Native title is often described as a ‘bundle of rights’ in land, meaning a collection of rights. These rights may include the right to camp, hunt, use water, hold meetings, perform ceremony and protect cultural sites. It is important to note that native title only recognises the right to perform certain activities which come from traditional laws and customs but does not recognise those traditional laws and customs themselves. When a native title claim is determined, not all rights within the bundle are automatically granted.
The High Court in Western Australia v Ward (2002) 213 CLR 1 said that native title could be extinguished in whole or part. Each right therefore needs to be considered separately to determine whether any past acts of government are inconsistent with the continued existence of that right. Examples of acts which can extinguish native title include the grant of a freehold lease or the construction of public works such as a telephone line or a road.
In most cases, native title is found to exist alongside other non-Indigenous property rights, such as pastoral leases. This form of native title is referred to as non-exclusive possession because others also have rights to the land. Non-exclusive native title rights may include the right to access, hunt and camp on traditional country, but not the right to control access to, and use of, an area. In some cases, native title rights may include possession of an area to the exclusion of all others. These are called exclusive possession native title rights which are valued like freehold title (Griffiths) and are recognised in other forms of legislation (such as in carbon farming)
Native title is inalienable, meaning it cannot be sold or transferred freely, and can only be surrendered to the Crown (or extinguished). However, there are some options for non-extinguishing leasing of native title lands.
Recently native title rights and interests have been described in broader terms. For example, in Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia [2013] HCA 33 (Akiba), the High Court said that the native title claim group had the right 'to take for any purpose resources in the native title areas’. This meant that the native title holders could continue to sell and trade fish as they had done under their traditional laws. It was the first time that native title rights were found to include commercial rights. Later decisions including State of Western Australia v Willis on behalf of the Pilki People [2015] FCAFC 186 and BP (Deceased) on behalf of the Birriliburu People v State of Western Australia [2014] FCA 715 have continued this 'broad brush' approach. Nevertheless, debate continues about whether native title rights and interests have the same protections under Australian law as other interests in land, or whether native title is 'radically different' because it based on traditional laws and customs rather than the common law. The High Court could not agree on this issue in the 2015 decision of Queensland v Congoo [2015] HCA 17. Recently, however, in Northern Territory v Griffiths [2019] HCA 7, the High Court said that compensation for loss or damage to native title should not be reduced because native title land cannot be sold or freely transferred. This suggests that native title rights are just like any other right in land recognised in Australia.
Both native title and Aboriginal land rights are ways of recognising Aboriginal rights and interests in land. However, they are different systems and provide different rights. In some cases Native title and Aboriginal land rights can co-exist over the same piece of land. Groups should consider which scheme might be better for their needs.
Land Rights
Native Title
Law
There are statutory schemes in all States and Territories bar Western Australia.