4 Native Title

Indigenous land law has existed for millennia and refers to the complex structures of customs, governance, spirituality, and societal norms governing Indigenous communities.¹ To appropriately understand native title rights and interests, their discussion must be prefaced with an understanding of Aboriginal and Torres Strait Islander perspectives of land.²

Aboriginal culture should be understood from an Aboriginal perspective, not constrained by jurisprudential concepts. Law in Aboriginal terms is an aggregation of traditional values, rules, beliefs and practices derived from Aboriginal past. It might respond to an anthropologist’s description of ‘Aboriginal culture’ or ‘Aboriginal lore’.³

As Uncle Paul Behrendt, Eualeyai Elder, explained in relation to land ownership:

WEH Stanner, an expert witness in the first Australian case to consider customary rights to land for Indigenous peoples, Milirrpum v Nabalco Pty Ltd v Commonwealth,⁵ noted the incompatibility between the Western world view of property and Indigenous peoples’ perspectives of land:

The difficulty in conceptualising the multifaceted spiritual and religious connection that characterises Indigenous connection, rights and responsibilities to Country has been addressed in many decisions, including by the plurality of the High Court in Western Australia v Ward:

Similarly, as observed by the High Court in Commonwealth v Yunupingu:

It is fundamental to differentiate Australian property as it has developed from its English origins and native title rights which take their content from an ancient and very different legal system.⁹ Determinations relating to native title require ‘examination of the way in which two radically different social and legal systems intersect’.¹⁰ Additionally, native title and ‘Indigenous sovereignty’ are distinguishable concepts.¹¹

Indigenous peoples in Australia have fought a long battle for land rights recognition. The modern land rights movement dates back to the 1963 Bark Petitions when the Yolngu people in the Northern Territory protested the removal of land on which they had lived, hunted and maintained connections to Country for thousands of years.

In 1966, Gurindji man Vincent Lingiari led his people to strike for better working and pay conditions at Wave Hill, and for the return of their land, which was eventually given back by the Whitlam Government in 1975.

In 1971, the Yolngu people again petitioned the government, leading to the Milirrpum v Nabalco land rights case.¹² In that case, the Northern Territory Supreme Court acknowledged the Yolngu people’s ongoing relationship with the land, but found that the relationship was not consistent with European common law systems of property ownership. That case led to the Aboriginal Land Rights Commission (known as the Woodward Commission) of 1973–74 established by the Whitlam Government and, finally, the passing of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), marking the first formal legislative recognition of land rights in Australia.

The decision of the High Court in Mabo v Queensland (No 2) (‘Mabo’)¹³ affirmed the lawfulness of the acquisition of sovereignty by Great Britain over Australia (‘sovereignty’). It also, importantly, marked the first time that the common law of Australia recognised Indigenous rights in land as having existed in 1788 when sovereignty was acquired by Great Britain, with the potential of continuing to exist into the future. In Mabo, the High Court declared that the Meriam Islanders are entitled, as against the whole world, to possession, occupation, use and enjoyment of the lands of the Murray Islands under a communal native title sourced in their pre-sovereignty laws and customs.¹⁴

The decision in Mabo did not disturb the proposition that Australia was acquired by settlement, but held that the ‘myth’ of terra nullius could no longer be perpetuated to deny recognition by the common law of the pre-existing rights of Indigenous peoples to their traditional lands.¹⁵

The High Court found that, on acquiring sovereignty, the Crown had not manifested any intention to extinguish or appropriate all interests in land held by Indigenous peoples,¹⁶ and that while the Crown acquired ‘radical’ or ‘ultimate’ title to land, that title was ‘burdened’ or ‘qualified’ by pre-existing native title rights.¹⁷ Such recognition was quite consistent with recognition also of native title to land,¹⁸ and a mere change in sovereignty did not extinguish native title to land.

According to Brennan J, the term ‘native title’

Where a native title holding group has continued to acknowledge the laws and (so far as practicable) observe the customs based on the traditions of that group, such that their traditional connection with the land has been substantially maintained, the traditional community title of that group can be said to remain in existence. However, when ‘the tide of history has washed away any real acknowledgement of traditional laws and any real observance of traditional customs, the foundation of native title has disappeared’.²⁰

Native title, as a body of rights, as recognised in Mabo, ‘has its origins in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the Indigenous inhabitants of a territory’.²¹ As explained further by the High Court in Fejo v Northern Territory, those rights are sourced in traditional laws and customs and not in the common law:

Rather than creating rights, the recognition of rights and interests found in the continuing pre-sovereignty law involves a process of translation whereby ‘the spiritual or religious is translated into the legal’.²³

The Native Title Act 1993 (Cth) (‘NTA’) was enacted in response to the decision in Mabo and intended to recognise and protect the native title rights and interests recognised in accordance with the principles in that decision.

This is recognised in the extensive Preamble to the NTA, which identifies the need to rectify the consequences of past injustices to Aboriginal and Torres Strait Islander peoples. It also confirms the NTA’s intention to constitute a ‘special measure’ for the advancement and protection of Indigenous peoples consistent with the Racial Discrimination Act 1975 (Cth) (‘RDA’), while recognising that those interests should be balanced with the needs of the broader Australian community for certainty, and the validity of both past and future acts in relation to land.

In broad terms, the objects of the NTA, as recognised by s 3, are the following:

The NTA also establishes three registers which are maintained by the Registrar of the National Native Title Tribunal:

The Tribunal is established under pt 6 of the Act. Further details of its functions, and the role of the Federal Court to hear and determine appeals from the Tribunal, are set out in 4.2 Native Title Procedure.

Despite the advancements brought about by native title, the regime is not without its issues and complexities, and it has been subject to criticism by various bodies and individuals including Indigenous advocates and organisations, the Australian Law Reform Commission, the United Nations and other international bodies. These critiques do not alter the statutory task before the Court, but they are relevant to understanding the systemic pressures under which native title disputes arise and the context in which evidence is given.

As highlighted in 1 Introduction, Indigenous peoples are not a homogenous group, but a collective of individual societies that consists of over 500 distinct communities, peoples, and Nations.³⁰ Ascertaining Indigenous perspectives on native title requires ongoing dialogue given the complex reality of the regime and the diverse range of outcomes, as represented in Figure 3.

Figure 3: Native Title Determinations as at 1 January 2026

As at April 2025, Aboriginal and Torres Strait Islander peoples’ native title rights cover 55.2% of Australia’s land mass. According to statistics quoted by the Productivity Commission, that figure is expected to increase to 65% by 2030 which highlights the considerable expansion of the Aboriginal estate since the commencement of the native title regime.³¹

Indigenous peoples do not share a singular voice on the native title regime. Some view it as a vital avenue for self-determination, participation in the mining process and the building of commercial relationships,³² as well as broader cultural regeneration in areas where native title has been recognised.

