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Barka - Emu print - Kinchenga National Park - 6 Dec 2022

Native Title is intended to recognise the land and water rights of First Nations peoples.

Image: Abram Powell
© Australian Museum

Native Title is intended to recognise the land and water rights of First Nations peoples, however there are issues and limitations that arise in both attaining and preserving these rights. These issues and limitations include:

  • Native Title is not ownership

    Native Title does not grant First Nations legal ownership of their lands and waters. It instead recognises the pre-existing rights of First Nations peoples. These rights might include the right to camp, perform ceremony and protect cultural sites.

    Native Title only recognises the right to perform these activities which come from their traditional laws and customs. When Native Title is determined not all rights are automatically granted.

  • Burden of proof

    It is up to First Nations peoples to establish and prove that they have an unbroken connection to their lands and waters and in practicing their culture. This process can take many years and cost a substantial amount of money to complete.

  • Long and strenuous process

    Native Title cases can become a long and arduous process, like in the Barkandji Native Title case which took almost two decades to be determined. This can place undue stress on the community, with many instances of members of the case passing before a determination can be made.

  • Resource rights

    Under Native Title, commercial rights are generally not recognised. This means that First Nations people are unable to make money from their Native Title rights. There are also no rights to minerals, gas, or petroleum that might be found on their lands.

  • Conflicting rights

    The rights of pastoralists, mining organisations, federal government and private owners override Native Title should any conflicts occur between these groups.

  • No veto rights

    Native Title does not grant First Nations people the ability to veto mining projects. Instead, they must advocate and negotiate with mining companies to protect their lands, especially sites of cultural significance such as sacred sites.

  • Extinguishment

    Native Title rights can be extinguished which means that Native Title holders no longer have the ability to fully exercise their rights in a specific area. Once extinguished these rights can almost never be reinstated.

  • No amendment protection

    There is no protection for Native Title holders if governments make amendments are made to legislation.

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