21.10.2014
3.6 The Native Title Act has been in force for 21 years. During that time there have been 301 native title determinations. Of these, 229 were by consent, 36 were litigated, and 36 were unopposed.[3] There have been 96 determinations that native title exists in the entire determination area, 146 determinations that native title exists in part of the determination area, and 59 determinations that native title does not exist in the determination area.[4] The 59 determinations of no native title include the 43 unopposed (non-claimant) determinations. There have been only 13 determinations of no native title made in response to a claimant application.
3.7 The following map and Table 1 show the area of Australia subject to determinations of native title and registered claims for native title. Professor Jon Altman reports that a further 13% of Australia is land claimed under land rights legislation.[5]
Table 1. (Map and data in Table 1 provided by the National Native Title Tribunal and used with permission.)
Jurisdiction | Determinations | Area subject to a registered claim | ||
Native title found to exist | Native title found not to exist | Land | Sea | |
ACT | – | – | – | – |
Cth | 20,407.8 | 14,300.1 | – | 67,466.16 |
NSW | 1,790.2 | 868.8 | 373,121.82 | 494.84 |
NT | 183,150.9 | 964.1 | 205,924.32 | 3,145.18 |
QLD | 317,568.3 | 11,893.2 | 815,152.11 | 35,670.79 |
SA | 390,076.9 | 13,626.7 | 280,031.20 | 13,609.38 |
Tas | – | – | – | – |
Vic | 15,164.7 | 11,023.9 | 24,271.28 | 27.25 |
WA | 1,018,595.6 | 55,409.6 | 1,098,637.50 | 40,454.27 |
TOTAL | 1,946,754.3 | 108, 086.4 | 2,797,138.22 | 160,867.87 |
3.8 Only 46 determinations occurred during the first 11 years of the Act’s operation, and 12 of those were non-claimant applications.[6] As the graph and Table 2 below indicate, from 2004 the number of determinations per year moved from single digits to double digits, and from 2011 the number rose significantly again.
Table 2
Year | Native Title Determinations | Year | Native Title Determinations |
1997 | 2 | 2006 | 13 |
1998 | 4 | 2007 | 16 |
1999 | 2 | 2008 | 9 |
2000 | 12 | 2009 | 14 |
2001 | 14 | 2010 | 13 |
2002 | 8 | 2011 | 35 |
2003 | 4 | 2012 | 46 |
2004 | 16 | 2013 | 44 |
2005 | 17 | 2014 | 31* |
3.9 There are currently 419 native title applications lodged with the Federal Court: 396 claimant applications, 18 non-claimant applications and five compensation applications. There are 285 registered applications. It is expected that many compensation applications will be filed in the future.[7]
3.10 The native title process in each state and territory is affected by the history of the jurisdiction’s land rights arrangements. The next section of this chapter briefly outlines the way each jurisdiction has dealt with the question of Aboriginal and Torres Strait Islander rights to land.
New South Wales
3.11 Under the Aboriginal Land Rights Act 1983 (NSW) (ALRA), vacant Crown land can be claimed by land councils on behalf of Aboriginal people. The ALRA also established the Statutory Investment Fund. For 15 years, from 1984 until 1998, an amount equivalent to 7.5% of NSW Land Tax (on non-residential land) was paid to NSW Aboriginal Land Council as compensation for land lost by the Aboriginal people of NSW. This fund is used for both administration and land purchase, and the Aboriginal Land Council and the land council network has been self supporting since 1998.[8]
3.12 If a land council wishes to sell land, it must get a determination under the Native Title Act that there is no native title in the land.[9] There have been 39 non-claimant determinations that native title does not exist in NSW, and only five positive determinations, including the first determination of native title under the Native Title Act, Buck v New South Wales (Dunghutti People).[10] There are 21 registered claims.[11]
Queensland
3.13 Under the Aboriginal Land Act 1991 (Qld) and the Torres Strait Islander Land Act 1991 (Qld), land that had been reserved for Aboriginal people could be transferred to Aboriginal people as trustees to hold the land for the benefit of Aboriginal and Torres Strait Islander people. The Acts also made provision for claims to be heard by a Land Tribunal which could make recommendations to the Minister. According to the Queensland Government, 4.5 million hectares of land has been transferred under these Acts.[12]
3.14 The Queensland Government considers that ‘native title is arguably at its most complex in Queensland’, because of the history of removals of traditional owners from their lands and the decentralised nature of development in that state.[13]
3.15 Despite this complexity, there have been more than 100 successful determinations of native title in Queensland. There are a further 66 registered applications, with further applications under preparation.[14]
South Australia
3.16 In 1966, South Australia was the first state to transfer control of land reserved for Aboriginal people to a body controlled by Aboriginal people: the Aboriginal Lands Trust.[15] Land rights were also acknowledged in the Pitjantjatjara Land Rights Act 1981 (SA) and the Maralinga Tjarutja Land Rights Act 1984 (SA).
