spacer
Australian Government Solicitor

 

    View the AGS Twitter account    Visit the AGS YouTube channel     Visit the AGS LinkedIn page
Legal Briefing  

Follow us on Twitter


Legal Practice Briefing

Number 11

29 April 1994

NATIVE TITLE ACT 1993

From the Attorney-General

The decision of the High Court in Mabo v Queensland (No. 2) was a major development in Australian law, addressing some of the basic premises of our legal system and our society. An historic wrong was righted.The decision has provided the opportunity to rebuild on fair and just foundations the relationship between our nation and its indigenous people. The Commonwealth's Native Title Act 1993 is a beginning to that process.The Act accepts and confirms the fundamental propositions of the Mabo (No. 2) decision, namely:

  • the rejection of the myth that Australia was terra nullius (land belonging to no-one);
  • and the recognition of native title rights based on the traditions of the indigenous people of Australia.

In addition to confirming these newly recognised rights, the Act seeks to establish a legal regime which respects native title rights.

The Mabo (No. 2) decision clearly required a national response. Native title is an issue that must be faced by the country as a whole. The Commonwealth made significant efforts to address the issue collaboratively, consulting with State and Territory governments, and representatives of Aboriginal peoples and Torres Strait Islanders, and of industry. The Act reflects the input of all these groups, and a careful balancing of the roles of Commonwealth and State and Territory Governments.

The Native Title Act 1993 is only a beginning. The concept of native title will need to be explored and developed by courts, tribunals, governments and legislatures across Australia. While the Act establishes a just framework for this process, native title is an issue that will continue to be a challenge to us all.

Michael Lavarch

On 1 January 1994 the Commonwealth Native Title Act 1993 (except for Part 10) commenced operation. Part 10, which establishes the National Aboriginal and Torres Strait Islander Land Fund, commences operation on 1 July 1994. The Act is part of the Commonwealth's response to the High Court's decision in Mabo v Queensland (No. 2).

This briefing includes a short summary of the High Court's decision. The decision was discussed in more detail in Legal Practice Briefing No. 5 which was published on 30 July 1993.

This briefing provides a more detailed overview of the major features of the Act. It does not deal with all matters covered by the Act, but rather summarises the major features and how they will work.

The discussion is based on Part A of the Explanatory Memorandum prepared by the Government in relation to the Native Title Bill 1993 (as introduced into the House of Representatives), but elaborates on that document and, in particular, takes account of the amendments made to the Bill in the Senate and refers to the appropriate renumbered sections of the Act.

The Decision in Mabo (No. 2)

A majority of the High Court decided in Mabo (No. 2) that the Meriam people were entitled as against the whole of the world to the possession, occupation, use and enjoyment of (most of) the land of the Murray Islands in the Torres Strait.

In reaching this conclusion the majority of the Court held that the common law of Australia recognises a form of native land title, and indicated that the principles applied to the mainland as well as to the Murray Islands. Such a native land title exists in accordance with the laws and customs of indigenous people:

  • where those people have maintained their connection with the land; and
  • where their title has not been extinguished by acts of Imperial, Colonial, State, Territory or Commonwealth governments.

The decision was clearly a major development in Australian law.

Terra Nullius

The Court rejected the traditional doctrine that Australia was terra nullius (land belonging to no-one) at the time of European settlement, with the implication that absolute ownership of land vested at that time in the Crown. Rather, it accepted that native title rights survived settlement, though they were subject to the sovereignty of the Crown.

Native Title

Although the content of native title is to be determined according to the traditional laws and customs of the title holders, there are some common characteristics. It may be possessed by a community, group, or individual depending on the content of the traditional laws and customs. It is inalienable (that is, it cannot be transferred) other than by surrender to the Crown or pursuant to traditional laws and customs. Native title is a legal right that can be protected, where appropriate, by legal action. It is not frozen as at the time of European settlement.

Extinguishment

Native title will be extinguished where the traditional title holders lose their connection with the land.

