To start a claim for the recognition of native title rights and interests, a group needs to file a native title claimant application. The application must be in the form of a ‘Form 1’.[1] The Form 1 is a court document that sets out basic information about the claim.

In short, this includes information about:

  • the area the subject of the native title claim (the ‘claim area’);
  • the identity of the group on whose behalf the native title claim is made (the ‘claim group’);
  • the native title rights and interests claimed; and
  • the facts that support the group’s claim.

Enough detail on these matters will need to be provided in the Form 1 for the claim to be registered by the National Native Title Tribunal (NNTT). This article provides a brief explanation and commentary on each section of information that the Form 1 will ask the claim group to give. This article can be used as a general guide for the preparation of a claim.

This guide should be read in conjunction with legislative and regulatory updates, including changes to the prescribed Form 1 from time to time.

The Form 1 is available on the Federal Court website.

Native title law and processes are difficult. Form 1s will need to be filled out correctly with the right information to pass the registration test of the NNTT. Depending on the claim, the Form 1 may also need to be accompanied by supporting documents, like statements from claimants or expert reports. If you are intending to prepare and authorise the filing of a Form 1, we strongly recommend you seek legal advice from native title practitioners.

Authorisation

The filing of a Form 1 must be authorised by a claim group. This includes holding an authorisation meeting, where all members of the proposed claim group are invited. At the meeting, the claim group will need to pass a resolution authorising a set of named individuals to file the Form 1 of the Form 1. Those authorised individuals are known as the Applicant.

The Applicant may deal with all matters arising under the Native Title Act 1993 (Cth) (NTA) in relation to the native title claim,[i] Subject to the conditions the claim group decides to put on the Applicant. 

To authorise the Applicant to make the application requires holding an authorisation meeting, to which all members of the proposed claim group are invited. A resolution will be put to the meeting to authorise the named persons making up the Applicant, and put any conditions on the Applicant’s authority.

Conditions on the Applicant’s authority may include:

  • matters the Applicant must return to the claim group about to seek specific authorisation (such as agreeing to a consent determination or entering into a future act agreement);
  • whether the Applicant can discontinue the claim or first get specific authorisation from the claim group to do so;
  • what decisions the Applicant can make by majority and which ones by unanimous consent;
  • what happens if an Applicant member passes away or is incapable of continuing to act as an Applicant member;
  • standards of conduct (e.g. attending meetings, executing claim group instructions on time and acting in the best interests of the claim group); and
  • whether the Applicant has to go back to the claim group for authorisation before changing legal representation.

To properly authorise the claim, it is important that all members of the proposed claim group are given an opportunity to participate in the authorisation decision. This includes ensuring the meeting is sufficiently advertised so that the proposed claim group members are aware. This may include advertisements in local and regional newspapers, local newspapers and on local notice boards.

At the start of the Form 1, a statement is required that explains that the Applicant has been authorised by the claim group to make the Application. 

An affidavit for each applicant setting out the process of decision-making used to obtain authorisation is required.[ii] The affidavit can detail, for example, if meetings were held, or how direct authorisation was given to the applicants by individual claim group members.  The affidavit(s) must also state the following:

  • that the applicant believes that the native title rights and interests claimed by the native title group have not been extinguished in relation to any part of the area covered by the application;
  • that the applicant believes that none of the area covered by the application is also covered by an approved determination of native title;
  • that the applicant believes that all of the statements made in the application are true;
  • that the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it;
  • the details of the process of decision making complied with in authorising the applicant to make the application and to deal with matters arising in relation to it;
  • if there are no conditions under section 251BA of the NTA on the authority that relate to the making of the application—that there are no such conditions; and
  • if there are any conditions under section 251BA of the NTA on the authority that relate to the making of the application—that the conditions have been satisfied and how the conditions have been satisfied.

Where there exists a decision-making process under its traditional laws and customs for decisions of that kind, then that process must be used to authorise the applicant.

