What's the difference between native title and land rights?

Native title involves the recognition of pre-existing rights and interests of Aboriginal people and Torres Strait Islanders in relation to land and waters.

Land rights involve the grant of interests in land under various legislation. Other differences between the two relate to what areas can be claimed, who can make a claim and the claim process.

Land rights — what are they?

In a land rights claim, Indigenous Australians seek a grant of title to land from the Commonwealth, state or territory governments.

Different types of land rights laws in Australia allow for the grant of land to Indigenous Australians under various conditions. Land rights schemes are in place in the Northern Territory, Queensland, New South Wales, South Australia and Victoria.

A successful land rights claim usually results in a special grant of freehold title or perpetual lease. A title document for the land is issued. The title is normally held by a community or an organisation, not by individuals. There are usually some restrictions on selling, and dealing with, land that has been granted in a land rights claim. Normally, the land will be passed down to future generations in a way that recognises the community’s traditional connection to that country. The National Native Title Tribunal is not involved in the administration of land rights schemes.

Native title — what is it?

Native title is a set, or bundle, of rights and interests in relation to land or waters that has the following qualities:

• it is possessed under the traditional laws currently acknowledged and the traditional customs currently observed by the relevant Indigenous people
• those Indigenous people have a connection with the area by the maintenance of those traditional laws and customs, and
• the rights and interests are recognised by the common law of Australia.

Native title must find its source in a body of law and custom acknowledged and observed by the claimant’s ancestors at European colonisation. Those laws and customs must have been acknowledged and observed in a ‘substantially uninterrupted’ way from that time until the present.

Native title is not granted by governments — it is recognised through a determination made by the Federal Court, High Court and possibly some state and territory courts. It may vary from group to group because it gets its content from the traditional laws and customs of the particular group.

Native title exists alongside and is subject to the rights of other people in the same area, e.g. people with leases, licences or a right of public access will continue to have those rights and native title must give way to people exercising those rights (this is sometimes called ‘coexistence’).

Indigenous people apply to have their native title recognised and a court or other recognised body decides whether or not native title still exists. The court also decides what sort of native title rights and interests exist in an area. The court does not, however, hand over a title deed for that land.

Download a PDF version of this fact sheet (pdf 457KB)

This fact sheet is provided as general information only and should not be relied upon as legal advice for a particular matter.

Subject index