Conversely, others have criticised native title as a restrictive framework that fails to restore traditional ownership and economic empowerment.³³ Aboriginal and Torres Strait Islander Social Justice Commissioner Katie Kiss in June 2025 described the native title regime as in urgent need of reform, being ‘slow, adversarial, expensive, complex and in many instances harmful and traumatising … even when successful, our rights are often limited and come with strings attached’.³⁴ The system can also lead to complex community politics, including in relation to the complex intersection of native title rights with state-based land rights legislation. As has been observed by previous Aboriginal and Torres Strait Islander Social Justice Commissioners, native title has created opportunities but also ‘long processes and difficult systems that have contributed to stresses within and between our peoples and communities’.³⁵

Similarly, the Women in Native Title: Native Title Report 2024 highlighted recurring themes of lack of self-determination and governance, gender discrimination, structural racism, and lack of access to justice.³⁶ Notably, the report emphasised that the perspectives of Indigenous women were often overlooked and devalued by their male counterparts, non-Indigenous, male colonists, historians and anthropologists in presenting and receiving evidence. Indigenous women raised concerns about the gender disparities in cultural knowledge and discussed the importance of their involvement to speak for sites of particular gendered significance and to have such information kept confidential. The report included 29 recommendations that are yet to be implemented — including a First Nation’s Native Title Reform Council to drive meaningful land reform.³⁷

The native title system has also been criticised at the international level. In 2009, the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, James Anaya, noted:

Amendments made to the NTA in 1998³⁹ attracted the attention of the United Nations Human Rights Committee (‘UNHRC’) in relation to a complaint from the Acting Aboriginal and Torres Strait Islander Social Justice Commissioner, Mick Dodson. The complaint alleged a breach of the International Convention on the Elimination of all Forms of Racial Discrimination (‘ICERD’), using the early warning and early action procedure.

The UNHRC expressed concern that

In its response to the UNHRC, the Australian Government rejected the findings on the basis that the amendments to the NTA provided for an appropriately balanced ‘special measures’ regime.⁴¹

As Justice Gordon observes in her paper ‘The Development of Native Title: Opening Our Eyes to Shared History’, the common law in the native title area is continuing to develop:

The circumstances where native title issues are most likely to arise in the Federal Court are:

The 1998 amendments to the Native Title Act 1993 (Cth) (‘NTA’) introduced a registration test to regulate the filing of native title claims, together with a requirement that applicants be authorised by the claim group to bring the application.⁴⁵

The key provisions related to the authorisation procedure are the following:

As observed extrajudicially by Justice Barker, the amendments were designed to minimise contested overlapping claims or claims by subgroups of a larger overarching group, and to better facilitate the exercise of the right to negotiate provisions and eliminate the potential for abuse of that right.⁵¹ His Honour went on to observe:

The Native Title Amendment Act 2021 (Cth) introduced further measures to improve and strengthen the operation of the native title system, including native title claims resolution, agreement making, Indigenous decision-making and dispute resolution processes. The government has conducted an evaluation of the effect of these provisions, finding that ‘the effectiveness has been uneven in practice in relation to some amendments, and that further adjustments may improve their operation’, further stakeholders consistently raised concerns around funding of the native title system and more generally (including the NNTT, ORIC and PBCs and NTRB/SPs).⁵³ The Law Council of Australia submission, for example, takes the view that the amendments have resulted in appropriate and meaningful improvement to the native title system, particularly in relation to empowering native title groups, clarifying governance and streamlining agreement-making, but there are aspects that require further clarification or refinement.⁵⁴

If a claim is not properly authorised under s 251B of the NTA, the Federal Court may make orders that the claim for native title be struck out pursuant to s 84C of the NTA. Alternatively, if the defects in authorisation cannot be remedied, the Federal Court may order that the claim be dismissed pursuant to:

The Full Court in Sandow emphasised the central importance of the authorisation requirement:

While s 251(B)(b) of the NTA does not require that all members of the claim group be involved in the decision, it does necessitate that ‘members of the claim group are given every reasonable opportunity to participate in the decision-making process’.⁵⁷

The National Native Title Tribunal (‘NNTT’) is an independent federal government agency established under the NTA with diverse functions and powers aimed at protecting the rights of Aboriginal and Torres Strait Islander peoples’ to land and waters. The overarching role of the NNTT is to provide formal recognition of native title rights, to create a legal pathway for native title claims, and to establish for dealings or past acts that affect native title rights and interests.⁷³ The NNTT is led by the President and Members, with the support of the Native Title Registrar and staff, under the delegation of the Federal Court of Australia.

The NNTT website provides a detailed overview of processes for lodging claimant applications,⁷⁴ non-claimant applications⁷⁵ and compensation applications,⁷⁶ and for making notifications⁷⁷ and conducting review and inquiries.⁷⁸

One of the key functions of the NNTT is to exercise its decision-making power to determine whether certain acts can proceed when native title parties and third-party interest groups cannot reach an agreement.⁷⁹ This power is enlivened on the filing of a future act determination application (‘FADA’).

A FADA is the legal mechanism used under the NTA when parties fail to reach an agreement about proposed land developments, such as mining or infrastructure. If negotiations stall after six months, any party can apply to the NNTT for a binding arbitral decision.

There is no mechanism which allows merits review of a decision made by the NNTT. Appeals on questions of law are permitted to the Federal Court in respect of right to negotiate applications,⁸⁰ as occurred in the Gomeroi decision.

The absence of any mechanism for merits review of decisions of the NNTT has been highlighted as an issue with the operation of the current future acts regime under the NTA.⁸⁶

An application for a determination of native title in relation to an area may be made to the Federal Court.⁸⁷

A determination of native title can only be made pursuant to s 225 of the NTA and must set out the details of the matters in s 225.⁸⁸ Section 225 relevantly provides:

The application must contain particular information set out in ss 61 and 62 of the NTA.

The Federal Court may only make a determination of native title in favour of a person who has made an application under s 13 of the NTA, and cannot make a determination of native title in favour of a person who has not made an application under s 61 of the NTA even if they are a respondent to such an application.⁸⁹

A copy of the application is given to the NNTT to consider whether it meets certain conditions, known as the ‘registration test’.⁹⁰ If the application passes this test, the applicants become ‘registered native title claimants’ and have rights under the future acts regime.

