Environment and Resource Management

Glossary of terms

Aboriginal and Torres Strait Islander deeds of grant in trust (DOGITs)
A freehold grant held in trust (a form of land tenure) under the Land Act 1962 for the benefit of the Aboriginal or Islander inhabitants or for Aboriginal or Torres Strait Islander purposes under the Land Act 1994. These are sometimes called ATSI DOGITs.
Examples—Woorabinda, Saibai Island
Unlike ordinary freehold, there are restriction such as the land cannot be sold (inalienable), but the trustee can lease areas, e. g. for a business.
Aboriginal or Torres Strait Islander freehold
A grant of freehold (a form of land tenure) under the Aboriginal Land Act 1991 or Torres Strait Islander Land Act 1991 held by a trustee (eg. a land trust, registered native title body corporate, etc) for the benefit of Aboriginal people, Torres Strait Islander people or a specific group of Aboriginal people or Torres Strait Islanders and their ancestors and descendants.
Examples—Lockhart River Mangkuma Land Trust land, Tudu and Gabba Islands
The same restrictions apply to this land as to DOGIT land.
Aboriginal or Torres Strait Islander reserve
A form of land tenure where land is dedicated under the Land Act 1994, or previous land legislation, for Aboriginal purposes, as an Aboriginal reserve, for the benefit of Aboriginal inhabitants, for Torres Strait Islander purposes, or the benefit of Islander inhabitants.
Example—Daintree Aboriginal Reserve
ALA
Aboriginal Land Act 1991
Determination
A determination of native title is a decision made either by the Federal Court or the High Court of Australia as to whether or not native title exists over a particular area of land and/or waters.
A determination identifies the native title rights and interests, the holders of those rights and interests, and the land and waters to which the rights and interests relate.
Extinguishment
Native title can be extinguished only in accordance with the Commonwealth Native Title Act 1993 (NTA).
As native title is a bundle of rights, some inconsistent actions extinguish all native title and others extinguish only some native title rights and interests.
Extinguishment is permanent, and native title rights and interests cannot be revived, even if the act that caused the extinguishment ceases (e.g. construction and later removal of a valid public work).
Subject to a number of specific preconditions such as the timing of the claim, the tenure status of the land and whether the land was ‘occupied' when the claim was made, the NTA provides for some exceptions to this rule allowing certain extinguishment to be ignored so that native title can be recognised.
Freehold (ordinary freehold)
A form of land tenure providing the holder of the freehold title with the right of exclusive possession, (i.e. tan ability to exclude others from their land), no restrictions on the rights to sell the land but the use of the land may be restricted by planning laws.
Future acts
Actions such as granting an interest or carrying out development on land or waters that interferes with the enjoyment or exercise of native title.
Some future acts extinguish native title, while others suppress it (the non-extinguishment principle) as set out in the Commonwealth Native Title Act 1993.
Future acts include:
Grant
The action done under legislation that provides a person with an interest in or in relation to the land or waters. For example, the grant of freehold by the Governor under the Land Act 1994.
Grantees
Persons to whom Aboriginal or Torres Strait Islander freehold is granted under the Aboriginal Land Act 1991 and the Torres Strait Islander Land Act 1991, after consultation with the people particularly concerned with the land. The grantees are also the trustees of the land who hold it for the benefit of Aboriginal people or Torres Strait Islanders and their ancestors and descendants.
Grant in trust
A land tenure granted 'in trust' is held by one person/s or body for the benefit of another or others.
For example, an Aboriginal deed of grant in trust is granted to an Aboriginal Shire Council, not for the benefit of the council, but for the benefit of the Aboriginal inhabitants of that community. These may include native title holders, traditional owners and historical owners.
Indigenous cultural heritage

In Queensland, all significant Aboriginal and Torres Strait Islander cultural heritage is protected under the Aboriginal Cultural Heritage Act 2003 and Torres Strait Islander Cultural Heritage Act 2003.

These Acts require anyone who carries out an activity to exercise a duty of care, that is,. they must take all reasonable and practicable measures to ensure their activity does not harm Aboriginal or Torres Strait Islander cultural heritage. Penalties apply for unlawful harm.
Indigenous land
Indigenous land use agreement (ILUA)

A voluntary agreement about the use and management of an area of land or waters made between one or more native title parties, and others such as the State, a developer or a mining company.

Once it has been registered by the National Native Title Tribunal, an ILUA is legally binding on the parties to the agreement, and all native title holders (and their successors) for that area.

