8.14 The Native Title Act contains a number of provisions relevant to the nature and content of native title rights and interests in an application for a determination of native title. These general provisions for recognising native title are the ones which also determine whether native title includes commercial native title rights and interests. An overview of the statutory provisions and relevant case law therefore is provided before discussing Recommendation 8–1, which references that law.
8.15 In commencing an application for a determination of native title, the applicant must file an affidavit which includes ‘a description of the native title rights and interests claimed in relation to particular land or waters (including any activities in exercise of those rights and interests)’. A broad description of the rights and interests is generally sufficient.
8.16 Section 223 is the key provision. Section 223(1)—which is discussed in Chapter 4—defines ‘native title’ and ‘native title rights and interests’. Section 223(1) provides that
(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.
8.17 Section 223(1) is the substantive provision, with s 223(2) providing a non-exhaustive list of native title rights and interests:
Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.
8.18 Section 223(2) was enacted to provide ‘an example of the type of rights and interests that might comprise native title’. Accordingly, native title rights and interests may include, but are not limited to, fishing, hunting or gathering rights and interests.
8.19 Section 225 defines a ‘determination of native title’ and relevantly requires the listing of the nature and extent of the native title rights and interests found to exist in relation to the determination area.
8.20 As well as the substantive provisions for establishing native title, s 211 operates so that certain activities by native title holders—that would otherwise be contrary to a law of the Commonwealth, state or territory—are not prohibited or restricted.
Note that other provisions not discussed will be relevant.
Native Title Act 1993 (Cth) s 62(2)(d). See also Ibid s 62(2)(e), (f).
Strickland v Native Title Registrar (1999) 168 ALR 242, .
Explanatory Memorandum, Native Title Bill 1993 (Cth), Part B, 77 (s 223 was originally numbered s 208 in the Bill).
Native Title Act 1993 (Cth) s 225(b).