Native title

Native title is the name Australian law gives to the traditional ownership of land and waters that have always belonged to Aboriginal people according to their traditions, laws and customs. The Commonwealth Native Title Act 1993 sets out how native title rights are to be recognised and protected.

The Department is committed to managing Crown land consistently with the Native Title Act. This responsibility also extends to Crown land managers.

Native title rights are different and separate from the statutory right of Aboriginal land councils to make claims for land under the NSW Aboriginal Land Rights Act 1983.

• Native title legislation recognises Aboriginal peoples’ connection to and existing rights to land and water.
• Aboriginal land rights legislation in NSW compensates Aboriginal people for past dispossession, dislocation and removal of land.

Land rights are granted in the form of freehold land. This happens where the minister administering the NSW Crown Land Management Act 2016 (CLM Act) determines that the land is ‘claimable land’ under the Aboriginal Land Rights Act.

Read more about Aboriginal land rights and Crown land. 

Native title might exist on your reserve. Where it does, the basis on which the reserve was created remains valid. The use of the reserve for the specified reserve purpose takes precedence over any native title rights that may exist on the land after its reservation and the establishment of the Crown land manager.

Let’s take an example where Crown land is reserved as a park, beach or nature reserve, and the public has the right to access this land. Native title cannot take away the public’s right to access the reserved land. In a case like this, native title would be non-exclusive. This means that existing uses continue alongside activities by native title holders (such as hunting, cultural events, and camping).

Generally, the reservation or dedication of land for a public purpose does not extinguish (remove or void) all native title rights and interests in the land. However, it might extinguish some rights.

The Federal Court of Australia decides if native title exists over a piece of land. The court can decide that native title exists, or does not exist, based on evidence of continuing connection with the land or waters, or a valid inconsistent tenure.

Crown land managers and native title managers are not qualified to decide that native title has been extinguished.

Even if there has been no determination of native title or no claim has been lodged for the land on your reserve, native title might still exist. Until there is a native title determination for your reserve, you must assume native title exists and manage your activities in line with the Native Title Act.

The act of making a native title claim gives the applicants no special rights. However, if the claim passes the registration test allowed for in the Native Title Act, the applicants are granted certain rights. Those rights include the right to receive notice and to comment on some proposed acts—for example, building, grazing or clearing vegetation—that may affect native title.

Even if there is no registered native title claim, as a Crown land manager you may still have to notify any representative of an Aboriginal or Torres Strait Islander body (a representative body) of particular acts. For New South Wales, the representative body is NTSCORP Limited (Native Title Service Provider for Aboriginal Traditional Owners in New South Wales and the Australian Capital Territory).

If a claim is lodged

The National Native Title Tribunal may notify you that a claim has been lodged. As a Crown land manager, you can apply to become a party to the Federal Court proceedings. However, you should consult the Department before you do this, as being a party could be both time-consuming and costly. The minister responsible for Crown land manages claim applications affecting land and water in NSW and is a party to every claim. The minister might be able to represent your interests as a Crown land manager.

As a Crown land manager, you may be asked to give information about the use and management of the reserve and the public works that exist on it. This is to help the minister negotiate the claim and in any court proceedings. In some cases, you might be asked to help the minister to negotiate outcomes and to play an active role in negotiations.

If the Federal Court determines that native title exists on a piece of land, the NSW Government will try to negotiate an Indigenous land-use agreement. This is to address any land management issues for the public lands covered by the determination or recognition.

If native title has not been extinguished over the land making up a reserve, the Crown land manager must not carry out any activity that would affect native title, unless it complies with the Native Title Act. Under the Native Title Act, an action ‘affects’ native title if it could extinguish any native title that exists, or if it is inconsistent with the ‘continued existence, enjoyment or exercise of native title rights and interests’.

Some common dealings and activities on a reserve that might affect native title include:

• issuing a licence or lease
• changing the conditions of a licence or lease
• constructing a public work, building or fixture
• fencing
• hosting an event
• grazing land
• vegetation clearing.

Council Crown land managers or Category 1 Crown land managers must ask their native title manager for written advice before carrying out an act that might affect native title.

The Native title manager workbook (PDF, 3.5 MB) gives detailed guidance and help for situations where native title has not been extinguished.

The Department cannot give advice on native title compliance. If there is any doubt about compliance with the Native Title Act, you should seek legal advice

Different types of Crown land managers have varying responsibilities for native title. There are 3 categories of Crown land managers:

• Council Crown land managers
• Category 1 non-council Crown land managers
• Category 2 non-council Crown land managers.

Council and Category 1 Crown land managers must comply with native title legislation to ensure their dealings and activities on crown reserves are lawful. This means they must employ or engage a native title manager to ensure this.

Category 2 Crown land managers cannot carry out dealings or activities that might affect native title without ministerial oversight. Because of this, the Department is responsible for making sure Category 2 Crown land managers comply with the Native Title Act.

Detailed information regarding native title and the role of Native Title Managers is available on the Native Title Manager page, including the Native title manager workbook (PDF, 3.5 MB).

For more information and to watch an 'Introduction to native title' video, refer to our Crown Land Native title page.