If the claim group does not have a traditional decision-making process when making decisions of this kind, then it must agree on, adopt, and use a process for making the decision about who to authorise to make the application on the group’s behalf.

There are many court decisions and articles on native title authorisation.

Schedule A – Native Title Claim Group

This Schedule requires a clear description of who is in the native title claim group, so that the Registrar can assess whether any person belongs to the claim group or not.  The native title claim group is all the people who, under traditional law and custom, are claimed to hold the rights and interests that make up the claimed native title.

Providing information about the claim group

Generally, information to describe or identify the claim group is provided by:

  • a complete list of the names of the people in the native title claim group; or
  • a description of the native claim group with sufficiently clear criteria to define who is a member of the group, for example, descendancy from named ancestors or the whole family tree that includes the full names of the people in the family tree and their birth dates.

Before filing the Form 1, it is important that the group does detailed research, including through an anthropologist, to ensure that their claim group description includes all the people who should properly be included in the claim group. This is important for both the authorisation and resolution of the native title claim. People who are not, but should be, included in the claim group description may challenge the validity of the authorisation of the claim, or may otherwise challenge the claim, including by joining the claim as an indigenous respondent.

Further information about factors required for membership in the claim group is usually attached to the Form 1 and marked ‘Attachment A’.

Schedule B – Identification of boundaries

This Schedule requires a description of the boundaries of the claim so that other people know what area has been claimed.  

The information, whether by physical description or otherwise, must show the boundaries of:

  • the area covered by the application; and
  • any areas within those boundaries that are not covered by the application.

The boundaries of the area claimed in the application may be described by:

  • listing each area, or parcel of land, claimed with reference to Lot or Plan numbers;
  • giving coordinates of the boundaries of the application area; or
  • using geographical features, such as rivers, mountain ranges, shorelines or the sea to describe the boundaries, with enough precision to make those outer boundaries clear.

Information must also detail the ‘General Exclusions’ from the claim. These are those areas within the outer boundary where native title is not claimed.  Generally, these areas are not claimed because there is either already a determination of native title or something has happened with the land that is inconsistent with the exercise of native title rights and interests.

Areas where native title cannot be claimed include:

  • residential freehold;
  • pastoral or agricultural leases that grant exclusive possession;
  • residential, commercial or community purpose leases; or
  • public works such as roads, schools or hospitals.

Areas where native title is not claimed may be referred to specifically or through a general statement excluding all areas of a particular kind from the area covered by the application.

Schedule C – Maps

This Schedule requires a map of the boundaries of the claimed area.

The included map should be sufficiently detailed, and include:

  • a North Point;
  • a scale-bar;
  • the datum used; and
  • a legend displaying any tenure searches conducted.

The map can be included as an Attachment C.

Schedule D – Searches

This Schedule asks for a list of any searches that have been carried out on behalf of the claim group to find out whether there are already rights and interests held by someone in the area other than the native title claimant group. These rights and interest could be, for example, pastoral leases or mining tenements.

If any searches for rights or interests in the area have been conducted, they should be included. These may be tenure documents, a tenure history report, an index or a spreadsheet showing what other rights and interests exist over the area, or a map with a legend that shows in detail the types of tenure identified.

If no searches have been conducted, you can simply state as such. 

Schedule E – Description of Native Title Rights and Interests

This Schedule requires a clear description and list of all native title rights and interests being claimed. It cannot merely consist of a statement to the effect that the native title rights and interests are all native title rights and interests that may exist, or that have not been extinguished, at law.

The rights claimed depend on traditional laws and customs and the type of land over which native title is claimed.

(a) What rights and interests may be claimed in relation to the land?

If you are claiming land that has never previously been in the possession of someone outside of the claim group, a right to full possession and occupation of the area to the exclusion of all others (exclusive possession) may be claimed in relation to that area. Exclusive possession includes the right to control access to, and the use of, that area. These sorts of rights may be available for any unallocated or vacant Crown land, some areas already held by, or on the behalf of, native title claimants, as well as certain pastoral leases held by, or on behalf of, any members of the claim group. These sorts of rights will only be available for limited and very specific areas of land.

