Property Law 2: Native Title Determination and Business Impact

This report provides a comprehensive analysis of the impact of a Native Title determination on a business, specifically Camels By Twilight Pty Ltd, operating in Queensland. The report begins with an overview of Native Title, its recognition under Australian law, and the governing Native Title Act 1993 (Cth), highlighting the significance of the Mabo v Queensland case. It differentiates between exclusive and non-exclusive Native Titles, explaining the rights associated with each, including freehold and the concept of extinguishment. The report then discusses the application process for Native Title, referencing the necessary documentation and legal procedures, including the requirements for affidavits under section 62 of the Native Title Act. The analysis focuses on the scenario provided, advising the business owners on how to navigate the Native Title process to ensure the continuation of their tours. The report concludes with a recommendation to follow all application requirements and obtain the necessary permits, with the assurance that, provided these steps are taken, there are no issues regarding the continuation of the business. The report is supported by a bibliography of relevant legal and academic sources.

Running head- PROPERTY LAW
Property Law
Name of the Student
Name of the University
Author Note

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March 11, 2020
By email
Scott and Lynette Walters
Camels By Twilight Pty Ltd
22 Sunset Way, Rock Hampton, Queensland 4700
RE: Impact of a Native Title determination of business and the continuation of tours
Dear Mr Scott and Lynette,
It was a pleasure meeting you and upon the discussion of all the points that you have
stated and analyzed the facts the letter will showcase the various aspects of the native title,
the difference between exclusive and non-exclusive Native Titles, extinguishment and the
various documents required for the native title application.
The Native title is stated as the recognition given mainly to the aboriginals and the
people of Torres Strait Islander having the interests and the rights over the land and water as
per the traditional laws and the customs that are set as per the Australian law. The Native
title is governed under the Native Title Act 1993 (Cth). This act was enacted in response to
the verdict of the high court of Queensland in the case of Mabo v Queensland where it was
held that it was an exclusive title that can be only confreres by the aboriginals and the native
people of the Torres Strait Islander. The authority and the government protect the native title
from the impairment that needs compensation that is required to be paid. The difference
between the Native title and the other laws in Queensland differ upon the usage of the people.
Native title is not a concept or a base of the customs or the traditions of the Aboriginal Law,
in turn, describes the rights that the Aboriginal People possess on the land and the water
under the customary laws and recognized under the legal system.
Native title co-exists, and they go together with extra non-Indigenous possessions
rights, such as pastoral tenancies. These kinds of native titles are mentioned to the non-
exclusive ownership of the Native title and this form includes various rights such as the right
to admission of that land, camp or hunt on the traditional country title is denoted to as non-
exclusive ownership. “Non-exclusive native title rights may contain the right to access, hunt
and camp on customary country, but not the right to regulate the admission and use of such
area whereas the exclusive rights include the ownership excluding all others. Freehold is a
procedure of land possession that allows the landholder to own an area of land or else use it

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as per their wishes by the compliance of the relevant laws.” “Exclusive possession is approved
respective the land that is vacant or already owned by the indigenous people. Unlike state and
Territory land privileges the administrations grants the undisputable ownership title or
unending lease as compensatory actions “for past dispossession, native title does not offer for
the grant of ownership title.””
Extinguishment of the native title refers to the scenario where the titleholder no longer
holds the powers to exercise the traditional right in the areas. It was recognized in the case of
Wik Peoples v the state of Queensland where the decision concluded with granting the
pastoral lease and further excluded the possession of the landowners. Following the facts of
the case. The court stated to grant the right under this act that would co-exist with the other
rights of the land. In simple terms, it helps in preserving the non- indigenous interests at the
extent of the indigenous interests. It occurs due to the interest created by the crown are more
significant than that of the indigenous interest in the land. Following up with the case due to
such extinguishment, the trade can be easily continued upon the powers of the titleholder of
the land that is the Marine Park. As the land has been in continuous usage from the year
1920, both will get the permit to continue the trade.
In order to prerogate the native title, an application must be made under the Native
Title Act. “The Claims should be made on behalf of the title claim group that shall specify all
the claimants who hold the native title in the specific areas. The Native Title Act denotes to
Form 1 as the prescribed form that it uses. In South Australia, it is also probable to make the
entitlement for a fortitude of the title through the various courts that include the Resources,
Environment and Development Court. We shall also require to file an affidavit providing
certain information to the court under section 62”. Additional affidavits to support the
information contained in Form 1 may also be presented together with the section in order to
claim for such right. As per the procedure provided for the affidavit under section 62 of the
Native Title Act, the additional affidavit requires the following:
 That the rights claimed by the native title groups have not been extinguished and
 It is believed that the area is covered by the approved determination of such native
title.
In order to evade any kind of problem in the future keep all the requirements for the
application and arrange for the permit in order to continue with the trade. After the

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arrangement of the documentations, we shall further proceed with the permit. Furthermore,
apart from that, there are no issues regarding the continuation of the business.
Yours truly,
Legal Solicitor

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Bibliography
Bartlett, Richard. "Native title rights to exclusive possession, use and enjoyment and the
yindjibarndi." UW Austl. L. Rev. 43 (2018): 92.
Mabo v Queensland (No 2) [1992] HCA 23
Martin, David F. "Does native title merely provide an entitlement to be native? Indigenes,
identities, and applied anthropological practice." The Australian Journal of
Anthropology 26.1 (2015): 112-127.
Neate, Graeme. "Indigenous Land Rights and Native Title in Queensland-A Decade in
Review." Griffith L. Rev. 11 (2012): 90.
Smith, Diane E. Valuing native title: Aboriginal, statutory and policy discourses about
compensation (2018). Canberra, ACT: Centre for Aboriginal Economic Policy
Research (CAEPR), The Australian National University
Wik Peoples v The State of Queensland & Ors; [1996] HCA 40 ('Wik')