Frequently Asked Questions

Native title is extinguished when a valid government act is inconsistent with the continued existence of native title rights over an area. The most complete form of extinguishment is the grant of freehold title, which permanently ends native title.

Other acts, such as the grant of certain leases, may partially extinguish or suspend native title rights. The Native Title Act 1993 draws a distinction between past acts (acts before the Act commenced or before native title was recognised in the area) and future acts (acts after commencement). Past acts that extinguished native title are validated under the Act, but compensation may be payable. The High Court's 2019 Timber Creek decision established the framework for calculating that compensation, which includes both economic loss and compensation for cultural loss. Once extinguished, native title cannot be revived even if the reason for extinguishment is removed.

Freehold title is a form of land tenure under Australian property law that gives the holder exclusive possession of the land, the right to use it for any lawful purpose, and the right to sell, lease or otherwise deal with it. It is the most complete form of private land ownership recognised by Australian law.

Native title is not equivalent to freehold. It is not a form of land tenure under Australian property law; it is the recognition by law of rights that arise under the traditional laws and customs of an Aboriginal or Torres Strait Islander group. The content of those rights varies by determination and is defined by what the evidence shows about the group's traditional practices. Native title rights are typically non-exclusive, meaning they coexist with other legal interests in the area. They cannot be sold. The grant of freehold title over an area where native title exists extinguishes the native title permanently. Once extinguished by freehold, native title cannot be revived. Compensation may be payable for the extinguishment under the Timber Creek framework.

Finding the right native title lawyer matters because native title is a specialised field that requires knowledge of the Native Title Act 1993, Federal Court procedure, the Federal Court mediation process conducted by a Judicial Registrar, cultural heritage law, and PBC governance.

Not all lawyers who describe themselves as native title practitioners have deep experience in all of these areas. When assessing a lawyer's suitability, look for: an exclusive or primary focus on native title and Indigenous law; direct Federal Court representation experience in native title matters; experience with Federal Court mediation; familiarity with the Queensland Aboriginal Cultural Heritage Act 2003 and its interaction with native title; and a genuine relationship with Traditional Owner communities. David Saylor at Saylor Legal, Townsville, has practised native title law since 2003. His firm is focused exclusively on native title and Indigenous law. He accepts instructions from Traditional Owner groups and PBCs across Queensland and Australia. To discuss your matter, call (07) 4431 0074 or 0474 244 447, or email david@saylorlegal.com.au to arrange an initial discussion.

Native title is the recognition by Australian law that Aboriginal and Torres Strait Islander peoples have rights and interests in land and waters according to their own traditional laws and customs. The Native Title Act 1993 (Cth) provides the legal framework for recognising and protecting those rights.

For a successful native title determination, the claim group must demonstrate that they have maintained their traditional laws, customs and connection to the land or waters since before British sovereignty, and that those rights have not been extinguished by a valid act of government. Native title can include the right to live on the land, use it for traditional purposes, perform ceremonies, maintain cultural heritage, and in some cases exercise exclusive possession of an area.

The National Native Title Tribunal (NNTT) is an independent statutory body established by the Native Title Act 1993 (Cth). It plays a central role in the native title system in Australia.

Its functions include: registering native title determination applications lodged with the Federal Court; registering Indigenous Land Use Agreements; assisting in future act negotiations between native title parties and proponents; and conducting inquiries in certain circumstances. The NNTT does not itself make native title determinations. That power belongs to the Federal Court of Australia. Mediation of native title claims is conducted by a Judicial Registrar of the Federal Court. The NNTT also maintains the public Register of Native Title Claims and the National Native Title Register, which records determined native title areas.

An ILUA is a voluntary agreement made under the Native Title Act 1993 between a native title group, which may be a registered PBC or a claim group, and other parties such as governments, developers, mining companies or renewable energy proponents. The agreement covers the use and management of land and waters in the area.

