Native title is the recognition by Australian law of Aboriginal and Torres Strait Islander people's traditional rights and interests in land and waters held under traditional law and custom.
Why does it exist?
In 1992 the High Court of Australia recognised the common law doctrine of native title that Aboriginal and Torres Strait Islander people may continue to hold rights to their land and waters, which come from their traditional laws and customs.
The Native Title Act 1993 (Cth) (the Native Title Act) recognises and protects native title in Australia. Native title claimants can make an application to the Federal Court of Australia to have their native title recognised by Australian law. At 30 September 2015, native title has been recognised over approximately 2,469,647 km2 or about 32% of the Australian land mass.
Native title rights and interests differ from statutory land rights in that the source of statutory land rights is a grant of title from government. The source of native title rights and interests is the system of traditional laws and customs of the native title holders themselves.
What does native title mean?
The native title rights and interests held by Aboriginal and Torres Strait Islander people will depend on both their traditional laws and customs, what has occurred historically on their land and what interests are now held by others in the area concerned. Generally speaking, native title must give way to the rights held by others. Native title and associated rights can co-exist with some forms of title such as pastoral leases and Crown land, but can be extinguished by others, including freehold title. Refer to the National Native Title Tribunal website for more information.
Native title rights and interests may include rights to:
- live on the area
- access the area for traditional purposes, like camping or to do 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.
The Native Title Act provides a mechanism that allows development to occur on land where native title may exist, whether or not determined, and sets out acceptable minimal standards of consultation with native title groups. These range from notification to approval, depending on the type of development.