Legal Practice Briefing No. 11

Number 11

29 April 1994


From the Attorney-General

The decision of the High Court in Mabo v Queensland (No.
2) was a major development in Australian law, addressing
some of the basic premises of our legal system and our
society. An historic wrong was righted.The decision has
provided the opportunity to rebuild on fair and just foundations
the relationship between our nation and its indigenous
people. The Commonwealth's Native Title Act 1993 is a beginning
to that process.The Act accepts and confirms the fundamental
propositions of the Mabo (No. 2) decision, namely:

  • the rejection of the myth that Australia was terra
    nullius (land belonging to no-one);
  • and the recognition of native title rights based on
    the traditions of the indigenous people of Australia.

In addition to confirming these newly recognised rights,
the Act seeks to establish a legal regime which respects
native title rights.

The Mabo (No. 2) decision clearly required a national
response. Native title is an issue that must be faced by
the country as a whole. The Commonwealth made significant
efforts to address the issue collaboratively, consulting
with State and Territory governments, and representatives
of Aboriginal peoples and Torres Strait Islanders, and
of industry. The Act reflects the input of all these groups,
and a careful balancing of the roles of Commonwealth and
State and Territory Governments.

The Native Title Act 1993 is only a beginning. The concept
of native title will need to be explored and developed
by courts, tribunals, governments and legislatures across
Australia. While the Act establishes a just framework for
this process, native title is an issue that will continue
to be a challenge to us all.

Michael Lavarch

On 1 January 1994 the Commonwealth Native Title Act
1993 (except for Part 10) commenced operation. Part
10, which establishes the National Aboriginal and Torres
Strait Islander Land Fund, commences operation on 1 July
1994. The Act is part of the Commonwealth's response
to the High Court's decision in Mabo v Queensland
(No. 2).

This briefing includes a short summary of the High Court's
decision. The decision was discussed in more detail in Legal
Practice Briefing No. 5 which was published on 30 July

This briefing provides a more detailed overview of the
major features of the Act. It does not deal with all matters
covered by the Act, but rather summarises the major features
and how they will work.

The discussion is based on Part A of the Explanatory Memorandum
prepared by the Government in relation to the Native
Title Bill 1993 (as introduced into the House of Representatives),
but elaborates on that document and, in particular, takes
account of the amendments made to the Bill in the Senate
and refers to the appropriate renumbered sections of the

The Decision in Mabo (No. 2)

A majority of the High Court decided in Mabo (No. 2) that
the Meriam people were entitled as against the whole of
the world to the possession, occupation, use and enjoyment
of (most of) the land of the Murray Islands in the Torres

In reaching this conclusion the majority of the Court
held that the common law of Australia recognises a form
of native land title, and indicated that the principles
applied to the mainland as well as to the Murray Islands.
Such a native land title exists in accordance with the
laws and customs of indigenous people:

  • where those people have maintained their connection
    with the land; and
  • where their title has not been extinguished by acts
    of Imperial, Colonial, State, Territory or Commonwealth

The decision was clearly a major development in Australian

Terra Nullius

The Court rejected the traditional doctrine that Australia
was terra nullius (land belonging to no-one) at
the time of European settlement, with the implication that
absolute ownership of land vested at that time in the Crown.
Rather, it accepted that native title rights survived settlement,
though they were subject to the sovereignty of the Crown.

Native Title

Although the content of native title is to be determined
according to the traditional laws and customs of the title
holders, there are some common characteristics. It may
be possessed by a community, group, or individual depending
on the content of the traditional laws and customs. It
is inalienable (that is, it cannot be transferred) other
than by surrender to the Crown or pursuant to traditional
laws and customs. Native title is a legal right that can
be protected, where appropriate, by legal action. It is
not frozen as at the time of European settlement.


Native title will be extinguished where the traditional
title holders lose their connection with the land.

While the acquisition of sovereignty did not of itself
extinguish native title, subsequent legislative or executive
actions by governments may have. But a clear and plain
intention or clear and unambiguous words are required for
this to have occurred. The judgments variously considered
the position of a range of land, such as freehold, leasehold,
land appropriated by the Crown, national parks and land
over which mining interests had been granted.

