Native title

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This article is a topic within the subject Property, Equity and Trusts 1.


Required Reading

Edgeworth et all, Sackville and Neave's Property Law Cases and Materials, 8th edition, Lexis Nexis, 2008, pp. 233-256 [3.83]-[3.104].


[1] The reception of English common law into Australia created unique issues. A decisive one was how to deal with indigenous proprietary rights that existed at the time of colonisation.

  • The original judicial rhetoric, captured in Attorney-General v Brown,[2] was that upon colonisation in 1788, all ‘waste lands’ in the ‘Colony’ were vested in the Crown.
  • While recognising that the idea was a fiction, Stephen CJ basically said that since the same fiction was applied in England, it could similarly be applied in Australia.


Obviously, this was an unsatisfactory position. Thus, in 1982, representatives of the Merriam people of Queensland commenced proceedings in the High Court. That was Mabo v Queensland (No 2):

  • Upon arrival in Australia, the Crown acquired radical title. If Australia were truly terra nullius, this radical title would become into absolute beneficial title of the Crown. However, since Australia was inhabited (and not terra nullius), radical title did not mean full beneficial ownership.
  • Radical title confers only sovereignty and doesn't automatically extinguish native title rights - once the Crown made land grant, that land was held on the basis of tenure, and the Crown was got full beneficial ownership over that land. However, land which was not the subject of a grant are not subject to the doctrine of tenure and native titles rights may remain.
  • Native title rights are recognised and compatible. They exist in certain conditions, most notably, the condition that they haven't been forfeited by the people or extinguished by the Crown.
  • As a sovereign power, the Crown can extinguish native title rights, the main requirement being that it manifested a clear intention to do so.
  • The extinguishment of native title is not compensable under the Constitution, but may be under Racial Discrimination Act 1975 (Cth).

Further notes from Mabo

The preclusion of any monetary compensation renders native title practically worthless (in monetary terms). Nonetheless, the social significance of the case goes far beyond this.

  • It is cited as the first official judicial acknowledgement of the indigenous people of Australia.
  • It also brings Australian jurisprudence in line with the rest of the common law world.
  • The doctrine of tenure received serious modification in Mabo.
    • The court didn't want to abolish the doctrine of tenure because it was ‘skeleton of principle’ of Australia’s received law, but there was a need to acknowledge the rights of the indigenous.
    • Therefore, came the distinction between radical to full beneficial title (overturned Attorney-General v Brown).[3]
    • The doctrine of tenure is preserved for all lands which weren't occupied by the indigenous when the colonisers came.
  • Native title may not be really tenurial title at all – it comes closer to an allodial (complete and absolute) title. There are no services and incidents, or any other obligations of the tenurial relationship.

The Native Title Act 1993 (Cth)

[4] The Native Title Act 1993 (Cth) recognises native title (s 10).

  • It treats native title on an equal footing with freehold estates.
  • Native title holders cannot be treated less favourably than holders of other land interests.
  • Generally, they must agree to extinguishment, or they must be provided compensation.[5]

The Nature and Incidents of Native Title

[6] Native title generally refers to the activities of a hunter-gatherer society. There are other kinds of society among indigenous Australians. Thus, native title encompasses a wider range of possible rights.

In Western Australia v Ward, the court discussed how the starting point must be the traditions and customs of the Indigenous peoples:[7]

  • Facts: This case concerned three separate native title claims. The main question regarded the definition of ‘native title’ in s 223 of the Native Title Act 1993 (Cth) and how it applied to this present case.
  • Held: A ‘spiritual’ connection does not equate with common law rights and interests.
    • However, s 223 of the Act requires courts to make exactly that connection.
    • The native title rights in s 223 are derived from traditional laws and customs, not from the common law. The statute recognises these rights and interests, but case law cannot elaborate on this, as it is founded in a wholly different culture.

[8] The reasoning in Ward has been heavily criticised.

  • In Members of the Yorta Yorta Aboriginal Community v Victoria (note: the case is covered properly below), McHugh J quoted from the Second Reading speech of the Native Title Act to illustrate that Parliament’s intention was to have native title recognised as a common law right.[9]
  • It also envisioned further development through case law.
  • In McHugh J’s opinion, neither of these have occurred due to the erroneous judicial interpretation of s 223.

