What is a native title determination?

A native title determination is a decision by the Federal or High Courts or recognised state or territory bodies that native title does or does not exist in relation to a particular are of land or waters. Where the existence of native title is recognised, the determination will identify the native title holders and describe their native title rights and interests.

There are four kinds of applications under the Native Title Act 1993 that could lead to a determination of native title. The most common type is a claimant application, which is made by Indigenous Australians seeking a determination recognising native title exists.

The other kinds of applications involving native title are ‘non-claimant’ applications (where a non-Indigenous person seeks a determination that native title does not exist), an application to revise or revoke an existing native title determination and an application for compensation for loss or impairment of native title.

There are three processes that can lead to a native title determination. If no one contests the application, the court can make what is called an unopposed determination. If all of the parties reach an agreement about native title through mediation, then a consent determination can be made by the court. A litigated determination is made after a trial where the parties put forward the case for and against recognising native title.

Reaching an agreement through mediation is usually less costly than litigation. It also may allow parties to establish and maintain day-to-day relationships with each other.

By mediating, parties have more control over the outcome, which can be specifically designed to address each party’s concerns and interests.

Unless the Federal Court of Australia decides otherwise, a native title determination application will be mediated by the National Native Title Tribunal to assist the parties to reach agreement. If the parties to the native title determination application do not reach an agreement the Court will order that it go to trial. The time it might take to resolve an application through mediation varies depending on the willingness of the people involved to reach agreements and the complexity of the claim. External factors, such as the availability of resources, may also affect the progress of mediation.

The parties involved in mediation may decide to settle the claim by making an agreement, including an indigenous land use agreement.

What kind of rights may be recognised in a determination of native title?

A determination of native title will state whether or not native title exists over the area claimed in the application. If native title is found to exist, the determination will go on to specify both who holds it and the content of their native title rights and interests. It will also recognise the non-native title rights and interests in the area and set out the basic grounds for the co-existence of those two sets of rights.

The content of the native title bundle of rights will depend on the native title holders’ traditional laws and customs and on the capacity of Australian law to recognise the rights and interests they hold under those laws and customs. For example, the existence of other rights and interests over the same area may prevent native title being recognised or limit its content.

The native title bundle of rights may include the right to possess, occupy, use and enjoy a particular area to the exclusion of all others (often called a right of exclusive possession). This includes the right to control access to, and use of, that area. However, this right can only be recognised over limited parts of Australia, such as some areas where the only other interest holder is the crown (sometimes called unallocated or vacant crown land) and certain areas already held by, or for, Indigenous Australians.

Over other areas, the native title bundle is most likely to be a set of ‘non-exclusive’ rights (which means there is no right to control access to, and use of, the area). These may include the right to:

• live on the area
• access the area for traditional purposes, like camping or conducting ceremonies
• visit and protect important places and sites
• hunt, fish and gather food or traditional resources like water, wood and ochre
• teach law and custom on country.

There can be no native title rights to minerals, gas or petroleum recognised under Australian law and in tidal and sea areas, only non-exclusive native title can be recognised.

Whether exclusive or not, native title:

• is subject to regulation by Australian law in the same way as other peoples’ rights are
• does not give native title holders the right to veto future developments but may mean their rights and interests need to be taken into account.

For further information about native title refer to the fact sheet What is native title? A full list of determinations is available here. Please note that this list of determinations is updated regularly.

Indigenous Australians may also have the right to be compensated for loss or impairment of their native title. For further information about compensation determinations, refer to the fact sheet Compensation and native title.

Download a PDF version of this fact sheet (pdf 413KB)

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

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