It is more common to have areas of land over which non-exclusive rights can be claimed. Those rights in relation to that area may include the right to:

  • live;
  • use and enjoy;
  • access;
  • camp or do ceremonies;
  • visit and protect important places, sites and the natural environment;
  • hunt, fish and gather food and resources like water, wood and ochre;
  • trade and exchange resources and goods, although our experience is that this can be difficult to prove; and
  • teach law and custom on country.

In areas over which someone else has previously held the area in exclusive possession (i.e. a previous exclusive possession act), no native title rights and interests can be claimed.

These areas may include those where there is:

  • a grant of freehold title;
  • a grant of an ‘exclusive’ pastoral lease;
  • a residential, commercial or community purpose lease; or
  • public works (such as a building of a road).

However, there are situations in which native title rights and interests can be recognised in areas the subject of a previous exclusive possession act. See the commentary on Schedule J for more information. The different types of rights need to be described separately, so as to make the claimed rights and interests easily understood. It is best to separate native title rights between exclusive possession rights (such as the rights to control and refuse access) and non-exclusive rights (such as the rights to enjoy, use and access land).

(b) What rights and interests cannot be registered?

Certain rights and interests will not be recognised, even if they exist under traditional laws and customs.

These include:

  • exclusive rights to fish offshore;
  • excusive possession of offshore areas;
  • rights to ownership of minerals and petroleum; and
  • the right to control the use of cultural knowledge beyond the right to control access to land or waters.

(c) Supporting information

This Schedule also requires the description of activities the native title claim group members do on the claimed area in accordance with traditional laws and customs. This may involve repeating any of the activities listed in Schedule F.

The details should be accompanied by evidence of the activities, as well as of the group’s current observance of traditional laws and customs. The evidence should relate directly to the listed activities. This is often evidenced by affidavits or witness statements from members of the claim group, detailing examples of the activities currently carried out in the claim area.

Schedule F – General Description of Native Title Rights and Interests

This Schedule requires a general description of the facts that support the claim to the native title rights and interests listed in Schedule E. The description must be clear enough to prove that the group exists, and has existed, as a distinct community.

Facts should be provided to show:

  • that the group and its ancestors have an identifiable connection to the land claimed;
  • that the group and its ancestors possess rights and interests under traditional laws and customs that the group observes; and
  • that the group continues to hold native title in accordance with those traditional laws and customs.
  1. The group has an identifiable connection to the land claimed

The facts should show that the whole group has a connection with the whole claim area. A connection to the whole area by the whole group may be demonstrated with facts showing the connections that multiple claim group members have with several places within the claim area.

The facts must also show that the ancestors of the claim group had a connection with the area since the time of sovereignty, or, if this is too difficult to prove, at the time European settlers first arrived in the area.

The description can detail instances when the group’s connection has been recorded, and what those records consist of. This may be early settler or explorer accounts, reports, correspondences or any other historical document that mentions the ancestors of the group and their connection to the area.

The description might also include a list of traditional activities that demonstrate the group’s ongoing connection with the claimed lands and waters. These could include hunting, fishing, conducting ceremonies, or any other relevant activity.

These details of the group’s society before sovereignty, their acknowledgement and observation of laws and customs, and their continuing traditional association with the claimed land may be included as an ‘Attachment F’. Anthropological reports and affidavits of native title claim group members can be included.

  1. The claimed rights and interests exist under traditional laws and customs

The facts should show that there were, and continue to be, traditional laws and customs followed by the group that give rise to traditional rights and interests over the area.

‘Traditional’ means that the laws and customs must have existed at the time the British first asserted sovereignty over the claim area, and have continued to exist among the group up until the present. Those laws and customs must also be ‘normative’, meaning that the members of the group are bound by them as standards of conduct.

Laws and customs may include standards of conduct such as rules around hunting, marriage, and the use of laws and mechanisms that were and are in place to regulate those rules (such as punishment and education).

