ABOUT NATIVE TITLE

The Native Title Act 1993 (Cth) was introduced following the landmark Mabo decision to recognise the prior rights and interests held by First Nations people in Australia’s lands and waters.

In 1982, Eddie Mabo and other Torres Strait Islander people decided to fight for their ancestral rights to their land.

They argued to the courts in Queensland that Australian law didn’t recognise that Indigenous people had a system of law and ownership before British settlement.

After a long battle, a decade later in 1992 the High Court ruled that Indigenous traditional title to the land had survived British settlement. The concept of ‘terra nullius’ was abolished and native title was recognised.

After the momentous Mabo Case, the Native Title Act 1993 was passed by the Australian parliament.

Eddie Mabo remembered as the father of Native Title on Mabo Day anniversary | SBS News

“We cannot imagine that the descendants of people whose genius and resilience maintained a culture here through 50,000 years or more … will be denied their place in the modern Australian nation." Prime Minister Paul Keating, 10 December 1992

The Native Title Act established a legal framework to manage interests in lands and waters held or claimed by Indigenous and settler Australians.

The Act has methods for Indigenous groups to make an application to the Federal Court to have their native title rights formally recognised through a determination.

It also has ways for other people or organisations, like state and local governments to be involved in claims and resolve native title applications through negotiation and mediation.

When an Aboriginal Nation has ‘authorised’ a native title claim – it is sent to the Federal Court.

A claim is first assessed by the Native Title Tribunal (which assists the Federal Court) to test if native title might exist. If the claim passes that test, the Tribunal will register the claim. That means the Indigenous people who’ve made the claim have a right to be consulted about any future development on the land, even before any determination has been made.

After the registration test is completed, the claimants, the native title representative body or service provider and the relevant state government will try to resolve the claim by agreement.

During this time, the various parties will consider reports prepared by anthropologists on the cultural practices of the claimant group and their ongoing connection with the area being claimed.

If the parties can agree, the Federal Court will make a ruling called a consent determination. This means native title is recognised by agreement without a trial involving evidence given by claimants.

If the parties can’t agree, the Federal Court will schedule a trial and the Justice will hear evidence, including stories from key members of native title groups with good knowledge of traditional practice and decide if native title exists.

For any determination, it may be agreed or found that native title exists over some or all of the country.

When an Aboriginal Nation has ‘authorised’ a native title claim – it is sent to the Federal Court.

A claim is first assessed by the Native Title Tribunal (which assists the Federal Court) to test if native title might exist. If the claim passes that test, the Tribunal will register the claim. That means the Indigenous people who’ve made the claim have a right to be consulted about any future development on the land, even before any determination has been made.

After the registration test is completed, the claimants, the native title representative body or service provider and the relevant state government will try to resolve the claim by agreement.

During this time, the various parties will consider reports prepared by anthropologists on the cultural practices of the claimant group and their ongoing connection with the area being claimed.

If the parties can agree, the Federal Court will make a ruling called a consent determination. This means native title is recognised by agreement without a trial involving evidence given by claimants.

If the parties can’t agree, the Federal Court will schedule a trial and the Justice will hear evidence, including stories from key members of native title groups with good knowledge of traditional practice and decide if native title exists.

For any determination, it may be agreed or found that native title exists over some or all of the country.

Freehold titles and most leases over land extinguish native title completely (except some titles held by Aboriginal people). Pastoral leases only partially extinguish native title and Aboriginal titles, like land rights title or Aboriginal-owned pastoral stations, will generally have no affect on native title.

Where native title has been lost, sometimes native title holders will be financially compensated for the loss of those rights or because some activities like mining, farming and tourism or any other development are taking place on the land.

Native title in South Australia

In South Australia there has been a commitment to resolve native title through negotiation and consent rather than litigation. Achieving equitable and lasting arrangements for the co-existence of Aboriginal and non-Aboriginal rights and interests has been the cornerstone of South Australian approaches to resolving native title.

Peter De Rose giving evidence on Country.

In South Australia perhaps more than any other jurisdiction, there has been commitment to resolve native title through negotiation and consent rather than litigation.

South Australia’s first determination of native title was the 2005 litigated case of De Rose Hill.

De Rose Hill was an important early test case in native title law. The De Rose Hill claimants were successful in winning this case after litigation and appeal and the case confirmed the coexistence of their rights and interests with those of pastoral lessees.

