Glossary

Arbitration

An inquiry conducted by the Tribunal into a future act determination application which takes into account the effect of the future act on the enjoyment by the native title party of their registered native title rights and interests (among other things) and the economic or other significance of the future act and the public interest. The arbitration (inquiry) leads to the Tribunal making a determination as to whether the future act can be done and, if so, whether conditions should be imposed.

Coexistence

The existence and exercise of native title rights alongside the rights of others to areas of land or waters. For example, native title rights to go onto the land or to hold ceremonies on it may coexist with the rights of a pastoral leaseholder to graze cattle on the same land. Coexistence is about sharing the land in a way that recognises everyone's rights and interests in the area.

Compensation application (claimant)

An application made by Indigenous Australians seeking compensation for loss or impairment of their native title.

Consent determination (claimant)

A decision by an Australian court or other recognised body that native title does or does not exist in a particular area, which is made when parties have reached an agreement, after mediation. See Determination.

Determination (claimant)

A decision by an Australian court or other recognised body that native title does or does not exist in a particular area of land or waters. A recognised body is a court, office, tribunal or body of a State or Territory that is able to make determinations in relation to areas of particular land or waters and that the Commonwealth Attorney-General has formally recognised for that purpose. The Attorney-General must be satisfied that the body will operate in a way that is consistent with the Native Title Act 1993.

Directions

Formal orders from the Tribunal in relation to the inquiry, which include orders stating when parties should provide material to the Tribunal.

Expedited procedure

See fast-tracking.

Expedited procedure objection consent determination

A decision by the Tribunal that the expedited procedure (fast-tracking) does or does not apply, which is made when parties have reached agreement.

Extinguishment

This term is used when Australian law cannot recognise native title rights and interests because some things governments did or allowed others to do in the past have made such recognition legally impossible. These things include the passing of laws or the grant of other interests that are inconsistent with the continued enjoyment of native title.

Native title is a bundle of rights. Complete extinguishment is when the whole bundle of rights is extinguished. Partial extinguishment is when one or more specific rights are extinguished.

As a general rule, once they are extinguished, native title rights can never be recognised again under Australian law. However, in certain circumstances, the Act allows the courts to ignore the effect of extinguishment. Broadly speaking, this may happen if, at the time the application is made, the relevant area is vacant Crown land (and not subject to reservation etc. for a public purpose), is a pastoral lease held by or for the claimants, or is specifically set aside for Aboriginal People or Torres Strait Islanders (for example, under land rights legislation or as a reserve for the use and benefit of Indigenous Australians).

Fast-tracking (or expedited) procedure

This refers to the fast-tracking process for those future acts that might have minimal impact on native title, such as some exploration and prospecting licenses. If this procedure is used, and no objection is lodged, the future act can be done without the normal negotiations with the registered native title parties required by the Native Title Act.

Future act

The granting of the right to conduct a proposed activity or development on land and/or waters that affects native title rights and interests. Generally, rights to be informed and consulted about the future act are given to native title claimants. In the case of some future acts including the grant of mining or exploration rights and some compulsory acquisitions of native title, the future act can not validly be done unless the right to negotiate process in the Native Title Act is followed.

Future act consent determination

A decision by the Tribunal that a future act may proceed and whether any conditions apply, which is made when parties have reached agreement and consented to those conditions applying.

Future act determination application

An application made by any negotiation party to the Tribunal for it to determine whether a future act may proceed, and if so what conditions should apply.

Future act determination

A decision by the Tribunal either that the future act cannot be done, or can be done with or without conditions.

Indigenous land use agreement (ILUA)

A voluntary agreement about the use and management of an area of land or waters, made between one or more native title groups, and others (such as miners, pastoralists, governments). A registered ILUA is legally binding on the people who are party to the agreement, and all native title holders for that area.

Inquiry hearing

The hearing by the Tribunal of evidence and submissions by parties who are in a right to negotiate inquiry (i.e. a future act determination application inquiry or an expedited procedure objection application inquiry). In some cases a determination will be made, based on written evidence submitted to the Tribunal, without holding an inquiry hearing.

Listing hearing

A preliminary meeting/hearing held by the Tribunal so that it can check compliance with directions, ensure that all necessary documents are before it and set a time and location for an inquiry hearing.

Litigated determination (claimant)

A decision by an Australian court or other recognised body that native title does or does not exist, which is made following a trial process. See Determination.

Mediation (claimant)

The process of bringing together all people (parties) with an interest in an area covered by a native title application to help them to reach agreement about such things as whether native title exists, what other interests exist in the area, and the relationship between native title and other rights and interests. The Federal Court of Australia decides whether the National Native Title Tribunal should conduct mediation on a native title application. Mediation allows everyone involved to explore agreements, including agreements about a consent determination or an indigenous land use agreement.

Mediation (future act)

A process which allows negotiation parties, with the assistance of a mediator, to discuss their interests in the area, identify the issues, consider alternatives and explore ways to reach agreement. Mediation processes are useful where negotiation is not progressing.

Member

A person who has been appointed by the Governor-General as a member of the Tribunal under the Native Title Act. Members are classified as presidential or non-presidential. Some members are full-time and others are part-time appointees.

National Native Title Tribunal

National Native Title Tribunal The independent body established under the Native Title Act 1993 to assist people to resolve native title issues. The Tribunal provides administrative support in the processing of native title applications. It works closely with communities across Australia to help resolve land issues and make agreements that recognise everyone's rights and interests in land and waters. The Tribunal conducts mediation of native title applications and can help people to negotiate indigenous land use agreements. It acts as an arbitrator or umpire in some situations where the people involved cannot reach agreement about proposed developments, such as mining projects.