The information provided should be sufficiently detailed to capture all those rights and interests that have been listed in Schedule E.

  1. The group continues to hold native title in accordance with traditional laws and customs

Information should show that the group continues to hold the claimed native title rights and interests in accordance with its traditional laws and customs. Any information which shows that at any time the group had stopped acknowledging and observing traditional laws and customs may suggest that those laws and customs are no longer ‘traditional’.

The facts that demonstrate the holding of the native title rights and interests claimed in Schedule E may include such things as:

  • recognition of common ancestors;
  • traditional systems of communal title to lands and waters through connection with certain ancestral beings and stories;
  • transmission of native title rights and interests according to traditional laws and customs; and
  • recognition of the individuals’ connection to land and waters through their place of birth and through their mother’s, father’s and grandparent’s place of birth.

Activities that demonstrate a continuing connection to the area through traditional laws and customs may include such things as:

  • caring for country;
  • controlling access to country; and
  • holding ceremonies on country.

Any such laws and customs should be particular to the claim group, and not general enough to apply to all groups.

Schedule G – Overlapping Applications

This Schedule seeks detail of any known overlapping native title applications (in relation to the whole or part of the area claimed). The National Native Title Tribunal (NNTT) can provide help to identify existing native title applications, including by providing an overlap analysis of the claim area. A copy of the overlap analysis can be included in the Schedule.

Schedule GA – Section 24MD Acquisition Notices

This Schedule seeks detail of any notices issued under s 24MD(6B)(c) of the NTA by the government which relate to any part of the claimed area. These notices are made where the government intends to compulsorily acquire of native title rights and interests (such as to build a road).

This Schedule only seeks detail of notices received, and the Applicant does not need to do their own search for details of such notices.

Schedule – H – Notice of Parties

This Schedule requires the applicant to identify notices made by the Government party (respondent party) under s29 of the NTA. These notices relate to the proposed granting of rights to mine (such as mining leases and exploration licences). Notices under this section can be made to a Registered Native Title Body Corporate (RNTBC), any registered native title claimants or other Aboriginal/Torres Strait Islander representative bodies.

Schedule HA

This Schedule requires detail of any conditions the claim group has put on the Applicant. These are the conditions imposed by the claim group when it authorised the Applicant to file the claim. The Applicant must comply with these conditions when exercising its authority to deal with matters in relation to the Form 1 arising out of the NTA.

See examples of possible conditions in the Authorisation section.

Schedule I

This Schedule asks for the name of each representative Aboriginal/Torres Strait Islander body performing functions within the claimed area. It also specifies that Aboriginal/Torres Strait Islander bodies receiving funding to perform the same functions as an RNTBC, even if they are not formally the RNTBC, must also be listed.

More information regarding specific RNTBCs can be found here.

Schedule J

This Schedule seeks a description of any areas over which the benefits of sections 47, 47A, 47B, and 47C of the NTA apply. These are areas where native title can be recognised despite the despite the existence of previous exclusive possession acts on the area.

These exclusions to extinguishment include:

  • pastoral leases held by a member/s or for the benefit of a member/s of the claim group;[iii]
  • land expressly held for the benefit of Aboriginal people, or land subject to a freehold grant or lease granted under legislation which expressly benefits Aboriginal people, if that land is currently occupied by at least one claim group member;[iv]
  • land which is vacant at the time a claim is made, if that land is currently occupied by at least one claim group member;[v] and/or
  • National parks (or similar), although only if the relevant State or Commonwealth government agrees native title can be recognised over that area.[vi]

If any of these descriptions apply to an area, then extinguishment of native title can be disregarded. If an agreement has been made under s47C (national parks etc) further details will need to be provided, including a copy of the agreement.

In many cases, these areas may not yet be known at the time of filing a claim.

Schedule L

This Schedule seeks e details of any land or waters in the application area where one or more members of the claim group has a traditional physical connection. Usually, there is no need to include any supporting material beyond that already included in Attachments E and F

The Schedule also seeks details of any member of the claim group having ever been prevented from going onto any part of the claim area. There is generally limited benefit in including such detail in your application.

