Native Title

About this NPA

The Native Title National Practice Area (NPA) includes applications relating to:

native title claims concerning the rights and interests of Aboriginal and Torres Strait Islander peoples to land and waters according to their traditional laws and customs, including determinations, revised native title determination applications, compensation applications, claim registration applications, applications to remove agreements from the Register of Indigenous Land Use Agreements and applications about the transfer of records
reviews or appeals from decisions of the National Native Title Tribunal (NNTT)
matters arising under or in relation to any Indigenous Land Use Agreement (ILUA) or other agreement made under the Native Title Act 1993 (Cth) (Native Title Act) or concerning a Prescribed Body Corporate (which holds or manages native title under the Act).

Introduction to Native Title

Under the Native Title Act, the Federal Court of Australia is responsible for the management and determination of all applications relating to native title in Australia.

Native title describes the recognition by the Australian legal system of rights and interests of Aboriginal and Torres Strait Islander peoples to land and waters according to their traditional laws and customs.

Native title was first recognised in the Australian legal system in 1992 by the High Court in the historic Mabo decision. Native title may include rights of possession, occupation, use and enjoyment of traditional country.

It may include the right to access an area of land or the right to participate in decisions concerning how the land or waters are used by other people. Native title may also vary according to the rights of other people and may exist alongside other rights (called ‘co-existence’).

Native title cannot be bought or sold. It can be transferred by traditional law or custom, or surrendered to government, which can then pay compensation to the native title holders in the same way as it does when acquiring rights to other property.

The role of the Court

The Court is responsible for managing all aspects of native title cases. All applications for a determination of native title must be filed with the Court. The Court has wide powers in native title cases. It can:

decide who are the ‘parties’ (the people involved in a case)
decide whether new people or organisations can become involved in proceedings as parties
refer a claim to an appropriate person or body for mediation including a registrar of the Court or another individual or body
order adjournment of proceedings to allow time for the parties to negotiate
make orders to ensure that overlapping native title applications which cover the same area are dealt with in one proceeding or
make a determination that native title is to be held in trust.

What is a determination?

A determination of native title is a decision by the Court whether or not native title exists in relation to a particular area of land or waters.

If the Court decides that native title does exist it will also make decisions about:

who the people are who hold native title common or group rights
what the nature and extent of the native title rights and interests are in relation to the area
what the nature and extent of any other interests are in relation to the area
what the relationship is between the native title rights and interests and other interests
whether the native title rights and interests allow the native title holders to possess, occupy, use and enjoy the land or waters to the exclusion of all others.

The Court can make a determination of native title when either:

agreement is reached between the parties for a determination of native title or
parties are unable to reach agreement and the Court hears the evidence and determines if native title exists.

What is the process for a determination?

The majority of native title applications are claimant applications for a determination of native title. The process for determination is as follows:

1	Filing: Once the application forms have been completed (see Forms section) you need to file it with the Court. You can do this electronically through the Court’s eLodgment application, in person by bringing it to the Court, or by posting or faxing it to the Court. This is called 'filing'.
2	Registration: Once a native title determination application is accepted for filing, the Court sends a copy of the application to the Registrar of the National Native Title Tribunal (NNTT Registrar) for registration testing and notification. The NNTT Registrar will apply the registration test. Passing the registration test gives the native title claim group certain procedural rights, including the right to negotiate (eg. over mining or mineral exploration). Applications which fail the registration test can still proceed through the Court, but the applicants do not have the right to negotiate. If the NNTT Registrar does not accept the claim for registration, the applicant may ask the Court to review the Tribunal’s decision.
3	Notification: The NNTT Registrar will advise the public and any individual or body (including State or Territory governments) whose interests may be affected by a native title determination to apply to the Court to become a respondent party to the case. The period in which a person can apply to the Court is three months and is called the “notification period”.
4	The Court will receive the applications to become a party and will decide whether or not the person is a party.
5	Then, usually, a case management hearing will be held, attended by the applicants and other parties (and their lawyers). At the case management hearing, the Judge may finalise the party list and refer an application to case management or mediation by a Federal Court Native Title Registrar.
6	If agreement is reached between the parties for a determination of native title, the Court will then consider making a determination of native title consistent with the agreement.
7	If an agreement is not reached between the parties then the Court may hear the evidence and determine whether native title exists.

