Preface

This is an attempt to explain the current law in easy to understand language. Some of this law is controversial - not everyone agrees that it should work the way it does. That is a topic for a different article!

Basic explanation

Native title (in Australia) is a recognition of pre Anglo settlement (or invasion if you prefer) rights and interests in land that were held by the native population. The modern theory is that those rights existed in accordance with traditional aboriginal law but they were overridden by the imposition the Crown/Anglo government's rule. The situation is that wherever the Crown created rights that are incompatible with the traditional land rights, the traditional land rights were cancelled out ("extinguished"). But where no new rights have been created, some native title rights still exist.

So if someone has been granted freehold over land by the Crown, they have "exclusive possession" and that is completely incompatible with native title. Native title has been completely cancelled out. But if someone just has a Crown licence saying they can prospect for minerals in a certain area then that only cancels out native title enough to allow the prospecting to occur - the native title holders can still use that land provided they don't interfere with the prospecting activities.

Native Title Claims

In order to claim native title rights, you have to prove:

- who holds those rights (eg the tribe or nation), in clear enough terms that you can work out whether any particular modern individual is a member of that group - usually done by conducting a genealogical study and picking a group of identifiable ancestors and saying the modern tribe is their descendants;

- where those rights existed (ie the boundaries of the tribe's land);

-whether the tribe had a system of law or culture that talked about their relationship to land and how that relationship is passed on;

- what those rights were (did the tribe hunt? fish? did they live there? did they have a concept akin to exclusive possession - eg did people who weren't members of that tribe have to ask permission to go there?); and

- do the descendants of that tribe continue to acknowledge and practice that law and culture (with allowance for development over time).

All of that is put before the Federal Court and once it's sorted out, the Court makes a determination (hopefully) recognising the native title rights, explaining what they are and specifying where and to what extent they apply.

What's included?

Under the modern law, native title is considered to be a "bundle of rights" in relation to land - but not actual ownership of the land. Those rights can include the right to live, hunt, gather resources, camp, light fires and conduct ceremonies on the land and can also include the right to exclude other people from accessing the land (this is called "exclusive possession").

However, all native title rights are subject to any "Crown" (government) granted rights to the land. So even when you have exclusive possession, you cannot stop someone entering the land if they have permission from the government - a common example would be the police if they have reason to believe a crime is occurring. In reality, exclusive possession is very difficult to enforce and it hasn't even been confirmed yet if you can sue someone for trespassing on exclusive possession native title land.

Future Acts

If the government wants to take that land and give someone else a right to use it in a way that is incompatible with the native title rights, they can usually still do so - for example to create a mine or to release new land for housing or farming. This is called a "future act" and there is a process that they have to follow.

Depending on what the government wants to do, they have to consult with or try to make a deal with the native title holders but at the end of the day native title does not give any vetoes. Keep in mind though that that is also true of Crown interests in land including freehold - the government can compulsorily acquire any land it needs - for example people's houses sometimes get compulsorily acquiredto build or expand new roads or railways in cities.

You cannot buy or sell native title rights and interests but the native title holders can "surrender" them to the government - usually after some form of agreement has been negotiated. This can only be done using an Indigenous Land Use Agreement (unless there has been a compulsory acquisition, in which case it's done through a different kind of agreement).