Native title

The rights and interests of Aboriginal and Torres Strait Islander people in land and waters according to their traditional laws and customs, that are recognised under Australian law.

Native title application

An application for the legal recognition of the native title rights and interests held by Indigenous Australians over a particular area of land or waters, according to traditional laws and customs.

Native title determination

A decision by an Australian court or other recognised body that native title does or does not exist in a particular area of land or waters.

Native title claimant application/claim

An application for the legal recognition of the rights and interests held by Indigenous Australians over a particular area of land or waters, according to traditional laws and customs. Native title claimant applications are usually filed with the Federal Court of Australia. The Court ultimately decides whether native title exists or not by making a determination.

Native title application/claim

A native title claimant application, a compensation application or a non-claimant application.

Native title party

Registered native title claimant, registered native title body corporate, or representative Aboriginal or Torres Strait Islander body.

Native Title Representative Bodies

Native Title Representative Bodies (NTRBs) represent the native title interests of Indigenous Australians in a particular region. Recognised under the Native Title Act 1993 (Cwlth), the bodies are funded by the Federal Government from an allocation of funds provided for the native title system as a whole.

Negotiation party

An individual, group or organisation that may participate as a party to proceedings in a right to negotiate inquiry, namely the government party (usually a state or territory government who proposes to do the future act); the grantee party (the person who has requested the future act be done); and the native title party (persons who have been determined to hold native title or the registered native title claimants over the area where it is proposed the future act be done).

Non-claimant application

An application made by a person who does not claim to have native title to an area but who seeks a determination that native title does or does not exist in that area.

Non-extinguishment principle

A principle, set out in the Act, under which an act that affects native title does not wholly or partially extinguish it.

Notification (future act)

The publishing of a notice in major newspapers by the state or territory government stating that it intends to do certain future acts, such as granting a mining lease, in an area. This is called a 'section 29 notice', because section 29 of the Native Title Act sets out how notice must be given.

Notification date

The 'notification date' is identified in the published notice. Starting from the notification date parties have specific periods of time in which to lodge applications. Periods of time vary, depending on the type of application.

Objection application (future act)

Registered native title claimants can object to a tenement grant being fast-tracked. They have four months from the notification date to lodge an objection. If the objection is successful, the development cannot go ahead without the normal negotiations required by the Native Title Act.

Party

An individual, group, or organisation that has an interest in an area covered by a native title application, and (in most cases) has been accepted by the Federal Court of Australia to take part in the proceedings.

Portable Document Format (PDF)

A universal file format created by Adobe Systems allowing users to distribute, read, and view electronic documents with all formatting, fonts, text sizes, graphics, colour, etc. intact, regardless of the software or platform used to create the file.

If you can not view PDF files you may need to download the Adobe Acrobat Reader, which is available free from Adobe's web site.

Preliminary conference (expedited procedure)

A meeting of the parties, often conducted by telephone, and usually convened by a Tribunal staff member at the request of a Tribunal member.

Preliminary conference (substantive inquiry)

A meeting of the parties, convened by the Tribunal member appointed to the inquiry, at which directions may be made and information sought from the parties about issues relevant to the inquiry. A preliminary conference may be conducted by telephone.

Previous-exclusive-possession acts

These acts are defined in Section 23B of the Act. They embrace valid and validated grants of freehold estates, ‘Scheduled interests’ (set out in Schedule 1 to the Act), and commercial leases made on or before 23 December 1996 that give rights of exclusive possession to native title holders.

Previous-non-exclusive-possession acts

These acts are a valid or validated grant of a pastoral and agricultural lease which did not confer a right of exclusive possession on the grantee and was made on or before 23 December 1996 or pursuant to a legally enforceable right or offer or arrangement made before that date: Sections 23F(2) and (3) respectively. Section 23G provides that, to the extent that the rights and interests granted are inconsistent with native title rights and interests in the land, they will extinguish native title if that is their effect at common law, and otherwise such acts will merely suspend the native title rights and interests for the duration of the lease.

Registration test

A set of conditions under the Native Title Act 1993 that is applied to native title claimant applications. If an application meets all the conditions, it is included in the Register of Native Title Claims, and the native title claimants then gain the right to negotiate together with certain other rights, while their application is under way.

Registered native title claimants

Native title claimants who have met the conditions of the registration test.

Rich Text Format (RTF)

A standard file type allowing the exchange of formatted text files among users with different kinds of computers (e.g. IBM PC or compatibles and Macintoshes).

Right to negotiate

The right of persons who have been determined to hold native title, or registered native title claimants (i.e. whose native title application has satisfied the registration test) to be involved in discussions about—but not veto—proposed developments (such as mining) on areas of land or waters where native title exists. Where the right to negotiate applies, negotiations with native title claimants must occur before the grant for the proposed development can go ahead. The right to negotiate process is managed by the state or territory government but the Tribunal may be requested to mediate.

Status conference (future act)

A meeting of the parties, similar to the preliminary conference, which is held four weeks before compliance with the first direction is due. The purpose of the status conference is to ascertain whether negotiations have been, or are likely to be, successful.

Unopposed determination (claimant)

A decision by an Australian court or other recognised body that native title does or does not exist, where the determination is made as a result of a native title application that is not contested by another party.

Wik

The decision of the High Court of Australia on 23 December 1996, which states that the grant of a pastoral lease does not necessarily extinguish (remove) native title and that native title rights may coexist with the rights of some leaseholders. The Court said that where there is a conflict between native title rights and the rights of the leaseholder, the rights of the leaseholder prevail.

Without prejudice

A condition applying to discussions during negotiations, which prevents them being used as evidence in any subsequent court action.