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.
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 is the recognition by the Australian legal system that Aboriginal and Torres Strait Islander peoples have rights and interests in relation to land and waters that arise from and are acknowledged by their own traditional laws and customs. The concept was recognised in the High Court of Australia in Mabo v Queensland (No 2) [1992] HCA 23 and subsequently given legislative form by the Native Title Act 1993 (Cth). For native title to be recognised by a court, the claim group must demonstrate that they have maintained their traditional laws and customs in relation to the area and their connection to the land or waters since before the acquisition of sovereignty by the Crown, and that those rights have not been wholly extinguished by subsequent government acts. Native title is not a single uniform right; the rights and interests recognised in any particular determination depend on what the evidence shows about the traditional laws and customs of the specific claim group.
Related terms
Legislation
Native Title Act 1993
The Commonwealth legislation (in force from 1 January 1994) that establishes the process for recognising and managing native title rights and interests in Australia.
Native Title Law
Consent determination
A determination that native title exists in an area, made by the Federal Court with the agreement of all parties, avoiding a contested hearing. The most common pathway to a positive native title determination.
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.
Native Title Law
Connection evidence
Evidence that a native title claim group has maintained their traditional laws, customs and connection to the claim area from before British sovereignty to the present. A fundamental requirement for a successful native title determination.
Native Title Law
Claim group
The group of Aboriginal or Torres Strait Islander persons on whose behalf a native title determination application is made. Members must authorise the claim and an Applicant to bring the claim.
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.