Australian law recognises Native Title exists where Aboriginal people have maintained a traditional connection to their land and waters substantially uninterrupted since sovereignty, except where it has been wholly extinguished by the historical grant of freehold, leasehold and other interests.
These rights and interests may include the right to live and camp in an area, conduct ceremonies, hunt and fish, build shelter, and visit places of cultural importance. Some Native Title holders may also have the right to control access.
Native Title was accepted into Australian common law by the High Court of Australia's 1992 Mabo (No 2) decision, which overturned the idea of 'terra nullius', i.e. that the Australian continent was an 'empty land', which did not belong to anyone at the time of European arrival. It recognised for the first time that the rights of Aboriginal and Torres Strait Islander people under their system of traditional laws and customs survived colonisation.
In response to Mabo (No 2), the Australian Parliament enacted the Native Title Act 1993 (Cth) (NTA), which gives statutory recognition and protection of Native Title.
It sets out a procedure for making a claim for a determination of Native Title, provides a regime for governments to act in relation to land validity notwithstanding the existence of Native Title, as well as validating some past activities.
The NTA also provides - compensation to Native Title holders when past and future acts in relation to land are validated.
Native Title can exist with other interests in land, such as pastoral leases. However, if Native Title has been extinguished, it cannot be revived except in limited circumstances.
Most determinations of Native Title in WA are made by consent following negotiations between Native Title claimants, the State Government and other interested parties. Claims would only be referred to the Federal Court for a litigated determination if agreement has not been possible.
Types of Native Title
‘Exclusive’ Native Title is the right to possess and occupy an area to the exclusion of all others, including the right to control access to and use of that area.
‘Non- exclusive’ Native Title does not give a right to control access and use of the area and ‘future acts’ are subject to procedures required by the Native Title Act 1993 (Cth) (NTA).
To find out more about Native Title in Western Australia visit Native Title or see the National Native Title Tribunal website