Validity of Past Acts

The majority of the High Court held in Mabo (No. 2) that
extinguishment of native title by inconsistent Crown grant
did not give rise to a claim for compensatory damages.
It follows that the validity of such grants could not be
challenged merely on the basis that they extinguished native
title without compensation.

However, this conclusion of the majority of the Court
was made expressly subject to the operation of the Racial
Discrimination Act 1975 (RDA) of the Commonwealth.
On one view, the RDA may in some cases render wholly or
partly invalid past laws or grants. As noted below, the Native
Title Act remedies, or allows States and Territories
to remedy, any possible invalidity arising out of the existence
of native title and the operation of any law.

Native Title Act 1993

In summary, the Native Title Act:

  • recognises native title rights and sets down some
    basic principles in relation to native title in Australia;
  • provides for the validation of past acts which may
    be invalid because of the existence of native title;
  • provides for a future regime in which native title
    rights are protected and conditions imposed on acts affecting
    native title land and waters;
  • provides a process by which native title rights can
    be established and compensation determined, and by which
    determinations can be made as to whether future grants
    can be made or acts done over native title land and waters;
  • provides for a range of other matters, including the
    establishment of a National Aboriginal and Torres Strait
    Islander Land Fund.

Commonwealth Approach
to Native Title

Recognition of Native Title

The Commonwealth's major purpose in enacting this legislation
is to recognise and protect native title (see sections
3 and 10). The Act adopts the common law definition of
'native title'. 'Native title' is defined as the rights
and interests that are possessed under the traditional
laws and customs of Aboriginal peoples and Torres Strait
Islanders in land and waters, and that are recognised by
the common law (section 223). (The decision in Mabo
(No. 2) referred only to native land title,
but the Act does not preclude the possibility that native
title rights and interests may also exist in relation to waters,
including offshore waters.)

Determination of Native Title

The Act provides a mechanism to determine whether native
title exists and what the rights and interests are that
comprise that native title (see sections 13 and 61). A
determination of native title under the Act will establish
whether the holders have exclusive possession and, if not,
the native title rights and interests the maker of the
determination considers to be of importance (section 225).
The Act also recognises that native title rights, as with
Aboriginal and Torres Strait Islander traditions, may change
with time or lapse. A mechanism is provided to allow for
variations of determinations where circumstances have changed
(sections 13 and 61).

Section 12 provides that the common law of Australia in
respect of native title is adopted and has force as a law
of the Commonwealth. Native title will be subject to the
general laws of Australia, including State and Territory
laws which are consistent with the Act (section 8), although
native title rights to hunt, fish and carry on other activities
may be exercised without the need for a licence or permit
where others can carry out the activity only with a licence
or permit (section 211).

The Act recognises that, in some cases, governments, and
those holding relevant interests, will wish to know whether
native title exists in relation to land or waters. The
Act provides a means for 'non-claimant applications' to
be made for a determination as to the existence or otherwise
of native title (sections 61 and 67). Where non-claimant
applications are unopposed, future acts over the land or
waters are valid (section 24).

The Act also provides for the establishment of two public
registers: one for native title claims (the Register of
Native Title Claims, Part 7), and the other for native
title determinations (the National Native Title Register,
Part 8).

Protection of Native Title

The Act provides significant protection of native title.

Under the Commonwealth's scheme for validation of past
acts, native title is extinguished only in limited circumstances,
as described below.

For the future, only limited acts of governments will
be able to affect native title. Generally, except in the
case of the voluntary surrender of native title (section
21) or in giving effect to the compulsory acquisition of
native title (section 23(3)(b)), the 'non-extinguishment
principle' will apply (section 238). In essence, that principle
states that the acts and grants will not extinguish native
title. Where there is conflict between the rights and interests
under native title and those granted by governments, the
act or grant will prevail. But once those interests expire,
native title will again have full effect. The mechanism
for making future grants is described below.

