Native title is the recognition in Australian law that some Indigenous people continue to hold rights to their lands and waters, which come from their traditional laws and customs. It follows the High Court’s decision in Mabo v Queensland (No. 2) which overturned the concept of ‘terra nullius’ (that no one owned the lands before European Settlement). It is administered through the Commonwealth Native Title Act 1993.

Native title has its source in the laws and customs observed by Indigenous people when Australia was colonised by Europeans. Those laws and customs must have been acknowledged and observed in a ‘substantially uninterrupted’ way from the time of settlement until now. Native title:

• can be extinguished because of things the government has done, or allowed others to do, over a particular area that are inconsistent with native title
• is not granted by governments – it is recognised through a determination made by the Federal Court
• will vary for each group because it comes from the traditional laws and customs of the group
• exists alongside and is subject to, the rights of other people in the same area.

Eddie Koiki Mabo took his claim to the High Court of Australia and was the first to have his native title rights recognised, on behalf of all of his people, the Meriam people of the Torres Strait. The landmark decision paved the way for the recognition and protection of native title across Australia and led to the passing of the Native Title Act 1993.

In the 1992 Mabo decision, the High Court of Australia recognised that the Meriam People of the Torres Strait held native title over part of their traditional lands. This decision paved the way for Aboriginal and Torres Strait Islander people to have their native title recognised under Australian law.

The year after the Mabo decision, the Australian Government passed Commonwealth legislation that set out how native title would be recognised and protected and how future dealings affecting native title would proceed.

The Native Title Act 1993 provided a process through which Indigenous Australians could lodge applications seeking a determination of native title. In 1998, significant amendments were made to the Act, including the introduction of the registration test and indigenous land use agreements (ILUAs).