While the acquisition of sovereignty did not of itself extinguish native title, subsequent legislative or executive actions by governments may have. But a clear and plain intention or clear and unambiguous words are required for this to have occurred. The judgments variously considered the position of a range of land, such as freehold, leasehold, land appropriated by the Crown, national parks and land over which mining interests had been granted.

Validity of Past Acts

The majority of the High Court held in Mabo (No. 2) that extinguishment of native title by inconsistent Crown grant did not give rise to a claim for compensatory damages. It follows that the validity of such grants could not be challenged merely on the basis that they extinguished native title without compensation.

However, this conclusion of the majority of the Court was made expressly subject to the operation of the Racial Discrimination Act 1975 (RDA) of the Commonwealth. On one view, the RDA may in some cases render wholly or partly invalid past laws or grants. As noted below, the Native Title Act remedies, or allows States and Territories to remedy, any possible invalidity arising out of the existence of native title and the operation of any law.

Native Title Act 1993

In summary, the Native Title Act:

  • recognises native title rights and sets down some basic principles in relation to native title in Australia;
  • provides for the validation of past acts which may be invalid because of the existence of native title;
  • provides for a future regime in which native title rights are protected and conditions imposed on acts affecting native title land and waters;
  • provides a process by which native title rights can be established and compensation determined, and by which determinations can be made as to whether future grants can be made or acts done over native title land and waters; and
  • provides for a range of other matters, including the establishment of a National Aboriginal and Torres Strait Islander Land Fund.

Commonwealth Approach
to Native Title

Recognition of Native Title

The Commonwealth's major purpose in enacting this legislation is to recognise and protect native title (see sections 3 and 10). The Act adopts the common law definition of 'native title'. 'Native title' is defined as the rights and interests that are possessed under the traditional laws and customs of Aboriginal peoples and Torres Strait Islanders in land and waters, and that are recognised by the common law (section 223). (The decision in Mabo (No. 2) referred only to native land title, but the Act does not preclude the possibility that native title rights and interests may also exist in relation to waters, including offshore waters.)

Determination of Native Title

The Act provides a mechanism to determine whether native title exists and what the rights and interests are that comprise that native title (see sections 13 and 61). A determination of native title under the Act will establish whether the holders have exclusive possession and, if not, the native title rights and interests the maker of the determination considers to be of importance (section 225). The Act also recognises that native title rights, as with Aboriginal and Torres Strait Islander traditions, may change with time or lapse. A mechanism is provided to allow for variations of determinations where circumstances have changed (sections 13 and 61).

Section 12 provides that the common law of Australia in respect of native title is adopted and has force as a law of the Commonwealth. Native title will be subject to the general laws of Australia, including State and Territory laws which are consistent with the Act (section 8), although native title rights to hunt, fish and carry on other activities may be exercised without the need for a licence or permit where others can carry out the activity only with a licence or permit (section 211).

The Act recognises that, in some cases, governments, and those holding relevant interests, will wish to know whether native title exists in relation to land or waters. The Act provides a means for 'non-claimant applications' to be made for a determination as to the existence or otherwise of native title (sections 61 and 67). Where non-claimant applications are unopposed, future acts over the land or waters are valid (section 24).

The Act also provides for the establishment of two public registers: one for native title claims (the Register of Native Title Claims, Part 7), and the other for native title determinations (the National Native Title Register, Part 8).

Protection of Native Title

The Act provides significant protection of native title.

Under the Commonwealth's scheme for validation of past acts, native title is extinguished only in limited circumstances, as described below.

For the future, only limited acts of governments will be able to affect native title. Generally, except in the case of the voluntary surrender of native title (section 21) or in giving effect to the compulsory acquisition of native title (section 23(3)(b)), the 'non-extinguishment principle' will apply (section 238). In essence, that principle states that the acts and grants will not extinguish native title. Where there is conflict between the rights and interests under native title and those granted by governments, the act or grant will prevail. But once those interests expire, native title will again have full effect. The mechanism for making future grants is described below.