Bodies Corporate

The Act recognises that native title rights are primarily
group or communal rights. It is likely that a number of
people will be able to show that they possess native title
rights to a particular area. Further, membership of the
title holding group will inevitably change over time. To
take this into account, the Act provides that native title
will either be held on trust by a prescribed body corporate
controlled by those who are the native title holders from
time to time (see sections 56 and 57) or, alternatively,
provides for a prescribed body corporate which will represent
the native title holders and act as their agent (sections
57 and 58). These bodies corporate will provide a practical
and legal point of contact for those who wish to deal with
native title holders.

Representative Aboriginal/Torres Strait
Islander Bodies

The Act provides for the designation of Aboriginal and
Torres Strait Islander organisations as representative
organisations to assist native title claimants to make
applications for the determination of native title and
compensation and to assist in negotiations and proceedings
(section 202). These bodies may be eligible for financial
assistance from the Commonwealth or the Aboriginal and
Torres Strait Islander Commission (section 203).

The Minister for Aboriginal and Torres Strait Islander
Affairs made a Determination on 27 December 1993 with effect
from 1 January 1994 that specified certain existing organisations
as representative Aboriginal/Torres Strait Islander bodies.

Land Acquisition Fund to be Established

Recognising that many Aboriginal peoples and Torres Strait
Islanders will be unable to secure native title and to
benefit directly from the High Court decision, the Act
establishes a National Aboriginal and Torres Strait Islander
Land Fund (section 201). This will commence operation on
1 July 1994, and will assist such people to acquire and
manage land.

Existing Rights

The Act does not affect rights held under Commonwealth
land rights legislation (section 210).

The Act also provides in section 212 that governments
may confirm existing ownership of natural resources, existing
rights to water and the primacy of existing fishing rights.
Governments may also confirm existing access to beaches
and public places (section 212(2)). Such confirmation will
not affect the ability of native title holders to continue
to exercise any rights they might have (section 212(3)).

Validation of Past Acts

Validation by Commonwealth, States and

The Act provides in section 14 for the validation of past
(invalid) Commonwealth acts. Section 19 enables States
and Territories to validate their past (invalid) acts on
the same terms. The Act does not prevent States and Territories
from attempting to validate 'past acts' on their own terms
(see section 233(2)); but they would do so at their own
risk in terms of the legality of such an approach.

This is not to indicate that the Commonwealth is of the
view that past acts by the Commonwealth, States or Territories
are invalid. The Mabo (No. 2) decision clearly indicated
that governments are able to affect and indeed extinguish
native title. However, significant concerns have been expressed
in relation to the validity of some past acts, and in particular
past grants to third parties. As discussed above, the invalidity
of some past acts is a legal possibility.

Effect of Validation on Native Title

The past acts which are validated include the making of
legislation, the grant of a licence or permit, the creation
of any interest in land or waters and the exercise of executive
power (section 226). The validation only affects acts which
were invalid because of the existence of native title.

The validation of past acts and grants will only extinguish
native title where there has been what the Act terms a
Category A past act (sections 15(1)(a) and (b) and 229),
that is, a grant of freehold or of a commercial, agricultural,
pastoral or residential lease (defined in sections 246,
247, 248 and 249) or the construction of a public work
(defined in section 253). Where there has been a grant
of other leasehold interests (a Category B past act), other
than a mining lease, the validation will only extinguish
native title to the extent of any inconsistency between
the two sets of rights and interests (sections 15(1)(c)
and 230).

Extinguishment will not take place where the freehold
or leasehold grant ceased to have effect before 1 January
1994. Nor will it take place where the validated grant
was made under legislation for the benefit of Aboriginal
peoples or Torres Strait Islanders or where the validated
leasehold grant was over land where that land on 1 January
1994 is held pursuant to grants under such land rights
legislation (sections 229(2), (3) and 230).

The validation of all other past acts by the Commonwealth,
called Category C and D past acts (sections 15(1)(d), 231
and 232), will not extinguish any native title, but rather
native title will be subject to the non-extinguishment
principle (defined in section 238). In particular, mining
leases (Category C) validated by the Act and those validated
by States and Territories pursuant to the Act will not
extinguish any native title.

