Native Title Law glossary
Native title is governed by the Native Title Act 1993 (Cth), enacted after Mabo v Queensland (No 2) [1992] HCA 23. This glossary covers 40 of the most commonly used terms — from determinations and ILUAs to the right to negotiate and future act regime.
This is a glossary of 40 key terms used in Australian native title law. Each term has a plain-English definition and, where applicable, a reference to the Native Title Act 1993 (Cth) or leading authority. Use it as a reference for practitioners advising claim groups, government, and industry.
Definitions
Act affecting native title
An act that creates, affects, or extinguishes rights or interests in relation to land or waters. Categorised under the NTA as past, intermediate, or future acts.
Applicant
The persons authorised by a native title claim group to make a claim and deal with matters arising under the NTA on the group's behalf.
Authorisation meeting
A meeting of the claim group at which the applicant is authorised to act on behalf of the group, conducted under traditional decision-making or an agreed process.
Claim group
The group of people who, according to their traditional laws and customs, hold the common or group rights and interests claimed.
Connection report
An anthropological and historical report produced by claimants to evidence continuous connection to the claim area since sovereignty.
Consent determination
A determination of native title made by the Federal Court on the agreed terms of the parties — the most common mode of resolution.
Continuity
The evidentiary requirement that native title rights have continued to be observed and acknowledged since sovereignty. A core issue in contested claims.
Determination
A decision by the Federal Court on whether native title exists, the rights and interests that comprise it, and the holders of those rights.
Exclusive possession native title
Native title rights that include the right to possess, occupy, use, and enjoy the area to the exclusion of all others.
Expedited procedure
A streamlined process for certain low-impact future acts (for example, exploration) that bypasses the full right to negotiate.
Extinguishment
The permanent loss of native title rights through inconsistent grants (for example, freehold). Previous exclusive possession acts are wholly extinguishing.
Federal Court
The court with jurisdiction to make native title determinations and deal with most NTA applications.
Future act
An act affecting native title that takes place after 1 January 1994. Validity depends on compliance with the NTA future act regime.
ILUA (Indigenous Land Use Agreement)
A voluntary agreement between a native title group and others about the use and management of land — registered on the Register of ILUAs.
Intermediate period act
An act done between 1 January 1994 and 23 December 1996 that would have been invalid because of native title. Validated by the 1998 amendments.
Litigated determination
A determination made after a contested trial of connection, continuity, and other issues. Now uncommon — most claims resolve by consent.
Mabo (No 2)
Mabo v Queensland (No 2) [1992] HCA 23 — the High Court decision recognising native title at common law and rejecting terra nullius.
Native title
The rights and interests of Aboriginal peoples and Torres Strait Islanders in land and waters according to their traditional laws and customs, recognised by Australian common law.
NNTT
The National Native Title Tribunal — the body that mediates, assists parties with ILUA negotiations, and arbitrates certain future act matters.
Non-exclusive native title
Native title rights that coexist with other interests, such as pastoral leases — the most common form of determined native title.
Non-extinguishment principle
A statutory mechanism under which certain acts prevail over native title while they operate, without extinguishing it permanently.
Notification period
The statutory period during which future act notices must be given to registered native title claimants and holders.
Overlapping claim
A native title claim area that overlaps with another claim. Resolved by overlap proceedings or negotiation.
Past act
An act done before 1 January 1994 that would have been invalid because of native title. Validated by the NTA, subject to compensation and non-extinguishment.
Pastoral lease
A lease of Crown land for grazing. The High Court in Wik held pastoral leases do not necessarily extinguish native title.
PBC (Prescribed Body Corporate)
A corporation established by native title holders after a determination to hold native title rights in trust or as agent, and to manage dealings.
Previous exclusive possession act
A category of past act (for example, freehold grant) that wholly and permanently extinguished native title over the area.
Recognition
The common law process of recognising native title. Did not create native title — native title survived sovereignty where not extinguished.
Register of Native Title Claims
The register maintained by the Native Title Registrar of accepted claimant applications. Registration triggers procedural rights.
Registration test
The threshold test the Native Title Registrar applies to claimant applications to determine eligibility for the Register of Native Title Claims.
Right to negotiate
The procedural right of registered native title parties to negotiate about certain future acts (for example, mining grants) for a statutory period.
RNTBC (Registered Native Title Body Corporate)
A PBC that has been entered on the Register of Native Title Bodies Corporate after a determination of native title.
Section 31 agreement
An agreement reached during the right to negotiate process between a grantee, government, and native title parties about the doing of a future act.
Sovereignty
The acquisition of sovereignty by the Crown over the Australian continent — the reference point for continuity of native title.
Surrender of native title
The voluntary surrender of native title rights and interests to the Crown by the native title holders, typically as part of an ILUA.
Terra nullius
The legal fiction — rejected in Mabo (No 2) — that Australia belonged to no one at the time of colonisation.
Traditional laws and customs
The laws and customs of Aboriginal peoples and Torres Strait Islanders that confer rights and interests in land — the source of native title.
Validation
The statutory mechanism under the NTA that validates past and intermediate period acts that would otherwise be invalid because of native title.
Wik
Wik Peoples v Queensland [1996] HCA 40 — the High Court decision establishing that pastoral leases do not necessarily extinguish native title.
Yorta Yorta
Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 — the leading case on continuity of acknowledgment and observance of traditional laws and customs.
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