Bodies Corporate

The Act recognises that native title rights are primarily group or communal rights. It is likely that a number of people will be able to show that they possess native title rights to a particular area. Further, membership of the title holding group will inevitably change over time. To take this into account, the Act provides that native title will either be held on trust by a prescribed body corporate controlled by those who are the native title holders from time to time (see sections 56 and 57) or, alternatively, provides for a prescribed body corporate which will represent the native title holders and act as their agent (sections 57 and 58). These bodies corporate will provide a practical and legal point of contact for those who wish to deal with native title holders.

Representative Aboriginal/Torres Strait Islander Bodies

The Act provides for the designation of Aboriginal and Torres Strait Islander organisations as representative organisations to assist native title claimants to make applications for the determination of native title and compensation and to assist in negotiations and proceedings (section 202). These bodies may be eligible for financial assistance from the Commonwealth or the Aboriginal and Torres Strait Islander Commission (section 203).

The Minister for Aboriginal and Torres Strait Islander Affairs made a Determination on 27 December 1993 with effect from 1 January 1994 that specified certain existing organisations as representative Aboriginal/Torres Strait Islander bodies.

Land Acquisition Fund to be Established

Recognising that many Aboriginal peoples and Torres Strait Islanders will be unable to secure native title and to benefit directly from the High Court decision, the Act establishes a National Aboriginal and Torres Strait Islander Land Fund (section 201). This will commence operation on 1 July 1994, and will assist such people to acquire and manage land.

Existing Rights

The Act does not affect rights held under Commonwealth land rights legislation (section 210).

The Act also provides in section 212 that governments may confirm existing ownership of natural resources, existing rights to water and the primacy of existing fishing rights. Governments may also confirm existing access to beaches and public places (section 212(2)). Such confirmation will not affect the ability of native title holders to continue to exercise any rights they might have (section 212(3)).

Validation of Past Acts

Validation by Commonwealth, States and Territories

The Act provides in section 14 for the validation of past (invalid) Commonwealth acts. Section 19 enables States and Territories to validate their past (invalid) acts on the same terms. The Act does not prevent States and Territories from attempting to validate 'past acts' on their own terms (see section 233(2)); but they would do so at their own risk in terms of the legality of such an approach.

This is not to indicate that the Commonwealth is of the view that past acts by the Commonwealth, States or Territories are invalid. The Mabo (No. 2) decision clearly indicated that governments are able to affect and indeed extinguish native title. However, significant concerns have been expressed in relation to the validity of some past acts, and in particular past grants to third parties. As discussed above, the invalidity of some past acts is a legal possibility.

Effect of Validation on Native Title

The past acts which are validated include the making of legislation, the grant of a licence or permit, the creation of any interest in land or waters and the exercise of executive power (section 226). The validation only affects acts which were invalid because of the existence of native title.

The validation of past acts and grants will only extinguish native title where there has been what the Act terms a Category A past act (sections 15(1)(a) and (b) and 229), that is, a grant of freehold or of a commercial, agricultural, pastoral or residential lease (defined in sections 246, 247, 248 and 249) or the construction of a public work (defined in section 253). Where there has been a grant of other leasehold interests (a Category B past act), other than a mining lease, the validation will only extinguish native title to the extent of any inconsistency between the two sets of rights and interests (sections 15(1)(c) and 230).

Extinguishment will not take place where the freehold or leasehold grant ceased to have effect before 1 January 1994. Nor will it take place where the validated grant was made under legislation for the benefit of Aboriginal peoples or Torres Strait Islanders or where the validated leasehold grant was over land where that land on 1 January 1994 is held pursuant to grants under such land rights legislation (sections 229(2), (3) and 230).

The validation of all other past acts by the Commonwealth, called Category C and D past acts (sections 15(1)(d), 231 and 232), will not extinguish any native title, but rather native title will be subject to the non-extinguishment principle (defined in section 238). In particular, mining leases (Category C) validated by the Act and those validated by States and Territories pursuant to the Act will not extinguish any native title.