What Rights does the Native Title ‘Bundle of Rights’ Contain?

[10] s 223 of the Native Title Act provides certain examples of native title rights. A body of case law has developed around other types. They are discussed below.

The Territorial Sea

In Commonwealth v Yarmirr,[11] the court considered whether native title could exist over the sea and seabed near Croker Island.

  • The Commonwealth argued that if the Crown’s radical title ended at a low-water mark, so too did native title, as native title could only operate to ‘burden’ radical title.
  • It was held, firstly, that the Crown did not have radical title to the sea, but it did have ‘sovereign rights and interests’ over it. As native title was not a creature of common law, it could exist alongside as long as it wasn’t inconsistent or extinguished by the Commonwealth.
  • Secondly, it was held that common law rights that affected the sea brought upon settlement formed part of the local law. To that extent native title had been diminished (not extinguished), but they could still coexist with the general common law rights.

Inland waters

  • In Yanner v Eaton,[12] the High Court held that hunting of estuarine crocodiles with harpoons was a valid exercise of native title.
  • In Mason v Tritton,[13] Kirby P held that native title could include a right to fish.
  • In Gumana v NT,[14] a fee simple precluded the NT government from issuing fishing licenses. On the issue of native title, it was held that the plaintiffs had a non-exclusive native title to fish and navigate the land, but any rights to exclude other Aboriginal groups form the land were extinguished by the common law public right to fish.

Cultural Knowledge

  • In WA v Ward,[15] the court affirmed that native title does not extend to the protection of intellectual property rights associated with the land - the law of intellectual propriety may offer suitable protection.
  • The main difficulty was with the term ‘cultural knowledge’. It was held to be too imprecise to come under the ‘connection’ requirement in s 223 of the Native Title Act. Thus, it could not be a native title right.
    • In Foster v Mountford,[16] a book containing Aboriginal tribal secrets was prevented from being published. The indigenous owners were in effect given a proprietary interest.

Membership of Claimant Group

  • One does not require strict biological descent to consider themselves part of a claimant group: WA v Ward.
    • One does require 'a substantial degree of ancestral connection' .
  • The determining factor is whether traditional laws and customs of the group allowed the person to identify as a member of the group.[17]
  • Native title claims can be made for people who form part of a community. They do not have to be the community in their own right.[18]
  • Spouses do have a native title right as the relevant connection is between the community and the land, not the individual and the land.[19]
  • Two communities which have strong social and economic links can be considered as a ‘composite community with shared interests’.[20]
  • The courts have generally adopted a flexible approach to defining group native title rights, due to the flexible language of s 223.[21] Each case depends on its own facts.[22]

Can Native Title Evolve over Time?

  • In Mabo (No 2), the court emphasised that native title is not ‘frozen as at the moment of establishment of the colony’. It is unclear how much change is acceptable.
    • In Yanner v Eaton,[23] motorised craft for traditional fishing activities was held to be a legitimate exercise of native title rights, as it was ‘an evolved, or altered form of traditional behaviour’.
    • In Stevenson v Yasso,[24] the majority found that the fact that Yasso was using a modern net, not made of traditional fibres, did not prevent him from claiming he was fishing under Aboriginal tradition.
    • The question of hunting is more complex. In Harrington-Smith v WA,[25] a connection between the claimants and the land does not necessarily equate to a traditional law or custom. It was considered essentially to carefully weigh the evidence as to where and how each claimant hunted. Reasons such as inexpensive recreation; socialising; passing of knowledge; and obtaining supplement to supermarket food did not evince observance of traditional laws and customs.

Connection With the Land

[26] In Mabo (No 2), the court was divided as to the requirement of a ‘connection’ with the land for establishing a native title claim.

  • Brennan J: ‘traditional connection’
  • Deane and Gaudron JJ: ‘occupation or use’
  • Toohey J: ‘physical presence’

S 223(1)(b) of the Native Title Act 1993 (Cth) reflects most closely Brennan J’s formulation. It requires that "the Aboriginal peoples … by [traditional] laws and customs, have a connection with the land or waters".