If an applicant fails to pass the registration test, it may apply to the Federal Court for review pursuant to s 190F of the NTA. The Court may dismiss the application if it is satisfied that the application has not been amended since consideration by the NNTT and, in the opinion of the Court, there is no other reason why the application should not be dismissed.⁹¹ In practice, the application may be amended to ensure that it remedies any deficiencies in registration before proceeding.

Ultimately, if there is no determination by consent, the Court must determine whether or not native title has continued to exist.

Notably, a native title determination application to the Federal Court does not automatically include an application for compensation for impairment of native title.

Native title representative bodies (‘NTRBs’) are representative Aboriginal and Torres Strait Islander bodies which are recognised under s 203AD of the NTA to assist Indigenous peoples with various aspects of their native title claims. They are eligible for financial assistance from the Commonwealth, and the National Indigenous Australian Agency funds a network of 14 NTRBs and native title service providers to assist native title claimants and holders, in most states and territories of Australia.

NTRBs created under pt 11 of the NTA have six primary functions:

The Parliamentary Joint Standing Committee on Northern Australia has identified a number of challenges facing NTRBs in the native title system. These include funding limitations and the need for increased support, the complex legislative and administrative regimes they are required to work within, and the need for more effective governance systems.¹²⁹

Many regions of Australia are now supported by native title service providers (‘NTSPs’) rather than NTRBs. The NTSPs are funded to provide NTRB-like services pursuant to s 203FE of the NTA.

Section 223(1) of the Native Title Act 1993 (Cth) (‘NTA’) defines the expression ‘native title’ or ‘native title rights and interests’ relevantly as follows:

The genesis of critical aspects of the s 223 definition lies in the reasons of Brennan J in Mabo v Queensland (No 2) (‘Mabo’).¹³¹

The Full Court of the Federal Court in Bodney v Bennell observed that ‘the connection concept is multifaceted, with differing aspects of it being emphasised in differing factual contexts’.¹³² The Court noted¹³³ the following matters of general application:

Section 223(2) of the NTA provides:

The rights and interests referred to in s 223(1) find their origin in pre-sovereignty law and custom and are not creatures of the NTA.¹⁴³ In Members of the Yorta Yorta Aboriginal Community v Victoria (‘Yorta Yorta’), the High Court stated:

The traditional laws and customs must have ‘normative content’ and constitute ‘a normative system’.¹⁴⁵

The rights recognised in Mabo were communal native title rights, being declared to be rights of the Meriam people. The recognition of native title rights as communal in nature is now generally accepted. As Mansfield J stated in Griffiths v Northern Territory:

The concept of native title as a ‘bundle of rights’ is convenient as it indicates that more than one right may be involved and also that there may be several kinds of rights and interests in the bundle of rights in question.¹⁴⁷

The content of native title rights and interests needs to be addressed by making a factual enquiry into the rights and interests said to be possessed under traditional laws and customs, to be ascertained from the evidence on a case-by-case basis.¹⁴⁸

As such, there may be several kinds of rights and interests that arise in relation to land that exist under traditional law and customs.¹⁴⁹ In addition to the rights to hunt, fish and gather cited as examples in s 223(2) of the NTA, other examples of native title rights and interests, cited by the Australian Law Reform Commission,¹⁵⁰ include rights to:

Native title rights can be exclusive (the right to possession, occupation, use and enjoyment of the area to the exclusion of all others) or non-exclusive, providing for particular non-exclusive rights to access or perform activities on the land.

It is now well established that there may be circumstances that support a finding of overlapping native title (see 4.2.3.3 Overlapping Claims (s 67 of the NTA)).¹⁶⁰ Complex questions can arise where there are overlapping exclusive and non-exclusive rights between different groups. For example, in a series of decisions, including Ross obh of the Cape York United #1 Claim Group v Queensland (No 9) (Lama Lama Determination),¹⁶¹ Mortimer J made a series of consent determinations in favour of the Lama Lama people and other neighbouring groups in Cape York which recognised exclusive rights in some parts of the claim area, and non-exclusive rights in other parts.

There are a number of other models for recognition of native title rights and interests of more than one group in determinations. Examples include:

In Oobagooma obh of the Big Springs Claim Group v Western Australia, O’Bryan J in the context of a consent determination considered the unusual nature of a single native title claim which sought to have two respective native titles in the claim area recognised, observing that ‘there is no apparent reason to restrict an application under s 61(1) [of the NTA] in respect of a given area to an application made by a single claim group’.¹⁶⁵

The reference to the word ‘traditional’ in s 223(1)(a) of the NTA not only refers to laws and customs that have ‘been passed from generation to generation of a society’ but also conveys both an understanding of the age of the traditions and ‘that the normative system under which the rights and interests are possessed is a system that has had a continuous existence and vitality since sovereignty (see 4.1.2 Origins of Native Title: Common Law and the Mabo decision).¹⁶⁶ For this reason, the laws and customs must have existed ‘substantially uninterrupted’ from the time of sovereignty.¹⁶⁷

However, the High Court in Yorta Yorta also recognised that

The key question is whether the law and custom can still be seen to be traditional law and traditional custom, or whether the change or adaptation is of such a kind that it can no longer be said that the rights or interests asserted are possessed under the traditional laws acknowledged and traditional customs observed by the relevant people.¹⁶⁹

It is, therefore, necessary to identify the laws and customs at present for the purposes of s 223(1)(a) separately from the laws and customs at the time of sovereignty, because the specific or precise content of present laws and customs will not necessarily be the same as those at sovereignty.¹⁷⁰

The Federal Court has stated that, in practice, native title applicants must prove:

In Sampi v Western Australia, French J expressed the continuity aspect of the connection enquiry as involving the ‘continuing internal and external assertion by [a claimant community] of its traditional relationship to the country defined by its laws and custom’.¹⁷² The Full Federal Court has summarised the requirement as ‘whether the laws and customs have continued to be acknowledged and observed substantially uninterrupted by each generation since sovereignty’.¹⁷³

As described by Jagot J in Stuart v South Australia, the task of establishing continuing present day connection by pre-sovereignty laws and customs under the NTA is a fraught one for claimants:

As the High Court explained in Western Australia v Ward, s 223(1)(b) of the NTA is not directed to how Aboriginal peoples use land or waters, but rather to whether, by the traditional laws and customs acknowledged by the peoples concerned, they have a ‘connection’ with the land or waters.¹⁷⁵

This requires, first, an identification of the content of the laws and customs and, second, the characterisation of the effect of those laws and customs as constituting the relevant connection. Although there may be cases where the ways in which lands and waters are used will reveal something about the kind of connection, the absence of evidence of some recent use does not, of itself, require that there can be no relevant connection.¹⁷⁶