Case Management

ADR and Native Title Mediators

Practice Notes

Forms, Rules & Fees

Filing fees for commencing a proceeding in this NPA may apply. Information about Court fees, including the fees payable and circumstances where an exemption or deferral can be given is available in Forms, Fees & Costs or from the Registry.

Forms and Rules

The most commonly used forms and rules relating to native title proceedings are set out below. When commencing a native title proceeding, forms from both the Federal Court Rules 2011 (Cth) (Rules) and the Native Title (Federal Court) Regulations 2024 (Cth) (NT Regulations) (Native Title Forms) are used.

An application commenced under section 61 of the Native Title Act is an “originating application” for the purpose of the Federal Court Rules.

1. Native Title determination application (Claimant application)

An application mentioned in s 61(1) of the Native Title Act by a claimant for a determination of native title in relation to an area for which there is no approved determination of native title may be commenced by filing:

Forms:

Native Title Form 1 – Claimant application
Form 59 – Affidavit

Rules:

Federal Court Rules 29.02(1), 34.103

Guide to Affidavit accompanying Claimant Application (Native Title Form 1):

Section 62 of the Native Title Act requires that a claimant application must be accompanied by an affidavit sworn by the applicant that verifies that the applicant:
- believes that the native title rights and interests claimed by the native title claim group have not been extinguished in relation to any part of the area covered by the application; and
- believes that none of the area covered by the application is also covered by an approved determination of native title; and
- believes that all of the statements made in the application are true; and
- is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it. Section 251B of the Native Title Act states what it means for the applicant to be authorised by all the persons in the native title claim group.

The affidavit must also set out the details of the process of decision-making complied with in authorising the applicant to make the application and to deal with matters arising in relation to it.

2. Non-claimant application

An application mentioned in s 61(1) of the Native Title Act by a non-claimant for a determination of native title in relation to an area for which there is no approved determination of native title, may be commenced by filing:

Forms:	Native Title Form 2 – Non-claimant application Form 59 – Affidavit
Rules:	Federal Court Rules 29.02(1), 34.103

3. Revised Native Title determination application

A revised native title determination application (under section 13(1) and (5) of the Native Title Act) for revocation or variation of an approved determination of native title may be commenced by filing:

Forms:	Native Title Form 3 – Revised native title determination application Form 59 – Affidavit
Rules:	Federal Court Rules 29.02(1), 34.103
Notes:	The grounds for variation or revocation of an approved determination of native title are: that events have taken place since the determination was made that have caused the determination no longer to be correct or that the interests of justice require the variation or revocation of the determination.

4. Compensation application

A compensation application (as mentioned in section 61(1) and 50(2) of the Native Title Act) for a determination of compensation may be commenced by filing:

Forms:	Native Title Form 4 – Compensation application Form 59 – Affidavit
Rules:	Federal Court Rules 29.02(1), 34.103
Notes:	The Native Title Form 4 must also be accompanied by appropriate information (including maps – refer to s 62 Native Title Act) to identify the boundaries of the area covered by the application and any areas within those boundaries that are not covered by the application.

5. Notice of intention to become a party to an application

Forms:	Native Title Form 5 – Notice of intention to become a party to an application Form 59 – Affidavit
Rules:	Federal Court Rules 29.02(1), 34.103
Notes:	Refer to Guide to Native Title Form 5 for how to complete and file this form Native Title Form 5 should be used when a person or organisation who want to give notice that they intend to become or want to become a party to a Native Title Determination Application Filing fee: Nil, however, if you do not file the Native Title Form 5 within the notification period and still want to become a party to the Native Title Determination Application you should contact the Federal Court Registry. Filing fees and other Court fees are usually payable in this circumstance when an application is made outside the notification period

6. Application for review of decision not to accept claim for registration

If the NNTT Registrar has refused to accept a claim for registration, the applicant may, within 42 days after the date of notification of the decision, apply to the Court for a review of that decision (section 190F(1) of the Native Title Act) by filing:

