An introduction to native title
Native title is the legal process that Aboriginal peoples and Torres Strait Islander peoples use to have their traditional rights to land and waters formally recognised under Australian Law. It acknowledges their important and ongoing connection to their traditional country.
Native title was introduced in Australia after the 1992 Mabo v Queensland (No 2) decision by the High Court of Australia. This case overturned the idea of terra nullius, which had treated land in Australia as unowned before British settlement. Following this decision, the Australian Parliament passed the Native Title Act 1993 (Cth).
The Queensland Government doesn't grant native title. It's usually recognised through a determination made by the Federal Court of Australia under the Native Title Act 1993 (Cth).
Types of native title
The way native title affects land in Queensland depends on the type of rights that are recognised. These can be either non-exclusive or exclusive.
Non-exclusive native title means that Aboriginal peoples and Torres Strait Islander peoples have certain rights, like:
- living and camping on the land
- lighting fires for personal use
- hunting and fishing.
These rights exist alongside the rights of over land users.
Exclusive native title is the right to control who can access the land. It’s not the same as land ownership.
This type of native title is usually recognised over state land that isn’t being used for a public purpose. In these cases, the state still owns the land, but Aboriginal peoples or Torres Strait Islander peoples can use it according to their native title rights.
What changes (or doesn’t) once native title is determined?
In Queensland, public access and use of beaches is not affected by the recognition of native title.
For other land types, if native title is recognised, it doesn’t automatically mean that land can or can’t be accessed. It depends on whether the determination recognised exclusive or non-exclusive native title over that area.
Non-exclusive native title means that the rights and interests recognised can co-exist with others. For example, non-exclusive native title can be recognised over a reserve. This means that:
- visitors can still visit the reserve and its recreation spaces
- native title holders can continue accessing the area to exercise their recognised rights and interests, like gathering traditional foods or protecting significant sites.
Exclusive native title means that native title holders can exercise their native title rights and interests ‘to the exclusion of all others’. This means that other land users must seek the appropriate permission from native title holders to access or use the area.
In Australian common law, most private homes are under a type of tenure called freehold land. As the name suggests, this means the land is ‘free from hold’ by any other entity and the owner can mortgage, lease, or sell their land and build a dwelling in accordance with local laws and planning regulations.
Native title can’t be recognised over freehold land, and a native title determination won’t affect private home ownership.
Non-exclusive native title can be recognised over some kinds of farmland, including pastoral leases.
This means that pastoralists can continue to graze animals, fence land, build dams, and erect homes. At the same time, native title holders can access, use, and enjoy the land according to their traditional laws and customs.
Aboriginal and Torres Strait Islander peoples were the first farmers to cultivate the land’s resources to feed their communities. It is also important to acknowledge that Aboriginal and Torres Strait Islander people in Queensland have made a significant contribution to the agricultural industry, and for many years undertook work without fair wages or conditions.
If there’s inconsistency or dispute about the land use, the rights of the pastoralists takes precedence over the rights of the native title holders. However, a pastoralist can’t prevent native title holders from exercising their native title rights, and can’t deny access to native title lands areas.
Under the Native Title Act, native title holders have a right to negotiate an agreement with government or private corporations who want to develop land, open mines or build infrastructure on land that has a native title determination. This is an important measure that allows native title holders to have input over development that affects their traditional lands and waters. It also means that native title holders can get compensation for allowing industry to access their traditional lands.
The right to negotiate is not a right to veto. Native title holders can’t prevent development unless the site is a cultural heritage site, or the Traditional Owners hold freehold tenure.
Native title is not the same as land ownership. It doesn’t let native title holders do the same things that can happen on private freehold land, like building a property. So there aren't rates or taxes that apply to most lands recognised by native title.
Aboriginal peoples and Torres Strait Islander peoples can apply for a unique type of freehold land called ‘Aboriginal Freehold’ or ‘Torres Strait Islander Freehold’, but this is a title return (land transfer) under the Aboriginal Land Act 1991 (Qld) and the Torres Strait Islander Land Act 1991 (Qld).
With this type of freehold, Aboriginal and Torres Strait Islander people can build homes or commercial buildings. In this case, taxes and rates will apply in the same way as other private land that’s used for commercial or residential purposes.
Native title rights and interests remains subject to Commonwealth, state and local government laws. Aboriginal or Torres Strait Islander people, including those who are native title holders on areas where native title is recognised, need to:
- follow Australian law
- obey police or other law enforcement when required.
In some special circumstances, native title rights might affect how a law applies. For example, if state law requires someone to obtain a hunting permit, this requirement may not apply to native title holders if this hunting is part of exercising a recognised native title right.
The challenges of making a claim
Native title claims can be a difficult process for Aboriginal peoples and Torres Strait Islander peoples and may involve experiences of profound loss and trauma. Often, past government acts like land clearing and building public infrastructure cancelled out (extinguished) native title on state land. This means that Aboriginal peoples and Torres Strait Islander peoples are not able to have their rights and interests recognised over all areas within their traditional country.
Costs
Financial outcomes
A native title determination recognises native title rights and interests over areas of land. This recognition does not involve a financial settlement.
Legal fees
Whenever possible, we try to resolve native title applications through a process of negotiation called a ‘consent determination’. This approach prioritises relationship building, and tries to avoid the need for any disputes to be resolved by the Federal Court, which can be a costly and time-consuming approach for all involved.
The Queensland Government does not fund native title claims. Commonwealth funding through the National Indigenous Australians Agency (NIAA) is available to Aboriginal and Torres Strait Islander groups that wish to pursue a claim. Native title representative bodies can provide information on how to apply for this funding.
Compensation
In many instances, native title was cancelled out (extinguished) by past acts of government, such as:
- clearing land
- building public infrastructure
- granting freehold tenure for private property.
In these cases, Traditional Owners can lodge a compensation claim. This compensation does involve a financial settlement.