Legislation passed before 1 July 1993, and acts and grants made before 1 January 1994, are or will be able to be validated. The Act also validates, and enables validation, of some acts which will take place in the future, where those acts are linked to acts done in the past. These include the exercise of options and legally enforceable rights or the extension or renewal of (invalid) grants made in the past (see the definition of 'past act' in section 228).

Protection of Reservations

The validation exercise will not affect any reservations or conditions for the benefit of Aboriginal peoples or Torres Strait Islanders contained in any past (invalid) grant or legislation. Nor will it affect any other right or interest they may hold arising under legislation, common law, equity or by usage (section 16).

Section 15(2) also provides that extinguishment pursuant to the validation of a pastoral lease does not itself confer a right to remove Aboriginal persons from the relevant land.

Entitlement to Compensation for Validation

Native title holders are entitled to compensation for the effect of the validation of past acts on their rights.

  • Where native title has been extinguished (for example by validation of a freehold grant) compensation will be on just terms (sections 17, 20 and 51).
  • Where the native title is impaired but not extinguished in relation to an onshore place (for example by the validation of a mining lease over land) compensation will be paid to native title holders where freeholders would have received compensation and this will be assessed under the same regime as for freeholders (sections 17, 20 and 51(3), and the definition of the 'similar compensable interest test' in section 240).
  • Where the native title is impaired and the grant or act could not have been done over freehold land, or where the grant or act was in relation to an offshore place, native title holders will receive just terms compensation (sections 17, 20 and 51).

The Act provides Commonwealth rights to compensation, even for the effect of State and Territory validations. These Commonwealth rights may be pursued in the National Native Title Tribunal (NNTT) and the Federal Court. States and Territories may also provide rights to compensation and a process for asserting those rights (section 20(4)).

Non-Monetary Compensation

In claiming compensation native title holders will have a right to seek to negotiate non-monetary compensation, including other property or the provision of goods or services (sections 51(6) and 79). In special circumstances the Commonwealth Minister may direct the NNTT to inquire into the effect on Aboriginal peoples and Torres Strait Islanders of the validation of particular past acts and alternative forms of compensation (section 137).

The Future Regime

The Commonwealth also regarded it as crucial that there be a process to allow for grants and actions over native title land and waters, and land or waters that could be subject to native title, to continue in the future. To provide for such a process, it is necessary that native title be recognised and accommodated into the national land management system.

Future Acts

The Act provides for future acts that affect native title to take place providing they are 'permissible future acts', defined in section 235.

It is important to recognise that the Act draws a distinction between 'offshore' and 'onshore' places. These terms are defined in section 253. An 'onshore place' is land or waters located within the limits of a State or Territory. The waters off the coast of a State or Territory (known as the coastal waters) do not fall within this definition. They are 'offshore' places, which also include any land (for example, reefs and islands) or waters to which the Act extends that are not within the limits of a State or Territory.

All future acts in an offshore place are 'permissible' even if that place is subject to native title (section 235(8)(a)). In the case of onshore land, the Act provides that where an act can be done over ordinary title land then that act will be permitted over native title land (section 235(5)). 'Ordinary title land' is defined to mean either freehold or, in the case of the Australian Capital Territory and Jervis Bay, leasehold (section 253).

There is also a test for where an act is proposed over onshore native title waters (such as lakes, rivers and harbours); if the act could be done over the waters, on the assumption that the native title holders held ordinary title to the land adjoining or surrounding the waters, then it can be done over native title waters (section 235(5)).

The making of new legislation is 'permissible' only if it affects native title holders in the same way that it affects ordinary title holders or if it puts native title holders in no worse a position than ordinary title holders (section 235(2)).

Commencement of 'Permissible Future Act' Test

The requirement to satisfy the 'permissible future act' test began in relation to new legislation on 1 July 1993 and for other acts and grants on 1 January 1994.

