To win native title in Australia, an Aboriginal or Torres Strait Islander group rests its claim on its own traditional laws and customs. Those laws predate British invasion, and the claim depends on them continuing today. The Native Title Act of 1993 governs the process, including compensation when those rights are impaired or taken away.
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Winning does not make a group the owner in the ordinary sense. Holders get “a right to negotiate”, said Michael Dockery, a Curtin University associate professor who studied native title deals in Western Australia.
How much land it covers
The scale is large. In Western Australia, about 85% of the land is held under native title or subject to a claim. In the Kimberley, a determined claim covers 70% of the region.
What a win can bring
Much of the value comes through agreements with governments and miners. A report from Curtin University and the University of Western Australia found that weak bargaining power, built into the legislation, often left holders at the mercy of the other side.
The Ord final agreement of 2005 shows the risk. The WA government compulsorily acquired 65,000 hectares from the Miriuwung-Gajerrong people for a $57m package. Eleven years later, the report found no improvement in their living conditions. The state had also delayed the farmland it promised. The Yindjibarndi, by contrast, were generally happy with their 2013 deal with Rio Tinto.
Holders must also set up a prescribed body corporate under the Act, with no formal funding to run it. Dockery said the unpaid work left directors unable to hold any other job.
Compensation for what was taken
The courts have widened what native title is worth. A 2019 High Court judgment, known as Timber Creek, awarded compensation under the Native Title Act for the first time.
In Commonwealth v Yunupingu, the Gumatj Clan of North-East Arnhem Land sought compensation for bauxite mining on the Gove Peninsula. The Crown authorised that mining without the clan’s consent between the 1930s and the 1960s. The Commonwealth argued native title could be cancelled, so taking it was not acquiring property.
The High Court dismissed that appeal. It held that taking native title rights is like taking property, so the Constitution’s “just terms” guarantee applies, in the territories as well as the states. The clan is seeking an estimated $700 million, and the case returns to the Federal Court for the remaining issues.
