Native title is the term used by Australia's High Court to describe the common law rights and interests of Aboriginal and Torres Strait Islander people in land and waters, according to their traditional law and customs.
The impact of the Mabo judgment is that some Aboriginal and Torres Strait Islander people may continue to hold native title rights over some parts of Australia, according to common law. So when Indigenous people lodge a native title application with the National Native Title Tribunal they are asserting an existing right.
Native title cannot displace existing legal rights to land. If you have a lease or licence that allows you to do things on land or waters, these rights are not displaced by native title. Freehold land extinguishes native title - native title applications cannot be lodged over freehold land.
While native title cannot displace the rights of those with an interest in land or waters, like a pastoral leaseholders, it also allows these interest holders to have a say in the native title mediation. People with an interest in land can become parties to the native title claim by applying to the Tribunal during the public notification period that precedes mediation meetings.
The processes established under the Native Title Act provide a way of reaching native title determinations through mediation.
The Tribunal is not a court. The aim of the Tribunal is to help members of local communities reach a mediated agreement on the form native title will take.
Mediation meetings are informal, and held locally. Those participating are encouraged to speak for themselves.
Tribunal mediators aim to bring the parties to agreement - an agreement that suits everyone.
As each mediation meeting will include a different range of parties and the issues discussed will reflect local concerns, each native title determination may be different.
While the aim of the Native Title Act is to recognise Indigenous interests in land and waters according to traditional laws and customs, past grants of land or the issuing of licences may change the type of native title defined in a determination.
Native title will not always result in a form of title equivalent to the type of title conferred on freehold land holders.
Native title may be as little a right as the right to walk across some land. It may be a right of recognition and rights to consultation over future use. This may include consultation over management issues. The mediation process, with its emphasis on giving people a say, means the outcomes will differ from case to case.
Native title is a communal title - it can't be held by individuals - and the rights conferred on native title holders cannot be bought or sold.