What native title means for Queensland
Aboriginal peoples and Torres Strait Islander peoples have rights to lands and waters that come from their traditional lores and customs that predate European settlement. These rights became known as ‘native title’.
The recognition and exercise of native title rights in Australian law is administered through the Native Title Act 1993 (Cth).
Exclusive and non-exclusive native title
How native title impacts land in Queensland depends on the type of native title that’s granted: non-exclusive or exclusive.
Non-exclusive native title can include, for example, the right to:
- live and camp on an area
- light fires for personal or domestic use
- hunt and fish.
These non-exclusive native title rights co-exist with the rights of other land users.
Exclusive native title is the right to control or prevent access by other land users. However, it’s not the same as land ownership.
Most of the time, exclusive native title is recognised over state land that’s not being used for a public purpose. This means the state remains the owner of the land, and Aboriginal peoples or Torres Strait Islander peoples with native title can exercise their native title rights and interests on this land.
The benefits and challenges of making a claim
Native title holders don’t receive material benefits from the government when a native title determination is made. Instead, native title recognises rights that have always been held through traditional lores and customs. A native title determination recognises that these rights existed before Europeans arrived and continue to exist today.
Native title claims can be a difficult process for Aboriginal peoples and Torres Strait Islander peoples and may involve experiences of profound loss and trauma. Often, past government acts like land clearing and building public infrastructure cancelled out (extinguished) native title on state land. This means that Aboriginal peoples and Torres Strait Islander peoples are not able to have their rights and interests recognised over all areas within their traditional country.
What changes (or doesn’t) once native title is determined?
Costs
Financial outcomes
A native title determination recognises native title rights and interests over areas of land. This recognition does not involve a financial settlement.
Legal fees
Whenever possible, we try to resolve native title applications through a process of negotiation called a ‘consent determination’. This approach prioritises relationship building, and tries to avoid the need for any disputes to be resolved by the Federal Court, which can be a costly and time-consuming approach for all involved.
The Queensland Government does not fund native title claims. Commonwealth funding through the National Indigenous Australians Agency (NIAA) is available to Aboriginal and Torres Strait Islander groups that wish to pursue a claim. Native title representative bodies can provide information on how to apply for this funding.
Compensation
In many instances, native title was cancelled out (extinguished) by past acts of government, such as:
- clearing land
- building public infrastructure
- granting freehold tenure for private property.
In these cases, Traditional Owners can lodge a compensation claim. This compensation does involve a financial settlement.