Exceptions to 'Permissible Future Act' Test

Sections 24 and 25 are, in effect, exceptions to the 'permissible future act' test. Section 24 deals with the situation where governments or others with an interest in land apply for a determination as to whether native title exists over it. If there is no native title claim within the specified period in relation to the area the subject of such a 'non-claimant application', any act in relation to the land before any determination of native title is valid. Section 25 enables the renewal of existing interests pursuant to a legally enforceable right, notwithstanding the existence of native title.

Section 235(7) provides that other renewals or extensions of existing commercial, agricultural, pastoral or residential leases are permissible future acts.

Grant of Mining Interest

An example of a permissible future act is the grant of a mining interest. Where such grants can be made over freehold land, they can also be made over native title land. Other future permissible acts include those carried out under general Compulsory Acquisition Acts (see definition in section 253).

Future Extinguishment

In the future, native title will only be able to be extinguished by agreement with the native title holders (section 21) or in giving effect to the purpose of an acquisition of native title under the Compulsory Acquisition Acts (section 23(3), and see section 11).

Compensation for Future Acts

Native title holders will be entitled to just terms compensation for any future extinguishment of their rights and interests. Where an act only impairs the title rights onshore, native title holders will be entitled to compensation under the same regimes as are applicable to ordinary title holders (sections 23(4) and 51(3)). Offshore, the native title holders will be entitled to just terms compensation for such impairment (sections 23(4) and 51(1)).

The Act provides a Commonwealth right to compensation for extinguishment pursuant to a Compulsory Acquisition Act or for onshore impairment, only where there is no right provided by a State or Territory law (section 23(3)(c) and (4)(b)(ii)(C)). This right can be pursued in the NNTT and Federal Court. Where a State or Territory right to compensation operates, it may be asserted in accordance with the State or Territory law.

Procedural Rights for Future Acts

In the case of all future acts other than 'low impact future acts', native title holders are entitled to the same procedural rights as holders of ordinary title, such as the right to be notified and to object (sections 23(6) and 253).

Right to Negotiate

In addition, in recognition of the special attachment that Aboriginal peoples and Torres Strait Islanders have to their land, the Act provides that for certain 'permissible future acts', registered native title holders and registered native title claimants will also have a right to negotiate before such an act can be taken. Subdivision B of Division 3 of Part 2 contains the detailed provisions relating to this right to negotiate. Section 26 sets out the acts to which the right to negotiate will apply. They are essentially acts relating to mining, the compulsory acquisition of native title for the purpose of making a grant to a third party, and any other acts approved by the Commonwealth Minister.

Process for Right to Negotiate

The right to negotiate does not apply if there are no registered native title holders or registered native title claimants within two months of notification of the proposed act (sections 28(1)(a) and 30), and in this case the act can proceed in the normal way.

Certain grants or classes of grants which have minimal effect on native title can be excluded from this right to negotiate by the Commonwealth Minister (section 26(3) and (4)). Further, an act which does not directly interfere with the community life of native title holders or involve major disturbance to any land or waters concerned can proceed through an expedited process (sections 32 and 237).

The right to negotiate is not a veto. If the parties cannot reach agreement after negotiation, then any party can apply to the NNTT or the recognised State or Territory body, called the 'arbitral body' (section 27), for a determination of whether the act may go ahead and if so on what conditions (section 35).

In making its determination, the arbitral body must take account of a number of factors, including the impact of the proposed act on the way of life, culture and traditions of the native title holders and the economic significance of the proposed act to Australia and the relevant State or Territory (section 39).

Where there is a State or Territory arbitral body, a State or Territory Minister may override the determination in the interest of the State or Territory (section 42(1) and (3)). If the NNTT is the arbitral body, the Commonwealth Minister may override the decision in the national or State or Territory interest (section 42(2) and (3)). The determination may be overridden on conditions.

