Native title

Native title refers to the traditional ownership of land and waters by Aboriginal people, as recognised by Australian law.

The Commonwealth Native Title Act 1993 outlines how these rights are acknowledged and protected. We manage Crown land in line with this Act.

Native title rights are distinct from the rights under the NSW Aboriginal Land Rights Act 1983.

The Commonwealth Native Title Act 1993, introduced after the High Court Mabo judgment and amended in 1996 following the Wik decision. The Act does 5 major things of relevance to Crown Lands.

1. Recognises native title rights exist in Australia where those rights have not been extinguished (e.g. by the grant of a freehold title).
2. Validates certain past actions carried out by governments.
3. Includes a ‘future act regime’ that allows for governments to continue undertaking certain activities on the Crown estate where native title has not been extinguished.
4. States that compensation may be owing to native title holders for certain past and future acts.
5. Allows for negotiated outcomes (Indigenous Land Use Agreements) for land activation to achieve broad socioeconomic outcomes.

We help the NSW Attorney General negotiate consent determinations with native title groups. A determination is a court decision on whether native title exists in a specific area. This can be through mediation (consent determination) or a trial (litigated determination). We also negotiate Indigenous Land Use Agreements (ILUAs) with native title groups on behalf of the NSW Government. ILUAs are voluntary agreements about land and water use, including compensation terms.

Are a provision in the Crown Land Management Act 2016, currently under review and not yet implemented. Certificates were intended for rare occasions when relevant evidence is available before native title is formally determined.

About half of NSW is under native title claims, made by application to the Federal Court. Once filed, applications must be registered with the National Native Title Tribunal (NNTT). A full list of registered native title claimant applications in NSW is available from the NNTT register of claims. The NNTT also provides maps of native title claimant applications. Notice of the claim is also published in local and national newspapers.

Native title applications may affect infrastructure providers, other Indigenous groups, and people with leases or licences over state land and water. However, most people will be unaffected as native title does not exist where past grants or government actions are inconsistent with it, such as freehold land or public works. Only those with leases, licences, or permits over state land and water where native title has not been extinguished may be affected.

Native title cannot take away validly granted rights. Where native title rights conflict with state-conferred rights, the latter prevail. The lodging of an application does not affect current tenure holders' ability to exercise their rights, renew or re-grant existing interests, or the continued operation of reserves. New activities can still be done in the claim area with notification and procedural rights afforded to the applicants.

After a native title claim is made, 3 key decisions need to be made: whether the applicants hold native title, what land and waters the rights apply to, and what the native title rights are. If the NSW Government is satisfied that native title exists, negotiations will commence for a consent determination. If negotiations fail, the application will be determined by the Federal Court. Individuals may apply to become a party to the proceedings or seek advice from relevant industry groups or representative organisations.

Independent legal advice should be obtained to determine whether joining as a party to the proceedings is appropriate. The National Native Title Tribunal provides general information about native title and the process. Further information is available from the Tribunal, the Federal Court of Australia, and the Commonwealth Attorney-General's Department.