Native Title in Australia - Native Title Rights and Interests

Native Title Rights and Interests

Native title concerns the interaction of two systems of law:

• The traditional laws and customs that regulated the lives of Aboriginal and Torres Strait Islanders prior to Australia's colonisation by the British ("customary Aboriginal law"). Although colonisation wrought social changes upon the Aborigines, customary Aboriginal law continues to regulate the lives of many Indigenous Australians.

• The now dominant, English-derived legal system, which was brought to Australia with colonisation, which includes the common law and enacted laws ("Australian law").

Only Australian laws are enforced directly in Australian courts. Native title is not a concept that forms part of customary Aboriginal law – rather, it is the term adopted to describe the rights to land and waters possessed by Indigenous Australians under their customary laws that are recognised by the Australian legal system.

Native title is able to be possessed by a community or individual depending on the content of the traditional laws and customs; inalienable other than by surrender to the Crown; and ranging from access and usage rights to rights of exclusive possession. Native title rights and interests are based on laws and customs that pre-date the British acquisition of sovereignty, and may exist over land and waters to the extent that they are consistent with other rights established over the land by law or executive action.

According to the National Native Title Tribunal:

The native title rights and interests held by particular Indigenous people will depend on both their traditional laws and customs and what interests are held by others in the area concerned. Generally speaking, native title must give way to the rights held by others. The capacity of Australian law to recognise the rights and interests held under traditional law and custom will also be a factor. Native title rights and interests may include rights to:

• live on the area
• access the area for traditional purposes, like camping or to do ceremonies
• visit and protect important places and sites
• hunt, fish and gather food or traditional resources like water, wood and ochre
• teach law and custom on country.

In some cases, native title includes the right to possess and occupy an area to the exclusion of all others (often called ‘exclusive possession’). This includes the right to control access to, and use of, the area concerned. However, this right can only be recognised over certain parts of Australia, such as unallocated or vacant Crown land and some areas already held by, or for, Indigenous Australians. Native title rights and interests differ from Indigenous land rights in that the source of land rights is a grant of title from government. The source of native title rights and interests is the system of traditional laws and customs of the native title holders themselves.