M4 - Learner Manual

Native title describes the rights and interests of Aboriginal and Torres Strait Islander people in land under their traditional laws and customs.

Native title is sometimes referred to as a ‘bundle of rights’ and 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

In some cases, native title includes the right to possess and occupy an area to the exclusion of all others (often called ‘exclusive possession’). This includes the right to control access to, and use of, the area concerned. However, this right can only be exercised over certain parts of Australia, such as unallocated or vacant Crown land and some areas already held by, or for, Aboriginal and Torres Strait Islander Australians.

The content of that bundle of rights will depend on the native title holder’s traditional laws and customs and the capacity of Australian law to recognise the native title claimant’s rights and interests.

Therefore, native title does not give Aboriginal and Torres Strait Islander people:

• Ownership (as recognised in Torrens Title freehold). As such, native title claimant groups cannot sell or assign the land;
• The power to take away other people’s valid right to the land (e.g. mining lease, pastoralist);
• The right to prevent development[1]

Under the Native Title Act 1993 (Cth), mining companies and other developers are required to negotiate with native title holders and others with a potential interest in the land before commencing any development. The interests of native title holders may well be affected by mining or other industries operating on native title land. Native title holders do not have the power to say no to such developments; instead they have a right to negotiate.

The outcome of successful negotiations may take the form of Aboriginal and Torres Strait Islander Land Use Agreements (ILUAs). If the parties cannot reach a negotiated agreement within certain time limits the issue can be subject to compulsory mediation and determination by the National Native Title Tribunal.

The type of evidence required to make a native title application

In lodging an application for native title, the claimants accept the onus of presenting sufficient evidence to establish a connection to the land under their traditional law and customs.[2] Usually evidence will be presented which outlines[3]:

·      Whether any members of the native title claim group currently reside on the land.

·      How the natural resources of the land are used including information about flora, fauna and other resources.

·      The presence of sacred sites or the continuing performance of ceremonies on the land;

·      How the responsibility of the land has continued and been conveyed across generations.

·      Any other evidence which indicates how they have adapted and maintained contact with the land since British colonisation.

Where 3^rd parties propose to develop land subject to a native title claim or determination

Where a person proposes to do something that affects native title over land which is subject to a registered native title claim or determined native title rights or interests, the claimants or holders must be notified. This triggers certain processes under the Native Title Act 1993 (Cth):

•      the “right to negotiate” process, which requires the state and the proponent to negotiate “in good faith” with the claimants or holders in order to obtain their agreement to the proposal (generally resulting in execution of either an Aboriginal and Torres Strait Islander Land Use Agreement, which is then registered and has the effect of law between the parties, or a land access agreement, which is an unregistered agreement), failing which the matter can be referred to the National Native Title Tribunal for determination;

•      an expedited process which can apply where the proposal has a minimal impact on the land; or

•      a notification and consultation process where the rights to be granted relate to infrastructure.

If a grant of interest in land is made without the appropriate process under the NTA being followed, this can result in the invalidity of that grant and may diminish any native title rights in the land.[4]

National Registers maintaining native title records

The Native Title Registrar (the Registrar) maintains three registers of important information related to native title. These registers are as follows:

·      Register of Native Title Claims which contains information about native title claimant applications that have satisfied the conditions for registration (the registration test) set out in s.190A of the Native Title Act 1993 (Commonwealth) (the Act)

·      National Native Title Register which contains information about all approved determinations of native title in Australia

·      Register of Aboriginal and Torres Strait Islander Land Use Agreements which contains information about Aboriginal and Torres Strait Islander land use agreements (ILUAs) made between people who hold, or may hold, native title in the area and other people, organisations or governments.[5]