Parry Agius and SANTS staff with the De Rose Hill claimants.

SA Native Title Resolution initiative (SANTR)

The opportunities provided by the introduction of Indigenous Land Use Agreements (ILUAs) led to a coordinated, whole of state, inclusive approach to negotiating Native Title in 2005. This Statewide process now known as the South Australian Native Title Resolution process brings together Native Title groups with other key land and water owners and interests to negotiate Native Title and non-Native Title outcomes.

South Australia’s first consent determination

Yankunytjatjara/Antakirinja Native Title Consent Determination event

The first native title determination reached by consent, a “consent determination” was the case of Yankunytjatjara/Antakirinja Native Title Claim Group v The State of South Australia, which was determined in August 2006.

The National Native Title Tribunal maintains current records and maps of native title areas. For full current details of Native Title Determinations and Applications in South Australia, check the National Native Title Tribunal website or Native Title Vision.

Native Title Determinations in SA

List of South Australian native title determinations by date

Short name	Case name	Determination date	Determination outcome
Ngadjuri Nation #2	Branson on behalf of Ngadjuri Nation #2 Native Title Claim v State of South Australia	06/07/2023	Native title exists in parts of the determination area
Nauo People	Weetra-Height on behalf of the Nauo People v State of South Australia	15/05/2023	Native title exists in parts of the determination area
Narungga Nation Native Title Claim	Sansbury v State of South Australia (Narungga Nation Native Title Claim)	14/03/2023	Native title exists in parts of the determination area
Wirangu No 2 (Part B), Wirangu No 3 (Part B), Wirangu Sea Claim #2 and Nauo #3	Wilson on behalf of the Wirangu People and Weetra on behalf of the Nauo People v State of South Australia	10/02/2023	Native title exists in parts of the determination area
Wirangu People - Part A	Wilson on behalf of the Wirangu People v State of South Australia (No 2)	08/12/2022	Native title exists in parts of the determination area
Nukunu (Area 2)	Thomas on behalf of the Nukunu People (Area 2) Native Title Claim v State of South Australia	03/02/2022	Native title exists in parts of the determination area
Oodnadatta Common Overlap Proceeding	Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4)	23/12/2021	Native title exists in parts of the determination area
Barngarla (Port Augusta Proceeding)	Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (Port Augusta Proceeding) (No 5)	24/09/2021	Native title exists in parts of the determination area
Arabana No 2 - Part 1	Stuart v State of South Australia (No 3)	17/03/2021	Native title exists in parts of the determination area
Nukunu Part A	Turner on behalf of the Nukunu People v State of South Australia	17/06/2019	Native title exists in parts of the determination area
Adnyamathanha, Ngadjuri and Wilyakali Overlap Claim	Coulthard v State of South Australia (Adnyamathanha, Ngadjuri and Wilyakali Overlap Claim)	14/12/2018	Native title exists in parts of the determination area
Kaurna Peoples Native Title Claim	Agius v State of South Australia (No 6)	21/03/2018	Native title exists in parts of the determination area
Tjayuwara Unmuru Compensation Application	Pearson on behalf of the Tjayuwara Unmuru Native Title Holders v State of South Australia (Tjayuwara Unmuru Native Title Compensation Claim)	20/12/2017	Native title does not exist
Ngarrindjeri and Others Native Title Claim	Sumner v State of South Australia (Ngarrindjeri Native Title Claim Part A)	14/12/2017	Native title exists in parts of the determination area
Dieri No. 3	Gepp-Kennedy on behalf of the Dieri People v State of South Australia	28/09/2017	Native title exists in the entire determination area
Barngarla Native Title Claim	Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia	23/06/2016	Native title exists in parts of the determination area
Yandruwandha/Yawarrawarrka Native Title Claim	Yandruwandha/Yawarrawarrka Native Title Claim and The State of South Australia & ors (Yandruwandha/Yawarrawarrka)	16/12/2015	Native title exists in parts of the determination area
Adnyamathanha No. 1	Coulthard v State of South Australia	08/12/2015	Native title exists in parts of the determination area
