Native title on pastoral leases

Pastoralists and farmers in Australia have rights to land under various lease arrangements governed by different state and territory laws.

The terms and conditions of those leases, and the legislation under which they were granted, needs to be assessed to determine the impact of any particular pastoral lease on native title. In other words, the effect of each type of lease on native title should be examined on a case-by-case basis.

If it is found that the lease is ‘non-exclusive’, native title may survive on the area it covers but only on a non-exclusive basis, i.e. there can be no native title right to exclusive possession over those areas. If the lease is ‘exclusive’, native title is usually completely extinguished and native title cannot be claimed over the area it covers.

Exclusive pastoral leases

In the Wilson v Anderson case, the High Court found that perpetual pastoral leases validly granted under New South Wales’ Western Lands Act 1901 (NSW) are exclusive pastoral leases that completely extinguish native title. A special lease for grazing purposes validly granted under s. 116 of the Land Act 1933 (WA) has also been found by the High Court (Western Australia v Ward) to be an exclusive pastoral lease. There may be other pastoral leases that are found to be exclusive.

Non-exclusive pastoral leases

A non-exclusive pastoral lease is one that does not give the pastoralist a right to exclusive possession of the leased area.

In various cases, the courts have found that most pastoral leases in Western Australia, South Australia, the Northern Territory and Queensland are non-exclusive pastoral leases.

On areas covered by non-exclusive pastoral leases, native title rights that are inconsistent with the leaseholder’s rights, such as the right of exclusive possession, are usually extinguished by the grant of the lease.

Native title rights that are not inconsistent with rights of the leaseholder usually survive the grant of a non-exclusive pastoral lease. The native title rights that could be recognised on areas covered by non-exclusive pastoral leases include the rights to:

• access, camp and live on the area
• protect places and sites of significance
• use traditional resources for personal, domestic or non-commercial purposes
• conduct and take part in ceremonies
• hunt for personal, domestic or non-commercial purposes
• gather bush tucker and medicine
• fish and hunt for personal, domestic or non-commercial purposes.

These types of native title rights are often called non-exclusive native title.

Coexistence on non-exclusive pastoral leases

Areas where native title is successfully claimed will be shared by the native title holders and the person holding the non-exclusive pastoral lease. This sharing is sometimes called coexistence. In a native title context, coexistence means that while both sets of rights are recognised over the leased area, native title rights cannot interfere with the pastoralist going about their lawful business.

So pastoralists and farmers with non-exclusive leases do not stand to lose their property if native title is recognised and the rights they have under their leases always take priority over any coexisting native title rights and interests.

But it may still be useful to negotiate agreements with the native title holders about access to, and use of, the leased area. That way all parties’ rights and interests in the land can be accommodated. It should be noted that Indigenous Australians may also have access rights to lease areas under the state or territory laws under which the lease was granted.

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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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