Native title in Australia

Articles Written by William Oxby (Partner)
Image of a hand print in soil.

‘Native title’ refers to the communal or individual rights and interests of Aboriginal and Torres Strait Islander people in relation to land or waters, held under traditional law and custom. 
Native title is recognised and protected by Australian law.

The Native Title Act 1993 (Cth) and corresponding State legislation provides a national legislative framework for:

  • recognition and determination of native title and who the native title holders are through a claims process managed by both the Federal Court of Australia and the National Native Title Tribunal;
  • processes and procedures for accessing land where native title exists, referred to as the ‘future act’ regime;
  • compensation for acts that have lawfully affected native title; and
  • codification of Australia’s common law to assist in the determination of where native title has been extinguished.

The Annual Report of the National Native Title Tribunal contained in Part 5 of the Federal Court of Australia Annual Report states that as at 30 June 2021 there had been 517 registered determinations of native title. This covered:

  • 3,319,725 square kilometres or 43.2% of the land mass of Australia; and
  • 143,059 square kilometres of sea below the high water mark.

Aboriginal and Torres Strait Islander Cultural Heritage

Aboriginal and Torres Strait Islander cultural heritage refers to the knowledge, traditions, beliefs, customs, values, places and objects that are valued and are culturally important to Aboriginal and Torres Strait Islander people.

The Commonwealth and each State government have specific legislation for the protection of Aboriginal cultural heritage. Queensland also has legislation for the protection of Torres Strait Islander cultural heritage.

The nature of the cultural heritage that is protected, together with the level of protection that is afforded, differs between the Commonwealth and States. State legislation differs in a number of factors. Two key differences between the States are where Aboriginal people or the State approve an impact to Aboriginal cultural heritage and the extent to which intangible forms of cultural heritage are protected.

Under the Commonwealth and State legislation it is a criminal offence to unlawfully impact or harm protected Aboriginal cultural heritage. The penalty for an offence includes fines and potentially imprisonment.

Important Disclaimer: The material contained in this article is comment of a general nature only and is not and nor is it intended to be advice on any specific professional matter. In that the effectiveness or accuracy of any professional advice depends upon the particular circumstances of each case, neither the firm nor any individual author accepts any responsibility whatsoever for any acts or omissions resulting from reliance upon the content of any articles. Before acting on the basis of any material contained in this publication, we recommend that you consult your professional adviser. Liability limited by a scheme approved under Professional Standards Legislation (Australia-wide except in Tasmania).

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