Does Native Title Affect My Interests?

What is Native Title?

The expression “native title” means the communal, group or individual rights and interests of aboriginal people or torres strait islanders in relation to land or waters that are recognised by common law.

Australian law recognises that, except where native title has been wholly extinguished by historical grants of freehold, leasehold and other interests, native title exists where aboriginal people have a traditional connection to the land and waters.

Particular rights and interests vary from case to case but may include the right to live and camp in the area, conduct ceremonies, hunt, fish, build shelters and visit places of cultural importance.

According to the law, some native title holders may also have the legal right to control access to land.

Native title can co-exist with other interests in land (such as pastoral leases).  However, if native title has been extinguished it cannot be revived except in some limited circumstances.

Whilst native title rights and interests were first recognised by the High Court of Australia in Mabo (No. 2) in 1992, the Australian Parliament enacted the Native Title Act 1993 (Cth) which gives statutory recognition and protection of native title.  It sets out a procedure for filing a legal application for a determination of native title in the Federal Court (“a native title claim”).

Who are the Parties to a Native Title Claim Proceeding?

When an aboriginal group files a native title claim, the State automatically becomes a respondent party to the Court proceedings.

Any person or organisation who holds an interest that may be affected by a determination of native title may also become a party to the Federal Court Proceedings.

The Parties may include:-

  • the Commonwealth;
  • pastoralists;
  • mining companies;
  • local government authorities;
  • private landholders;
  • clubs and Associations.

What Type of Land Tenure Extinguishes Native Title?

Freehold and other exclusive possession tenures can extinguish native title.  Public work, such as roads, may have also extinguished native title.  Some other forms of land tenure may also extinguish native title.  During a native title claim, the parties must either agree on whether native title has been extinguished, partially extinguished or the Federal Court may find that native title parties have the legal right to exclusive possession giving the native title holders the right to exclude non-native title holders from the land.

How Do I Become A Respondent To A Native Title Claim?

When a native title claim is lodged in the Federal Court, the National Native Title Tribunal will notify the public and will indicate what land may be affected by a determination of native title in the proceedings.

The notification lasts for 3 months and any person that holds an interest that may be affected by a determination in the proceedings may join the proceedings.

The interest a respondent holds may be an interest in the land, or a personal right according to the law to conduct activities on the land.  Any respondent that holds an interest in the land should seek legal advice from a Lawyer.

The Commonwealth Attorney-General’s Department provides assistance to respondents involved in native title claims.  Preston Law has obtained funding for over 200 respondent parties to enable them to be legally represented during native title claim proceedings.

If you do not join within the notification period, you may seek leave from the Court to join the proceedings at a later date. 

What Will Happen If I Don’t Become A Respondent To A Native Title Proceeding?

The Federal Court will determine whether native title rights and interests exist over the land.

The Court will also list the rights and interests the respondents have over the claim area and the relationship between the native title rights and interests and those other interests.

We recommend that all parties with an interest in land that may be affected by a determination of native title join and participate in native title claims to establish the relationship between those other rights and interests, and native title rights and interests.

If you are uncertain of your legal rights, contact one of our Lawyers for advice. Contact us at Preston Law in Cairns to find out more on ph 4052 0700.

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