Legislation passed before 1 July 1993, and acts and grants
made before 1 January 1994, are or will be able to be validated.
The Act also validates, and enables validation, of some
acts which will take place in the future, where those acts
are linked to acts done in the past. These include the
exercise of options and legally enforceable rights or the
extension or renewal of (invalid) grants made in the past
(see the definition of 'past act' in section 228).

Protection of Reservations

The validation exercise will not affect any reservations
or conditions for the benefit of Aboriginal peoples or
Torres Strait Islanders contained in any past (invalid)
grant or legislation. Nor will it affect any other right
or interest they may hold arising under legislation, common
law, equity or by usage (section 16).

Section 15(2) also provides that extinguishment pursuant
to the validation of a pastoral lease does not itself confer
a right to remove Aboriginal persons from the relevant

Entitlement to Compensation for Validation

Native title holders are entitled to compensation for
the effect of the validation of past acts on their rights.

  • Where native title has been extinguished (for example
    by validation of a freehold grant) compensation will
    be on just terms (sections 17, 20 and 51).
  • Where the native title is impaired but not extinguished
    in relation to an onshore place (for example by the validation
    of a mining lease over land) compensation will be paid
    to native title holders where freeholders would have
    received compensation and this will be assessed under
    the same regime as for freeholders (sections 17, 20 and
    51(3), and the definition of the 'similar compensable
    interest test' in section 240).
  • Where the native title is impaired and the grant or
    act could not have been done over freehold land, or where
    the grant or act was in relation to an offshore place,
    native title holders will receive just terms compensation
    (sections 17, 20 and 51).

The Act provides Commonwealth rights to compensation,
even for the effect of State and Territory validations.
These Commonwealth rights may be pursued in the National
Native Title Tribunal (NNTT) and the Federal Court. States
and Territories may also provide rights to compensation
and a process for asserting those rights (section 20(4)).

Non-Monetary Compensation

In claiming compensation native title holders
will have a right to seek to negotiate non-monetary compensation,
including other property or the provision of goods or services
(sections 51(6) and 79). In special circumstances the Commonwealth
Minister may direct the NNTT to inquire into the effect
on Aboriginal peoples and Torres Strait Islanders of the
validation of particular past acts and alternative forms
of compensation (section 137).

The Future Regime

The Commonwealth also regarded it as crucial that there
be a process to allow for grants and actions over native
title land and waters, and land or waters that could be
subject to native title, to continue in the future. To
provide for such a process, it is necessary that native
title be recognised and accommodated into the national
land management system.

Future Acts

The Act provides for future acts that affect native title
to take place providing they are 'permissible future acts',
defined in section 235.

It is important to recognise that the Act draws a distinction
between 'offshore' and 'onshore' places. These terms are
defined in section 253. An 'onshore place' is land or waters
located within the limits of a State or Territory. The
waters off the coast of a State or Territory (known as
the coastal waters) do not fall within this definition.
They are 'offshore' places, which also include any land
(for example, reefs and islands) or waters to which the
Act extends that are not within the limits of a State or

All future acts in an offshore place are 'permissible'
even if that place is subject to native title (section
235(8)(a)). In the case of onshore land, the Act provides
that where an act can be done over ordinary title land
then that act will be permitted over native title land
(section 235(5)). 'Ordinary title land' is defined to mean
either freehold or, in the case of the Australian Capital
Territory and Jervis Bay, leasehold (section 253).

There is also a test for where an act is proposed over
onshore native title waters (such as lakes, rivers and
harbours); if the act could be done over the waters, on
the assumption that the native title holders held ordinary
title to the land adjoining or surrounding the waters,
then it can be done over native title waters (section 235(5)).

The making of new legislation is 'permissible' only if
it affects native title holders in the same way that it
affects ordinary title holders or if it puts native title
holders in no worse a position than ordinary title holders
(section 235(2)).

Commencement of 'Permissible Future
Act' Test

The requirement to satisfy the 'permissible future act'
test began in relation to new legislation on 1 July 1993
and for other acts and grants on 1 January 1994.

