Article by Michael Pelly for the Australian Financial Review 

The Mabo decision that created Australia’s native title regime was 32 years old on Monday. While hailed by prime minister Paul Keating as a turning point for Indigenous economic development, the legacy has been mixed.

Native title will soon cover 60 per cent of Australia’s land mass, yet less than 9 per cent of Aboriginal and Torres Strait Islander people are members of a native title corporation, and only half of these companies generate any income.

Unlike native title in other countries, Indigenous landowners have only a limited bundle of rights that must be tied back to a group’s traditional laws and customs.

Here’s how it works.

What is native title?

Native title is the acknowledgement that Indigenous people continue to hold rights and interests in their traditional lands and waters, which is linked to the ongoing practice of their traditional laws and customs.

In Mabo’s case (1992), the High Court ruled native title existed for all Indigenous people before British settlement in 1788, and may continue to exist if there was an ongoing connection and no acts that extinguished native title.

How much of Australia is covered by native title?

More than 45 per cent of Australia’s land mass is now covered by a native title. There are agreements in the pipeline that could take it to 60 per cent within 15 years.

To May 30, there had been 618 native title determinations in courts or other bodies; 490 were via consent, 56 were litigated, and 72 were opposed. There are currently 181 native title applications. Seven are for compensation.

How can native title be extinguished?

Native title can be extinguished by a previous exclusive possession act. These include grants of freehold land, public works on a site, some Crown to Crown grants (for example, Commonwealth to NT, state government to local council) and commercial and other exclusive possession leases.

What can Indigenous groups do with their ‘land’ rights?

Rights over the land can range from access and usage rights to rights of exclusive possession. The Native Title Act (1994) provided for native title determinations, compensation and “culture claims”.

What about the minerals on their land?

Indigenous groups generally don’t have rights to minerals; those rights are reserved to the Crown. An exception is when there are recognised native title rights and interests to take and use natural resources (such as water, clays, soil, sand, gravel or rock).

The future acts regime in the Native Title Act governs how development projects can occur on land subject to native title.

Could Indigenous groups build casinos, like first nations people in America?

No, Probably not.

Scott Singleton, of law firm King & Wood Mallesons, says it is important to remember that native title holders in Australia “only have the rights and interests that derive from their traditional laws and customs”.

“These are a limited bundle of rights, particular to each case. Frequently, these rights and interests are non-exclusive and non-commercial,” he says.

It means native titleholders can camp, fish and carry out cultural business on native title land, but they cannot grant a lease or licences or borrow any money against their native title. Also, commercial operations like a casino can’t be traced back to their traditional rights and customs.

What is an Indigenous Land Use Agreement?

These are agreements under the Native Title Act between native title groups and those that need approvals to conduct activities, such as mining on native title land. They usually involve a compensation or benefits package and specify how a project will be managed.

Mr Singleton says cultural heritage agreements can require joint inspections and surveys, cultural heritage awareness training for project staff, and processes for immediate actions in the event of a new cultural heritage find.

There have been numerous cases over what consultation is required, such as those involving Glencore’s McArthur River mine and Santos’ Barossa gas project.

What went wrong at Juukan Gorge?

In May 2021, Rio Tinto detonated explosives in the gorge, about 60 kilometres from the mining town of Tom Price, in the Pilbara, amid negotiations with the traditional owners, the Puutu Kunti Kurrama and Pinikura people.

The rock shelters provided evidence of continuous human occupation for 46,000 years and were said to be the most important archaeological site in Australia. The area also contained high-grade iron ore.

What about compensation claims?

The Native Title Act contemplated compensation claims, but the first court case – concerning Timber Creek, in the Northern Territory – was only finalised in 2020.

The High Court approved a $1.3 million payout  to the Ngaliwurru and Nungali peoples for cultural loss. The balance of the $2.4 million payout was for economic loss.

What’s the next big case?

The Yunupingu case, now in the High Court, is both a native title determination application on behalf of the Gumatj people of Arnhem Land, and a compensation claim for cultural damage between 1911 and 1978. (In 1911, the NT was transferred to Commonwealth control. In 1978, it became self-governing.)

The Yindjibarndi people are also suing Fortescue for about $1 billion in lost economic benefits, and cultural and spiritual damage, from Fortescue’s Solomon hub, three-quarters of which sits in Yindjibarndi land that also takes in the gorges and rock pools of Millstream Chichester National Park.

That case will decide if Fortescue, which has mined the land for iron ore without permission nor agreement with the Yindjibarndi Aboriginal Corporation for 10 years, will pay compensation. The Yindjibarndi were found to be native titleholders of the land in 2017.