It isn’t necessary to provide detail in this Schedule.

Schedule M – Overlapping Memberships

This Schedule seeks detail of any member of the claim group who is a member of any other native title claim group that has made an application over the whole or parts of the claim area.

The NNTT will not register an application if it has claim group members in common with an overlapping registered claim.[vii]

Schedule N – Claims for exclusive possession of offshore places

This Schedule seeks details of any claim to exclusive possession of an offshore place. This is only relevant for claims that include coastal areas.

It is important to note that applications containing a claim to native title rights and interests in relation to waters in offshore places that exclude all other rights and interests cannot be registered.[viii] It is for this reason that it is necessary to include a clear statement that the group does not claim exclusive rights and interests in offshore places.

An ‘offshore place’ is defined as those lands or waters that are not within the limits of a state or territory, such as waters beyond the territorial sea.

 Schedule O – Claims to resources owned by the Crown

This Schedule seeks details of any claim to ownership of minerals, petroleum or gas wholly owned by the Crown.

Applications claiming native title rights and interests to the ownership of minerals, petroleum or gas wholly owned by the Commonwealth, state or territory governments cannot be registered.[ix] Therefore a clear statement should be included in Schedule N that the claim does include a claim to ownership of mineral, petroleum or gas owned by the Crown.

Schedule P – RNTB Certification

This Schedule requires evidence of the authorisation of the filing of the claim.

If the application is certified by a native title representative body for the application area, a copy of the certificate can be included as an ‘Attachment P’.

If the application is not certified, information needs to be provided on how the people listed as the Applicant have been authorised by the members of the claim group to make the application and deal with matters arising in relation to it.

As noted in the Authorisation, the application must include affidavits from the members of the Applicant setting out the process of decision-making used to obtain the authorsiation of the claim group to file the Form 1.

It is advisable to include as much information about the authorisation process as possible. It should be clear if the decision-making process used is part of traditional laws and customs, or whether the group has adopted a specific process to make the decision about who to authorise to make the application. If there is not enough space in the Schedule to include such information, it can be provided as Attachment R.

Schedule Q – Amendments

This Schedule seeks details of any amendments made to an existing application, and what the changes are. If the application is new, this Schedule is not applicable.

Schedule R – Other Information

This Schedule allows the applicant to provide any other information they believe necessary.

This Schedule is optional, and it is usually unnecessary to provide further information if the Form 1 has been completed properly.

Conclusion

This article has summarised what needs to be included in a Form 1 when filing a claim for native title. Once an application is properly authorised, the Form 1 is filed in the Federal Court of Australia, assigned to a Judge and referred to the NNTT. The NNTT then applies the registration test and gives notice of the claim.

If the NNTT registers the claim, the claim group will have procedural rights such as rights to receive notice, comment on, object to or negotiate future acts (such as mining projects). This does not mean that native title rights have been recognised. Rather, the claim group will still need to provide evidence to prove that those native title rights should be recognised. This could be through a trial, or through mediation and/or an agreement with the relevant State or Territory.

We suggest to always first attempt to reach an agreement rather than going to a trial. Ultimately, the claim group and the respondents (parties who respond to the claim, like the relevant State), will need to follow the orders of the Federal Court of Australia about how the claim should be progressed.

If a claim group is considering preparing, authorising or filing a Form 1, legal advice should be sought. We also recommend that claim groups contact the relevant native title representative body for the region to discuss any facilitation or assistance that may be required.

For more information, contact us.

[1] The ‘Form 1’ is prescribed by the Native Title (Federal Court) Regulations 2024 (Cth).

[i] Native Title Act 1993 (Cth) (NTA) s 62A.

[ii] NTA s61(1)

[iii] NTA s 47

[iv] NTA s 47A

[v] NTA s 47B

[vi] NTA s 47C

[vii] NTA s109C

[viii] NTA s190B

[ix] NTA s190B