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What do I need to know about Native Title?

Native title can be described as a collection of rights in land and water. These rights may include the right to camp, hunt, use water, hold meetings, perform ceremony and protect cultural sites.

A native title claim seeks acknowledgement for pre-existing native title rights and interests in a certain area.

Native title was first recognised in Australian law in 1992 via a landmark judgement Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo).

Mabo overturned the legal fiction of terra nullius (land belonging to no one). The judgement acknowledged that First Nations people enjoyed rights to their land according to their own laws and customs prior to colonisation. The Court found those rights survived colonisation, in certain circumstances, and are now recognised and protected by the Australian legal system.

The Native Title Act 1993 (Cth) was passed in 1993.

The Act established a process for claiming and recognising First Nations native title (the traditional rights and interests) over lands and waters in Australia.

 

What is the difference between native title and land rights?

Native title and land rights are both legal concepts related to First Nations land ownership and rights in Australia, but they have distinct differences:

Native Title

  • Native title refers to the recognition of First Nations Australians' rights and interests in land and waters according to their traditional laws and customs, which predate European settlement.
  • Native title is based on the common law of Australia, specifically the High Court's decision in the Mabo case (Mabo v Queensland [No 2] 1992), which recognised the existence of native title.
  • To establish native title, First Nations groups must demonstrate a continuous connection to the land and waters according to their traditional laws and customs.
  • Native title rights may include the right to access, hunt, fish, and conduct ceremonies on traditional lands, among others.
  • Native title rights can coexist with other land interests, such as pastoral leases or freehold titles, but they are subject to certain limitations, particularly if they conflict with other interests.

Land Rights

  • Land rights typically refer to statutory rights granted to First Nations Australians over certain areas of land by federal or state/territory legislation.
  • Land rights regimes vary between different Australian states and territories. For example:
    • In the Northern Territory, the Aboriginal Land Rights (Northern Territory) Act 1976 (ALRA) allows for the granting of land rights to First Nations Australians over certain areas of Crown land in the Northern Territory.
    • In other states like Queensland, South Australia, and Western Australia, similar legislation or agreements may exist to recognise and protect First Nations land rights.
  • Land rights can involve the transfer of ownership or the granting of certain rights and interests in land, such as the right to use the land for cultural, spiritual, and economic purposes.
  • Unlike native title, which is based on customary laws and customs, land rights are typically established through legislative processes and may involve negotiations and agreements between First Nations groups and government authorities.

While both native title and land rights relate to First Nations land ownership and rights in Australia, native title is a recognition of traditional rights under common law, whereas land rights are statutory rights granted through legislation or agreements.

 

What is a Native Title Representative Body and a Native Title Service Provider? What do they do?

The Native Title Act provided for establishing a new class of First Nations organisation 'representative Aboriginal and Torres Strait Islander bodies' to assist native title claimants to make applications for the determination of native title and for compensation, and assist in negotiations and proceedings concerning native title.

Native Title Representative Bodies (NTRBs) are recognised under section 203AD and funded under section 203FE of the Native Title Act. Native Title Service Providers (NTSPs) are funded under section 203FE of the Native Title Act and perform the same functions as a NTRB in areas where there is no NTRB. 

Native Title Representative Bodies-Service Providers (NTRB-SPs) are primarily service delivery agencies responsible for providing native title services, with prescribed functions under the Native Title Act 1993 to:

  • hold, protect and manage determined native title in accordance with the objectives of the native title holding group
  • ensure certainty for governments and other parties interested in accessing or regulating native title land and waters by providing a legal entity to manage and conduct the affairs of the native title holders. 

Services may include:

  • the preparation and lodgement of claims, compensation cases, and test cases

  • responding to non-claimant applications and future act negotiations

  • native title educations functions

  • heritage and site clearing tasks

  • servicing of Prescribed Bodies Corporates (PBCs).

The Native Title Representative Body (NTRB) for the area in which a future act or proposed Indigenous Land Use Agreement (ILUA) is located has a statutory function under s. 203BB of the Native Title Act to provide facilitation and assistance to PBCs in relation to future acts and ILUAs (and other agreements in relation to native title).

The NTRB may be able to offer facilitation and assistance in relation to these matters as part of the general services to native title groups at no cost. Sometimes NTRBs will seek to recover some costs or fees from the person wanting to do the future act.

Increasingly, NTRBs are under pressure through their funding agreements with the Australian Government to undertake work in relation to Prescribed Body Corporates (PBCs) on a fee-for-service basis.

Because Native Title Representative Bodies operate on a not-for-profit basis, it is possible that a Native Title Representative Body is able to offer services relating to future acts and ILUAs for PBCs at a rate lower than that available on the open market.

 

Where can I find a Native Title Representative Body-Service Provider?

There are 14 Native Title Representative Bodies-Service Providers currently in Australia available to assist native title claimants and holders. They are:

Queensland

Western Australia
Northern Territory
New South Wales
Victoria
South Australia

More information

 

Native Title claim / determination

Native Title Representative Bodies-Service Providers may assists First Nations groups to lodge a native title claim in areas where it has not been extinguished.

