Native title in Australia
is the set of rights, recognised by Australian law, held by Aboriginal and Torres Strait Islander groups or individuals to land that derive from their maintenance of their traditional laws and customs. These Aboriginal title rights were first recognised as a part of Australian common law with the decision of Mabo v Queensland in 1992. The Native Title Act 1993 subsequently set out the processes for determining native title.
The Court's determination of native title recognises that a continued beneficial legal interest in land held by an Indigenous claim group over identified land survived the Crown's acquisition of radical title and sovereignty. Native title can co-exist with non-Aboriginal proprietary rights and in some cases different Aboriginal groups can exercise their native title rights over the same land.
The term native title can refer to the title held under traditional law and custom, as well as the common law recognition of that right.
An Aboriginal or Torres Strait Islander group lodges a native title claim over specified land in the Federal Court of Australia. The claim is referred to the National Native Title Tribunal that applies the "registration test" that determines whether a claim progresses. The relevant state or territory becomes a respondent to the claim, and any other interested parties will also join as respondents.
The Court hears applications for, and makes, native title determinations. Often determinations are resolved by consent between the parties. Appeals against these determinations can be made to a full sitting of the Federal Court and then to the High Court of Australia.
The NNTT, established under the Native Title Act 1993, also undertakes future act mediation and arbitral functions.
The Attorney-General's Department advises the Australian Government on legal and legal-policy regarding on native title, and assists the Attorney-General to administer the Native Title Act 1993.
Definitions: Native title/land rights
According to the Attorney-General's Department:For example, the Aboriginal Land Rights Act 1976 covers the granting of land to Aboriginal Land Trusts; setting up Aboriginal land councils; mineral rights; decision-making processes for dealing with land; dealing with income from land use agreements; and negotiations about leases for development on Aboriginal land in the Northern Territory. The Native Title Act 1993 gives recognition that "Aboriginal and Torres Strait Islander people have rights to land, water and sea, including exclusive possession in some cases, but does not provide ownership". It allows for negotiations over land, but does not provide for a veto over development, and nor does it grant land, as the Aboriginal Land Rights Act does.
Native title definitions
National Native Title Tribunal definition:Commonwealth Government's indigenous.gov.au website:
Native title has also been described as a "bundle of rights" in land, which may include such rights as camping, performing ceremony, etc. This description was found to be misleading in the 2025 High Court decision of Commonwealth v Yunupingu.
A native title determination relates to specific rights decided on a case-by-case basis.
History
Pre-Mabo
1971 – Milirrpum
Australia's first native title case was not decided until 1971. Emblematic of the problems Aboriginal people had in having their land claims recognised, in 1835, John Batman purported to sign Batman's Treaty with Aboriginal elders in the Port Phillip District. Governor Bourke declared Batman's Treaty was "void and of no effect as against the rights of the Crown" and declared any person on "vacant land of the Crown" without authorization from the Crown to be trespassing. The proclamation was approved by the Colonial Office. The official objection to the Treaty was that Batman had attempted to negotiate directly with the Aboriginal people, whom the British did not recognise as having any claim to any lands in Australia.In 1971, in Milirrpum v Nabalco Pty Ltd in the Supreme Court of the Northern Territory, Justice Richard Blackburn explicitly rejected the concept of native title, ruling against the claimants on a number of issues of law and fact.
1972–1976: ''Aboriginal Land Rights Act''
In the wake of Milirrpum and the election of the Whitlam government in 1972, the Aboriginal Land Rights Commission was established in 1973 to inquire into appropriate ways to recognise Aboriginal land rights in the Northern Territory. Prime Minister Gough Whitlam introduced a new policy of Aboriginal self-determination, and initiatives such as the Aboriginal Land Fund and the National Aboriginal Consultative Committee was set up. The latter consisted of elected Aboriginal representatives, who would advise the Minister of Aboriginal Affairs. The Whitlam government introduced legislation later passed by the Fraser government as the Aboriginal Land Rights Act 1976, which established a procedure to transfer almost 50 per cent of land in the Northern Territory to collective Aboriginal ownership. The Fraser government continued to implement many of the previous government's initiatives, under the description "self-management" rather than self-determination.1979 – ''Coe v Commonwealth''
In 1979, Paul Coe, a Wiradjuri man from Cowra, New South Wales, commenced an action in the High Court of Australia arguing that Aboriginal people retained rights to land as an Aboriginal nation or nations existed pre-settlement and continues to exist, and that their land had been taken by conquest rather than by settlement. The court held in Coe v Commonwealth that no Aboriginal nation holds any kind of sovereignty, distinguishing the US case of Cherokee Nation v Georgia. However, the substantive issue of continuing land rights was not heard due to the lack of precision, vagueness and other serious deficiencies with the statement of claim presented to the court. Justice Gibbs said, at paragraph 21, 'The question what rights the aboriginal people of this country have, or ought to have, in the lands of Australia is one which has become a matter of heated controversy. If there are serious legal questions to be decided as to the existence or nature of such rights, no doubt the sooner they are decided the better, but the resolution of such questions by the courts will not be assisted by imprecise, emotional or intemperate claims. In this, as in any other litigation, the claimants will be best served if their claims are put before the court dispassionately, lucidly and in proper form'.1981 – ''Pitjantjatjara Yankunytjatjara Land Rights Act''
The South Australian Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 was introduced by Premier Don Dunstan in November 1978, several months prior to his resignation from Parliament. An amended bill, following extensive consultation, was passed by the Tonkin Liberal government in March 1981. This legislation gave significant rights well in advance of any other to date in Australia. In 1981, SA Premier Tonkin returned of land to the Pitjantjara and Yankunytjatjara people. However, it did not give the people the power of veto over mining activities; any disputes would need to be resolved by an independent arbitrator.In 1984 Premier John Bannon's Labor government passed legislation to return lands to the Maralinga Tjarutja people. The legislation was proclaimed in January 1985 and was followed by a ceremony in the desert attended by Maralinga Tjarutja leader Archie Barton, John Bannon and Aboriginal Affairs Minister Greg Crafter. This granted rights over of land in the Great Victoria Desert, including the land contaminated by the British nuclear weapons testing at Maralinga.
Mabo and the ''Native Title Act''
1988–1992 – Mabo
Mabo v Queensland established the foundation for native title in Australia. In 1992 the rejection of native title in Milirrpum v Nabalco was overruled by the High Court in Mabo v Queensland , which recognised the Meriam people of Murray Island in the Torres Strait as native title holders over part of their traditional lands. The Court rejected the notion that all Indigenous rights to land were abolished upon acquisition of sovereignty over Australia. The Court held that native title rights continued to exist, and that these rights existed by virtue of the continuing connection of Indigenous People to land, independent from a grant from the Crown. Native title would continue to exist as long as traditional laws and customs continue to be observed, unless the rights were otherwise extinguished by an incompatible grant by the Crown. Justice Gerard Brennan delivered the lead judgment in this landmark decision, stating:However, when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared. Thus although over some parts of Australia native title has been lost, in large areas of the nation's interior, native title could be recognised.
As Justice Brennan stated in Mabo , "native title has its origin and is given its content by the traditional laws acknowledged by and the customs observed by the Aboriginal inhabitants of a territory".