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1. Native Title
What is native title?
Native title is the term used by Australia's High Court to describe the common law rights and interests of Aboriginal and Torres Strait Islander peoples in land according to their traditions, laws and customs.
The High Court Mabo decision in 1992 reversed the longstanding legal fiction that the continent was terra nullius - a land belonging to no-one. For the first time, the common law rights in land of Australia's indigenous peoples were recognised.
The common law, originally founded on custom and tradition, is the British system of judge-made law, based on precedent. It is over 800 years old. Native title is not a new type of land grant, but a common law right that predates the European settlement of Australia.
Who has native title?
Native title is held by Aboriginal and Torres Strait Islander peoples who have maintained a 'continuing connection' with their lands or waters, in accordance with their traditions. Connection may involve responsibilities for the land in ways not envisaged by Western systems of land ownership. Connection may be maintained in many ways other than mere physical association.
Where does native title exist?
The 1992 Mabo Decision said that native title may exist in a variety of lands, including: vacant Crown land or other public land, national parks, public reserves, mining tenements, and waters. According to the 1996 Wik decision, native title may coexist with pastoral leases although, where there is a conflict, the rights of pastoralists will prevail.
How is native title extinguished?
Native title is extinguished by valid grants of land or waters to people other than native title holders in ways that exclude co-existent indigenous rights. Because of its serious consequences for indigenous property rights, extinguishment requires a clear and plain intention.
Common misconceptions
Can my backyard be subject to a native title claim?
No. Native title cannot displace privately owned homes or other private property, such as farms, commercial or residential property, which is held under freehold title.
If native title exists, what happens to other interests in that land?
If an indigenous group achieves recognition of their native title, their title is still subject to any valid grant that has been made over the same land. In other words the rights of existing landowners are protected.
Does native title give Aboriginal and Torres Strait Islander peoples 'special' rights?
No. Native title recognises rights that have previously been denied on the basis of race. Other British-based common law countries, such as the USA, Canada and New-Zealand, have long recognised indigenous property rights.
Is native title the same us 'land rights'?
No. Statutory land rights flow from the Crown under legislation, similar to freehold and leasehold titles. Native title is not a grant created through legislation. Native title comes from indigenous law and custom which preexists the Crown. Native title is a preexisting right that has now been recognised by Australian common law since the High Court Mabo Decision in 1992.
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