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Last updated: March 2008
Native title and dealing with land
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Native title is a pre-existing interest that is recognised by Australia’s common law and, since 1 January 1994, the Native Title Act 1993. Native title is not an underlying title, but rather a bundle of rights and interests that may exist over land and waters. The source of native title rights and interests is the traditional laws and customs of native title holders. This means that the nature of native title rights and interests may vary from community to community.
Native title rights and interests are pre-existing. They are not ‘granted’ by Governments or courts, but are vulnerable to extinguishment by inconsistent acts of Government such as the granting of a freehold interest in land. While the existence of native title is yet to be determined over most land and water in Australia, there are a number of areas where the Federal Court has determined that native title exists.
Acts that ‘affect’ native title are likely to be invalid unless done in compliance with the procedures set out in the Native Title Act 1993.
Generally speaking, if the Australian Government is planning to do something that affects rights and interests in relation to land or waters, that action has the potential to affect native title (if it has not been extinguished in that area). An act of Government may ‘affect’ native title if, for example, it allows someone to do an activity on native title land that they otherwise have no right to do, or it prevents a native title holder from doing what their native title entitles them to do.
The Prime Minister has asked that the Attorney-General be informed of all potential future negotiations relating to land use in other portfolios. In this context, land also encompasses waters. This is to ensure compliance with the Native Title Act 1993 and consistency across Government with the Australian Government’s policy framework with regard to native title. This is important because of the precedent setting potential of Australian Government activity.
The Native Title Unit of the Attorney-General’s Department is the first point of contact for advice about native title. It also has general responsibility for coordinating native title policy and for the administration of the Native Title Act 1993.
Further information and material about native title and Australian Government’s policy is available from the Native Title Unit. Contact details are available on the Attorney-General Department's website.
Lands Acquisition Act 1989
The Lands Acquisition Act 1989 establishes a regime for conducting most of the Commonwealth’s property transactions. The Act applies to all Commonwealth agencies unless an agency has been specifically exempted from its requirements.
The Act sets out the processes to be followed when acquiring or disposing (selling) of any interest in land in Australia or overseas.
An interest in land is defined in the broadest terms so that the Act applies to freehold and leasehold interests as well as restrictions on the use of land, easements and other rights and charges (both in law and equity).
The Act provides powers and assigns functions to ‘the Minister’. Under the current arrangements, the Minister for Finance and Deregulation, can exercise those powers.
The Act establishes a regime for the conduct of property transactions by the Commonwealth, including the acquisition and disposal of property. The acquisition and disposal of property involves approval and authorisation by the Minister or delegate, where appropriate, particularly in relation to compulsory acquisitions and disposals and the tabling of reports in the Parliament on Commonwealth leases.
The Act also establishes a regime for mining on Commonwealth land.
In managing the Act, attention is paid to related legislation: the Native Title Act 1993 and the Environment Protection and Biodiversity Conservation Act 1999.
