Native title is recognition under Australian law that native title holders continue to hold rights and interests in land and waters.
Native title was first recognised in Australian law in 1992 via Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo). Mabo overturned the idea that Australia was terra nullius (meaning land belonging to no one).
The Native Title Act 1993 (Cth) was passed in 1993. It established a process for claiming and recognising First Nations native title.
As of January 2025, nearly 60% of Australia is covered by native title determinations with a further 9% of land being subject to a registered native title claim.
A native title determination recognises a collection of native title rights. Those rights may include the right to access, hunt, fish, camp, use water, conduct meetings and ceremonies, exclude others, and protect cultural sites on traditional lands, among others.
Native title determinations can specify:
- ‘exclusive’ rights, meaning the First Nations group has exclusive ownership and control over the area in question, or
- 'non-exclusive' rights, where First Nations groups must share rights and interests in the area.
It is necessary for proponents to follow Native Title Act processes if there is a native title determination or a registered native title claim over land.
However, First Nations expect proponents to do much more than follow the Act.
Proponents should proceed with renewable energy projects only with the Free, Prior and Informed Consent (FPIC) of relevant Traditional Owners. Where native title is relevant, FPIC requires an Indigenous Land Use Agreement (ILUA).
Whilst Native Title enacts ILUA, proponents should still make agreements with Traditional Owners.