Native title according to the Native Title Act 1993 (Cwlth) Section 223

Native title

Common law rights and interests

  1. The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
    1. the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
    2. the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
    3. the rights and interests are recognised by the common law of Australia.

Native title may exist on:

  • Unallocated (vacant) state land
  • Some state forests, national parks and public reserves, depending on the effect of state legislation establishing those parks and reserves
  • Beaches, oceans, seas, reefs, lakes, rivers, creeks, swamps and other inland waters that are not privately owned
  • Some leases, such as non-exclusive pastoral and agricultural leases, depending on the state legislation they were issued under, and;
  • Some land held by or for Aboriginal people or Torres Strait Islanders.

Native title has been wholly extinguished on areas such as:

  • Privately owned freehold land (including family homes and privately owned freehold farms)
  • Pastoral or agricultural leases that grant exclusive possession
  • Residential, commercial, community purpose leases and certain other leases, and◦In areas where governments have built roads, airports, railways, schools and other public works on or before 23 December 1996.

What is Aboriginal land?

Aboriginal freehold

The Aboriginal Land Act 1991 (Qld) provides for the transfer or grant of particular lands to Aboriginal freehold title, with the title held in trust by an Aboriginal land trust or corporation registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006. The trustee holds the land for the benefit of Aboriginal people particularly concerned with the land and their ancestors and descendants, or the native title holders of the land. Aboriginal freehold title does not effect and can co-exist with native title, and can also exist in areas where native title has been extinguished.

Unlike native title land, Aboriginal freehold land can be used for mainstream economic purposes. Secure interests in Aboriginal freehold land can be created under the Aboriginal Land Act 1991 for individuals or organisations through the grant of leases by the trustee for terms of up to 99 years. If the Aboriginal freehold land coexists with native title then native title consent must be obtained before a lease can be granted. The leaseholder gets to use the land for an agreed purpose (e.g. home ownership, commercial enterprise or government services), and for an agreed period of time. The leaseholder must pay a price/rent for the lease and follow the terms and conditions applying to the lease. If a lease is not renewed at the end of the agreed period the land returns back to the control of the trustee.

Leases of Aboriginal freehold land can benefit communities because:

  • they provide home ownership and economic development opportunities, while giving the trustee an income stream from the use of the land;
  • where native title consent is required, benefits for native title parties can be negotiated; and
  • long-term leases give leaseholders the confidence to invest in the land and the security to get a loan—to build a home, develop a business, or install and operate infrastructure.

Deeds of Grant in Trust (DOGIT)

Many areas of land through Cape York, particularly in Aboriginal Shires, are the subject of deeds of grant in trust (DOGIT) under the Land Act 1994 (Qld). DOGIT land is held in trust, usually by the local Aboriginal Shire Council, for the benefit of Aboriginal people. DOGIT land is transferrable, and over time DOGIT land has been and is being transferred under the Aboriginal Land Act 1991 (Qld) to Aboriginal freehold title held by and Aboriginal land trust or corporation registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006. Like Aboriginal freehold land, DOGIT land may also be leased.

Cultural Disclaimer

Warning: Aboriginal and Torres Strait Islander persons are warned that this website may contain images and or names of deceased indigenous persons or sites of cultural significance.

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