Adnyamathanha People Native Title Claim No. 3	Coulthard v State of South Australia	08/12/2015	Native title exists in parts of the determination area
The Wangkangurru/Yarluyandi Native Title Claim	Wangkangurru/Yarluyandi Native Title Claim and The State of South Australia & ors (Wangkangurru/Yarluyandi)	03/10/2014	Native title exists in parts of the determination area
Kokatha People (Part A)	Starkey on behalf of the Kokatha People v State of South Australia	01/09/2014	Native title exists in parts of the determination area
Dieri No.2 Native Title Claim	Dieri No. 2 Native Title Claim and State of South Australia	26/02/2014	Native title exists in parts of the determination area
Adnyamathanha No 1 - Stage 2	Vincent Coulthard and Ors v State of South Australia and Ors	25/02/2014	Native title exists in parts of the determination area
Adnyamathanha No 1 - Stage 3	Vincent Coulthard and Ors and Edward Lander and Ors v State of South Australia and Ors	25/02/2014	Native title exists in parts of the determination area
Far West Coast	Far West Coast Native Title Claim and The State of South Australia & Ors (Far West Coast)	05/12/2013	Native title exists in parts of the determination area
De Rose Hill Compensation Application	De Rose v State of South Australia	01/10/2013	Native title does not exist
Tjayiwara Unmuru Native Title Claim	De Rose v State of South Australia	16/07/2013	Native title exists in parts of the determination area
Arabana People	Dodd v State of South Australia	22/05/2012	Native title exists in parts of the determination area
Dieri	Lander v State of South Australia	01/05/2012	Native title exists in parts of the determination area
Gawler Ranges People	McNamara on behalf of the Gawler Ranges People v State of South Australia	19/12/2011	Native title exists in parts of the determination area
Eringa	King on behalf of the Eringa Native Title Claim Group v State of South Australia	13/12/2011	Native title exists in parts of the determination area
Eringa No. 2 and Wangkangurru/Yarluyandi	King on behalf of the Eringa Native Title Claim Group and the Eringa No 2 Native Title Claim Group v State of South Australia	13/12/2011	Native title exists in parts of the determination area
First Peoples of the River Murray & Mallee Region	Turner v State of South Australia	18/11/2011	Native title exists in parts of the determination area
Antakirinja Matu-Yankunytjatjara	Lennon on behalf of the Antakirinja Matu-Yankunytjatjara Native Title Claim Group v The State of South Australia	11/05/2011	Native title exists in parts of the determination area
Adnyamathanha People No. 2	Adnyamathanha No. 1 Native Title Claim Group v The State of South Australia (No. 2) - [Adnyamathanha People No 2]	30/03/2009	Native title exists in parts of the determination area
Adnyamathanha People No. 1 (Angepena Pastoral Lease)	Adnyamathanha No. 1 Native Title Claim Group v The State of South Australia (No. 2) - [Adnyamathanha People No 1 (Angepena Pastoral Lease)]	30/03/2009	Native title exists in parts of the determination area
Adnyamathanha People No. 1 (Stage 1)	Adnyamathanha No. 1 Native Title Claim Group v The State of South Australia (No. 2) - [Adnyamathanha People No 1 (Stage 1)]	30/03/2009	Native title exists in parts of the determination area
Eringa Part A Proceeding	Eringa, Eringa No.2, Wangkangurru/Yarluyandi and Irrwanyere Mt Dare Native Title Claim Groups v The State of South Australia - [Eringa Part A Proceeding]	11/09/2008	Native title exists in parts of the determination area
Wangkangurru/Yarluyandi Part A Proceeding	Eringa, Eringa No.2, Wangkangurru/Yarluyandi and Irrwanyere Mt Dare Native Title Claim Groups v The State of South Australia - [Wangkangurru/Yarluyandi Part A Proceeding]	11/09/2008	Native title exists in parts of the determination area
Irrwanyere Mt Dare Native Title Determination	Eringa, Eringa No.2, Wangkangurru/Yarluyandi and Irrwanyere Mt Dare Native Title Claim Groups v The State of South Australia - [Irrwanyere Mt Dare Native Title Determination]	11/09/2008	Native title exists in parts of the determination area
Yankunytjatjara/Antakirinja	Yankunytjatjara/Antakirinja Native Title Claim Group v The State of South Australia	28/08/2006	Native title exists in parts of the determination area
De Rose Hill	De Rose v State of South Australia	08/06/2005	Native title exists in parts of the determination area