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What is native title?

Native title is the recognition in Australian law that some Aboriginal and Torres Strait Islander people continue to hold rights and interests in land and water.

The source of native title lies in the laws and customs observed by Aboriginal and Torres Strait Islander people when Australia was colonised by Europeans. For native title to be recognised, those laws and customs must have been acknowledged and observed in a ‘substantially uninterrupted’ way from the time of settlement until now. 

Native title is: 

  • not granted by governments – it is recognised through a determination made by the Federal Court of Australia 
  • will vary for each group because it derives from the traditional laws and customs of the group 
  • exists alongside, and is subject to, the existing interests of others in the same area 
  • can be extinguished because of certain actions, inconsistent with native title law, that the government may have taken (or allowed others to take) over a particular area of land. 

The Native Title Act 1993 (Cth) provides a process through which Indigenous Australians can lodge an application to seek a determination of native title. In 1998, significant amendments were made to the Act, including the introduction of a registration test and Indigenous Land Use Agreements (ILUAs). 

In 2010, acknowledging the difficult nature of having native title determined under the Native Title Act, the Victorian Government developed an alternate system for recognising the rights of Victorian traditional owners. 

The Traditional Owner Settlement Act 2010 (Vic) allows the government and traditional owner groups to make agreements that recognise traditional owners' relationship to land and provide them with certain rights on Crown land.