What is native title in Australia?
Native title is the recognition by Australian law of the traditional rights and interests of Aboriginal and Torres Strait Islander peoples in land and waters, arising from their traditional laws and customs. It was first recognised at common law in Mabo v Queensland [No 2] (1992) 175 CLR 1 and is now governed by the Native Title Act 1993 (Cth). Native title can coexist with other interests and is extinguished only by "inconsistent grants" of exclusive rights.
Recognition and determination
Native title is determined by the Federal Court of Australia under section 61 of the Native Title Act 1993 (Cth). The applicant (usually the native title claim group) must prove continuous connection with the land through traditional laws and customs. Determinations can be consent determinations (agreed) or litigated. There are now over 500 positive determinations covering more than 50% of Australia.
The right to negotiate
Under Subdivision P of Division 3 of Part 2 of the Native Title Act 1993 (Cth), native title holders and claimants have a "right to negotiate" in relation to certain "future acts" (typically mining tenement grants). This is not a veto — if agreement is not reached within 6 months, either party can apply to the National Native Title Tribunal for a determination.
Indigenous Land Use Agreements (ILUAs)
Part 2 Division 3 Subdivision B of the Native Title Act 1993 (Cth) provides for Indigenous Land Use Agreements — voluntary agreements between native title groups and others about use of land and waters. ILUAs are a common tool for resolving future act issues and are registrable with the National Native Title Tribunal.
How I support native title practice
I help native title lawyers with claim research, historical connection evidence triage, and ILUA drafting under the Native Title Act 1993 (Cth). Native title is specialist work but the document-heavy elements can be accelerated meaningfully.
Common issues
- Extinguishment by prior grant is the most technically complex issue in native title
- Connection evidence typically requires expert anthropological reports
- ILUAs can be authorised or area agreements — each has different registration requirements
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