3.17 There have only been two contested native title hearings in South Australia, and since 2004 the state has had a policy of ‘resolving claims by consent wherever possible’.[16] There have been 20 consent determinations that native title exists and there are a further 16 registered claims.[17]
3.18 As in most jurisdictions, overlapping claims have been a significant issue in South Australia. In around 2005 ‘a combined effort by South Australian Native Title Services and the National Native Title Tribunal managed to resolve almost all overlaps that then existed between claims, meaning attention could be focussed on settlements’.[18] However, in recent years there have been more overlapping claims and more intra-Indigenous disputes.[19]
Tasmania
3.19 The Aboriginal Lands Act 1995 (Tas) did not establish a claims process, but vested 12 areas, listed in the schedule, in the Aboriginal Land Council of Tasmania to be held on trust for the benefit of Aboriginal people.
3.20 There have been no determinations of native title in Tasmania and there are no registered claims.[20]
Victoria
3.21 There was no claims procedure for land rights in Victoria before the Native Title Act, but land was transferred on an ad hoc basis under six separate Acts.[21] The Traditional Owner Settlement Act 2010 (Vic) (TOSA) provides for ‘a recognition and settlement agreement between the State and a traditional owner group entity for an area of public land’.[22] TOSA is discussed further below.
3.22 The Victorian Department of Justice reports that ‘the claimable Crown land estate comprises roughly one third of the State’s land area’, and ‘native title has been settled over approximately 40% of that area, by way of a positive or negative native title determination and/or a Traditional Owner Settlement Act settlement’.[23] There have been four determinations that native title exists in Victoria, and three that it does not exist. There are currently only two registered claims in Victoria.[24]
Western Australia
3.23 The Aborigines Act 1889 (WA) empowered the Governor to reserve Crown lands for Aboriginal people. By 1947, 15 million hectares had been set aside.[25] The Aboriginal Lands Trust now holds 27 million hectares of reserved land, but title remains in the Crown. It is intended that ‘the control and management or ownership of all the land held by the Trust will be handed back to Aboriginal people’.[26] There was no provision for land claims in Western Australia before the Native Title Act.
3.24 The Western Australian Government reports that ‘the impact of the Native Title Act, including native title claims, determinations, future acts, and compensation liabilities is greater in Western Australia than any other jurisdiction in Australia’.[27] There have been 45 determinations that native title exists in at least part of the determination area, including 35 consent determinations.[28] There is a continuing trend towards determinations by consent, with five consent determinations and one litigated determination so far in 2013–14. The Government expects a further 11 consent determinations in 2014–15. It has made a final offer in an effort to settle six claims in the south west of the state, via the Noongar Native Title Settlement.[29]
3.25 There are 81 registered claims in Western Australia,[30] and research is currently being undertaken with the purpose of lodging native title claims in the future.[31]
Australian Capital Territory
3.26 The Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) vested land in the Jervis Bay area in the Wreck Bay Aboriginal Community Council.
