Native Title Law
Extinguishment
The permanent ending of native title rights over an area by a valid act under Commonwealth or State law, such as the grant of freehold title. Once extinguished, native title cannot be revived, though compensation may be payable.
The permanent ending of native title rights over an area by a valid act under Commonwealth or State law, such as the grant of freehold title. Once extinguished, native title cannot be revived, though compensation may be payable.
Extinguishment occurs when a valid government act is wholly inconsistent with the continued existence of native title rights over an area. The Native Title Act 1993 (Cth) distinguishes between past acts (before commencement of the Act or before native title was recognised in the area) and future acts (after commencement). Past acts that extinguish native title are validated by the Act, but native title holders are entitled to compensation. The grant of freehold title is the most complete form of extinguishment. Other acts, such as the grant of certain leases, may partially extinguish or suspend native title. Once native title is extinguished, it cannot be revived even if the extinguishing tenure is later cancelled or surrendered. The framework for calculating compensation for extinguishment was established by the High Court in Northern Territory v Griffiths [2019] HCA 7 (the Timber Creek case), which recognised both economic and non-economic components of the loss.
Related terms
Native Title Law
Native title
The recognition by Australian law of Aboriginal and Torres Strait Islander peoples' rights and interests in land and waters, held under traditional laws and customs. Recognised under the Native Title Act 1993 (Cth) where those rights have been maintained since before British sovereignty and have not been extinguished.
Native Title Law
Future act
An act by a government or other party after the Native Title Act 1993 commenced that may affect native title rights. Future acts are subject to procedural rights under the Act, including the right to negotiate.
Native Title Law
Compensation determination
A Federal Court determination of the amount of compensation payable to native title holders for the extinguishment or impairment of their native title rights. The Timber Creek decision (2019) established the framework.
What this means in practice
Native title law uses a specialist vocabulary. Understanding what a term means in its legal context helps Traditional Owner groups, PBCs and community members follow their matter, and ask better questions of their lawyer.
If the definition above raises a question specific to your claim, compensation matter or PBC, David Saylor is available to discuss it directly.