Native title cannot be claimed in relation to minerals, gas or petroleum under Australian law.

Native title is inalienable, meaning it cannot be sold or transferred freely. Native title can only be surrendered to the Crown (or extinguished). 

Native title in tidal and sea areas can only be of a non-exclusive nature, as exclusive native title is considered inconsistent with other common law rights regarding marine access and navigation.

  • Non-exclusive native title - Most common, non-exclusive native title can be found to exist alongside other non-Indigenous property rights, such as pastoral or mining leases, with others also having rights to the land. Non-exclusive native title rights may include the right to access, hunt and camp on traditional country, but not the right to control access to, and use of, an area.
  • Exclusive possession native title - Native title rights may include possession of an area to the exclusion of all others, meaning the native title rights are valued like freehold title, providing similar rights. However exclusive native title rights do not amount to full legal ownership of land or waters and they cannot be sold.

 

Prescribed Body Corporates / Registered Native Title Body Corporate

When a native title determination is made, the Native Title Act 1993 requires Traditional Owners to establish a corporation to represent and support the native title owners and their interests.

The native title claim group can either create a new Prescribed Body Corporate (PBC), or nominate an existing corporation to manage and protect their native title rights and interests as per the Native Title Act 1993 (Cth). If an existing corporation is nominated, it must comply with the provisions of the Native Title Act 1993 (Cth) and already be incorporated under the CATSI Act.

If a PBC is created, it must registered with the National Native Title Tribunal. When a PBC is officially registered, it becomes a Registered Native Title Body Corporate (RNTBC). All RNTBCs must be incorporated under the CATSI Act.

RNTBCs are commonly referred to as PBCs.

 

What is a Future Act? Does the 'right to negotiate' apply?

A future act is something intended to be done on or with land (or waters) in such a way as to cause impact to native title rights and interests. It doesn't apply to the native title claimants or native title holders.

Most of the tenements and licences required in the extractive industry (whether on- or offshore) are future acts.

The Native Title Act 1993 (Cth) regulates ‘future acts’ or future act activities affecting native title. 

Native title holders affected by a proposed future act may or may not have ‘procedural rights' under the Native Title Act. 

Future act procedures are based on the principle that in general, acts affecting native title will be valid only if they can also be done on freehold land.

These procedures also recognise that, in some cases, future acts should only be done after every reasonable effort has been made to secure the agreement of the native title holders.

Future act procedures provide certainty to land users by making sure that future dealings with land are valid and enforceable, even if they inconsistent with native title rights and interests.

More information

 

Right to negotiate

The right to negotiate includes the right:

  • to lodge an objection
  • for objectors to be consulted
  • to be heard by an independent person, and
  • to seek compensation for loss or impairment of native title rights and interests.

The right to negotiate applies to the following kinds of future acts:

  • creating a ‘right to mine’ (e.g. the grant of a mining or exploration tenement)
  • varying a ‘right to mine’ to increase the footprint
  • acquiring native title rights and interests for development, unless the purpose is to:
    • create an interest in the land for the Government party; or
    • set up an infrastructure facility.

The parties who must participate in negotiations are:

  • the Government party (i.e. the Commonwealth, State or Territory government proposing to do the act)
  • any grantee parties (i.e. any person who has requested or applied for the act)
  • any native title parties (i.e. any native title claimant or PBC registered at the relevant time).

Where the right to negotiate applies, the National Native Title Tribunal can assist the parties to reach agreement through mediation.

If the parties are unable to reach agreement within 6 months, any of them may apply to the Tribunal for a determination. The Tribunal must take all reasonable steps to make a determination within a further 6 months. The Tribunal’s determination may include conditions, but cannot impose any conditions based on profit sharing.

 

What is Native Title compensation?

Native title holders can claim compensation for activities where there has been full or partial extinguishment, or impairment, diminishing or damage to their native title rights and interests under the Native Title Act 1993 (Cth) s 51(1).

Extinguishment or partial extinguishment of native title means that native title holders are no longer able to fully exercise their traditional rights in an area. Examples of acts which can extinguish native title include the grant of a freehold lease or the construction of public works that are inconsistent with the ongoing enjoyment of native title rights.

Activities may be classified as past acts, intermediate acts or future acts.

  • Past Acts - Acts before 1 January 1994
  • Intermediate Acts - Acts occurring between 1 January 1994 and 23 December 1996
  • Future Acts - Proposals to do work on land or have plans for the land that may affect native title rights and interests, such as mining or granting pastoral leases

Compensation is payable for economic loss and cultural loss, calculated separately. A claim for compensation is made in the Federal Court.

The Prescribed Body Corporate (PBC) legal structure relies on agreements that compensate native title owners when matters are brought to the Federal Court. Land usage agreements provide guidelines for dealing with future native title acts and cases.