What kind of areas can be claimed in a native title application?

Native title can only be claimed in areas where it has not been extinguished (refused recognition).

Native title may exist on:

Native title rights and non-native title rights can be recognised over the same area, but the native title rights cannot interfere with other interest holders. In the Mandingalbay Yidinji native title determination, non-exclusive native title rights were recognised for areas of reserve, state forest and national park near Cairns.

 
  • vacant (unallocated) crown land
  • some state forests, national parks and public reserves depending on the effect of state or territory legislation establishing those parks and reserves
  • oceans, seas, reefs, lakes and inland waters
  • some leases, such as non-exclusive pastoral and agricultural leases, depending on the state or territory legislation they were issued under
  • some land held by or for Aboriginal people or Torres Strait Islanders.

Generally speaking, full native title rights resembling something like freehold ownership will only be available over some vacant crown land, certain Aboriginal reserves and some pastoral leases held by native title holders. This means that, for most of the areas where native title is successfully claimed, the country will be shared by the native title holders and other people with rights and interests in the same area.

This sharing is sometimes called coexistence. For example, a native title holder may have the right to go onto and use an area where another person, such as a pastoralist, has the right to run a cattle business. Coexistence in a native title context means that both sets of rights are recognised over the area but that the native title rights cannot interfere with the pastoralist going about their lawful business.

What areas cannot be claimed?

The Ngaanyatjarra people, of the Central Desert in Western Australia, had their native title rights recognised after more than 20 years of talking to Governments about their rights to the land. At almost 188,000sq km, the Ngaanyatjarra Lands determination was the biggest in Australia's history.

 

The Australian legal system does not recognise native title rights in some areas where things have been done that extinguish native title. These areas include:

  • residential freehold
  • farms held in freehold
  • pastoral or agricultural leases that grant exclusive possession
  • residential, commercial or community purpose leases
  • public works like roads, schools or hospitals.

These areas of land generally cannot be claimed in a native title application. For example, if you own freehold land, or run a business on a commercial lease, native title is extinguished and the land cannot be claimed in a native title application.

Download a PDF version of this fact sheet pdf (pdf 550KB)

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

 




Published by:

National Native Title Tribunal
Classification Information:

ISSN : 1444-0962 Fact Sheet No.1b
Revised published date:

September 2006

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