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Native title claims and freehold land

This information is for people who are uncertain whether any native title applications have been made over particular areas of land and waters that are freehold estates.
 

Native title and freehold

Under the Native Title Act 1993 (Cth), the valid grant of a freehold estate (other than certain types of Aboriginal and Torres Strait Islander land) on or before 23 December 1996 is known as a 'previous exclusive possession act'.
 
This means that native title has been extinguished over the area. Native title claimants are not allowed to include land and waters covered by previous exclusive possession acts in their applications; therefore they would normally exclude freehold areas.
 
A native title application may, however, be made over freehold land on the basis that freehold was invalidly granted, but the chances of this happening are very low.
 
The NNTT is not the custodian of the data for freehold estates. To determine whether a particular parcel of land is freehold land, you may wish to seek such information from the relevant state government custodian.
 

Native Title Act 1993 (Cth)

Section 23A Overview of Division

  1. In summary, this Division provides that certain acts attributable to the Commonwealth that were done on or before 23 December 1996 will have completely or partially extinguished native title. 
  2. If the acts were previous exclusive possession acts (involving the grant or vesting of things such as freehold estates or leases that conferred exclusive possession, or the construction or establishment of public works), the acts will have completely extinguished native title.

Section 23B Previous exclusive possession act

  1. This section defines previous exclusive possession act. Grant of freehold estates or certain leases etc. on or before 23 December 1996. 
  2.  An act is a previous exclusive possession act if:
    • it is valid (including because of Division 2 or 2A of Part 2)

Note: As at the commencement of this section, acts such as grants before 1 January 1994 that were invalid because of native title have been validated by or under Division 2.

    • it took place on or before 23 December 1996
    • it consists of the grant or vesting of any of the following:
(i) a Scheduled interest (see section 249C)
(ii) a freehold estate.

Section 61A Restrictions on making of certain applications

Claimant applications not to be made covering previous exclusive possession act areas
 
(2) If:
 
  • a previous exclusive possession act (see section 23B) was done in relation to an area and 
  • either: 
(i) the act was an act attributable to the Commonwealth or
(ii) the act was attributable to a state or territory and a law of the state or territory has made provision as mentioned in section 23E in relation to the act;
a claimant application must not be made that covers any of the area.