Exceptions to 'Permissible Future Act'

Sections 24 and 25 are, in effect, exceptions to the 'permissible
future act' test. Section 24 deals with the situation where
governments or others with an interest in land apply for
a determination as to whether native title exists over
it. If there is no native title claim within the specified
period in relation to the area the subject of such a 'non-claimant
application', any act in relation to the land before any
determination of native title is valid. Section 25 enables
the renewal of existing interests pursuant to a legally
enforceable right, notwithstanding the existence of native

Section 235(7) provides that other renewals or extensions
of existing commercial, agricultural, pastoral or residential
leases are permissible future acts.

Grant of Mining Interest

An example of a permissible future act is the grant of
a mining interest. Where such grants can be made over freehold
land, they can also be made over native title land. Other
future permissible acts include those carried out under
general Compulsory Acquisition Acts (see definition in
section 253).

Future Extinguishment

In the future, native title will only be able to be extinguished
by agreement with the native title holders (section 21)
or in giving effect to the purpose of an acquisition of
native title under the Compulsory Acquisition Acts (section
23(3), and see section 11).

Compensation for Future Acts

Native title holders will be entitled to just terms compensation
for any future extinguishment of their rights and interests.
Where an act only impairs the title rights onshore, native
title holders will be entitled to compensation under the
same regimes as are applicable to ordinary title holders
(sections 23(4) and 51(3)). Offshore, the native title
holders will be entitled to just terms compensation for
such impairment (sections 23(4) and 51(1)).

The Act provides a Commonwealth right to compensation
for extinguishment pursuant to a Compulsory Acquisition
Act or for onshore impairment, only where there is no right
provided by a State or Territory law (section 23(3)(c)
and (4)(b)(ii)(C)). This right can be pursued in the NNTT
and Federal Court. Where a State or Territory right to
compensation operates, it may be asserted in accordance
with the State or Territory law.

Procedural Rights for Future Acts

In the case of all future acts other than 'low impact
future acts', native title holders are entitled to the
same procedural rights as holders of ordinary title, such
as the right to be notified and to object (sections 23(6)
and 253).

Right to Negotiate

In addition, in recognition of the special attachment
that Aboriginal peoples and Torres Strait Islanders have
to their land, the Act provides that for certain 'permissible
future acts', registered native title holders and registered
native title claimants will also have a right to negotiate
before such an act can be taken. Subdivision B of Division
3 of Part 2 contains the detailed provisions relating to
this right to negotiate. Section 26 sets out the acts to
which the right to negotiate will apply. They are essentially
acts relating to mining, the compulsory acquisition of
native title for the purpose of making a grant to a third
party, and any other acts approved by the Commonwealth

Process for Right
to Negotiate

The right to negotiate does not apply if there are no
registered native title holders or registered native title
claimants within two months of notification of the proposed
act (sections 28(1)(a) and 30), and in this case the act
can proceed in the normal way.

Certain grants or classes of grants which have minimal
effect on native title can be excluded from this right
to negotiate by the Commonwealth Minister (section 26(3)
and (4)). Further, an act which does not directly interfere
with the community life of native title holders or involve
major disturbance to any land or waters concerned can proceed
through an expedited process (sections 32 and 237).

The right to negotiate is not a veto. If the parties cannot
reach agreement after negotiation, then any party can apply
to the NNTT or the recognised State or Territory body,
called the 'arbitral body' (section 27), for a determination
of whether the act may go ahead and if so on what conditions
(section 35).

In making its determination, the arbitral body must take
account of a number of factors, including the impact of
the proposed act on the way of life, culture and traditions
of the native title holders and the economic significance
of the proposed act to Australia and the relevant State
or Territory (section 39).

Where there is a State or Territory arbitral body, a State
or Territory Minister may override the determination in
the interest of the State or Territory (section 42(1) and
(3)). If the NNTT is the arbitral body, the Commonwealth
Minister may override the decision in the national or State
or Territory interest (section 42(2) and (3)). The determination
may be overridden on conditions.