The interpretation of this s 223 was considered in Members of the Yorta Yorta Aboriginal Community v Victoria:

  • ‘Traditional’ does not mean only that which is transferred from generation to generation. It is means law and custom which has existed before colonisation, and has been continually observed (without substantial modification - to the effect that it can still be characterised as traditional) change since colonisation.
  • Connection refers not to physical presence on the land but rather a connection to the land via observance of traditional laws and customs (must be continuous uninterrupted). (this was reaffirmed in Ward).
  • This has a negative operation - it means that indigenous rights and interests which may be ‘antithetical to the common law’ will not be recognised.

De Rose v South Australia (No 2) considered the meaning of 'connection' under s 223(1)(b) and the 'traditional' requirement in s 223(1)(a):

  • S 223(1)(b):The correct method to establish a 'connection' has a three-limb test:
    The content of the traditional laws and customs;
    Characterisation of the effect of those laws and customs; and
    Determination whether the characterisation constitutes a connection between the claimants (any of them) and the claim area.[27]
  • S 223(1)(a): the 'traditional' aspect means that "the community or group must show that it has acknowledged and observed those traditional laws and customs that recognise them as possessing rights and interest in relation to the claimed land or waters."
    • This does not require the claimants to prove that they continuously discharged all of their responsibilities under the traditional laws and customs.
    • However, there could be particular responsibilities required in their traditional laws and customs that they must discharge or otherwise fail to satisfy s 223(1)(a).

Miscellanous cases

[28] The matter of traditional connection with the land has been further developed in several other cases:

  • In Bennell v WA,[29] the court further emphasized the ‘traditional connection’ requirement, playing down the need for physical presence. ‘Some’ acknowledgement and observance of traditional laws and customs was enough.
    • However, the mere continued existence of the society may not be enough. In Jango v NT,[30] the court dismissed a native title claim on the basis that the evidence did not show a consistent pattern of observance and acknowledgement of laws and customs by members of that society.
  • In Risk v NT,[31] an interruption that affected the continued observance and enjoyment of traditional laws and customs was held to abrogate the necessary connection.
  • In NT v Alyawarr,[32] it was held that the claimants’ connection did not have to depend upon a 'precise locus' within a community. It was enough that native title rights were held by the community as a whole.
    • Compare Harrington-Smith v WA (No 9),[33] where native title was not granted to a group claim, as that group did not originate in the traditional laws and customs dating back to pre-sovereignty.

The Extinguishment of Native Title

[34] Native title can be extinguished by a ‘clear and plain intention’ to extinguish native title. This can be expressed in three ways:

  1. A legislative provision expressed to extinguish native title;
  2. An inconsistent grant of an interest in land over with native title subsists inconsistent with those rights;
  3. Acquisition by the Crown of native title land.

Legislation provision

[35] As a general rule, a statutory provision that demonstrates a ‘clear and plain intention to extinguish’ native title will bring native title to an end.

  • However, a statute that merely regulates an activity does not necessarily demonstrate a clear and plain intention to extinguish native title.
  • How exactly statutory provisions need to be expressed to extinguish native title is unresolved in Australia.

Inconsistent Grant

Grant of a Freehold Estate

[36] A grant of a freehold estate by the Crown to someone else demonstrates a clear and plain intention to extinguish native title. This is because the rights conferred by a fee simple are inconsistent with the rights or interests of native title (it is an inconsistent grant).

This concept was discussed in Fejo v NT:[37]

  • Facts: certain land was granted as a freehold estate, then vested back with the Crown. The claimants argued that their native title was merely suspended during the grant. As the estate was revested in the Crown, the native title holders reacquired their right to exercise it.
  • Held: The argument was unanimously rejected. The court's argument was the inconsistency of native title and the common law, which cannot be equated.
    • Native title did not owe its existence to the common law, it operates outside of it.
    • Since a freehold estate is a creature of the common law , it can have no interaction with native title.
    • Thus, native title was extinguished entirely with the grant of the freehold estate.

