Native Title Facts

What kind of rights can be recognised by a determination of native title?

A determination of native title will state whether or not native title exists over the area claimed in the application. If native title is found to exist, the determination will go on to specify both who holds it and the content of their native title rights and interests. It will also recognise the non-native title rights and interests in the area and set out the basic grounds for the co-existence of those two sets of rights.

The content of the native title bundle of rights will depend on the native title holders’ traditional laws and customs and on the capacity of Australian law to recognise the rights and interests they hold under those laws and customs.

For example, the existence of other rights and interests over the same area may prevent native title being recognised or limit its content. The native title bundle of rights may include the right to possess, occupy, use and enjoy a particular area to the exclusion of all others (often called a right of exclusive possession).

This includes the right to control access to, and use of, that area. However, this right can only be recognised over limited parts of Australia, such as some areas where the only other interest holder is the crown (sometimes called unallocated or

vacant crown land) and certain areas already held by, or for, Indigenous Australians. Over other areas, the native title bundle is most likely to be a set of ‘non-exclusive’ rights (which means there is no right to control access to, and use of, the areas).

These may include the right to:

• Live on the area

• Access the area for traditional purposes, like camping or conducting ceremonies

• Visit and protect important places and sites

• Hunt, fish and gather food or traditional resources like water, wood and ochre

• Teach law and custom on country.

There can be no native title rights to minerals, gas or petroleum recognised under Australian law and in tidal and sea areas, only non-exclusive native title can be recognised. Whether exclusive or not, native title:

• Is subject to regulation by Australian law in the same way as other peoples’ rights are

• Does not give native title holders the right to veto future developments but may mean their rights and interests need to be taken into account. Indigenous Australians may also have the right to be compensated for loss or impairment of their native title.