State or Territory Bodies and Processes
for Right to Negotiate

Where a State or Territory body complies with the relevant
criteria and the Commonwealth Minister has recognised it,
that body will be the arbitral body for the State or Territory
(sections 27 and 251). There is also provision to allow
for the approval of alternative State or Territory systems
which give an equivalent right to negotiate (section 43).
Where such an approved State or Territory system exists,
the Commonwealth system will not operate.

Low Impact Future Act

Certain future acts are defined as 'low impact future
acts' (section 234). These include the grant of minor licences
and permits (such as for beekeeping). Such acts can proceed
in a period before native title has been determined, do
not extinguish native title and do not require the payment
of compensation but they may not continue if native title
is later determined to exist (sections 23 and 235(8)(b)),
except with the agreement of the native title holders.

Surrender of Native Title

Given that traditionally held land could not be bought
and sold, native title will not be able to be alienated
by the native title holders. To facilitate commercial dealings,
native title holders will be able to surrender their title
to the relevant government in exchange for statutory title
(section 21(1)(a)). Native title holders can also agree
to any acts taking place over their land (section 21(1)(b)).
The Act recognises that negotiation of agreements on a
local or regional basis should be facilitated where appropriate
(Preamble and section 21(4)).

Pastoral Leases Held by Native Title

The Act provides that where Aboriginal peoples or Torres
Strait Islanders hold a pastoral lease over an area, the
effect of that pastoral lease, the creation of any earlier
interest in the land and any act done under the lease or
by virtue of the interest must be disregarded in relation
to an application by those people for determination that
they hold native title. However the applicants will still
need to show the existence of any connection with the area
concerned that may be required by the common law concept
of native title. Any determination that native title exists
is on the basis that the pastoral lease remains valid and
operative but the native title holders receive the benefit
of the protection of the Act (section 47).

The Tribunal and Court

To provide the most effective means of dealing with issues
of native title, the Act establishes a new body, the National
Native Title Tribunal (NNTT), and gives the Federal Court
jurisdiction in these matters.

Role of NNTT

The NNTT is established as a separate body (see Part 6
of the Act) to deal with uncontested claims to native title
and uncontested claims for compensation.

Applications will initially be made to the Native Title
Registrar (section 61). Section 63 provides that if various
requirements are met (in particular those in section 62),
the Registrar must accept an application for a native title
determination by persons claiming to hold the title unless
he or she is of the opinion that the application is frivolous
or vexatious or that prima facie a claim cannot be made
out. In this case, the application must be referred to
a presidential member, who must give the applicant an opportunity
to show that the application should be registered.

Where an application is accepted, the Registrar is obliged
to give notice to a range of persons (section 66).

The NNTT will seek to mediate contested claims, but if
this mediation is unsuccessful, the matter will be referred
to the Federal Court (section 74).

The NNTT will also be able to inquire into any issue in
relation to native title referred to it by the Commonwealth
Minister (section 137).

Where there is not a recognised State or Territory body,
the NNTT will also be the relevant arbitral body (see the
discussion of the future regime above) to determine whether
certain grants can proceed over native title land if negotiations
have not been successful.

The NNTT is composed of a President, and other presidential
members (who must be judges of the Federal Court or former
judges of any Commonwealth court or of a State or Territory
Supreme Court) and other members. The Act requires that
non-presidential members have special knowledge, particularly
in relation to Aboriginal or Torres Strait Islander societies,
land management or dispute resolution (section 110).

Mr Justice Robert French has been appointed as the first
President of the National Native Title Tribunal. His appointment
commences on 2 May 1994 and is for three years. Mr Justice
French, who has been a Judge of the Federal Court of Australia
since 1986, is based in Perth. The NNTT will, therefore,
be based in Perth with registries in all capital cities.
Justice Deirdre O'Connor, who has been Acting President
of the NNTT since January 1994, will continue in that role
until 2 May 1994.

Role of Federal Court

The Federal Court will hear contested claims for a determination
of native title or for compensation (section 81). The Court
will also hear appeals on questions of law from the NNTT
in relation to the right to negotiate, and from a decision
of a presidential member not to accept an application for
a determination of native title (section 169). The NNTT
may refer questions of law to the Federal Court (section

Determinations of the NNTT are to be registered with the
Federal Court (section 166(2)) and have the effect of an
order of the Court (section 167). Applications can be made
to the Court for a review of a registered determination
within 28 days (sections 167 and 168).


