Relevant provisions in the Native Title Act

8.9          Within the Native Title Act there are 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.^[5]

8.10       Under s 62(2) a claimant application must be accompanied by an affidavit sworn by the applicant. It must include, inter alia:

• ‘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)’,^[6] and
• ‘a general description of the factual basis on which it is asserted that the native title rights and interests claimed exist’.^[7]

8.11       Section 223 is the key provision. Section 223(1)—which is discussed in Chapter 4—defines ‘native title’ and ‘native title rights and interests’. Importantly, native title is variable:

Native title is not treated by the common law as a unitary concept. The heterogeneous laws and customs of Australia’s indigenous peoples, the Aboriginals and Torres Strait Islanders, provide its content. It is the relationship between a community of indigenous people and the land, defined by reference to that community’s traditional laws and customs, which is the bridgehead to the common law.^[8]

8.12       Section 223(1) is the substantive provision, with s 223(2), providing a non-exhaustive list of native title rights and interests. Section 223(2) currently states that,

Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.

8.13       Section 223(2) was enacted to provide ‘an example of the type of rights and interests that might comprise native title’.^[9] Melissa Perry and Stephen Lloyd suggest:

As a result of the express recognition of such rights in s 223(2), it is not open to contend that native title rights and interests cannot comprise fishing, hunting or gathering rights and interests.^[10]

8.14       On this view, s 223(2) confirms that the specified purposes are native title rights and interests.

8.15       Section 225 defines a ‘determination of native title’ and requires the listing of the native title rights and interests found to exist. Relevantly, s 225(b) provides:

A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land and waters and, if it does exist, a determination of:

…

(b) the nature and extent of the native title rights and interests in relation to the determination area.

8.16       As well as the substantive provisions for establishing native title, s 211 of the Act provides a ‘savings provision’ giving limited protection of native title rights to hunt, gather, fish and engage in cultural or spiritual activities.^[11] The ‘protection’ is in respect of licensing and similar government regulation, not in terms of the grant of third party interests or development activities.^[12] Section 211(2) provides:

the law does not prohibit or restrict the native title holders^[13] from carrying on the class of activity, or from gaining access to the land or waters for the purpose of carrying on the class of activity, where they do so:

(a)        for the purpose of satisfying their personal, domestic or non-commercial communal needs; and

(b)       in exercise or enjoyment of their native title rights and interests.^[14]

8.17       Section 211(1) sets out the conditions necessary to activate s 211(2).^[15]

8.18       In effect, s 211 has provided a defence to prosecution for charges involving:

• the ‘taking’ of juvenile estuarine crocodiles—by way of hunting with a traditional form of harpoon—for food, where it was a traditional custom of the relevant native title holders to hunt such crocodiles for food;^[16] and
• possessing a quantity of undersized abalone, where the abalone were taken in accordance with the traditional laws and customs of the relevant native title holders.^[17]