As confirmed by the majority of the High Court in Stuart v South Australia (‘Stuart’), s 223(1)(b) does not require physical connection with the claim area, and the enquiry will be dependent on the specific nature of the laws and customs:

The High Court has already observed the importance of spiritual connection to Country in a number of decisions. For example, in Northern Territory v Griffiths (in the context of compensation proceedings), the Court stated:

Visits to Country, carrying out traditional ceremonies, the retention and passing down of ritual knowledge regarding boundaries between each Nation may also comprise evidence establishing connection.¹⁷⁹

According to the plurality in Stuart, ‘all that s 223(1)(b) requires is that there is “a connection”; a spiritual connection may be sufficient, without qualification.’¹⁸⁰ If, as in that case, the laws and customs include that the claim group have a collective right to Country, ‘connection’ may arise from knowledge of the area as their Country ‘together with “spiritual” or “cultural” connection to … country that is not necessarily demonstrated by acts of “acknowledgment” or “observance”’.¹⁸¹ It is also necessary to make detailed findings about the contemporary content of traditional laws and customs.¹⁸²

The Stuart case in relation to connection is important in confirming the need to carefully identify and consider the specific laws and customs of the claimants concerned, and to approach the evidence and connection enquiry by reference to those particular laws and customs.¹⁸³ The decision also highlighted that it may be appropriate to draw strong inferences from previous determinations (including consent determinations) which, depending on the circumstances, may have ‘unique and weighty significance’ to resolving questions of connection in the contested area.¹⁸⁴ This issue is likely to be of significance to native title applicants in future cases, which increasingly concern smaller boundary or overlapping areas in the context of an existing larger determination or determinations in favour of the group concerned.

Despite the reference in s 223(1) to rights being ‘in relation to land or waters’, care should be taken not to equate native title rights with common law notions of land ownership. The expression used in the NTA does not limit the content of native title rights to rights of a kind understood by common lawyers or even to rights which are enforceable under a communally organised and enforced system of sanctions under traditional laws.¹⁸⁵

In Yarmirr v Northern Territory, one of the questions considered by the High Court was whether the common law would recognise native title rights and interests in areas beyond the low-water mark.¹⁸⁶ This required identification of the claim group’s native title rights and interests. The High Court ultimately held that native title rights and interests existed in the sea, but that the rights were not exclusive and were non-commercial in nature, and that as rights to exclusive possession were incompatible with public law rights of navigation and fishing;¹⁸⁷ the two sets of rights could not ‘stand together’.¹⁸⁸

To date, native title rights and interests in Australia have only been recognised in territorial waters in accordance with the existing jurisdiction of the NTA. ‘A looming issue, however, concerns the recognition of native title rights and interests in waters beyond the territorial sea, in which Australia asserts jurisdiction’,¹⁸⁹ raising issues of what Finn J described in Akiba as ‘progressive sovereignty’.¹⁹⁰ In this context, it has been described as

In Yorta Yorta, the High Court rejected the view adopted by the Full Federal Court that s 223(1)(c) of the NTA incorporated the common law requirements for the recognition of native title. Rather, the majority held that the reference to recognition by the common law serves a different purpose of which there are at least two relevant features:

In Yarmirr v Northern Territory,¹⁹³ Gleeson CJ, Gaudron, Gummow and Hayne JJ indicated that the touchstone for recognition is an absence of inconsistency between the native title rights and interests and basic principles of the common law.¹⁹⁴ Applying those principles, the majority held that no native title rights to exclusive possession could be recognised in Australia’s territorial sea by reason of an inconsistency between rights of that kind, and the public rights to fish and navigate and the right of foreign ships to innocent passage.¹⁹⁵

The provisions relating to past acts, intermediate period acts and future acts operate in conjunction with s 11 of the NTA and s 109 of the Constitution, sets out the circumstances in which states and territories may validly legislate to extinguish or impair native title, both in the past and into the future.²⁰² The three regimes are concerned with legal acts of the kind identified in s 225 of the NTA which affect native title, and are attributable to the Commonwealth, a state or a territory.²⁰³

Past acts are actions taken by the government before the commencement of the NTA on 1 January 1994. One of the principal objectives of the NTA is to address the possible invalidity of past acts (by reason of their effect on native title) by validating those acts, and to allow for states and territories to legislate to address the possible invalidity of past acts attributable to them in accordance with conditions prescribed in the NTA.²⁰⁴

A state or territory law which validates a past act in accordance with s 22 of the NTA will not, of itself, be inconsistent with the Racial Discrimination Act 1975 (Cth).²⁰⁵ Each of the states and territories has enacted legislation in accordance with these provisions to validate past acts attributed to them.

Past acts are classified by the NTA as category A, B, C or D.²⁰⁶ Where the non-extinguishment principle applies, native title is suppressed in relation to the act, to the extent of any inconsistency.²⁰⁷ Section 44H of the NTA provides that the doing of activities under valid or validated leases, licences, permits or authorities prevails over native title but does not extinguish it.

Where native title is extinguished or impaired by a validated act, the native title holders are entitled to compensation. This is discussed further at 4.5 Remedies.

Provisions in respect of intermediate period acts (see 4.4.3 Intermediate Period Acts) and ‘confirmation of extinguishment provisions’ were introduced by the Native Title Amendment Act 1998 (Cth) in response to the High Court’s decision in Wik Peoples v Queensland (‘Wik’), in which the High Court confirmed that native title was capable of co-existing with the grant of a pastoral lease.²⁰⁸

The ‘confirmation of extinguishment provisions’ classify certain land tenures issued prior to the Wik decision (23 December 1996) as previous exclusive possession acts. Those acts include interests in sch 1 of the amended NTA, freehold estates, commercial residential or community purpose leases, exclusive pastoral or agricultural leases and leases other than mining leases which provide exclusive possession.²⁰⁹

Intermediate period acts are acts that occurred before the commencement of the NTA on 1 January 1994 and the High Court’s decision in Wik²¹⁰ on 23 December 1996. The rationale for the creation of the intermediate act provisions was that, when granting interests during the period prior to Wik, governments had acted on the (incorrect) assumption that native title was extinguished by the previous grant of a pastoral lease, and to address a concern that some of those acts may be invalid.

These acts are validated under the NTA, but their validity depends on whether they are category A, B, C or D intermediate period acts. Category A intermediate period acts, governed by s 232B of the NTA (exclusive agricultural and pastoral leases and community purpose leases) extinguish native title completely.²¹¹ Category B intermediate period acts are, subject to exceptions, leases which are wholly or partly inconsistent with native title²¹² and extinguish native title to the extent of any inconsistency.