Forms:	Form 108 – Originating application for review of decision not to accept claim for registration
Rules:	Federal Court Rules 34.109(1)

7. Originating application to remove details of agreement from the Register of Indigenous Land Use Agreements

A person who wants to apply to the Court for an order under section 199C(2) of the Native Title Act for the removal of details of an agreement from the Register of Indigenous Land Use Agreements must file:

Forms:	Form 109 – Originating application to remove details of agreement from the Register of Indigenous Land Use Agreements Form 59 – Affidavit
Rules:	Federal Court Rules 29.02(1), 34 110(1)
Notes:	The affidavit accompanying the Form 109 must state: if the ground relied on is fraud - the date on which the fraud first came to the notice of the applicant and if the ground relied on is undue influence - the date of the first occurrence of the act of undue influence and if the ground relied on is duress - the date of the first occurrence of the act of duress.

8. Other Native Title applications

An application under the Native Title Act, other than one of the applications noted above may be commenced by filing:

Forms:	Form 107 – Originating application Form 59 – Affidavit
Rules:	Federal Court Rules 29.02(1), 34.107 and 34.108
Notes:	These types of applications must be served on: the respondent to the proceeding any interested person the Commonwealth and each state or territory having jurisdiction over the area to which the main application relates.

For further procedural and case management information you should refer to the Central Practice Note (CPN-1) and the Native Title Practice Note (NT-1).

All Forms

Legislation

Protocols

On country protocol (PDF, 111 KB)

On country hearing protocol for parties

The holding of a hearing or part of a hearing on country is a matter for the Court to decide in the exercise of its discretion.

The Court appreciates the burden an on-country hearing place on parties, legal representatives, local communities and resources. The Court seeks to work in partnership with people, and with responsible native title representative bodies, to run orderly, efficient, culturally respectful and appropriate, and cost-effective on country hearings.

This protocol applies to all parties involved in an on country hearing including any consent determination.

Protocol

1. Parties should agree a case specific on country hearing timetable and procedure in advance of the on country hearing in consultation with the Native Title Registrar responsible for the matter.

2. The case specific on country hearing timetable and procedure should include information for the Court about:

the manner at which and locations and times at which evidence will be given;
proposed orders to address general or site specific cultural concerns;
requirements for interpreters (see point 3 below);
safety and comfort requirements at different areas and sites including:
- available methods of communication for emergencies;
- level of accessibility;
- availability of toilets;
- footwear;
- dress;
- shade;
- food and water.
cultural requirements at different areas and sites including:
- conduct of and participation in any welcome ceremony, and the position of all parties about any welcome ceremony;
- gender restrictions or concerns;
- public attendance or not;
- numbers permitted;
- dress requirements;
- permissibility of video recording, photographs and other forms of recording both generally and at specific sites by parties, news outlets and members of the public;
- media coverage requests and requirements; and
- other requirements (eg no touching, no picking, no collecting); and
such other requirements as may be identified by the parties, the Native Title Registrar or the judge.

3. Parties should give early consideration should be given to the need for interpreters and practitioners should be informed by the Native title Registrar responsible for the matter about the Recommended National Standards for Working with Interpreters in Courts and Tribunals (Recommended Standards). If interpreters are required for any witnesses and/or parties, parties should ascertain whether certified interpreters are available, the method of interpreting to be adopted, the equipment and facilities required by the interpreter(s), and the impact that the need for evidence to be interpreter is likely to have upon the duration of the trial. The expectation is that if certified interpreters are available, those at the highest level of certification should be engaged if reasonably practicable. If certified interpreters are not available in the language concerned, the matter should be raised early in the preparation of the matter for trial so as to best ensure the accuracy of interpreting by the untrained bilingual: e.g. by the provision of a professional mentor (Recommended Standards at 57).

4. Any difficulties with the proposed procedures should be resolved well before the on country hearing. In this regard, parties should apply for orders (agreed or in dispute) required for the orderly, efficient, culturally respectful and appropriate, and cost-effective conduct of the on country hearing in a timely manner.

