19 March 2024 Dear Kirra, RE: NATIVE TITLE CLAIM OVER ANCESTRAL LAND AND WATER IN NORTHERN QUEENSLAND I refer to the above matter and note that you have sought my advice regarding a potential Native Title claim over an area of land and water in Northern Queensland. Native Title In Mabo, the High Court ruled that according to legal principles, Aboriginal and Torres Strait Islander peoples have the right to a unique form of land ownership known as 'Native Title'.1 Passed by the Australian Parliament, the Native Title Act 1993 (Cth) established statutory recognition of the rights and interests of Indigenous peoples in ancestral land and water. The Act allowed the community to progress a claim in Native Title. To lodge a successful claim, groups must satisfy three elements2: 1. They possess rights under traditional laws and customs; 2. Through those laws and customs, they have a connection with the land and waters claimed; and 3. The rights are recognised by the common law of Australia. If groups can succeed on element one, they may also be able to succeed on the second based on the same evidence. The practices and customs listed, if provided with supporting evidence, may satisfy both elements. Further, your practices of fishing, foraging and performing have been previously recognised.3 However, you must prove that these rights have not been extinguished through the grant of lease, as if this is the case, it cannot be revived. 1 Mabo v Queensland (No 2) [1992] HCA 23. 2 Native Title Act 1993 (Cth), s 223(1); Commonwealth v Yarmirr (2001) 208 CLR 1. 3 Daniel v Western Australia [2003] FCA 666.
Cultural Practices and Customs Native Title can be either 'exclusive' or 'non-exclusive'. 'Exclusive' allows Native Title holders control to access and exclude others from their lease area and decide upon its use, however, these rights do not amount to full legal ownership of the land. 'Non-exclusive' permits traditional laws and customs to be practiced4. The cultural practices and customs your community have maintained since time immemorial can be deemed as non-exclusive rights5. Pastoral Lease In Fejo v NT, Native Title is extinguished if government has introduced laws overriding traditional rights, built significant infrastructure on the land, or granted private ownership to another party.6 It, however, cannot be extinguished unless there be a clear and plain intention to do.7 Where there is a grant of Pastoral Lease, it does not necessarily nor automatically extinguish Native Title rights. Instead, in certain circumstances the existence of both can co-exist. A pastoral lease, at common law, will extinguish rights to the extent that there is an inconsistency between the rights granted by the lease and claimed Native Title rights.8 However, rights which can be exercised consistently and concurrently with the rights of the pastoral lessee are treated as surviving the grant. In Wik and Ward, the majority held that grants only partially extinguish pre-existing Native Title rights at common law9. For exclusive rights, they will be permanently extinguished by the grant whilst