Native Title Laws

Native title is the recognition of rights and interests that have always existed through Aboriginal and Torres Strait Islander Peoples’ traditional laws and customs. A native title determination recognises that these rights existed before Europeans arrived and continue to exist today and is acknowledged by the Federal Court of Australia (Federal Court). This is set down in Australian law by the Commonwealth Native Title Act 1993. Importantly however, native title is not ‘title’ in land. It is not land ownership but a bundle of rights and interests. Aboriginal and Torres Strait Islander land ownership in Queensland is secured by a grant under the Aboriginal Land Act 1991 (Qld) and Torres Strait Islander Land Act 1991 (Qld) and remains a separate process to native title. Any land granted under these Acts are considered inalienable freehold, which means the land cannot be mortgaged or sold. With respect to native title claims, an application for the recognition of native title rights and interests by an Aboriginal or Torres Strait Islander group in Queensland must be filed in the Federal Court. The matter is then dealt with in accordance with the rules of the Federal Court. Section 72 of the Commonwealth Evidence Act 1995 states: The hearsay rule does not apply to evidence of a representation about the existence or non-existence, or the content, of the traditional laws and customs of an Aboriginal or Torres Strait Islander group. To establish native title, claimants must demonstrate a continuous connection to the land and adherence to traditional laws and customs. This process often includes anthropological reports, and oral evidence heard through the court which is meticulously reviewed by all parties. The department’s role in this is as the First Respondent to the native title claim and is required to balance the interests of all Queenslanders.

With respect to the recent South East Queensland determination, it confirms the Kabi Kabi People's non-exclusive native title rights and interests including:     access, be present on, move about on and travel over the area camp on the area, and for that purpose, erect temporary shelters on the area take resources of the area for any purpose light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation. In exercising their native title rights, the Kabi Kabi people will still need to comply with the laws of the State and Commonwealth. Native title is vital to Queensland’s pathway towards reconciliation. This determination preserves and celebrates the culture, values, and traditions of the Kabi Kabi people while ensuring that the Sunshine Coast as a whole continues to prosper.

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