What is Native title?

Native title describes the rights and interests of Aboriginal and Torres Strait Islander people in land and waters, according to their traditional laws and customs. In Australia, Aboriginal and Torres Strait Islander peoples' rights and interests in land were recognised in 1992 when the High Court delivered its historic judgment in the case of Mabo v the State of Queensland.

This decision overturned the legal fiction that Australia upon colonisation was terra nullius (land belonging to no-one). It recognised for the first time that Indigenous Australians continue to hold native title.

The Commonwealth Government responded to the historic Mabo v Queensland decision in 1992 with the Native Title Act 1993 (NTA).

Under the NTA, Traditional Owners can lodge a claim with the Federal Court to have their native title rights determined. Where the claim is over Crown land in Victoria, the respondent will be the Victorian State Government.

The Victorian State Government's role in native title claims is led by the Department of Justice. DELWP provides input into this process as the Crown land manager, including conducting tenure assessments to determine where native title exists on Crown land.

In addition, as the Crown land manager, we are responsible for ensuring that any activities which occur on Crown land comply with the provisions of the future act regime of the Native Title Act 1993 (Cth)

Native title determinations in Victoria

To date, four native title claims have been determined in Victoria.

Three claims resulted in the recognition of native title by agreement via a consent determination in the Federal Court.

The relevant determinations are:

  • Gunaikurnai People (October 2010)
  • Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Yupagalk Peoples (known as the 'Wimmera' claim) (2005)
  • Gunditjmara People (2007)

In the Yorta Yorta claim, native title was determined not to exist by the Federal Court in a litigated determination in 2003.

Read about Agreements with Traditional Owner groups.

National Native Title Tribunal

The National Native Title Tribunal website provides information about the Tribunal, future act processes, indigenous land use agreements, mediation and other information regarding native title and the Native Title Act 1993. The site also enables you to search for applications as well as maps and area descriptions.

The NNTT provides assistance and information to resolve native title issues over land and waters to all people involved in the native title process. Set up under the Native Title Act, the Tribunal is a federal government agency and is part of the Attorney-General's portfolio.

Traditional Owner Settlement Act 2010

Victoria has introduced a new alternative system for resolving native title claims under the Traditional Owner Settlement Act 2010.

Managing Crown Land - Native title extinguishment

Native Title describes the rights and interests of Aboriginal and Torres Strait Island people in land and waters, according to their traditional laws and customs. Native title may exist in areas such as:

  • vacant (or unallocated) Crown land
  • parks and public reserves
  • beaches
  • some types of pastoral leases
  • land held by government agencies
  • land held for Aboriginal communities
  • oceans, seas, reefs, lakes, rivers, creeks and other waters that are not privately owned.

However, Native Title can be extinguished or impaired when holders of native title are not able to fully exercise their traditional rights in an area.

Most loss or impairment of native title is a result of government action in granting interests in Crown land in ways that exclude indigenous people from having co-existent rights to the land or waters.

Ways Native title can be extinguished

Grant of a Freehold Estate

The grant of a freehold estate before 23 December 1996 will extinguish native title. Exceptions are:

  • Crown to Crown grants after 31 October 1975
  • Grants to or for the benefit of Aboriginal peoples
  • Where the Grant occurred under legislation
  • Grants in the period between 1 January 1994 and 23 December 1996, when special rules apply

Vesting of Land or Waters

If, under State legislation enacted prior to 23 December 1996, land or waters were vested in any person, (including trustees or Authorities), and the vesting extended a right of exclusive possession, then the vesting can be considered to be a freehold grant that will have extinguished native title. Exceptions are:

  • Crown to Crown vestings after 31 October 1975
  • Vesting for the benefit of Aboriginal Peoples
  • Vesting occurred under legislation

Scheduled Interests

Schedule 1, Part 2 of the Native Title Act (Cth) 1993, lists various legislative provisions from Victorian Acts of Parliament dating from 1862 which relate to leasing and other tenancy of Crown land.

If an area of Crown land has, at any time prior to 23 December 1996, been the subject of any one of these Scheduled interests, native title will have been completely extinguished to the extent of the area of land over which the lease or tenancy is issued. Exceptions are:

  • Crown to Crown grants
  • Grants to or for the benefit of Aboriginal peoples

Other leases not listed as Scheduled Interests

If a commercial lease (that is not an agricultural lease or pastoral lease), residential lease, community purpose lease or any other lease that provided exclusive use existed prior to 1 January 1994, native title is completely extinguished over the lease area. Exceptions are:

  • Mining Leases

Public Works

A public work includes buildings and other structural fixtures, roads, railways, bridges, wells and bores and any major earthworks that are constructed by or on behalf of the Crown, local government authority or other statutory authority of the Crown.

The authorised construction of such work on Crown land prior to 1 January 1994 will have completely extinguished native title over the land on which the public work is situated. Further, native title over any adjacent land or waters necessary for, or incidental to, the construction or establishment or operation of the work will also be extinguished.

Extinguishment will also have occurred over land on which the public work is situated in the case of a public work completed after 1 January 1994, provided that the construction of the public work commenced prior to 1 January 1994.

Indigenous Land Use Agreements

Indigenous Land Use Agreements (ILUAs) can provide for native title to be extinguished.

Future Acts

A future act is any activity that affects native title that occurs on Crown land after 1 January 1994.

Extinguishment will occur as a result of future activities where the non-extinguishment principle does not apply such as:

  • under a registered Indigenous Land Use Agreement (ILUA)
  • the grant of freehold estate or a right of exclusive possession
  • the construction of a public work
  • compulsory acquisition or surrender of native title rights and interests.