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Native title

We provide the government with legal and legal-policy advice on native title. We also assist the Attorney-General to administer the Native Title Act 1993.

In 1992, the High Court of Australia handed down its decision in Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (3 June 1992) [Mabo (No. 2)]. The court recognised that the Meriam people of the Torres Strait held native title over part of their traditional lands. The court found that the common law of Australia recognises rights and interests to land held by indigenous people under their traditional laws and customs.

The source of native title rights and interests is the traditional laws and customs of the native title holders. This means that the nature of native title rights and interests varies from community to community.

Following the decision in Mabo No.2, the government enacted the Native Title Act 1993, which commenced on 1 January 1994. The Act has a number of functions. It creates processes through which native title can be recognised and protected.

Native Title Legislation Amendment Act 2021

On 16 February 2021, the Native Title Legislation Amendment Act 2021 (the Amendment Act) received the Royal Assent. The amendment Act amends the Native Title Act 1993 and the Corporations (Aboriginal and Torres Strait Islander) Act 2006 to improve native title claims resolution, agreement-making, Indigenous decision-making and dispute resolution processes. It also confirms the validity of section 31 agreements following the decision in McGlade v Native Title Registrar & Ors [2017] FCAFC 10 (McGlade).

The measurements in the Amendment Act commence at different times.

Schedule 9 of the Amendment Act, which includes the validation of section 31 agreements, commenced on 17 February 2021. To allow for changes to be made to subordinate legislation (regulations), most of the measures in the Amendment Act commenced by Proclamation on 25 March 2021. The remaining provisions, which allow the applicant to act by majority as the default position, and which allow the claim group to put in place succession planning arrangements for members of the applicant, will start on 25 September 2021.

Native title and land rights

There are fundamental differences between land rights and native title. Land rights are rights created by the Australian, state or territory governments. Land rights usually comprise a grant of freehold or perpetual lease title to Indigenous Australians.

By contrast, native title arises as a result of the recognition, under Australian common law, of pre-existing Indigenous rights and interests according to traditional laws and customs. Native title is not a grant or right created by governments.

Native title respondents

This department provides assistance to respondents involved in native title claims under section 213A of the Native Title Act 1993. More information can be found on the respondent funding page.

Native title representative bodies and prescribed bodies corporate

The parts of the Native Title Act 1993 relating to native title representative bodies and prescribed bodies corporate are administered by the Minister for Indigenous Affairs.

For more information, visit the National Indigenous Australians Agency website.​​​

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Legislation