Latest Judgments

12 Jun 2026: Murphy on behalf of the Waturta Native Title Claim Group v State of Western Australia [2026] FCA 739
NATIVE TITLE - exercise of power conferred by s 87 of the Native Title Act 1993 to make a determination of native title by consent - where application was listed for on-country hearing - where evidence filed - where hearing vacated on the basis of indication that parties expect to reach agreement as to terms of proposed consent determination -…
Judge: COLVIN J
11 Jun 2026: Sandow on behalf of the Bigambul People #5 v State of Queensland (No 2) [2026] FCA 727
COSTS - Native Title - where applicant's claim area overlapped respondent's claim area - where respondent filed interlocutory application for strike out - where Court ordered the applicant's claim be struck out - where applicant unsuccessfully sought to appeal strike out decision - s 85A Native Title Act 1993 (Cth) - whether conduct of applicant…
Judge: COLLIER J
12 May 2026: Yindjibarndi Ngurra Aboriginal Corporation RNTBC v State of Western Australia [2026] FCA 585
NATIVE TITLE – compensation for the grant of 36 leases and licences (FMG tenements) granted under the Mining Act WA 1978 (WA) – future acts within s 24MD of the Native Title Act 1993 (Cth) – land the subject of the leases and licences partially on land determined as exclusive and non-exclusive native title to the Yindjibarndi people in Warrie…
Judge: BURLEY J
29 May 2026: Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 39) [2026] FCA 670
NATIVE TITLE – extinguishment – where the Court has previously determined that the Guugu Yimidhirr people are native title holders in respect of a determination area forming part of the Cape York United #1 claim area – whether native title in two individual parcels of land within the determination area was extinguished by proclamations of the…
Judge: STEWART J
27 May 2026: Dhu v Karlka Nyiyaparli Aboriginal Corporation RNTBC (No 2) [2026] FCA 646
PRACTICE AND PROCEDURE – application by the respondent for orders that the evidence of Leonard Stream, Keith Hall and Cate Ballantyne be heard on-country in the Nyiyaparli determination area at Yurlu – where the Court has the power to make such orders as it considers appropriate under s 23 of the Federal Court of Australia Act 1976 (Cth) – where…
Judge: LENEHAN J
26 Mar 2026: Reabel (in substitution for Henry) v Sandlewood Aboriginal Projects Limited [2026] FCA 648
CORPORATIONS – native title – application for leave to settle proceeding against fifth respondent under s 240 of the Corporations Act 2001 (Cth) – where family groups entered into Indigenous Land Use Agreement for payment of compensation – where some applicant family groups not paid – where substantial delays in the proceeding – where trial would…
Judge: RANGIAH J
14 May 2026: Metropolitan Local Aboriginal Land Council #3 v Attorney-General of New South Wales [2026] FCA 595
NATIVE TITLE – non-claimant application for a determination under s 61(1) of the Native Title Act 1993 (Cth) (the Act) that native title does not exist with respect to certain parcels in New South Wales – where application not opposed – whether order could be made without a hearing pursuant to s 86G of the Act – whether the relevant dealings with…
Judge: KENNETT J
8 May 2026: Bonney v Watarra Aboriginal Corporation RNTBC (No 3) [2026] FCA 558
PRACTICE AND PROCEDURE – application for summary judgment – Federal Court of Australia Act 1976 (Cth) s 31A(2) – no reasonable prospect of success – relief sought not available under ADJR Act – partial summary judgment awarded in favour of first respondent with respect to relief sought by applicant PRACTICE AND PROCEDURE – notice of objection to…
Judge: JACKSON J
5 May 2026: Hoolihan on behalf of the Gugu Badhun People #3 v State Minister for the State of Queensland (No 3) [2026] FCA 535
NATIVE TITLE – consent determination of native title under s 87 of the Native Title Act 1993 (Cth) – whether all requirements satisfied – whether appropriate to make orders – determination made – nomination of prescribed body corporate
Judge: STELLIOS J
28 Apr 2026: Neal on behalf of the Djungan People #5 v State Minister for the State of Queensland [2026] FCA 492
NATIVE TITLE – Consent determination – Agreement executed under s 87 Native Title Act 1993 (Cth) – Power of Court to make orders – Appropriate for Court to make orders – Nomination of prescribed body corporate not as trustee but as agent for the common law holders
Judge: LONGBOTTOM J

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