The amendments introduced by the Native Title Amendment Act 1998 (Cth) have been the subject of extensive criticism for curtailing and diminishing Indigenous human rights (see 4.1.4 Critiques of the Native Title Regime). In a submission to the Committee on the Elimination of Racial Discrimination, the Aboriginal and Torres Strait Islander Social Justice Commissioner said the 1998 amendments to the NTA in response to Wik

The future acts regime is contained in pt 2 div 3 of the NTA. Future Acts are defined in s 233 and are confined to acts which occur after 1 July 1993 (in the case of making, amendment or repeal of legislation) and in respect of other acts after 1 January 1994. Future acts are only covered if they validly affect native title. An act ‘affects’ native title if it extinguishes native title or is wholly or partly inconsistent with the continued existence, enjoyment or exercise of native title rights and interests.²¹⁴

In broad terms, the future acts regime aims to provide substantive and procedural rights for the protection of native title; the act will be valid if it complies with the provisions, and invalid if it does not.

The future act regime in its current form was introduced by the 1998 amendments in response to the decision in Wik.²¹⁵ Following those amendments, future acts may also be validated where the parties to an Indigenous land use agreement (‘ILUA’) agree and their agreement is registered on the Register of ILUAs. Intermediate period acts cannot be validated by this process as they are validated by pt 2 div 2A of the NTA or by equivalent state or territory laws.²¹⁶ Validity can also be provided by various other means summarised in s 24AA(4) of the NTA.

Division 3 of the NTA also provides rights to compensation for most valid future acts.²¹⁷ It also creates certain procedural rights which must be observed before particular kinds of future acts are carried out, including the ‘right to negotiate’ contained in div 3 sub-div P (ss 25–44). These issues are addressed further at 4.5 Remedies.

A review of the future acts regime is one of the eight recommendations listed in the 2021 report, A Way Forward, the final report of the inquiry into the destruction of sacred rock shelters at Juukan Gorge.²¹⁸ At the time of writing, an inquiry is being undertaken by the Australian Law Reform Commission (‘ALRC’) to investigate how the regime works and where improvements can be made. The ALRC published a 2025 discussion paper following an initial consultation process.²¹⁹ Some of the key issues identified through the consultation and research include the following:

Overall, the ALRC discussion paper reported a perception that the future act regime does not appear to achieve its goals, and there is inconsistency between the stated intent of the regime and how it operates in practice.²²¹ The ALRC has invited submissions on a number of potential reform options to address these issues, and the future act regime may be the subject of significant future reform.

The right to negotiate applies to certain future acts that pass the ‘freehold test’ under s 24LA of the Native Title Act 1993 (Cth) (‘NTA’). The basis for the test reflects the notion that future acts should only be valid over native title areas if they could also be done over ‘ordinary title’ and subject to similar conditions and procedural requirements.²²² In practice, they usually concern the grant of mining tenements and petroleum titles.

Where the right to negotiate applies, the National Native Title Tribunal (‘NNTT’) has jurisdiction as an arbitral body under the NTA to hear applications for future act determinations and undertake an inquiry.²²³ If the parties do not reach agreement within six months of the notification day, they may apply to the NNTT for a future act determination.²²⁴

The resolution of future act determination applications in the NNTT (see 4.2.2 The National Native Title Tribunal) have overwhelmingly favoured resource companies, with the Australian Law Reform Commission (‘ALRC’) reporting in 2025 that the NNTT has determined in almost all arbitral determinations that a future act can be done.²²⁵

The NNTT may dismiss an application for a future act determination if it finds that the other party has not negotiated in good faith.²²⁶ Where the good faith requirement is met, the NNTT can decide whether the act can be done, and under what conditions,²²⁷ and must consider the criteria in s 39 of the NTA when making a determination.

In Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd,²²⁸ the Full Court, in an appeal against a future act determination by the NNTT, considered the content of the good faith negotiation provisions under s 31 of the NTA. (This case is discussed at 4.2.2 The National Native Title Tribunal in relation to the jurisdiction of the NNTT, and in 5 Climate Change at 5.5.)

As detailed in the reasons of Mortimer CJ, the parties in that case were in agreement that an assessment about whether a party has negotiated in good faith pursuant to s 31 of the NTA requires consideration of the conduct as a whole.²²⁹ In Strickland v Minister for Lands (WA), RD Nicholson J stated:

The question of good faith is directed to a party’s state of mind, and requires an assessment of whether the party is honestly, legitimately and fairly negotiating towards an agreed outcome. This may well involve an assessment of how a party has objectively behaved as an indicator of the party’s state of mind. The ‘inquiry [is] directed at whether a party was acting honestly, with an open mind, willing to listen and without any ulterior motive’.²³¹ It ‘[does] not permit a negotiating party to shut its eyes to the obvious, or deliberately refrain from asking questions in case information comes to their attention that they might prefer not to know’.²³²

The difficulty confronting the Gomeroi in that case was that the NNTT was not persuaded on the evidence before it that Santos knew (or even ought to have known) that its offer as a whole was unfair, unrealistic or so far below comparable negotiation outcomes that it could be described as an offer made not in good faith.²³³

The Chief Justice accepted that in some circumstances, in performing its function under s 38, the NNTT may need to make some kind of assessment about whether the position adopted by a negotiating party involved an offer that was objectively reasonable. However, she respectfully agreed with the observations of Carr J in Walley v Western Australia that if a Tribunal finds it useful to consider whether any particular offer or offers appears to be reasonable it is open to the Tribunal to engage in that exercise although it will not always be obliged to do so.²³⁴

The right to negotiate provisions have been criticised as ineffective and difficult to access, and because they may have a negative impact on Indigenous communities’ internal dynamics and relationships.²³⁵ The ALRC’s Review of the Future Acts Regime discussion paper highlighted that the fact that the onus of proving that a party has not negotiated in good faith rests on the party asserting the failure places significant resourcing and cost burdens on native title holders to identify and produce requisite evidence, and may prevent them applying to the NNTT where a party has not negotiated in good faith.²³⁶ The ALRC also reported that the current six-month window in which parties must negotiate before seeking a determination by the NNTT is too short for fair agreement terms, and places pressure on native title holders to reach agreement, heightening the risk of agreements that contain unfair terms.²³⁷

The power of the Commonwealth to make laws for the acquisition of property under s 51(xxxi) of the Constitution is constrained by the requirement of ‘just terms’. Further, the High Court held in Mabo v Queensland²³⁸ that a state law which purported to extinguish native title consistently with the Racial Discrimination Act 1975 (Cth) (‘RDA’) was invalid under s 109 of the Constitution.

