What is Native Title?
Native Title is the recognition by Australian law that Indigenous people had a system of law and ownership of their lands before European settlement. Where that traditional connection to land and waters has been maintained and where government acts have not removed it.
The native title of a particular group will depend on the traditional laws and customs of those people. As traditional laws and customs vary in each group so can the rights and interest in a particular area that is being claimed.
Where does Native Title exist?
Native title may exist in areas such as:
- vacant Crown lands
- some national parks,
- forests and public reserves
- some types of pastoral lease
- some land held for Aboriginal communities
beaches, oceans, seas, reefs, lakes, rivers, creeks, swamps and other waters that are not privately owned.
Public rights of access to these areas are not affected.
Government acts like the issue of a pastoral lease or grant of freehold title either mean indigenous connection cannot be expressed in Australian law or it can only be partially expressed (that is, native title might be supporessed or extinguished by other acts).
What areas cannot be claimed by Native Title?
Native Title is extinguished on:
- Privately owned land ( this includes family homes and privately owned freehold farms
- Residential, commercial and certain other leases
- Areas where the Governments have built schools, roads and other public works
These areas of land cannot be claimed when a native title application is lodged
What is Co-existence?
Co-existence is about sharing the land or waters in a way that recognises everyone’s rights and interest in the area eg, native title rights to go onto the land or to hold ceremonies on it may coexist with the rights of a pastoral leaseholder to graze cattle on that same land.
What rights arise from Native Title?
People who hold native title have a right to continue to practise their law and customs over traditional lands and waters while respecting other Australian laws.
This could include visiting to protect and maintain important places, making decisions about the future use of the land or waters, hunting, gathering and collecting bush medicines.
When a native title claimant application is registered with the National Native Title Tribunal, the people seeking native title recognition gain a right to negotiate with anyone who wants to undertake a project on the area claimed. For example, projects could include mining development or mineral exploration or construction of a Marina.
Native title holders may have the right to be compensated if governments acquire their land or waters for future developments.
What is a Consent Determination?
Consent Determination is a decision by the Australian court or other recognised body that native title does or does not exist in a particular area. This is made when parties have reached an a agreement after the mediation process has occurred.
What is Mediation?
Mediation is a way of reaching a final decision about native title over a particular area of land or water. It allows all people involved to explore ways to reach agreements. During the mediation process the parties involved meet to discuss the native title application. The aim is to reach agreements that respect everyone’s rights and interests in that area.
What is a Future Act?
A Future Act is a proposed activity or development on land or water that may affect native title either by extinguishing it or creating interests that are inconsistent with the existence or exercise of native title eg, the grant of mining or exploration rights and the compulsory acquisition of native title.
What is an Indigenous Land Use Agreement or ILUA?
ILUA’s are a voluntary agreement about the use and management of particular areas of land or waters which can be made between one or more native title groups with miners, pastoralist or governments. Once an ILUA is registered it becomes legally binding to the people who are party the agreement and all native title holders for that area.
What is a litigated determination?
A litigated determination is a decision by an Australian court or other recognized body that native title does or does not exist, this decision is made following a trial process. De Rose Hill is an example of a litigated determination in South Australia.
What is the Registration Test?
The registration test is a condition applied to a native title claim group application. The native title claim group must satisfy the conditions of the registration test in order to get certain rights to have a say about some proposed developments in the claim area. If the registration test is completed and passed the claim group gain the right to negotiate the right to oppose non claim group applications and certain other rights while their claim is pending.
They may also gain confirmation of rights of access to places within the claim area to carry out traditional activities if they already have had regular access to that area, however this does not give the claim group the right to stop projects going ahead but it means that they may have a say about some proposed developments.
SANTS acknowledges that the land on which our office is based is the traditional lands for the Kaurna people and we respect their spiritual and cultural relationship with their country.