Pastoral leases

A pastoral lease is Crown land that government allows to be leased, generally for the purposes of farming (they are usually leased for long term periods). It is important to note that pastoral leases are not the same as normal common law leaseholds, and do not confer the rights to exclusive possession. The question arises whether the grant of land on the basis of a pastoral lease is an inconsistent grant which extinguishes native title rights.

This was discussed in Wik Peoples v Queensland:[38]

  • Facts: the claimants claimed native title over land which had been the subject of grants of pastoral leases under the relevant legislation.
  • Held: Native title can coexist with pastoral leases. The position of the grantees of the leases depends on (a) the terms of the grant of the pastoral lease; and (b) the statute which authorised it. In case of inconsistency between statutory pastoral leases and native title, pastoral leases prevail.
    • Pastoral leases are different to normal leases in the sense that they do not confer rights to exclusive possession of the areas on the grantees. If there is no exclusive possession, then native title rights can coexist.

Other laws regarding pastoral leases include:

  • Pastoral leases granted between the commencement of the Racial Discrimination Act 1975 (31 October 1975) and the Native Title Act 1993 (1 January 1994), which would have otherwise extinguished native title rights at common law, might have been invalidated by the Racial Discrimination Act.
  • s 229 (3) of the Native Title Act completely extinguishes native title interests by the grant of category 'A' interests - which include pastoral leases.
  • s 248 of the Native Title Act defines pastoral leases as leases that:
  • Permit the lessee to use the land or waters covered by the lease solely or primarily for:
    • Maintaining or breeding sheep, cattle or other animals; or
    • Any other pastoral purpose; or
    • Contains a statement to the effect that it is solely or primarily a pastoral lease or that it is granted solely or primarily for pastoral purposes.

Pastoral Leases Conferring Rights of Exclusive Possession

[39] Despite the general rule in Wik, later cases have construed the role of pastoral leases in different ways. The test seems to be the nature and effect of the pastoral lease.

  • For example, in Wilson v Anderson,[40] a lease granted ‘in perpetuity’ followed by purchase was held to extinguish native title, as it was historically considered a substitute for the Crown grant of fee simple.

It was also discussed in Western Australia v Ward:[41]

  • A 'clear and plain intention' to extinguish native titles rights is determined objectively, by checking whether the rights conferred by the grant are inconsistent with alleged native title rights.
  • A lease conferring the right to exclusive possession (ie, a lease which allows one to exclude others) would confer rights which are inconsistent with native titles rights, and thus extinguish it.
  • When determining whether a lease confers exclusive possession, one does not simply determine automatically from the classification of the lease (ie, a 'pastoral lease'). The classification or 'name' of the lease is irrelevant - each lease is examined individually to determine whether it confers exclusive possession.

In Ward, the dissent (Callinan J) questioned the practical utility of the ultra-complex body of case law that had grown out of recognition of native title rights.

  • The problem, according to him, was Australian courts’ artificial attempt to fit native title within property law. This created an unworkable situation where, rather than actually being granted compensation and redress, indigenous Australians were merely having their hopes ‘raised and dashed’ through rights that ‘amount to little more than symbols.’

Some other corollary decisions have been ruled regarding leases:[42]

  • A native title right to permanent settlement can exist concurrently with pastoral leases, but the leaseholder can always exercise a right under his lease and extinguish that right without any problem.[43]
  • Similarly, any improvements made in accordance with a pastoral lease’s terms will extinguish native title rights and interests. Non-exclusive native title remained over the claim area where improvements had not been made.[44]

Leases Containing Reservations in Favour of Indigenous Inhabitants

[45] Native title conferred by a reservation in favour of indigenous inhabitants can still be extinguished only[46] to the extent that the grant of a pastoral lease involves rights inconsistent with native title rights.[47]

  • In particular, any native title rights to exclusively control use or access to the claim area would be extinguished.[48]
  • A right to control access can only be sustained where there is a right to exclusive occupation against the whole world.[49]
  • However, this inconsistency will not be ‘readily inferred’ where indigenous inhabitants are free to carry on their traditional activities on the land.[50]

N Pearson, Land is Susceptible of Ownership


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The Native Title Amendment Act 1998 (Cth)