As such, pt 2 div 5 of the NTA provides for and regulates the determination of compensation for acts affecting native title.

Northern Territory v Griffiths (also known as the Timber Creek decision)²³⁹ was the first case to consider compensation for acts which partially or totally extinguish native title rights and interests under the NTA, and the way in which that compensation should be assessed.

The High Court accepted that ‘just terms’ compensation to native title holders for any ‘loss, diminution, impairment or other effect of the act on their native title rights and interests’ as required by s 51(1) of the NTA required an assessment of economic and non-economic loss.

These were broadly categorised into entitlements to:

The High Court awarded the claim group $320,250 for non-economic loss (reduced to 50% following trial and appeal to the Full Court) and interest in the sum of $910,100. It awarded compensation for cultural loss in the sum of $1.3 million (upholding the award at first instance).

The majority (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ) rejected a submission by the claim group that an award of less than the freehold value amount for non-exclusive native title was contrary to the provisions of the RDA.²⁴⁰ The Court rejected those contentions,²⁴¹ holding that ‘if the native title rights and interests are significantly less than a full exclusive title, it is only to be expected that they will have an objective economic value significantly less than freehold value’ and there was nothing discriminatory in that evaluation.²⁴²

In relation to non-economic loss, the majority held:

The Court upheld the trial judge’s approach of, first, identifying the nature and extent of the native title holders’ connection to or relationship with the land and waters by their laws and customs and, second, ascertaining the effect of the compensable acts on that connection.²⁴⁴

In assessing non-economic loss, the Court agreed with the trial judge’s approach that impairment of an Aboriginal person’s spiritual connection to land is not to be understood by reference to what occurs on a particular lot or lots, but rather to be understood more generally by reference to his or her feelings about loss of connection with Country, which can be incremental.²⁴⁵

Noting that this was the first compensation determination to come before the Court, the High Court found that

The trial judge was not bound to approach that assessment with particular restraint or limitation, and the award of $1.3 million for non-economic loss was appropriate.

As Justice Jagot described in her paper ‘Native Title: Compensation for Economic Loss’ commenting on this decision, it is difficult for non-native title holders to adequately characterise and describe deeply held loss of cultural connection, and the rights and responsibilities that come with it, in monetary terms.²⁴⁷ Her Honour wrote:

Subsequently, in Commonwealth v Yunupingu, the High Court held that the appropriation by the Commonwealth of grants and interests in land subject to native title rights constitutes an acquisition of property within the meaning of s 51(xxxi) of the Constitution, and that compensation for these acts payable by the Commonwealth must be made on ‘just terms’.²⁴⁹

In that case, the Gumatj clan claimed an entitlement to compensation under the NTA for ‘past acts’ that are ‘attributable’ to the Commonwealth and validated under the NTA. The past acts said to be attributable to the Commonwealth and which grounded the entitlement to compensation were specified appropriations to the Commonwealth and grants of interests in land to third parties made under the Northern Territory (Administration) Act 1910 (Cth).

The Gumatj clan claimed that each such appropriation or grant of an interest in land was invalid at the time it occurred to the extent that it was inconsistent with native title rights and interests recognised by the common law in accordance with Mabo v Queensland (No 2).²⁵⁰ That claim was founded on two main propositions. The first was

The second proposition was that an acquisition of property is not on ‘just terms’ if the law appropriated or granted an interest in land that was inconsistent with native title rights.²⁵²

In Yunupingu v Commonwealth, the Full Court of the Federal Court accepted both propositions to be correct.²⁵³

The Commonwealth appealed the decision to the High Court, which determined that:

In relation to the second issue (extinguishment before commencement of the NTA), Gordon J observed that the Commonwealth’s concession that native title is ‘property’ in the eyes of s 51(xxxi) was ‘properly made’, but rejected the submission that native title is property of an ‘inherently defeasible kind’.²⁵⁵ In her Honour’s view, even equating native title with proprietary interests in relation to land and waters is ‘artificial and capable of misleading’.²⁵⁶ Rather:

The case has been observed as potentially opening the door for other native title holders to seek compensation where the Commonwealth has made laws for the acquisition of property other than on just terms prior to the commencement of the NTA. However, it remains to be seen how courts will further apply and develop the principles laid down by the High Court in Northern Territory v Griffiths in assessing future compensation applications. As Justice Jagot concluded in her paper on that decision, ‘unsurprisingly, given that valuation cases are highly evidence and fact dependent, many questions remain after Timber Creek’.²⁵⁸

More recently, on 27 February 2026, the Federal Court handed down its decision in Davey obh of the Gudanji, Yanyuwa and Yanyuwa-Marra Peoples v Northern Territory (No 5) (McArthur River Project Compensation Claim)²⁵⁹ in which the Northern Territory government was ordered to pay $54.7 million to Traditional Owners as compensation for economic, cultural and spiritual loss due to the expansion of the McArthur River Mine. The decision is only the second instance of a superior court quantifying native title compensation, and the first to apply the framework in Northern Territory v Griffiths.

In relation to cultural loss, following an on-Country hearing and expert evidence, Banks-Smith J observed that ‘sometimes the site of the pain is not the site of the injury’ and that cultural loss encompasses the full breadth of that impact, including

Some of the evidence of Traditional Owners as to the impact of desecration of the area was expressed in paintings reproduced in the judgment,²⁶¹ reflecting a flexible and adaptive approach to receiving the best evidence of native title holders.

While following the approach to assessing compensation identified in Northern Territory v Griffiths, Banks-Smith J observed that this decision did not purport to address the many valuation issues that might arise in the circumstances of a particular case.²⁶² Her Honour highlighted the highly discretionary nature of the quantum assessment, observing:

The Court also considered the impact of an ILUA over the land which generated certain benefits, but rejected the Northern Territory’s submission that the existence of that agreement amounted to ‘consent’ to the mine or a ‘complete answer’ to cultural loss.²⁶⁴ Banks-Smith J determined that the ILUA was relevant to the assessment of cultural loss, such that there should be a deduction of 10% from the overall sum of $60 million, resulting in an order of $54 million.²⁶⁵

On 12 May 2026, the Federal Court in Yindjibarndi Ngurra Aboriginal Corporation RNTBC v Western Australia (No 2)²⁶⁶ determined that Fortescue Mining Company is liable to pay $150 million in compensation for cultural loss to the Yindjibarndi people for the destruction and disturbance of their land over which they possessed exclusive native title rights, plus economic loss anticipated to be in the vicinity of $100,00 plus interest based on the freehold value of the land with allowances for the diminution in native title rights and interests. Burley J referred to, but did not find determinative, the two available cases where compensation had been awarded for cultural loss, observing that if Northern Territory v Griffiths is applied liberally to the present, much larger compensation area, the outcome would be about $576 million, but rejecting that comparison as excessive.²⁶⁷

