Native title rights in Australia

The nature and content of native title rights vary according to the particular traditional laws and customs observed by the indigenous inhabitants. Native title rights may include the right to access land for ceremonial purposes, or to fish, hunt for, and gather food. For native title to be recognised, the laws and customs must have been acknowledged and observed in a “substantially uninterrupted” way from the time of settlement until now.

A number of Australian government actions have completely extinguished native title rights over land, and thus, in established urban centres, native title is not usually an issue for a land buyer. However, in rural and remote parts of Australia, or for developments involving government land release, native title should be considered by landowners trying to purchase land or to develop it.

Native title was first recognised in Australia in the 1992 High Court case of Mabo v Queensland (No 2). As a result, the nature and timing of land tenure interests are important in determining what, if any, additional steps need to be taken to ensure development on land is valid.

Generally, government grants of tenure that occurred before 1994 are considered “past acts” and are valid. Past acts are divided into four categories. The different categories have different impacts on native title. For example, “Category A” past acts (such as a freehold grant) extinguish native title, whereas other categories may only extinguish native title “to the extent of any inconsistency”, or may merely suspend the operation of native title with respect to a particular grant.

“Future acts” are, in broad terms, government acts (such as the grant of freehold or leasehold interests) that occur after 01 January 1994 and which affect native title. Where native title has not been extinguished, further investigations and agreements with relevant indigenous peoples may be required, to allow land use and development to proceed.

Native title rights will generally apply to Crown or government land. However, separate Aboriginal and Torres Strait Islander cultural heritage protection requirements may apply to any land in Australia. Both regimes may require negotiation with indigenous peoples and therefore a time frame for engagement may need to be included in project development schedules.

In the event that an application for a native title determination is made over land in which an entity has an interest, the determination of that application would only be made following archaeological, anthropological and ethnographic investigations. These can take a significant amount of time to complete, so any owner or future owner must be aware of potential native title interests on the land they own or wish to acquire.

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Tony Nunes has over 25 years’ experience in providing tax advice to clients, especially on issues affecting cross-border transactions, acquisitions and restructures, and on all aspects of structuring the ownership and financing of corporations and their operations.