Native Title Law & Lawyers

Under the Native Title Act 1993 (Cth), the Federal Court of Australia is responsible for the management and determination of all applications relating to native title in Australia.

If you believe you have the legal matter regarding native title law, then please complete your free legal enquiry form on the right, or click here.

Native title describes the rights of Aboriginal and Torres Strait Islander peoples to land and waters according to their traditional laws and customs.

It was first recognised in the Australian legal system in 1992 by the High Court in the historic Mabo decision. Native title may include possession, occupation, use and enjoyment of traditional country.

It may include the right to access an area of land or the right to participate in decisions concerning how the land or waters are used by other people. Native title may also vary according to the rights of other people and may exist alongside other rights (called ‘co-existence’).

Native title cannot be bought or sold. It can be transferred by traditional law or custom, or surrendered to government, which can then pay compensation to the native title holders in the same way as it does when acquiring rights to other property.

If you believe you have the legal matter regarding native title law, then please complete your free legal enquiry form on the right, or click here.

The role of the Court

All applications for a determination of native title must be filed with the Court.

The Court has wide powers in native title cases. It can:

• refer native title and compensation applications to the National Native Title Tribunal for mediation;
• decide who are the ‘parties’ (the people involved in a case);
• decide whether new people or organisations can become involved in proceedings as parties;
• order adjournment of proceedings to allow time for the parties to negotiate;
• make orders to ensure that overlapping native title applications which cover the same area are dealt with in one proceeding; or
• make a determination that native title is to be held in trust.

If you believe you have the legal matter regarding native title law, then please complete your free legal enquiry form on the right, or click here.

The role of the National Native Title Tribunal

The main job of the Tribunal is to help people to resolve native title issues and to make agreements about the use of land. The Tribunal is not a court and does not decide whether or not native title exists.

To do its job the Tribunal follows the following procedure:

First, the Tribunal assesses each native title application. If the application passes certain legal tests the application is registered.

After the application has been registered there is a three month period for the Tribunal to notify people and organisations whose interests may be affected by a native title application (this is called the notification period).

The Federal Court then decides who the parties to the application are, and in most cases the Federal Court will then refer the application to the Tribunal for mediation. If the claim is not resolved by agreement through mediation, the matter goes back to the Federal Court.

If you believe you have the legal matter regarding native title law, then please complete your free legal enquiry form on the right, or click here.

How to make a Native Title Application

To make a native title application you need to fill out an application form.

Once the form has been completed you need to send it to the Court. You can do this by bringing it to the Court, or by posting or faxing it or by sending it by the internet. This is called 'filing'.

If you believe you have the legal matter regarding native title law, then please complete your free legal enquiry form on the right, or click here.

Mediation at the National Native Title Tribunal

The Native Title Act encourages negotiation and agreement. Once the parties are identified, the Court may refer the application to the National Native Title Tribunal for mediation.

At the Tribunal, a Tribunal member will act as a mediator to assist the parties to come to an agreement on whether native title exists and if so, who holds it.
The mediation can continue for at least three months.

After this time, any of the parties can ask the Court to stop the mediation and have the application heard by a Judge.

Mediation at the Federal Court

After an application has been filed with the Court a Judge may order that a mediation or case management conference be arranged. Usually all of the parties agree.

The mediator, who may be a Registrar of the Court, will help the parties to reach an agreement or to clarify the issues that are really in dispute.

If the mediation is unsuccessful the application will usually be heard by a Judge. At the hearing each of the parties will present their evidence. It is still possible, even after the hearing has started, for the Judge to direct the parties to try to reach an agreement on some of the issues in dispute through mediation.

Native title cases

Resolving native title applications is a complex and time-consuming process. It involves recognition of the operation of two systems of law: Australian common law and statute law on the one hand and the traditional law and custom of the Aboriginal and Torres Strait Islander peoples on the other.

To decide the question of whether native title exists and who it belongs to, the Judges will usually take evidence in the area subject to the claim and also visit important sites.

Sometimes the Court uses video link-up technology so that people living in remote areas can give evidence which is then televised to the courtroom.

Management of Native Title cases

The Court has implemented an innovative case management system called the Individual Docket System.

Under this system, Judges of the Court are actively involved in managing a case from beginning to end. Most cases are allocated to Judges soon after they are filed in the Court.

The native title list is managed as a national list. Once an application has been filed it will be allocated to a 'provisional docket judge' who monitors the application for the Court.

The Court has established a National Native Title Co-ordination Unit to provide advice to the Chief Justice and other Judges on management of native title cases.

Staff with experience in native title are also available in most Registries of the Court to assist applicants and parties in the practice and procedures of the Court and to assist in the organisation of hearings in remote localities.

Who can represent me?

You can attend hearings in person (without a lawyer) or be represented by a lawyer. You can also ask the Court to allow you to be represented by a person who is not a lawyer.

You can ask an association, society, organisation or other body to act as your agent in the proceedings. An agent can act for more than one party in the proceedings.

If you believe you have the legal matter regarding native title law and would like to get the best legal representation, then please complete your free legal enquiry form on the right, or click here.

What is a determination?

A determination of native title is a decision by the Court whether or not native title exists in relation to a particular area of land or waters.

If the Court decides that native title does exist it will also make decisions about:

• who the people who hold the common or group rights comprising native title are; and
• the nature and extent of the native title rights and interests in relation to the area; and
• the nature and extent of any other interests in relation to the area; and
• the relationship between the rights and interests between the people and their rights; and
• whether the native title rights and interests allow the native title holders to possess, occupy, use and enjoy the land or waters to the exclusion of all others.

The Court can make a determination of native title when:

1. an agreement reached through mediation is referred to the Court; or
2. parties are unable to reach agreement and the Court hears the evidence and determines if native title exists.

If you believe you have the legal matter regarding native title law, then please complete your free legal enquiry form on the right, or click here.

What is the process for determination?

1. Filing: Once the application is filed the Court checks whether it is complete and correct. If it is, the application is sent to the Tribunal.

2. Registration: The Tribunal will apply the registration test. Passing the registration test gives the native title claim group certain procedural rights, including the right to negotiate (eg. over mining or mineral exploration).

Applications which fail the registration test usually proceed to mediation and/or trial, but the applicants do not have the right to negotiate. If the Tribunal does not accept the claim for registration, the applicant may ask the Court to review the Tribunal’s decision.

3. Notification: The Tribunal will advise the public and any individual or body (including State or Territory governments) whose interests may be affected by a native title determination to apply to the Court to become a party to mediation. The period in which a person can apply to the Court is three months.

4. The Court will receive the applications to become a party and will decide whether or not the person is a party.

5. Then there is usually a directions hearing which is attended by the applicants and other parties (and their legal representatives). At the directions hearing,
the Judge may finalise the party list and refer an application to the Tribunal for mediation.

6. If mediation in the Tribunal is successful, the agreement reached will be referred to the Court, which may make a determination of native title consistent with the agreement.

7. If the mediation is not successful, the Tribunal will provide a report to the Court. The Court may direct that further mediation occur or may hear the case.

If you believe you have the legal matter regarding native title law, then please complete your free legal enquiry form on the right, or click here.

Further Resources - Native Title Law & Lawyers