Native Title
What is native title?
Native title refers to the recognition of rights and interests First Nations people have on Country according to their traditional laws and customs. It is a legal concept which acknowledges the enduring connection First Nations people have to their ancestral lands, dating back long before European colonisation.
Formal native title recognition for First Nations people is vital to preserve cultures, identities, heritage, and connection to Country while ensuring First Nations communities have the right to continue traditional laws, customs, and practices.
How is native title recognised?
Native title is recognised by making an application in the Federal Court. In most cases, if there is enough evidence, negotiations with the State Government and other interested parties will lead to a determination by the Court that native title exists with the consent of all the parties. In some cases where the parties cannot come to an agreement, the Judge will make decision whether native title exists or not after a trial.
Where does Native Title exist?
Native title can exist where traditional connection to land and waters has been maintained. Native title can exist in the following areas:
- Vacant crown land.
- National parks, State forests, and public reserves.
- Pastoral leases.
- Beaches, oceans, seas, reefs, lakes, rivers, creeks, swamps, and other waters that are not privately owned.
It does not take precedence over existing rights, such as freehold or leases. Established landowner rights, including private ownership, always prevail over native title.
Native title is not recognised where the Australia legal system has acted to extinguish native title through valid Government acts. This includes:
- Privately owned land.
- Land covered in residential and commercial leases.
- Crown reserves under the control of local government or other statutory authority.
- Areas covered in public infrastructure.
What is the Native Title Act 1993?
Native title was first recognised in the Australian legal system in 1992 by the High Court of Australia within the Mabo decision. The principles of Mabo were then consolidated by the Federal Government in the Native Title Act 1993, providing a framework for the determination and protection of native title rights.
The Native Title Act 1993 determines the process for First Nations people to make native title claims which are assessed and resolved through negotiation, mediation, or litigation. It also establishes mechanisms for the registration of Indigenous Land Use Agreements.
Victorian First Nations people also have the option of negotiating and formalising agreements under the Victorian Traditional Owner Settlement Act 2010, either in addition to or instead of a native title determination.
1992
1993
1994
1998
1999
2001
2002
2003
2004
2005
2007
2010
2011
2013
2018
2022
2023
1992
On 3 June, the High Court of Australia delivered the landmark Mabo decision, overturning terra nullius (land belonging to no one) and recognising native title for the first time within Australian law.
1993
1994
The first native title claim in Victoria was lodged by the Yorta Yorta people, seeking recognition of their traditional rights and interests in parts of Northern Victoria, including along the Murray River.
1998
The Yorta Yorta case resulted in a negative determination by the Federal Court of Australia with Justice of the Supreme Court Howard Olney ruling “the tide of history has indeed washed away any real acknowledgement of their traditional laws and any real observance of their traditional customs”.
1999
2001
The High Court of Australia gave the Yorta Yorta claimants special leave to appeal.
2002
The High Court of Australia delivers its decision in the Yorta Yorta case, rejecting the appeal due to the significant impact of European settlement and the disruption of traditional laws and customs.
2003
First Nations Legal & Research Services (previously Native Title Services Victoria) was established.
2004
In June, the Yorta Yorta People were recognised by the Victorian Government as Traditional Owners and entered into a joint management agreement over 50,000 hectares of Crown land including Barmah National Park, Kow Swamp and areas along the Murray and Goulburn Rivers.
2005
2007
The Gunditjmara people were recognised as native title holders in South-West Victoria and a consent determination was handed down by the Federal Court on 30 March.
2010
The Traditional Owner Settlement Act 2010 (Vic) came into effect on 23 September.
On 22 October, the Gunaikurnai people were recognised as native title holders over lands in Gippsland. They also signed the first agreements under the Traditional Owner Settlement Act 2010 (Vic).
2011
The Gunditjmara and Eastern Maar peoples are recognised as native title holders for an area in South-West Victoria.
2013
On 28 March, the Dja Dja Wurrung and Victorian Government reached a native title settlement over lands in Central Victoria under the Traditional Owner Settlement Act 2010 (Vic).
2018
On 26 October, the Taungurung and Victorian Government reached a landmark native title settlement over lands north of Melbourne under the Traditional Owner Settlement Act 2010 (Vic).
2022
On 25 October 2022, the Victorian Government and th e Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk People of the Wotjobaluk Nations (WJJWJ Peoples) signed agreements under the Traditional Owner Settlement Act.