Despite these advances, the ALRC’s discussion paper on the future acts regime raised a number of issues with the efficacy of the existing compensation procedure in providing accessible relief for native title holders.²⁶⁸ It raised the fact that native title parties are required to bring a separate application for compensation in the Federal Court to confirm the entitlement for valid future acts, rather than compensation being assessed and payable before the act being done.²⁶⁹ The NNTT will not determine the amount of compensation payable when making a future act determination, meaning that compensation is not paid ‘up front’. Native title prescribed bodies corporate generally have limited capacity to bring compensation claims, and representative bodies do not have the resources to support such claims. Further, the NTA does not expressly provide for compensation or damages to be payable for invalid future acts.²⁷⁰

Similar concerns were raised in Karajarri Traditional Lands Association (Aboriginal Corporation) RNTBC v Western Australia²⁷¹ (discussed at 4.6.2.4 Federal Court Rules in relation to evidentiary procedures) regarding the barriers to the applicant commencing a compensation claim. As Mortimer CJ observed in that decision, the requirements for commencing a compensation claim under the NTA, as contained in both the NTA and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth), ‘are on their face heavily prescriptive, and resource and time intensive’.²⁷² Further, her Honour stated:

An Indigenous land use agreement (‘ILUA’) is a voluntary agreement between native title holders (or those who may hold native title) and third parties such as private companies or governments about the use and management of lands and waters.²⁷⁴

ILUAs can be made over areas where native title has been determined to exist in at least part of the area; where a native title claim has been made; or where no native title claim has been made. They can be made about the following matters:

Any future act can be done validly under an ILUA which is registered on the Register of ILUAs at the time the act is done. Where a native title party consents to a future act under an ILUA, they are only entitled to the compensation provided for in the ILUA for that future act.²⁷⁵

ILUAs are an important means of negotiating long-term solutions, and provide an effective veto to future acts in cases where an ILUA is the only means of complying with the future act regime.²⁷⁶ While the ALRC has reported several benefits to the regime including principles of free prior informed consent, ongoing relationship between the parties, and early access to financial and non-financial benefits, native title parties report a number of issues, including the following:

Section 211 of the NTA protects native title holders from being penalised under state, territory or federal laws for exercising their traditional rights including hunting, fishing, gathering or cultural activities. It states that if a law requires a licence, permit or fee to perform specific activities, native title holders do not need that permit, providing they are acting for ‘personal, domestic, or non-commercial communal needs’.

The effect of the provision is that it ‘removes the requirement of a ‘licence, permit or other instrument granted or issued … under the law’ referred to in s 211(1)(b) as a legal condition upon the exercise of the native title rights specified in subs (3)’.²⁷⁸ It can apply in both criminal and civil regulatory proceedings.²⁷⁹ Where the native title holder for an area is a prescribed body corporate, the protection of s 211 extends to those individuals on whose behalf the native title is held in trust.²⁸⁰

A number of cases have considered the operation of s 211 in the context of fisheries prosecutions. In Karpany v Dietman,²⁸¹ the High Court held that s 211 applied to a prosecution for possession of undersized abalone contrary to the Fisheries Management Act 2007 (SA) and that the earlier Fisheries Act 1971 (SA) did not completely extinguish Aboriginal fishing rights, but only provided a mechanism to regulate commercial fishing, which could be administered consistently with native title rights.

The NSW Court of Criminal Appeal in Moriarty v Nye, an appeal against another abalone prosecution involving transporting a large amount of abalone for sale to a restaurant, held that the references to activities ‘for the purpose of satisfying their personal, domestic, or non-commercial communal needs’ in s 211(2)(a) of the NTA does not extend to indirect satisfaction of broader needs by using the product of the activities for sale or trade outside the household or community.²⁸² The Court interpreted that provision as ‘referring to a purpose of directly satisfying human needs for sustenance’,²⁸³ but acknowledged that this may leave open the question of bartering or sale within the community in question:

Further, the Court found that the activity of receiving fish taken from the sea by others, and assembling that fish for the purpose of sale to people outside the native title community, is not capable of constituting ‘fishing’, ‘gathering’ or a ‘cultural or spiritual activity’ within the meaning of s 211(3) of the NTA.²⁸⁵

The applicants in a native title case bear the onus of establishing all the elements necessary to prove the existence of native title.³¹¹

The lack of any, or any substantial, written records evidencing the nature and content of laws and customs which were acknowledged and observed soon after sovereignty poses a particular difficulty for claim groups (see 4.1.2).³¹² That difficulty will be compounded where the laws and customs now acknowledged and observed have been adapted and changed in response to the impact of European settlement.³¹³

As such, the Court will often be invited to draw inferences from evidence led at trial as to the content of laws and customs at earlier times than that described in the evidence.³¹⁴ Much will turn on what evidence is led to found the drawing of an inference,³¹⁵ and there is no ‘bright line test’ for deciding what inferences may be drawn or when.³¹⁶

In an attempt to overcome some of these evidentiary difficulties, the Australian Law Reform Commission (‘ALRC’) made recommendations in its report Connection to Country: Review of the Native Title Act 1993,³¹⁷ tabled in 2016. The ALRC recommended, in relation to proof and evidence, that the NTA should:

Despite these difficulties, courts have frequently been prepared to draw inferences as to laws and customs at earlier times. Examples which may provide guidance in this area are detailed in Australian Native Title Law.³¹⁹

Aboriginal peoples’ evidence about their traditional laws and customs and their rights and responsibilities with respect to land and waters has been held to be ‘of the highest importance. All else is second order evidence’.³²⁰

This principle has been affirmed in many decisions.³²¹ It is generally the evidence from Aboriginal witnesses that will form the most reliable account of observed traditional laws and customs.³²²

Further details of the specific challenges that arise for Aboriginal people giving evidence, and the ways that courts can best accommodate these challenges to allow witnesses to give their best evidence, is detailed in 3 Language and Communication and 14 Judicial Practice.

