Native title legally recognises Aboriginal and Torres Strait Islander peoples’ interests and rights in  land and waters according to their traditional laws and customs. Native title is recognised when a traditional connection to the land and waters has been maintained since white settlement and where no government acts have extinguished it.

Native Title was first recognised in the historic 1992 Australian High Court case of Mabo v Queensland (No 2) [1992] HCA 23 which recognised for the first time that indigenous Australians had a unique connection to the land and may continue to hold native title rights in that land. Native title includes:

• the rights of possession;
• the rights of occupation;
• the right to use or enjoy traditional country including the right of access; and
• the right to make decisions in relation to the land and water.

The native title rights of a particular indigenous group may depend on both:

• their own traditional laws and customs; and
• the rights of other people who also use and enjoy the same land and water.

As many indigenous peoples were nomadic a number of different groups used and enjoyed the same lands and waters in different times of the year. Native title rights may vary from group to group depending on their interests as well as rights they have claimed and negotiated. Native title can co-exist with some forms of land titles such as pastoral leases but will be extinguished by others such as a freehold grant.

Native title is inalienable which means it cannot be bought or sold. Native title can only be transferred pursuant to traditional laws or customs or surrendered to government. Where native title is surrendered compensation is payable to the native titleholders in the same way as in other government property acquisitions.

The Federal Court of Australia is responsible for the management and determination of native title applications under the Native Title Act 1993 (Cth) which establishes procedures for native title claims. The Federal Court is empowered to:

• decide who is entitled to be a party to a claim;
• decide whether new applicants can be joined as parties to a claim;
• refer claims for mediation to a court registrar or other individual or body;
• adjourn proceedings to allow time for negotiations;
• order that overlapping native title applications be dealt with together in one proceeding; and
• make a determination that native title be held in trust.

Native title rights differ from land rights in relation to:

• how claims are processed;
• what land can be claimed; and
• who can be a claimant.

Land rights claims usually seek the grant of interests in or title to land comprising of a special grant of freehold or perpetual lease title from federal or state governments. Such land titles would normally be held by a community or organisation rather than by individuals and would have restrictions in relation to dealing with or selling the land. Land would usually be passed to future generations recognised to have a traditional connection to that country. The National Native Title Tribunal (NNTT) is not involved in the administration of land rights. By contrast native title is the recognition of pre-existing indigenous rights and interests held according to traditional laws and customs. Native title is not a grant or right created by federal or state governments.

This Legal Guide on Native Title provides native title claimants and property owners with information about what native title is and how to bring a claim of native title under the law. Before making important decisions it is advisable to obtain legal advice specific to your situation. LegalEagle’s™ free directory profiles all lawyers in Australia. You can use it to Find a Lawyer near you.

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Warning: Information provided through LegalEagle™ is for general guidance. It is not legal advice. Laws and procedures referred to may change and differ between states, territories and nationally. There may also be important exceptions or qualifications. Only a lawyer providing formal legal advice can assess your particular circumstances to determine how the law will apply.