What is Native Title?

Native title according to the Native Title Act 1993 (Cwlth) Section 223

Native title

Common law rights and interests

1.The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

a.      the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

b.     the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

c.      the rights and interests are recognised by the common law of Australia.

Native title may exist on:

·       Unallocated (vacant) state land

·       Some state forests, national parks and public reserves, depending on the effect of state legislation establishing those parks and reserves

·       Beaches, oceans, seas, reefs, lakes, rivers, creeks, swamps and other inland waters that are not privately owned

·       Some leases, such as non-exclusive pastoral and agricultural leases, depending on the state legislation they were issued under, and;

·       Some land held by or for Aboriginal people or Torres Strait Islanders.

 

Native title has been wholly extinguished on areas such as:

·       Privately owned freehold land (including family homes and privately owned freehold farms)

·       Pastoral or agricultural leases that grant exclusive possession

·       Residential, commercial, community purpose leases and certain other leases, and◦In areas where governments have built roads, airports, railways, schools and other public works on or before 23 December 1996.

Other types of Aboriginal Land

Aboriginal Land Act (Qld) 1991

The Aboriginal Land Act 1991 provides for the transfer or grant of freehold title to land to a community of indigenous people to hold on trust for the community.  Aboriginal land held under the Aboriginal Land Act can co-exist with native title, but can also exist in areas where native title has previously been extinguished.

Deeds of Grant in Trust (DOGIT)

Many areas through Cape York Peninsula are the subject of deeds of grant in trust under the Land Act 1994 (Qld).  These areas are freehold reserves, held in trust for Aboriginal people, usually by the local council.   Increasingly these DOGIT areas are being transferred to traditional owner groups under the Aboriginal Land Act.

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