In the native title context, it is important to recognise the many ways in which cultural norms may affect how a witness gives evidence of their traditional laws and customs. A number of these issues were detailed by Sackville J in Jango v Northern Territory.³²³ In that case, the Court took evidence from a significant number of Aboriginal witnesses, mostly with the assistance of interpreters. His Honour observed the significant benefits of taking evidence on Country, which

His Honour observed a sometimes striking difference between the demeanour of witnesses testifying in the courtroom and giving evidence more informally on Country.³²⁵ Despite efforts to accommodate these concerns, the Court identified a number of ‘cultural barriers’ which had to be taken into account in assessing their evidence, including

Sackville J noted that, understandably enough, ‘the Aboriginal witnesses are not accustomed to conceptualising their laws and customs in a manner that enables them to respond directly and clearly to the kinds of questions asked by counsel’.³²⁷ He also noted the fact that any unresponsiveness to questions put in cross-examination was not due to any unwillingness to cooperate with the question, but rather reflected the witness’ ‘imperfect understanding of the question asked or, perhaps, a difficulty translating his response adequately’.³²⁸

It should be added that witnesses may also be less than forthcoming in response to questions which are poorly framed or nonsensical in an Aboriginal or Torres Strait Islander world view or language.

The Court noted that the difficulty which Aboriginal witnesses had in explaining or describing the content of their laws and customs in no way denigrates the importance or cogency of the evidence, but merely reflects the fact that there are ‘cultural and conceptual barriers’ to effective communication between Indigenous and non-Indigenous people on sensitive issues.³²⁹

The development of evidence is a very specific cultural context in which witnesses give evidence about their laws and customs in a manner that complies with their cultural norms. It is important that courts recognise the modernisation of Indigenous societies which means that the interpretation of ‘traditional’ approaches is not ‘frozen in time’ but has evolved to meet the needs of each community in the 21st century.³³⁰

Further, it should not be expected that all Aboriginal witnesses are experts on all matters, in much the same way that non-Indigenous Australians can live rich and functional lives without understanding the constitutional underpinnings of the rights they exercise.

In recognition of these challenges, the aim of this section is to outline some of the specific evidentiary mechanisms that are available in a native title context, and to provide some examples of ways in which they have or can be applied.

This Act, introduced by the Whitlam Government in 1975 and passed in 1976, was the first legislation that enabled Aboriginal and Torres Strait Islander peoples to claim land rights in Country where traditional ownership could be proven. The Act establishes four land councils to assist Traditional Owners. When the Australian Government passed the Act, former reserves became Aboriginal land (known as ‘Schedule 1 land’). Claims under this Act are determined by the Aboriginal Land Commissioner (who must be a judge).

The Hawke Government subsequently introduced a sunset clause meaning that no new claims could be lodged from 5 June 1997. For any outstanding claims, the Land Commissioner can request the relevant land council to provide further information within six months or the claim is disposed of. Otherwise, the Land Commissioner must make a report to the Minister for Indigenous Affairs who decides whether to recommend to the Governor-General to make the grant. Title to Aboriginal land is formally held by a land trust for the benefit of Traditional Owners and is not held by land councils.³⁹⁶

The purposes of the Aboriginal Land Rights Act 1983 (NSW) as set out in s 3 are:

Aboriginal land councils can only deal with land which is the subject of native title rights and interests where a native title determination has been made. As a result, land councils will frequently seek declarations that native title does not exist in relation to particular land or waters, and the land council is then able to undertake dealings in the land.

The Act also provides for Aboriginal Land Agreements to be made between land councils and the Crown Lands Minister. Compensation is payable under the Act for lost land with funding guaranteed to the NSW Aboriginal Land Council.³⁹⁸

Transfer of land under the Act includes transfer of minerals within the land, and no one can undertake mining on the relevant land without the consent of the land council.³⁹⁹

The Traditional Owner Settlement Act 2010 (Vic) allows the Victorian government to recognise Traditional Owners and certain rights in Crown land, on the basis that Traditional Owners agree to withdraw any native title claim under the NTA and not to make any future claims over the area.

The Act provides for out-of-court settlement of native title, which can include a Land Use Activity Agreement allowing Traditional Owners to comment on or consent to certain activities on public land.⁴⁰⁰

As detailed in the Australian Law Reform Commission’s discussion paper on review of the future act regime,⁴⁰¹ legislation aimed at protecting Aboriginal and Torres Strait Islander cultural heritage varies substantially between each state and territory and as between the states and the Commonwealth. At the time of writing, the Australian Government is working with the First Nations Heritage Protection Alliance ‘to develop advice on options to implement changes for reforming First Nations cultural heritage protections’.⁴⁰²

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) came under some scrutiny following the destruction of the 46,000 year old caves at Juukan Gorge.

In some parts of Australia, there are alternative state and territory regimes dealing with future acts.⁴⁰³ The future acts regime under the NTA (see 4.4 Extinguishment and Impairment of Native Title) does not apply to land held as Aboriginal land under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), and South Australia, for example, has an alternative right to negotiate under pt 9B of the Mining Act 1971 (SA).

In New South Wales, the Public Works Act 1912 (NSW) provides for compensation to be paid to Traditional Owners for the resumption of land effected before the commencement of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW). In Lawson v Minister for Water and the River Murray (SA) (No 2),⁴⁰⁴ the Land and Environment Court of New South Wales allowed an extension of time for compensation proceedings brought pursuant to that Act. In granting the extension of time, Biscoe J noted:

The Court referred to the fact that there has been a ‘relatively recent, nascent recognition that possessory title may have a role to play in land title claims by indigenous people’⁴⁰⁶ and that, viewed in that context, the Court’s discretion should also take into account that the applicant only became aware in 2013 that she had a right to lodge a claim under the Act.⁴⁰⁷ The case is an example of using the entire history of historical injustices to Indigenous Australians, and the progressive recognition of possessory title as being relevant to the statutory discretion, to grant an extension of time.

In a subsequent decision in the same matter, Lawson v Minister for Environment and Water (SA), the NSW Court of Appeal considered an appeal from a decision of the NSW Supreme Court in respect of a compensation application concerning a compulsory acquisition of land in the Murray-Darling Basin under the Public Works Act 1912 (NSW) (‘Public Works Act’).⁴⁰⁸ The land was found by the primary judge to have become vested in the South Australian government as an estate in fee simple upon the commencement of the River Murray Waters Act 1915 (NSW) (‘River Murray Waters Act’) and that all native title or possessory title rights were extinguished when the land was vested, and the applicant was not entitled to compensation under the Public Works Act.

The Court of Appeal allowed the appeal and found that:

At the time of writing, the remitted case before the NSW Land and Environment Court is still in the interlocutory stages,⁴⁰⁹ and it remains to be seen how the courts will assess compensation applications under these statutory acquisition schemes.

The NSW Valuer General has produced a guidance note on the valuation of heritage restricted land, which is intended to provide guidance to valuers on the methods to use, and factors to consider, when valuing land affected by heritage restrictions for rating and taxation purposes.⁴¹⁰