Native title recognises the traditional rights and interests to land and waters of Aboriginal and Torres Strait Islander peoples. It is a special kind of property right that is unlike any other right.
The evolution of native title
Native title was first recognised in the case of Mabo v Queensland (No 2), where the High Court held that traditional law and custom could be a basis for asserting a type of property right for Aboriginal and Torres Strait Islander peoples.
Native title is now recognised under the Native Title Act 1993 (Cth) (NTA) and defined under section 233(1) as:
The communal, group or individual rights and interests of Aboriginal people or Torres Strait Islanders in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal and Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land and or waters; and
(c) the rights and interest are recognised by the common law of Australia.
Under section 227 of the NTA, ‘an act affects native title if it extinguishes native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise.’
As such, native title will be extinguished where there is:
(a) a grant of freehold title;
(b) a grant of an ‘exclusive’ pastoral lease;
(c) a residential, commercial or community purpose lease;
(d) public works (for example building of a road).
How do you ‘prove’ native title?
The process required for proving native title is a complex and often very lengthy process. The key elements required to ‘prove’ native title under the Australian legal system are:
1. There exists an identifiable community or group connected with the land claimed.
2. Rights and interests are possessed under traditional laws and customs observed by the Aboriginal and Torres Strait Islanders.
3. By those laws and customs observed, there is a connection with the land or waters.
4. Those laws and customs have existed at the time of sovereignty and constitute rules observed and acknowledged within a society.
5. The laws and customs have continued substantially uninterrupted since sovereignty.
6. Those rights and interests haven’t been extinguished pursuant to section 237A of the NTA.
The Court needs evidence that Aboriginal and Torres Strait Islander peoples still have these rights. This is referred to as ‘connection’ evidence and is usually the most contentious part of all native title claims if there is no extinguishment.
What are ‘native title’ rights?
If native title can be established, Aboriginal and Torres Strait Islander peoples will receive rights consistent with their specific traditional laws and customs. These are often referred to as a ‘bundle of rights’. Examples include the right to hunt, fish, gather food or teach law and custom on country.
Native title comes in two forms and may include ‘exclusive rights’, being the right to possess and occupy an area to the exclusion of others, and ‘non-exclusive rights’ where native title co-exists with non-Indigenous property rights or there is a shared interest with another party, meaning there is no right to control access to and use of the area.
What does native title provide?
When native title rights and interests are recognised, the NTA provides some protections so native title rights can be protected. This includes, for example, a right to negotiate on certain activities that may impact native title rights. However, native title does not provide native title holders with legal ‘ownership’ of land or waters where native title has been recognised.
Native title compensation
Where native title has been extinguished or impaired, the NTA provides a right for Aboriginal and Torres Strait Islander people to seek compensation. Under the NTA the Commonwealth, States and Territories are liable to pay compensation for ‘acts’ attributable to them such as the grant of freehold title and crown leases that happen after 1 October 1975.
Section 51 of NTA provides that compensation should be on ‘just terms’ to compensate the native title holders for any loss, diminution, impairment or other effect of the act on their native title rights and interests.
Native title compensation is difficult to prove and is uncertain. To claim compensation, you need to:
1) Identify the ‘act’ that you are claiming compensation for.
2) Show that native title could have been recognised if it wasn’t for the ‘act’.
3) Prove the ‘act’s’ impact on native title.
4) Authorise a compensation claim.
5) File a compensation claim in the Federal Court.
As the NTA currently stands it does not provide any guidance to Courts as to how compensation should be calculated. The High Court however, recently heard the Timber Creek native title compensation appeals in September this year. It is expected that a decision will provide some guidance about how to calculate compensation.
Difference with land rights and cultural heritage
Land rights involve statutory grants of land to Indigenous people through a land trust, Land Council or corporate entity. Land rights legislation operates separately to the native title system. Most land rights schemes pre-date Mabo (No 2) and the NTA. The most well-known land rights legislation is the Aboriginal Land Rights (Northern Territory) Act 1976.
Other land rights legislation includes the:
· Aboriginal Land Act 1991 (Qld)
· Torres Strait Islander Land Act 1991 (QLD)
· Aboriginal Land Rights Act 1983 (NSW)
· Aboriginal Land (Northcote Land) Act 1989 (Vic)
· Aboriginal Land (Manatunga Land) Act 1992 (Vic)
· Aboriginal Lands Act 1991 (Vic)
· Aboriginal Land Trusts Act 1966 (SA)
· Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA)
· Maralinga Tjarutija Land Rights Act 1984 (SA)
· Aboriginal Lands Act 1995 (Tas)
Cultural heritage laws are different to native title in that they seek to preserve and protect areas, objects or remains that are of specific significance to Aboriginal or Torres Strait Islander peoples. In other words, land or sites may be of cultural value regardless of whether native title exists.
All states and territories have laws that protect Indigenous heritage they include:
· Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)
· Heritage Act 2004 (ACT)
· Heritage Objects Act 1991 (ACT
· Heritage Act 1977 (NSW)
· National Parks and Wildlife Amendment (Aboriginal Ownership) Act 1996 (NSW)
· Aboriginal Sacred Sites Act 1989 (NT)
· Heritage Conservation Act 1991 (NT)
· Aboriginal Cultural Heritage Act 2003 (QLD)
· Torres Strait Islander Cultural Heritage Act 2003 (QLD)
· Aboriginal Heritage Act 1988 (SA)
· Aboriginal Heritage Act 1975 (TAS)
· Aboriginal Heritage Act 2006 (VIC)
· Heritage Act 1994 (VIC)
· Aboriginal Heritage Act 1972 (WA)
There remains over 200 unresolved native title claimant applications, each of which have complex issues that require careful consideration.
For more information, contact Michael Pagsanjan at firstname.lastname@example.org.
 Mabo v Queensland (No 2)  HCA 23 at  per Brennan J.
 Western Australia v Ward (2002) 76 ALRJ 1098 at .
 Mabo v Queensland (No 2)  HCA 23 at  per Brennan J.
 Yorta Yorta Aboriginal Community v Victoria (2002) 77 ALJR 356 at , ; Daniel v Western Australia  FCA 666 at .
 Yorta Yorta Aboriginal Community v Victoria (2002) 77 ALJR 356 at .