The The Native Title Amendment Act 1998 (Cth) introduced the following changes:

  • Higher threshold for the test for the registration of NT claims.[52] The Registrar must be satisfied that at least one of the claimants has enjoyed a traditional physical connection with the land claimed (before it was simply that the community had the connection).
  • Provides for the extinguishment of native title in respect of all acts & grants in relation to non-vacant Crown land between the commencement of the Native Title Act 1993 and ending with the Wik decision.[53]
  • Provides that certain “previous exclusive possession acts” have extinguished native title (ie leases & other interests that have conferred exclusive possession to the grantee).
  • Significant restrictions imposed on the right of Indigenous persons to negotiate mining projects.[54]


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Property Textbook refers to Edgeworth et all, Sackville and Neave's Property Law Cases and Materials, 8th edition, Lexis Nexis, 2008.

Equity Textbook refers to Evans, Equity and Trusts, 3rd edition, Lexis Nexis, 2012.

  1. Property Textbook, pp. 223-4 [3.83]
  2. (1847) 1 Legge 312, 316
  3. (1847) 1 Legge 312.
  4. Property Textbook, pp. 245-6 [3.90]-[3.91]
  5. Native Title Act 1993 (Cth), s 20
  6. Property Textbook, pp. 246 [3.92]
  7. (2002) 213 CLR 1
  8. Property Textbook, pp. 249-50 [3.94]
  9. (2002) 214 CLR 422, [129]-[133]
  10. Property Textbook, pp. 250-6 [3.95]-[3.104]
  11. (2001) 208 CLR 1
  12. (1999) 201 CLR 351
  13. (1994) 34 NSWLR 572, 582
  14. (2007) 153 FCR 349
  15. (2002) 191 ALR 1, 31–32
  16. (1976) 14 ALR 71
  17. Ngalakan People v Northern Territory (2001) 112 FCR 148
  18. De Rose v South Australia (No 2) (2005) 145 FCR 290
  19. Gumana v Northern Territory (2007) 153 FCR 439
  20. Northern Territory v Alyawarr (2005) 145 FCR 442
  21. Gumana v Northern Territory (2007) 153 FCR 439
  22. Northern Territory v Alyawarr (2005) 145 FCR 442.
  23. (1999) 201 CLR 351
  24. [2006] QCA 40
  25. [2007] FCA 31
  26. Property Textbook, p. 256 [3.105]
  27. Casebook p. 266
  28. Property Textbook, pp. 269-70 [3.110]-[3.111]
  29. (2006) 153 FCR 120
  30. (2006) 152 FCR 150
  31. [2006] FCA 404
  32. (2005) 145 FCR 442
  33. [2007] FCA 31
  34. Property Textbook, pp. 271 [3.112], citing Mabo (No 2), [64] (Brennan J).
  35. Property Textbook, pp. 272-3 [3.114]
  36. Property Textbook, pp. 271-2 [3.113]
  37. (1998) 195 CLR 96
  38. (1996) 187 CLR 1
  39. Property Textbook, p. 278 [3.118]
  40. (2002) 190 ALR 313
  41. (2002) 191 ALR 1
  42. Property Textbook, pp. 284-5 [3.120]-[3.121]
  43. Commonwealth v Alyawarr (2005) 145 FCR 442
  44. De Rose v South Australia (No 2) (2005) 145 FCR 290.
  45. Property Textbook, pp. 285-6 [3.122]-[3.123]
  46. Alyawarr v Northern Territory (2004) 207 ALR 539
  47. Griffiths v Northern Territory [2006] FCA 903, [631]
  48. Jango v Northern Territory (2006) 152 FCR 150
  49. Alyawarr v Northern Territory (on appeal) (2005) 145 FCR 442
  50. Griffiths v Northern Territory [2006] FCA 903, [632]
  51. N Pearson, Land is Susceptible of Ownership in Property Textbook, pp. 286-7
  52. Native Title Act 1993 (Cth), s 190B
  53. Native Title Act 1993 (Cth), Div 2A
  54. Native Title Act 1993 (Cth), ss 26A-26D
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