There are three types of ILUA: body corporate agreements (made with a registered PBC), area agreements (made where there is no registered PBC, requiring authorisation by all potential native title holders), and alternative procedure agreements. Once registered with the National Native Title Tribunal, an ILUA becomes legally binding on all native title holders in the area. ILUAs can cover matters including consent to activities, cultural heritage protection, employment commitments, compensation, and access to Country.

The timeline for a native title claim depends primarily on whether the matter can be resolved by consent or must proceed to a contested hearing.

Consent determinations, where the State and other parties agree that native title exists, can sometimes be achieved within 3 to 5 years of lodgement, particularly where connection evidence is strong and the State engages constructively in mediation. Contested hearings, where the claim must be proven on the evidence, typically take longer and may extend to 10 years or more. The preparation of connection evidence before lodgement can take 1 to 3 years by itself. Maintaining momentum through the Federal Court mediation process, conducted by a Judicial Registrar, and responding promptly to the State's requests for information, are important to keeping the matter moving. David Saylor provides realistic advice about the likely timeline for a specific matter based on the circumstances of the claim area and the parties involved.

The rights recognised in a native title determination are determined by the Federal Court based on what the evidence shows about the traditional laws and customs of the claim group. They are not a fixed bundle of rights applied uniformly.

Common native title rights include: the right to access and be present on the land; the right to use the land and its resources for traditional purposes; the right to perform ceremonies and maintain spiritual relationships with Country; the right to maintain and protect places of cultural significance; the right to hunt, fish and gather for personal, domestic and non-commercial communal purposes; the right to teach and transmit traditional knowledge on Country. In some cases, where the evidence supports it, exclusive possession of the area may be recognised. Exclusive possession gives the native title holders rights closer to those of a freehold owner and includes the right to exclude others. Non-exclusive native title coexists with other interests in the area.

A native title claim is made by a group of persons who assert that they hold native title rights and interests in a particular area of land or waters under their traditional laws and customs.

To make a valid claim, the group must: be identifiable as a group with connections to the area under traditional law; show that they have maintained those traditional laws and customs and their connection to the land from before British sovereignty; authorise the named applicants to act on their behalf. The claim is then lodged with the Federal Court and referred to the NNTT for registration. The registration process involves a merit-based assessment of whether the claim meets the basic requirements of the Native Title Act 1993.

The right to compensation for extinguishment or impairment of native title applies to both past acts (before the Native Title Act 1993 commenced) and future acts (after commencement). Past acts that extinguished native title were validated by the Act, but in exchange native title holders received the right to seek compensation.

The Timber Creek decision (Northern Territory v Griffiths [2019] HCA 7) confirmed and clarified the compensation framework. Compensation includes an economic component, assessed by reference to the freehold value of the affected land at the time of extinguishment with a discount for the nature of native title rights, and a non-economic component for cultural loss representing the cultural, spiritual and emotional loss suffered by the group. In the Timber Creek matter, the cultural loss component was assessed at 25% of the economic component. Pursuing a compensation claim requires identifying the extinguishing acts, establishing that native title existed at the time, assessing the economic value of the rights lost, and gathering evidence of cultural and spiritual harm. David Saylor advises on the process and realistic assessment of potential claims.

A Prescribed Body Corporate (PBC) is the legal entity that the Federal Court nominates or directs a native title group to establish after a successful determination. The PBC holds or manages the determined native title rights and interests on behalf of all native title holders in the area.

It is also referred to as a Registered Native Title Body Corporate (RNTBC). The PBC must be registered with the Office of the Registrar of Indigenous Corporations (ORIC) and operates under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (the CATSI Act). Its obligations include maintaining a valid constitution, holding meetings, keeping financial records, lodging annual reports with ORIC, and acting in the interests of native title holders. A well-governed PBC can be a powerful vehicle for exercising the community's rights; poor governance can undermine those rights and invite ORIC intervention.