3.27 There have been no determinations of native title in the Australian Capital Territory, and there are no registered claims.[32]
Northern Territory
3.28 Approximately 47% of land in the Northern Territory is Aboriginal freehold under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). Pastoral leases cover 45% of the Territory, and a further five percent of the Territory is also available for claim under the Native Title Act.[33]
3.29 There have been 242 determinations of native title in the Northern Territory, and there are a further 100 registered claims.[34]
3.30 The Northern Territory Government has indicated that, ‘having litigated a number of test cases to clarify the operation of various provisions of the Native Title Act’, it now seeks to achieve negotiated resolutions of native title claims.[35] The Territory has set out Minimum Connection Material Requirements for Consent Determinations which streamline the resolution of claims.
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[3]
National Native Title Tribunal, Statistics <http://www.nntt.gov.au/Pages/Statistics.aspx>. All of the unopposed determinations were non-claimant applications, and most of them were made by Aboriginal land councils in NSW where a finding of no native title is necessary for an Aboriginal land council to sell land: Aboriginal Land Rights Act 1983 (NSW) s 42.
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[4]
National Native Title Tribunal, Statistics, above n 3.
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[5]
J Altman, Submission 27.
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[6]
National Native Title Tribunal, National Native Title Register, above n 2.
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[7]
AIATSIS, Submission 36; Northern Territory Government, Submission 31.
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[8]
NSW Aboriginal Land Council, Our Organisation <http://www.alc.org.au>.
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[9]
Aboriginal Land Rights Act 1983 (NSW) s 42.
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[10]
National Native Title Tribunal, National Native Title Register, above n 2.
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[11]
Ibid.
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[12]
Department of Natural Resources and Mines, Land Transfers <http://www.dnrm.qld.gov.au/land/indigenous-land/land-transfers>.
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[13]
Queensland Government Department of Natural Resources and Mines, Submission 28.
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[14]
See, eg, Cape York Land Council, Submission 7.
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[15]
Thomson Reuters, The Laws of Australia, (at 15 June 1997) 1. Aborigines and Torres Strait Islanders ‘1.3 Land Law’ [1.3.359]; Aboriginal Lands Trust Act 1966 (SA).
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[16]
South Australian Government, Submission 34.
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[17]
National Native Title Tribunal, National Native Title Register, above n 2.
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[18]
South Australian Government, Submission 34.
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[19]
Ibid.
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[20]
National Native Title Tribunal, National Native Title Register, above n 2.
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[21]
Thomson Reuters, The Laws of Australia, (at 1 April 1997) 1. Aborigines and Torres Strait Islanders ‘1.3 Land Law’ [1.3.412].
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[22]
Explanatory Memorandum, Traditional Owner Settlement Bill 2010 (Vic).
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[23]
Department of Justice, Victoria, Submission 15.
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[24]
National Native Title Tribunal, National Native Title Register, above n 2.
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[25]
Thomson Reuters, The Laws of Australia, (at 1 September 1997) 1 Aborigines and Torres Strait Islanders, ‘1.3 Land Law’ [1.3.310] 2014.
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[26]
Department of Aboriginal Affairs, WA, What Land Does the Aboriginal Lands Trust (ALT) Hold for Aboriginal People ? (19 September 2014) <http://www.daa.wa.gov.au>.
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[27]
Western Australian Government, Submission 20.
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[28]
National Native Title Tribunal, National Native Title Register, above n 2.
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[29]
Western Australian Government, Submission 20.
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[30]
National Native Title Tribunal, National Native Title Register, above n 2.
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[31]
See, eg, Central Desert Native Title Services, Claims—Unclaimed Areas <http://www.centraldesert.org.au>.
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[32]
National Native Title Tribunal, National Native Title Register, above n 2.
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[33]
Northern Territory Government, Submission 31.
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[34]
National Native Title Tribunal, National Native Title Register, above n 2.
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[35]
Northern Territory Government, Submission 31.