Native Title FAQ

Through the Native Title Act, the Australian Government gave legislative recognition to, and built on, some principles identified in the Mabo case. Fundamentally, ‘native title’ refers to a range of traditional rights and interests to land and waters that come from the traditional laws and customs observed by their ancestors.

Native title is the recognition by the Australian Judicial and Political system that Aboriginal and Torres Strait Island Peoples have always had and always will have a special relationship with the land that derived from the occupation and use of the land and its resources.

Those rights can include:

• accessing an area for traditional purposes, like camping or participating in ceremonies;
• visiting, maintaining and protecting important places and sites;
• hunting, fishing and gathering food or traditional resources like water, wood and ochre;
• teaching law and custom on country; or
• living on the area.

Native title can be claimed on:

•  vacant crown land (unoccupied or unallocated);
•  some state forests, national parks and public reserves;
•  oceans, seas, reefs, lakes and inland waters;
•  some leases, such as non-exclusive pastoral and agricultural leases; and
•  some land held for Aboriginal Peoples and Torres Strait Islanders.

Native title can only be claimed in areas where it has not been extinguished.
 

Native title cannot be claimed in areas where it has been extinguished, for example:

• privately owned land (residential freehold and privately owned freehold farms);
• land under residential, commercial or community purpose leases;
• public work areas such as schools, roads or hospitals; and
• pastoral or agricultural leases that grant exclusive possession. 

An ILUA is an agreement about the use and management of land and waters made between people who hold, or may hold, native title in an area, and other parties (for example, pastoralists, miners or tourism developers who want to use land and waters in a way that may be incompatible with the existence of native title).

An ILUA can be a practical way to resolve native title issues between parties. ILUAs allow people to make agreements about how land or waters are used, without permanently affecting native title.

Established in 1996, the National Native Title Council is the peak body representing Native Title Representative Bodies (NTRBs) and Native Title Service providers (NTSPs) throughout Australia.

The NNTC is the coordinated national voice lobbying for the development of better solutions for resolving native title and securing adequate resources for Native Title Representative Bodies and Native Title Service Providers.

It is a basic principle of our adversarial legal systems that, in civil matters, ‘he who asserts must prove’. That is, it is the person seeking the benefit of the law who bears the burden of persuading the court that it should exercise its authority. In native title, the term relates to the requirement that the native title claimant must prove that native title exists.

The way that native title law has developed and the way that the courts have interpreted the Native Title Act means that the claimant must persuade the court that it is more probable than not that:

• At the time of European settlement, the land and waters being claimed were occupied by an identifiable society;
• The society could occupy that land because of the acknowledged system of law and observed customs that governed their lives and their use of the land and waters;
• The society has continued through to contemporary times;
• That the law and custom of the society has been passed generation to generation successively through to contemporary times without break; and
• That the society (or at least members of it) has maintained connection to the specific land and waters through the continued (and continuous) acknowledgment of the system of law and observation of customs similar to those that governed the lives of the ancestral society.

For native title claimants in the QSNTS region, this can be very difficult. Violence associated with European settlement and policies pursued by successive governments meant that large numbers of Traditional Owners were driven away, or forcibly removed from, their traditional country.  Many were prohibited from acknowledging the laws and observing the customs that their descendants are now expected to prove they are aware of and follow.

In native title, shifting the burden of proof refers to the concept that the burden of proof should rest with the State (Government) to show where native title does not exist.

The intention behind shifting the ‘burden’ to the State is to reduce pressure on native title claimants and to ensure that resources that are accessible to the State are fully utilised (as opposed to exhausting service-provider funds researching information that the State may already possess).

This shift in responsibility would also go some way in relieving the evidential burden on claimants who have to deal with:

• inherent disadvantage caused by the historical issues including the behaviour of the government;
• the complexity of running a representative action;
• the difficulty of dealing with a large number of respondents;
• the intersection of differing regimes such as cultural heritage, other statutory schemes and at times competing priorities within the native title regime (for instance, prosecuting a claim while simultaneously protecting mining and other future act interests);
• ever-changing administrative and legal developments; and
• confusion associated with inter-cultural arrangements between the Court and the Tribunal.

QSNTS maintains that changing the burden of proof would ameliorate the harshness of these practical impacts and would have a dramatic effect on changing attitudes and behaviours to ensure that settlement options are actively pursued.

To succeed in a native tile determination application, the claim group must demonstrate that each succeeding generation has maintained a continuous connection to the claimed land and waters through the acknowledgement of traditional laws and observance of traditional customs relating to the use and occupation of that land (see discussion in ‘Burden of Proof’). This is known as continuity of connection.

Presumption of Continuity involves that, as a starting point in native title proceedings, it is presumed that there has been an unbroken acknowledgment and observation of the laws and customs relating to land that support the claimed native title rights and interests.

The presumption of continuity is not currently an element of native title law but QSNTS along with the NNTC and others are agitating that it be adopted into the system.

It would be acknowledgement that the relevant society has lived according to its laws and customs from sovereignty to the present. If the State or another respondent party disputed the presumption, the onus would be on that party to rebut the presumption by producing evidence that there had not been the necessary continuous connection. In those circumstances, the party seeking to rebut the presumption ought not be allowed to rely on its own actions (removals and suppression of traditional activities).

Native title can be extinguished by any of a number of possible actions of government or government agencies.

That extinguishment can be through the grant of freehold land title, the grant of a lease that provides that the lessee has exclusive possession of the land or the construction of certain public works.

Sometimes, the extinguishing act can be reversed. The freeholds may be handed back to the Crown, the lease may be surrendered or the works may be demolished or removed. However, the legal position is that once extinguishment has occurred, that extinguishment is forever.

QSNTS considers that if the extinguishing act is reversed, the original act should be ignored when considering native title claims. That is, native title rights to the land or waters that were affected by the original extinguishment are revived and may be claimed.

The notion of broader settlements is based on the understanding that native title has a vital role to play in closing the social and economic gap between Indigenous and non-Indigenous Australians through the acknowledgement of rights and the consequent opportunity of social and economic development.

Broader settlements include an array of diverse options that may span beyond native title specific issues to be included in the resolution of claims through agreements. Such examples include the provision of housing and infrastructure to be incorporated into an Indigenous Land Use Agreement (ILUA). Broader settlements can also be referred to as 'broader land settlements'.