Native Title Act

The Native Title Act 1993 was passed by Commonwealth Parliament on 22 December 1993. This Act provides statutory recognition and protection for the concept of native title as recognised by the High Court in the case of Mabo v. The State of Queensland (1992). This Act was substantially amended in 1998. Amongst other things, these amendments inserted provisions for reaching indigenous land use agreements, provided more detailed provisions for dealing with acts which might affect native title, and provided a new test to be applied in the registration of claims for native title.

The term 'native title' refers to those rights held by indigenous inhabitants of Australia at and since the time of European settlement that are recognised by the common law - it differs from conventional land title. There must be a sufficient and relevant connection to the land in question, continuous since settlement (1836 in South Australia). The nature of native title rights vary from group to group according to laws and customs, and may include the right to camp or travel across land, rights to hunt, fish, gather food and take materials (timber, bark, ochre etc.) from the land.

Since the passage of the 1998 amendments, all applications in respect of native title under that Act are made as claims in the Federal Court (any claims made under the South Australian legislation [see below] are made in the Environment Resources and Development Court). The Federal Court refers claims for native title to the National Native Title Tribunal for registration. If the application passes the test, which now must be applied before registration, the details of the claim are entered on the Native Title Claims kept by the Tribunal. Registration is a pre-requisite for getting most of the rights conferred on claimants under the Native Title Act 1993, including the right to negotiate (RTN).

The National Native Title Tribunal (NNTT) also keeps the National Native Title Register which comprises a record of all determinations made by the NNTT, Federal Court, High Court, other Courts or Tribunals and recognised state and territory arbitral bodies.

The Native Title Act 1993, allowed for States to pass their own legislation in a number of areas. South Australia did so in 1994/95. This legislative package validated certain acts which occurred before 1994, allowed the State Environment Resources and Development and Supreme Courts to hear native title related issues (including determinations under the state RTN schemes) and set up alternative state RTN schemes under the Mining Act 1971 and the Land Acquisition Act 1969. A RTN scheme was later enacted as part of the Opal Mining Act 1995. No State RTN process was enacted for petroleum at that stage.

In so far as there is an impact on native title, the securing of native title land access agreements preceding issue of Petroleum Tenements in this State continues to be governed by the federal RTN or Indigenous Land Use Agreement (ILUA) procedure.

The State Government is undertaking extensive consultation with all relevant organisations to establish ILUA’s over selected prospective areas of the state as a substitute for the RTN The state government would only support such an ILUA if it were conjunctive.