The Native Title Act (1993) (NTA) is a Commonwealth Act that applies to all states and territories, however, each jurisdiction manages the native title process in a slightly different way, informed by its state and territory specific legislation, policies and history.
New South Wales (NSW)
With much of NSW subject to extinguishing tenures, there are limited areas where native title can be claimed and there have only been eight determinations recognising the continuing existence of native title in NSW.
Separate to the Native Title Act, a significant number of land claims in NSW are made under the Aboriginal Land Rights Act 1983 (NSW) (ALRA). The ALRA allows certain Crown land to be returned to Aboriginal peoples as compensation for historical dispossession and ongoing disadvantage. Under the ALRA, land can be claimed by Aboriginal Land Councils and, if they wish to convert it to freehold or sell it, they must obtain a determination under the Native Title Act that native title does not exist. To achieve this, a non-claimant application is made by the Land Council.
Due to the interaction between the ALRA and the Native Title Act, significantly more non-claimant applications are made in contrast to other jurisdictions.
Millions of hectares of land have been transferred to Aboriginal people in Queensland under the Aboriginal Land Act 1991 (Qld) and the Torres Strait Islander Land Act 1991 (Qld). Aboriginal land held under these acts can co-exist with native title, but can also exist in areas where native title has previously been extinguished.
There have also been over 100 determinations made under the Native Title Act that native title exists in parts of Queensland and the Torres Strait.
As a state rich in minerals, there is a lot of future act activity in Queensland’s resource sector. Parties are encouraged to negotiate Indigenous Land Use Agreements to facilitate future acts, rather than enter into the future act arbitral processes.
South Australia led the country in recognising Indigenous rights to land. In 1966 the South Australian government transferred land reserved for Aboriginal people into an Aboriginal Lands Trust to be controlled by Aboriginal people. The Trust now holds 64 properties incorporating 500,000 hectares of land. Other beneficial legislation included the Anangu Pitjantjatjara Land Rights Act 1981 (SA) and the Maralinga Tjarutja Land Rights Act 1984 (SA).
The state’s approach to resolving native title is to resolve claims by consent wherever possible. Consequently, of the 27 determined native tile claims made in South Australia, 25 have been made by consent. South Australia is unique in that it is the only state to successfully establish an alternative arbitral body for Future Acts and does not rely on the National Native Title Tribunal for arbitral decisions.
Prior to the establishment of the Native Title Act, Victoria recognised Aboriginal land rights through a series of specific legislations: the Aboriginal Lands Act 1970, Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987, Aboriginal (Northcote Land) Act 1989, Aboriginal Lands Act 1991, Aboriginal Land (Manatunga Land) Act 1992.
Many land claims in Victoria are resolved under the Traditional Owner Settlement Act 2010 (Vic) (TOSA), which provides for an out-of-court settlement of native title over Crown Land. The TOSA was introduced in acknowledgement of the difficulties Victorian claimants were likely to experience when attempting to claim under the NTA.
The High Court’s decision in the Yorta Yorta matter in 2002 had determined that the impact of settlement and dislocation resulted in widespread loss of traditional law and custom. The TOSA allows the Victorian Government to enter into an agreement with traditional owners recognising certain rights in Crown land. The traditional owners must agree to withdraw any native title claim, pursuant to the Native Title Act and not to make any future native title claims.
Despite the difficulties in claiming native title, four determinations have found that native title exists over 14,899 square kilometres of land in Victoria. Native title has now been settled over approximately 40 per cent of the claimable Crown land Estate.
Western Australia (WA)
WA is the only state that has no Aboriginal Land Rights legislation. One alternative mechanism for Aboriginal people to gain access to Aboriginal lands is through the Aboriginal Lands Trust (ALT). The ALT holds in excess of 27 million hectares of land reserved for Aboriginal people in WA, much of which was reserved for the use and benefit of Aboriginal people under the Aborigines Act 1889 (WA). While ALT land does not diminish native title rights, the future act regime of the NTA does not apply and ILUAs cannot be negotiated solely over ALT land.
With no provision for settling land claims in existence prior to 1993, the WA government relies exclusively on the Native Title Act. Native title determinations have been made over more than 30 per cent of the state, the majority by consent.
WA is also a mineral rich state, however unlike Queensland, WA relies heavily on the NNTT’s arbitral functions to facilitate future acts.
Almost 50 per cent of the Northern Territory is held as Aboriginal freehold under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), with much of the remainder of the Territory claimable under the Native Title Act. Of the 99 native title determinations made in the Northern Territory, 88 have been made by consent. Native tile has been found to exist over 253,886 square kilometres.
There have been five native title determination applications filed in the Australian Capital Territory, however each of these have been either dismissed, rejected or withdrawn and none are currently on foot. Some land in the Jervis Bay area has been vested in the Wreck Bay Aboriginal Community Council under the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth).
In 1995 after many years of lobbying, the Aboriginal Lands Act 1995 acknowledged the dispossession of Aboriginal people and enabled the return of lands significant to the Aboriginal community, to be held in trust by the Aboriginal Land Council of Tasmania. There have been no native title determinations in Tasmania and there are no current native title determination applications under the NTA.
University of Tasmania, Centre for Historical Studies, A Alexander (ed), ‘The Companion to Tasmanian History’.
Australian Law Reform Commission
Cape York Land Council
New South Wales Aboriginal Land Council, ‘Land Rights and Native Title in NSW – A guide for the Community’, July 2014
Victorian State Government, Justice and Regulation, Traditional Owner Settlement Act 2010.