State or Territory Bodies and Processes for Right to Negotiate

Where a State or Territory body complies with the relevant criteria and the Commonwealth Minister has recognised it, that body will be the arbitral body for the State or Territory (sections 27 and 251). There is also provision to allow for the approval of alternative State or Territory systems which give an equivalent right to negotiate (section 43). Where such an approved State or Territory system exists, the Commonwealth system will not operate.

Low Impact Future Act

Certain future acts are defined as 'low impact future acts' (section 234). These include the grant of minor licences and permits (such as for beekeeping). Such acts can proceed in a period before native title has been determined, do not extinguish native title and do not require the payment of compensation but they may not continue if native title is later determined to exist (sections 23 and 235(8)(b)), except with the agreement of the native title holders.

Surrender of Native Title

Given that traditionally held land could not be bought and sold, native title will not be able to be alienated by the native title holders. To facilitate commercial dealings, native title holders will be able to surrender their title to the relevant government in exchange for statutory title (section 21(1)(a)). Native title holders can also agree to any acts taking place over their land (section 21(1)(b)). The Act recognises that negotiation of agreements on a local or regional basis should be facilitated where appropriate (Preamble and section 21(4)).

Pastoral Leases Held by Native Title Holders

The Act provides that where Aboriginal peoples or Torres Strait Islanders hold a pastoral lease over an area, the effect of that pastoral lease, the creation of any earlier interest in the land and any act done under the lease or by virtue of the interest must be disregarded in relation to an application by those people for determination that they hold native title. However the applicants will still need to show the existence of any connection with the area concerned that may be required by the common law concept of native title. Any determination that native title exists is on the basis that the pastoral lease remains valid and operative but the native title holders receive the benefit of the protection of the Act (section 47).

The Tribunal and Court Process

To provide the most effective means of dealing with issues of native title, the Act establishes a new body, the National Native Title Tribunal (NNTT), and gives the Federal Court jurisdiction in these matters.

Role of NNTT

The NNTT is established as a separate body (see Part 6 of the Act) to deal with uncontested claims to native title and uncontested claims for compensation.

Applications will initially be made to the Native Title Registrar (section 61). Section 63 provides that if various requirements are met (in particular those in section 62), the Registrar must accept an application for a native title determination by persons claiming to hold the title unless he or she is of the opinion that the application is frivolous or vexatious or that prima facie a claim cannot be made out. In this case, the application must be referred to a presidential member, who must give the applicant an opportunity to show that the application should be registered.

Where an application is accepted, the Registrar is obliged to give notice to a range of persons (section 66).

The NNTT will seek to mediate contested claims, but if this mediation is unsuccessful, the matter will be referred to the Federal Court (section 74).

The NNTT will also be able to inquire into any issue in relation to native title referred to it by the Commonwealth Minister (section 137).

Where there is not a recognised State or Territory body, the NNTT will also be the relevant arbitral body (see the discussion of the future regime above) to determine whether certain grants can proceed over native title land if negotiations have not been successful.

The NNTT is composed of a President, and other presidential members (who must be judges of the Federal Court or former judges of any Commonwealth court or of a State or Territory Supreme Court) and other members. The Act requires that non-presidential members have special knowledge, particularly in relation to Aboriginal or Torres Strait Islander societies, land management or dispute resolution (section 110).

Mr Justice Robert French has been appointed as the first President of the National Native Title Tribunal. His appointment commences on 2 May 1994 and is for three years. Mr Justice French, who has been a Judge of the Federal Court of Australia since 1986, is based in Perth. The NNTT will, therefore, be based in Perth with registries in all capital cities. Justice Deirdre O'Connor, who has been Acting President of the NNTT since January 1994, will continue in that role until 2 May 1994.

Role of Federal Court

The Federal Court will hear contested claims for a determination of native title or for compensation (section 81). The Court will also hear appeals on questions of law from the NNTT in relation to the right to negotiate, and from a decision of a presidential member not to accept an application for a determination of native title (section 169). The NNTT may refer questions of law to the Federal Court (section 145).

