FAQs
1. What rights does Native Title protect?
A significant feature of native title is that it does not give traditional owners rights and interests in land, rather it protects and recognises rights and interests that traditional owners already have through traditional law and custom. As such there is not a category of rights which native title law can protect, it is dependent on the rights and interests which are claimed in an application for native title recognition.Some examples of rights and interests which have been claimed and protected are set out below.
- The right to access certain land
- The right to camp on certain land
- The right to live on certain land
- The right to hunt
- The right to gather and use vegetation
- The right to perform burials
- The right to speak for country
2. What is an Indigenous Land Use Agreement?
An Indigenous Land Use Agreement (ILUA) is a negotiated agreement between native title groups and other parties about the use and management of land and waters in a certain area. The importance of an ILUA being a negotiated agreement is that it can be made in conjunction with, as part of, or in lieu of a claimant application for native title in the Federal Court. ILUAs may be made about matters such as mining development, sharing Crown land (such as national parks), and exercising native title rights and interests.An ILUA is designed as a flexible means to allow parties to reach an agreement that is tailored to their needs and circumstances. An ILUA may provide benefits such as employment, compensation and recognition of their native title.
Once agreed, an ILUA becomes binding on all parties to it, when it is registered on the register of ILUAs as maintained by the NNTT. Significantly a registered ILUA binds all persons who hold native title in the area, even where they were not involved in the agreement. Because of this, parties to an ILUA conduct thorough enquiries and research to best ensure that all persons who may hold native title in the area are consulted and part of the ILUA process.
3. What is a Registered Native Title Claimant?
One of the essential steps in making an application for native title is ensuring that the application passes the Registration Test which is administered by the National Native Title Tribunal (NNTT).The registration test is a set of conditions applied to an application for native title by the Registrar of the NNTT. Registration means that the claimants gain the Right to negotiate as well as other rights in relation to future acts even before their application is finalised. While passing the Registration Test gives certain rights to applicants, it does not give the right to stop development from proceeding. Instead it allows Applicants various rights to comment on certain projects and negotiate in others.
4. Can I object to something that happens in an area where I have native title?
There are certain rights given to recognised native title holders or registered native title claimants to object to or comment on activities which happen within the area recognised to have native title. The main ways that native title is recognised is through a determination in the Federal Court of Australia or through an Indigenous Land Use Agreement. You may wish to contact us to discuss this further.
5. Will NTSCORP help me make a claim for Native Title?
As a core vision of NTSCorp it is our desire to assist as many traditional owners secure recognition of the native title rights and interests. We receive many requests for assistance from traditional owners and in order to determine how to best allocate our resources and funding we have developed a Facilitation and Assistance Policy which we use to determine applications for assistance. NTSCORP welcomes these applications and will always try to assist traditional owners.NTSCORP has developed a prioritisation process to better assess native title applications for assistance within existing funding streams. Part of the prioritisation process includes investigation of the relative strengths of any claim. This may include whole of community involvement in a claim, possible benefits to the community as a whole and the relative strengths of the claim with consideration of the native title process.
More information can be found in the Facilitation and Assistance Policy.
6. What evidence will be needed to make a native title claim?
After a native title application is lodged in the Federal Court and the registration test is applied by the National Native Title Tribunal, the application is usually referred to mediation. The approach taken by the State Government in mediation is that the claimant group needs to provide evidence to the State government for assessment before discussions can begin about any possible negotiated settlement of the application. The kind of evidence claimant groups usually need to provide is about:- The identity of the claimants
- The traditional language of the claimants
- The claimants group’s connection to country and responsibilities to country
- The claimant group’s social and cultural system – the body of law and custom which is acknowledged and observed
- The claimant group’s rights and interests in land and water
- The relationship between the rights and interests and the law and custom of the claimant group
7. Who can make or authorise a Native Title claim?
Native Title is a communal title and all Aboriginal People who have native title rights and interests in land or water should be included in an application for native title. The claimant group has to be united, or bound together, by their law and custom.The law requires that you use an objective test in your application to identify the members of your claim group. This is often done by naming the ancestors from which each member of your claim group descends.
The law also requires that your native title application is properly authorised by the Aboriginal People who have native title rights and interests in the land or water that are being claimed. Both the application being lodged and the Applicants nominated to represent the claimant group must be authorised by the group.
Decisions to authorise need to be made according to a traditional method of decision making if the traditional method is appropriate for decisions about a court application and other things relating to it. If there isn’t a traditional method of decision making or if it isn’t appropriate for use in a legal process, then the claimant group can adopt another method of decision making, such as discussion and voting.
8. What is Native Title?
Native Title is the legal recognition of the communal or group rights and interests which Aboriginal people have in land and water, where those Aboriginal People have continued to exercise their rights and interests in accordance with traditional law and custom since before sovereignty.In order for claimant groups (traditional owners) to have their native title rights and interests recognised they must establish:
- That the claimant group have rights and interests that are possessed under traditional laws acknowledged, and traditional customs observed
- That the claimant group, by those laws and customs, have a connection with the land or water
- That those rights and interests are able to be recognised by Australian law.
9. Where can Native Title be claimed?
Native Title cannot be claimed in areas where the law says native title has been extinguished, even if Aboriginal People still have a connection to that land or water.Areas where you may be able to claim native title are:
- Vacant Crown land
- National Parks
- State Forests
- Crown reserves
- Some types of non-exclusive leases
- Land covered by permissive occupancies & licences
- Inland waters & the sea
- Native Title rights and interests, if recognised, must co-exist with the interests other people have in land and water.