can only be proved over unallocated crown land (unallocated State land or vacant crown land) and some land set aside for Aboriginal communities. This can include the right to live on the land to the exclusion of all others.
  • Native title is never 'awarded' or 'granted'. The rights and interests of native title claimants are recognised where the source of the rights is the traditional laws and customs which have been substantially observed and maintained since European colonisation.
  • The types of rights recognised in a native title determination flow from the laws and customs of the native title holders. These usually include the right to hunt, gather and fish for traditional purposes; and, the right to conduct ceremonies. The Federal Court will list the rights and interests for each case in the final determination.

The rights of other parties

  • The interests of other parties, such as pastoral or mineral lease holders, are recognised and protected as part of a native title determination.
  • Where there is a conflict between a native title group and another party with valid rights and interests, native title legislation gives priority to the rights of the non-native title party.
  • Pastoralists, miners, local governments, industry, community groups and others with an interest in the area can apply to the Federal Court to become a 'party' to a native title claim. If they become a party, they can participate in negotiations and litigation with the native title claimants about their rights and interests.

Other legislation and organisations

  • Native title is not the same as land rights. Land rights schemes are established under state legislation and, in the case of the Northern Territory, Commonwealth law. The National Native Title Tribunal does not administer land rights legislation.
  • The Indigenous Land Corporation (ILC) is a Commonwealth statutory authority established to acquire and assist with managing land for and on behalf of Indigenous Australians to provide them with cultural, environmental, social and economic benefits.  The ILC's activities are funded from investment returns of the Aboriginal and Torres Strait Islander Land Account (a special account established from Consolidated Revenue).  For more information visit the ILC website.

Processes for resolving native title

  • There are generally two types of native title applications — claimant and non-claimant. The first seeks a determination that native title exists, while the second seeks a determination that native title does not exist. In the case of a compensation application, the applicants also hope to be compensated for the loss or impairment of their native title rights and interests. For more information visit the applications and determinations section of our website.
  • Future act agreements deal with proposed developments and activities, such as mining or exploration, in areas where a native title claim is yet to be resolved and in areas where there has been a native title determination. For more information visit the future act section of our website.
  • Indigenous land use agreements (ILUAs) are agreements between native title groups and others about the management and use of land and waters. They can be done before or after a determination that native title exists, or where there is no native title application at all. For more information visit the indigenous land use agreement section of our website.