Determinations of the NNTT are to be registered with the Federal Court (section 166(2)) and have the effect of an order of the Court (section 167). Applications can be made to the Court for a review of a registered determination within 28 days (sections 167 and 168).

Assessors

In determining claims for native title and compensation, the Court may be assisted by an assessor (sections 83, 91, 93 and 218). As far as practicable, persons appointed as assessors are to be selected from Aboriginal peoples or Torres Strait Islanders (section 218).

Process of Federal Court and NNTT

The Federal Court and the NNTT are to provide a determination mechanism that is fair, just, economical, informal, prompt and which takes account of the cultural concerns of Aboriginal peoples and Torres Strait Islanders (sections 82 and 109). The Act sets out in detail how the NNTT will operate.

Registers

The Native Title Registrar (section 95) will be responsible for the establishment and maintenance of the Register of Native Title Claims (Part 7) and the National Native Title Register (Part 8). The Registrar may delegate his or her powers and duties in relation to these Registers to a recognised State or Territory body (sections 191 and 198).

State and Territory Bodies

States and Territories may set up their own bodies to hear native title claims and compensation claims. Where those bodies comply with the criteria and standards set out in the Act in section 251, the responsible Commonwealth Minister will be able to recognise them. Native title claims may be initiated in either a recognised State or Territory body or the Federal system. The Commonwealth Minister may also de-recognise such State/Territory bodies (section 251(4), (5) and (6)).

Summary

It will be important for those Commonwealth officers who take actions in relation to land or waters to have regard to Mabo (No. 2) and the Native Title Act. In summary, the questions which need to be asked before such actions are taken are as follows.

Does native title extend to the relevant area?

Native title will exist in accordance with the laws and customs of indigenous people:

  • where those people have maintained their connection with the area; and
  • where their title has not been extinguished by acts of Imperial, Colonial, State, Territory or Commonwealth governments.

Has native title in that area been extinguished?

Native title will have been extinguished by the grant of private interests in land, in particular grants of freehold or leasehold, at least to the extent that the latter provide a right of exclusive occupancy or possession. Native title may not have been extinguished by other lesser grants. Appropriation by the Crown of land for use by itself will have extinguished native title to the extent of any inconsistency arising out of such use.

How can the continued existence of native title be determined?

If the land has been the subject of a freehold or leasehold grant, native title issues will generally not arise. If there is a likelihood that native title does exist, an application can be made to the Native Title Registrar for a determination by the National Native Title Tribunal or the Federal Court as to whether native title exists. If upon notification of such an application no claim to native title is made, the Native Title Act provides that any act can be done in relation to the area.

If native title does extend to the area, what actions can governments take which may affect native title rights?

Where native title does exist, whether a particular action can be taken which will affect or impair those rights will depend on a number of circumstances.

  • If the proposed act is in relation to land, the act can be done and can affect native title rights if the same act could be done over freehold land.
  • If the act is in relation to onshore waters, the act can be done and can affect native title rights if the same act could be done over waters where the adjoining land is freehold.
  • If the act is in relation to an offshore place, the act can generally be done.

In each case the native title holders may be entitled to procedural rights (either those generally available or the special right to negotiate provided by the Native Title Act) and compensation.

This Briefing is based on material from commentary in the new book Native Title which was launched by the Attorney-General, Michael Lavarch, on 2 February 1994. As well as a full commentary the book contains the Native Title Act 1993 and the National Native Title Tribunal Regulations. The work reproduces the Second Reading Speech and has a full index to the Act and Regulations also prepared by the Attorney-General's Legal Practice. The book is available through Commonwealth Government Bookshops and all AGPS outlets (order form enclosed).

ISSN 1448-4803 (Print)
ISSN 2204-6283 (Online)

The material in this briefing is provided for general information only and should not be relied upon for the purpose of a particular matter. Please contact the Legal Practice before any action or decision is taken on the basis of any of the material in this briefing.

Back to Legal Briefing Index