About native title

The Native Title Act

The legal uncertainty that followed the Mabo decision prompted a legislative response. By the end of 1993 the Native Title Act 1993 (Cth) was passed. The Act sought to achieve four main objectives:

1. To provide for the recognition and protection of native title.
2. To establish ways in which future dealings affecting native title may proceed and to set standards for those dealings.
3. To establish a mechanism for determining claims to native title.
4. To provide for, or permit, the validation of past acts, and intermediate period acts, invalidated because of the existence of native title.

During the same year the Western Australian government sought to pre-empt the Commonwealth by preparing their own legislation to extinguish all native title in the state. Native title was to be replaced by ‘traditional land use’ statutory access rights. Both the WA and Commonwealth Acts were challenged in the High Court. The 1995 Native Title Act case confirmed the Commonwealth legislation was a valid exercise of power and the state legislation was inconsistent and therefore invalid.

As part of the passing of the Native Title Act 1993 the Australian Government set up the National Native Title Tribunal to conduct enquiries, mediate and assist parties with their native title applications and Indigenous land use agreements. The Australian Government also gave jurisdiction to the Federal Court to manage applications for recognition of native title and any future access to lands claimed as native title lands.

Since the introduction of the Native Title Act, native title has been recognised over more than thirty two per cent of the Australian continent.

Imperfect system

While the law recognises that native title may exist, the requirements for proof are significant and burdensome. Generally claimants must provide evidence of a continuous system of law and custom that gives rights to the land, and that this has been handed down from generation to generation since before colonisation.

Once a claim has been successfully filed and registered with the National Native Title Tribunal, Aboriginal and Torres Strait Islander applicants can claim the right to negotiate against development of the land. However, this does not mean exclusive land rights are given. If the rights of pastoralists, mining companies, federal government, or private owners come into conflict with native title rights, they supersede the native title rights.

Managing native title

The Native Title Act 1993 (Cth) (NTA) states that when a native title determination is made, native title holders must establish a corporation called a Prescribed Bodies Corporate (PBC) to manage and protect their native title rights and interests. These corporations are called ‘prescribed bodies’ because they have certain prescribed obligations under the Native Title Act, including a requirement to incorporate under the Corporations (Aboriginal and Torres Strait Islander Act) 2006 (CATSI ACT).

All PBCs must be registered with the National Native Title Tribunal (NNTT). When a PBC is officially registered, it becomes a Registered Native Title Bodies Corporate (RNTBC). This makes it clear to other people and organisations that it is a corporation that manages native title. 

The main job of a PBC is to manage and protect native title on behalf of the native title holders. PBCs typically deal with a large number of matters, including:

• future acts (proposals for work that will affect native title)
• Indigenous land usage agreements (ILUAs - negotiations between governments, companies and the PBC about future developments on the land)
• exercising, negotiating, implementing and monitoring native title agreements
• consulting with native title holders
• consulting with and considering the views of relevant native title representative bodies (NTRB) and native title service providers (NTSP) for an area regarding native title decisions
• compensation
• bringing future native title application cases in the Federal Court.

They may also be involved in community activities outside of their official duties such as cultural projects, economic development, training and employment.

Watch a video about the experience of Karajarri people living with native title in the West Kimberley.

Compensation

Native title holders are entitled to compensation for activities which diminish or damage their native title rights and interests (Native Title Act 1993 (Cth) s 51(1) (NTA)).

Compensation is payable for acts which occurred on or after 31 October 1975 when the Racial Discrimination Act 1975 (Cth) (RDA) came into effect. The RDA does not allow for discrimination on the basis of race, colour, descent or national or ethnic origin (RDA s 10(1)). This means laws cannot be made which are discriminatory against native title holders. 

Compensation claims have only recently come before the courts. Griffiths v Northern Territory of Australia (No 3) [2016] FCA 900 (Griffiths) was the first compensation case and is considered by some to be the most important native title decision since Mabo and Others v Queensland (No 2) (1992) 175 CLR 1. This is because it contains detailed guidance on how to calculate compensation. It also suggests that total liability for past acts of extinguishment and impairment of native title rights may be very large.

In Griffiths, the Ngaliwurru and Nungali peoples were awarded $2,530,350 in compensation for the losses suffered by the damage and extinguishment of their native title in and around the town of Timber Creek in the Northern Territory.

The court awarded compensation for economic loss (calculated by reference to the freehold value of the land) and cultural loss (spiritual or religious hurt caused by the acts). They also awarded interest on the economic loss. This area of native title law is likely to develop further in the coming years, with greater guidance on how economic and cultural loss are to be calculated, and the kinds of acts which might give rise to compensation.