After the determination: rights and responsibilities

Exclusive rights – what does it mean?

Native title recognises that Aboriginal peoples and Torres Strait Islander peoples had pre-existing rights and interests according to traditional lores and customs. There are two types of native title that can be recognised:

• non-exclusive native title
• exclusive native title.

Non-exclusive rights mean that these rights coexist with the rights of other land users (for example, farmers who have a pastoral lease).

Exclusive native title means that native title holders can exercise their native title rights and interests ‘to the exclusion of all others’. This means that other land users must seek the appropriate permission from native title holders to access or use the area.

Exclusive rights don’t equal full legal ownership of land or waters, and you can’t sell the land.

Using lands and waters

Many native title determinations will recognise all, or most, of the following non-exclusive rights:

• accessing, using and remaining in areas in traditional Country
• maintaining and protecting sites
• hunting and gathering resources
• camping or erecting shelters on Country
• burying on Country
• holding meetings and performing ceremonies on Country
• teaching law and custom.

Development, minerals and other resources

Native title is not the same as private land ownership, and native title holders don’t have a 'veto' over mining and development the way that private freehold land ownership can.

However, native title holders have a right to negotiate with industry over any mining or other projects proposed on the land. These negotiations can cover:

• exploration
• mining
• royalties and other financial arrangements
• terms and conditions for how the land is used for development, and plans for the land’s recovery once the project is complete.

Compensation

You’re entitled to compensation for activities that impact native title and your ability to exercise your related rights and interests - for example, if a road is built or power lines are placed over your native title land.

Many of these acts may have taken place in the past. You can claim for compensation for any state government act since 1975 that negatively impacted your native title rights and interests.

Because compensation can cover many acts, and go back many years, the process can be complex. However, we’re committed to ongoing negotiation through our native title compensation settlement framework. Find out more about your options for compensation.

Commercial rights

First Nations people were the first traders in resources and material artefacts across the Australian continent and with neighbouring nations. Traditional laws and customs may set out:

• who had rights and interests in an area
• who could take resources for personal use or trade.

Some native title determinations have recognised commercial rights as a modern interpretation of these rights and interests in resources for trade.

Government access to land

Native title can be recognised over unallocated state land, including as exclusive native title, where native title holders can prevent other land users from accessing and using the area without permission.

However, there are limited circumstances where the state and other businesses (like companies that manage energy and water infrastructure) will need access for land management and risk management activities. The state will need to get permission from the Traditional Owners to enter your Country, and will need to follow any cultural protocols while on the land. The activities they could ask to carry out include:

• carrying out surveying, or other actions necessary to effect an interest in the land
• maintaining any equipment, structures, etc
• clearing vegetation
• inspecting the condition of the land and how it’s being used
• controlling pests, weeds and wildlife
• conducting activities to prevent a hazard (for example, fire management)
• protecting the land against intruders
• removing abandoned property
• taking samples of or from anything on the land.

Contact Indigenous Land Operations for more information.