SA ILUA Statewide Negotiations

ABOUT NATIVE TITLE RESOLUTION

What is Native Title?

In 1992, the High Court of Australia handed down the landmark Mabo decision which recognised that the Meriam people, of Mer Island in Torres Strait, had Native Title over their traditional lands. The decision overturned the concept of terra nullius (land belonging to no-one), which had been in force since European settlement.

Native Title describes the rights and interests of Aboriginal and Torres Strait Islander people in land and waters according to their traditional laws and customs where these rights and interests are recognised by the common law.

This landmark decision paved the way for the recognition of Native Title across Australia and resulted in the Native Title Act 1993, which now governs the recognition and protection of Native Title rights in Australia.

Under the Native Title Act, Aboriginal or Torres Strait Islander people can lodge an application in the Federal Court of Australia seeking recognition of their Native Title rights and interests in relation to lands or waters. These applications are called ‘Native Title claims'. When these applications are lodged, any other person with an interest in the lands or waters claimed can become a party to that Native Title claim.

There are three ways of dealing with a Native Title claim:

• The claim can be resolved by the court after contested proceedings;

• The claim can be resolved by the court with the consent of all parties
(a Consent Determination); and

• The claim can be withdrawn.

Indigenous Land Use Agreements (ILUAs) can be used to set the foundation for, or in parallel with, resolving claims by agreement, whether through consent determinations or the withdrawal of claims.

OUTAKE:

Native Title claims can now be resolved by negotiating an Indigenous Land Use Agreement or ILUA

Back to Top >

Native Title refers to rights and interests held by Aboriginal and Torres Strait Islander peoples in relation to land and waters under their traditional laws and customs. The rights and interests of different Native Title groups vary, reflecting how traditional laws and customs vary throughout Australia.

In practice, the Court system has made very few Native Title determinations - there are now over 600 Native Title claims across Australia awaiting resolution. Court cases take a long time, cost a great deal of money, and cause stress and uncertainty to those involved. They also do not usually help to build relationships between parties who may have to use the land together in the future.

Until recently, the only Native Title claim to be resolved in South Australia has been after a contested hearing in Court. Increasingly, however, more claims around Australia are being resolved by agreement between all the parties, whether through consent determinations or the withdrawal of claims.

Where a court determines that Native Title exists, the parties will usually need to reach separate agreement on what it actually means "on the ground", (i..e. an Indigenous Land Use Agreement or ILUA). Where that determination is made after a contested court hearing, this means more time, more money and sometimes more uncertainty, even after the court's decision.

his is why resolving Native Title through Indigenous Land Use Agreements is a better way forward for South Australia.