For example, an ILUA could be used to provide the consent of the native title holders for works required to be carried out by the relevant council e.g. development of a new dam).
Land tenure
The term commonly used to describe different interests in the land (e.g. freehold, leases, reserves). Each includes different rights, responsibilities and restrictions.
Native title is not a land tenure. 
Land trust
Certain grantees of Aboriginal or Torres Strait Islander freehold under the Aboriginal Land Act 1991 and Torres Strait Islander Land Act 1991, automatically become the members of a land trust that is formed when the freehold is granted. The land trust is a body corporate, and becomes the trustee/owner of the land.
Example—Kaurareg Aboriginal Land Trust for Horn Island
Lease
A form of land tenure (e.g. pastoral holding, trustee lease, perpetual lease, sub-lease of a Shire lease). There are many different types of leases. A lease can be for a specific term (e.g. 30 years) or have no term (i.e. perpetual).
Example—a trustee (Aboriginal) lease on an Aboriginal Deed of Grant in Trust to Queensland Health to construct a health centre.
Mabo No.2
The landmark 1992 Australian High Court case which overturned the concept of terra nullius (land belonging by no-one) at the time of British colonisation in 1788, and recognised the existence of native title.
National Native Title Tribunal (NNTT)
The NNTT is the independent body established under the NTA to assist people with processes under the NTA.
NTA
The Commonwealth Native Title Act 1993, which the Commonwealth passed in response to the Mabo No. 2 decision to provide for the recognition and protection of native title. 
Native title
The communal, group or individual rights and interests of Aboriginal peoples and Torres Strait Islanders based in traditional laws and customs and through which they have a connection with the land or waters.
Native title cannot be sold and can be surrendered only to the Crown (the State).
Native title claimant application (or native title claim)
An application filed in the Federal Court of Australia, by authorised applicants on behalf of a claimant group, seeking legal recognition that native title exists over a particular area of land and/or waters.
Native title holder
The person or persons who hold native title. Where native title has been determined, the registered native title body corporate, where it holds the native title on trust, is the native title holder.
Native Title Representative Body (NTRB)
A regional organisation appointed by the Commonwealth minister responsible for the NTA, to represent Indigenous Australians in native title issues in a particular region.
NTRBs provide native title services to persons who hold or may hold native title in their area or part of their area, and registered native title bodies corporate who represent those native title holders.
Examples—Cape York Land Council, Torres Strait Regional Authority.
Native Title Service Delivery Agency (NTSDA)
A native title service delivery agency (NTSDA) is an alternate to a NTRB and provides professional services to native title parties in a particular representative area in accordance with the NTA.  A NTSDA is a private corporation and receives funding under the NTA from the Australian Government to perform the majority of functions of a NTRB, and has the same obligations and powers in relation to those functions as a NTRB.
Non-claimant application
An application filed in the Federal Court by a non-native title party over a particular area seeking a determination as to whether native title exists.
Non-extinguishment principle
As set out in the NTA, a future act does not extinguish native title in most cases, but only suppresses it while the future act exists. This means that during that time, native title rights and interests that are inconsistent with the future act are not able to be exercised or enjoyed. However, they take full effect again once the future act ceases to exist.
Example—the construction of a road under section 24KA of the NTA suppresses the exercise and enjoyment of native title over the road area while the road is in existence.
People particularly concerned with the land
Under the Aboriginal Land Act 1991 and Torres Strait Islander Land Act 1991, the people particularly concerned with the land must be consulted before Aboriginal or Torres Strait Islander freehold is granted. 
An Aborigine or Torres Strait Islander is particularly concerned with the land if they:
Prescribed body corporate (PBC)
Under the NTA, native title holders who have a determination of native title must establish a body to represent them as a group and manage their native title rights and interests. This body is called the “prescribed body corporate” (PBC).
The PBC is registered on the National Native Title Register and becomes a registered native title body corporate (RNTBC). In some cases, it will hold the determined native title on trust (in which case it becomes the native title holder) or will act as agent for the native title holders.
Registration test
A set of conditions under the Commonwealth Native Title Act 1993 (NTA) that is applied to applications for a native title determination. Applications which meet all the conditions are included in the Register of Native Title Claims. The registered native title claimants are then entitled to certain procedural rights under the NTA for carrying out future acts.
Register of native title claims
A register maintained by the National Native Title Tribunal, which records information (the name of the parties, the address for service) relating to native title claims that pass the registration test.
Registration of a tenure
In many cases the legal interest (the tenure) in the land is not created until it is registered in a government land register. Therefore, the rights in the land are not created when the tenure is granted but when it is registered.
 
For example, the trustee of a Deed of Grant in Trust can grant a trustee lease to Joe Bloggs. However, until the trustee lease is registered Joe Bloggs does not in fact have a lease.
Registered native title body corporate (RNTBC)
See 'Prescribed body corporate'.
Registered native title claimants (RNTC)
Native title claimants who have met the conditions of the registration test under the NTA.
Reserve
A reserve is a form of land tenure. A reserve is land dedicated for a particular purpose under the Land Act 1994 or previous land legislation. Throughout the years land has been reserved for a number of different purposes – recreation, Aboriginal, Torres Strait Islander, health, school, quarry, departmental and official, etc.
Right to negotiate
A procedural right involving good faith negotiations with a view to reaching an agreement within a certain timeframe for the doing of certain future acts, eg. the grant of a mining lease.
Shire leases
A form of land tenure referring to the Aurukun and Mornington Island Shire leases which were created under specific legislation—the Local Government (Aboriginal Lands) Act 1978.
Transferable land
Land that may be transferred under either the Aboriginal Land Act 1991 or Torres Strait Islander Land Act 1991. This includes:
Apart from land that can be declared by regulation as transferable, the land must have been one of the above tenures as at 1991.
Land may cease to be transferable land in certain circumstances, eg. if it is declared to be not transferable land.
Trustee
A person appointed by the minister as trustee of a reserve, deed of grant in trust or Aboriginal or Torres Strait Islander freehold grant. A trustee must manage the land in accordance with their appointment and the purpose for which the land has been granted in trust.
Example—a trustee of an Aboriginal deed of grant in trust must make decisions about the land that are for the benefit of the Aboriginal inhabitants.
Trustee lease
A lease granted by the trustee over all or part of the land subject to the land tenure.
TSILA
Torres Strait Islander Land Act 1991
USL
Unallocated State land; previously referred to as vacant Crown land.
Wik
The High Court decision handed down on 23 December 1996 finding that pastoral leases did not necessarily wholly extinguish native title as there could be a co-existence between the rights of a lessee and a native title holder.

Last updated 20 September 2011

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