Frequently Asked Questions
Native Title Act 1993 section 223 states that native title is:
“….the communal, group or individual rights and interests of Aboriginal peoples and Torres Strait Islanders in relation to land and waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples and Torres Strait Islanders; and
(b) the Aboriginal peoples and Torres Strait Islanders, by those laws and customs, have a connection with the land and waters; and
(c) the rights and interests are recognised by the common law of Australia.”
The now famous Mabo Case – established that contrary to previous rulings of the Courts in Australia, the doctrine of Terra Nullis (No Mans Land) did not apply to Australia and that there were indigenous inhabitants of Australia at the time of British settlement who had a system of traditional laws and customs that gave rise to rights in land. Following the High Courts decision in the Mabo Case, the Native Title Act 1993 was enacted to provide the mechanisms by which future native title claims could be made and to regulate future acts.
In the Wik Case the High Court ruled that native title could co exist with the rights of pastoralists who held non-exclusive pastoral leases.
Croker Island (Commonwealth v Yarmirr) 2001
In the Crocker Island Case the High Court found that native title could be recognised in the intertidal zone and offshore but could only amount to certain non-exclusive rights.
Ward found that native title is a bundle of rights which can be partially extinguished.
In Yorta Yorta the High Court ruled that in order to establish native title, it had to be shown that the native title rights and interests continued from pre-sovereignty times through to the present day. The finding in Yorta Yorta was that there had been a period of discontinuity with the Court famously expressing that the native title of the Yorta Yorta people had been washed away by the tides of history. The fact that current day Yorta Yorta people had embarked upon a process of reviving their culture and history did not save their native title claim.
Native title can be claimed on:
- vacant crown land (unoccupied or unallocated);
- some state forests, national parks and public reserves;
- seas, reefs, lakes and inland waters;
- some leases, such as non-exclusive pastoral and agricultural leases;
- some land held for Aboriginal peoples and Torres Strait Islanders (for example DOGITs).
Native title can only be claimed in areas where it has not been extinguished.
Native title cannot be claimed in areas where it has been extinguished, such as:
- privately owned land (residential freehold and privately owned freehold farms);
- residential, commercial or community purpose leases;
- public work areas such as schools, roads or hospitals; and
- pastoral or agricultural leases that grant exclusive possession.
Native title can only be claimed only where it has not been extinguished (refer to FAQ 2 and 3). The protection given to Aboriginal Cultural Heritage Act 2003(Queensland) applies regardless of the nature of the tenure of the land concerned. The Act imposes duty of care not to damage or interfere with Aboriginal Cultural Heritage and this duty applies to all persons.
The Native Title Act 1993 requires that a claim group authorize applicants bring the claim on their behalf. Section 251 B of the Native Title Actprovides that there if there is a traditional law and custom about making decisions of this kind and then that process should be followed. If there is no such traditional law and custom the group may adopted and follow an agreed processes.
In practice, a large community meeting is usually held so that as many members of the community as possible are informed about the claim even if the process of appointing applicants is left to a traditional method such as a decision being made by the elders.
Under the Native Title Act 1993 Future Act Notices (FAN) must be served on the applicants for any registered native title claim. In addition, the right to negotiate in mining matters is confined to those claims that are registered or which become registered within certain periods after a Future Acts concerning mining is notified. Unless a claim is registered the claim group may miss out on having a say on Future Act matters or may miss out on the right to negotiated on mining matters.
The Native Title Act 1993 requires where a claim is lodged with the Federal Court, the Federal Court is to supply a copy of the claim to the National Native Title Tribunal (NNTT). The Act requires that the NNTT then apply the registration test to the claim. The registration test is divided into two parts. One part deals with administration requirements (has the claim form been filled out properly, does it contain all the information required etc) and the other part deals with questions of merit (does the claim or other information supplied with the claim contain enough information to show that it is likely that the claim can be established). If the claim passes the registration test it is entered on the Register of native title claims of the NNTT.
An ILUA is a negotiated agreement between native title groups and other parties (such as governments, pastoralists and mining companies) about the use and management of land and waters. ILUAs may cover many and different things such as, the conditions upon which activities effecting native title maybe carried out, arrangements for cultural heritage inspections and the avoidance of damage to cultural heritage, compensation to native title holders for the lost of native title rights, the way in which the exercise of native title rights may be carried out, protocols for future negotiations concerning Future Acts and many other things.
When ILUA is registered by the NNTT it becomes binding for all of the native title holders for the group concerned.
The regulations under the Native Title Act 1993 prescribe the type of Body Corporate that maybe appointed to hold the native title after a determination. Currently the only Body Corporate prescribed by the regulations is a Body Corporate formed under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Commonwealth) (CATSI Act). There are certain things that must be contained in the Rules of the Body Corporate in order to qualify as a PBC. Where there is a determination of Native title the Court usually makes a declaration under section 56 or 57 of the Native Title Act 1993 appointing the PBC. Once appointed the NNTT enters details of the PBC on its Register where upon he PBC becomes a Registered Native Title Body Corporate (RNTBC). The RNTBC has the responsibility of the dealing with all issues affecting native title post determination, including entering into ILUAs and other arrangements concerning the native title land.
A Future Act is any proposed activity or act which has the potential to affect native title. The most common example is the intension to grant mining tenements or to grant permits or permissions to carry out certain activities. The Native Title Act 1993 defines when notification of the intent to grant tenements, permits or permissions etc must be given and how that notification must be given. These notifications are referred to as Future Act Notices (FAN). The registered native title claimants have the right to comment on the proposal within the timeframe stated in the notice (unusually 28 days). In mining matters registered native title claimants have the right to negotiate and different timeframes may apply.
When the Native Title Act 1993 was first passed all native title claims were initiated by filing the claim with the NNTT. Since the 1998 Amendments to the Native Title Act 1993 all native title claims are initiated by filing the claim with the Federal Court of Australia. A native title claim is a civil action and progresses through the Court system until the claim is finally disposed of by the Court. A claim may be disposed of by the handing down of a consent determination, a determination after holding of a trail (either a determination that native title exists or a determination that it does not exist) or by the claim being struck out.
The Native Title Act 1993 setup the National Native Title Tribunal (NNTT). The NNTT has a number of functions under the Act. Those functions include:
- The public notification of claims;
- The public notifications to register ILUAs;
- The maintenance of the Registers for claims, ILUAs and determinations;
- A mediation service;
- Assistance to applicants and other parities;
- Application of the registration test;
- Adjudicating on objections on the expedited procedure on mining matters;
- Making arbitral decisions about some future act matters;
- Assists parties to negotiate various types of agreements
Tribunal has offices in Perth, Adelaide, Brisbane, Cairns, Melbourne and Sydney.
Incorporated in 2006, the National Native Title Council is the umbrella organisation representing Native Title Representative Bodies (NTRBs) and Native Title Service providers (NTSPs) throughout Australia.
The NNTC is the national voice lobbying for the development of better solutions for resolving native title and securing adequate resources for NTRBs and NTSPs.
NQLC is a member of the NNTC.