In determining claims for native title and compensation,
the Court may be assisted by an assessor (sections 83,
91, 93 and 218). As far as practicable, persons appointed
as assessors are to be selected from Aboriginal peoples
or Torres Strait Islanders (section 218).

Process of Federal Court and NNTT

The Federal Court and the NNTT are to provide a determination
mechanism that is fair, just, economical, informal, prompt
and which takes account of the cultural concerns of Aboriginal
peoples and Torres Strait Islanders (sections 82 and 109).
The Act sets out in detail how the NNTT will operate.


The Native Title Registrar (section 95) will be responsible
for the establishment and maintenance of the Register of
Native Title Claims (Part 7) and the National Native Title
Register (Part 8). The Registrar may delegate his or her
powers and duties in relation to these Registers to a recognised
State or Territory body (sections 191 and 198).

State and Territory Bodies

States and Territories may set up their own bodies to
hear native title claims and compensation claims. Where
those bodies comply with the criteria and standards set
out in the Act in section 251, the responsible Commonwealth
Minister will be able to recognise them. Native title claims
may be initiated in either a recognised State or Territory
body or the Federal system. The Commonwealth Minister may
also de-recognise such State/Territory bodies (section
251(4), (5) and (6)).


It will be important for those Commonwealth officers who
take actions in relation to land or waters to have regard
to Mabo (No. 2) and the Native Title Act.
In summary, the questions which need to be asked before
such actions are taken are as follows.

Does native title extend to the relevant area?

Native title will exist in accordance with the laws and
customs of indigenous people:

  • where those people have maintained their connection
    with the area; and
  • where their title has not been extinguished by acts
    of Imperial, Colonial, State, Territory or Commonwealth

Has native title in that area been extinguished?

Native title will have been extinguished by the grant
of private interests in land, in particular grants of freehold
or leasehold, at least to the extent that the latter provide
a right of exclusive occupancy or possession. Native title
may not have been extinguished by other lesser grants.
Appropriation by the Crown of land for use by itself will
have extinguished native title to the extent of any inconsistency
arising out of such use.

How can the continued existence of native title be

If the land has been the subject of a freehold or leasehold
grant, native title issues will generally not arise. If
there is a likelihood that native title does exist, an
application can be made to the Native Title Registrar for
a determination by the National Native Title Tribunal or
the Federal Court as to whether native title exists. If
upon notification of such an application no claim to native
title is made, the Native Title Act provides that any act
can be done in relation to the area.

If native title does extend to the area, what actions
can governments take which may affect native title rights?

Where native title does exist, whether a particular action
can be taken which will affect or impair those rights will
depend on a number of circumstances.

  • If the proposed act is in relation to land, the act
    can be done and can affect native title rights if the
    same act could be done over freehold land.
  • If the act is in relation to onshore waters, the act
    can be done and can affect native title rights if the
    same act could be done over waters where the adjoining
    land is freehold.
  • If the act is in relation to an offshore place, the
    act can generally be done.

In each case the native title holders may be entitled
to procedural rights (either those generally available
or the special right to negotiate provided by the Native
Title Act) and compensation.

This Briefing is based on material from commentary in
the new book Native Title which was launched by
the Attorney-General, Michael Lavarch, on 2 February 1994.
As well as a full commentary the book contains the Native
Title Act 1993 and the National Native Title Tribunal
Regulations. The work reproduces the Second Reading
Speech and has a full index to the Act and Regulations
also prepared by the Attorney-General's Legal Practice.
The book is available through Commonwealth Government Bookshops
and all AGPS outlets (order form enclosed).

ISSN 1448-4803 (Print)
ISSN 2204-6283 (Online)

The material in this briefing is provided
for general information only and should not be relied
upon for the purpose of a particular matter. Please contact
the Legal Practice before any action or decision is taken
on the basis of any of the material in this briefing.

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