Native title year in review 2025-2026

What you need to know

• The law in relation to extinguishment of native title based on its tenure history continues to be contested.
• Three recent Federal Court decisions have held that a compulsory acquisition, a resumption and a vesting of land in the Crown extinguished native title.
• Two of these decisions considered whether Torrens title registration itself can extinguish native title separately from the earlier dealing and also dealt with issues relating to general law validity.
• Non-claimant applications remain a source of authority relating to extinguishment of native title as applicants rely on historical extinguishment to found claims for determinations that native title does not exist.

What you need to do

• Do not assume that a tenure history review is straight forward. It can be, until it isn't.
• When investigating a tenure history to determine whether native title has been extinguished, remember that general law validity must be established before extinguishment is considered.
• Be aware that the law is still developing. The outcome of the Redland City Council non-claimant application may provide detailed consideration of Queensland tenures and public works.

Decisions relating to extinguishment of native title and/or validity of tenure in 2025-2026

Resolution of native title claims and compliance with the Native Title Act 1993 (Cth) requires an assessment of whether native title has been extinguished as a result of the history of land dealings. The principles are well settled and confirmation of extinguishment in respect of "previous exclusive possession acts" under the Native Title Act and corresponding State legislation has underpinned such assessments for decades. Nevertheless, more than 30 years after the commencement of the Native Title Act, there is still some room for lively debate.

The last 12 months have seen a number of Federal Court decisions addressing contested extinguishment issues in the context of claimant and non-claimant applications. We provide some insight into the most interesting below.

Compulsory acquisition and registration of Torrens title considered in NSW non-claimant applications

Metropolitan Local Aboriginal Land Council (No 3) v Attorney-General of NSW [2026] FCA 595 (Metropolitan LALC (No 3)) was a non-claimant application relating to seven parcels in Sydney's Northern Beaches. The Court determined that native title does not exist over all seven parcels. Four parcels were uncontroversial, but extinguishment was contested in relation to three Crown land parcels that had been compulsorily acquired in April 1996 by the NSW Land and Housing Corporation (NSWLHC) under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW). 

Kennett J considered general law validity, the effect of Torrens title registration and the operation of the Native Title Act, both as it was in April 1996 before the Wik amendments and in its current form, which includes the confirmation of past extinguishment regime.

General law validity 

Kennett J found that the compulsory acquisition was valid under NSW law, notwithstanding the absence of evidence that notice was given to native title holders. His Honour held at [61]:

Proof of some invalidating feature is required before the Court will proceed on the basis that an administrative act which appears valid on its face was invalid … Absent any evidence that there were native title holders at all, let alone that they were in occupation of the land or known to NSWLHC, the absence of evidence that notice was given to such persons is therefore not fatal to the validity of the compulsory acquisition. The same is true of holders of any other kinds of interest in the land.

Torrens title registration under the 1996 Native Title Act

Kennett J then considered whether the compulsory acquisition was valid in so far as it affected native title. His Honour first looked to the Native Title Act as it was in force in April 1996 and found that it was a valid "permissible future act" under former section 23 of the Native Title Act, but that the non-extinguishment principle applied to the acquisition under former section 23(2)(a).

The Land Council and the State sought to overcome this by reliance on former section 23(3)(b) of the Native Title Act, which said that "nothing in this Act prevents any act that is done in giving effect to the purpose of the acquisition from extinguishing the native title rights and interests". They submitted that the Torrens title registration of NSWLHC as registered proprietor on 16 June 1996 was a further "act" that extinguished any remaining native title as an act "giving effect to the purpose of the acquisition".

Notably, in considering this issue, Kennett J appeared to depart from the line of authority beginning with Hayes v Northern Territory [1999] FCA 1248 and endorsed in Daniel v Western Australia [2003] FCA 666 and Allen v Western Australia (Nyamal Palyku Proceeding) (No 2) [2020] FCA 788, which discussed the impact of Torrens registration on native title.

His Honour said that the Torrens system is one of "title by registration" (not "registration of title"), such that registration confers a "new title" as if there were a "new Crown grant", and that registration of an interest in land under Torrens title legislation is capable of extinguishing native title (where such extinguishment has not already occurred by reason of the grant of that interest). On that reasoning, the registration of NSWLHC's interest was a separate "act giving effect to the purpose of the acquisition" within section 23(3)(b) of the Native Title Act and therefore extinguished any native title that had survived the acquisition.

Having appeared to take a definitive position, His Honour ultimately decided the case on other grounds.

Consideration of the "confirmation of past extinguishment" regime in current Native Title Act

Kennett J then turned to the current legislation and noted that the High Court had confirmed that any overlap between the two extinguishment regimes must be resolved in favour of the new regime. Accordingly, if the compulsory acquisition constitutes a "previous exclusive possession act" (PEPA) under current section 23B, the result is that former section 23(2)(a) is excluded and native title is extinguished by virtue of the new regime.

Kennett J held that it was a PEPA. In His Honour's view, the vesting effected by the acquisition notice amounted to the vesting of "a freehold estate" and the exception in section 23B(9C) for "Crown to Crown grants" did not apply for the reasons set out in Tweed Byron Local Aboriginal Land Council v Attorney-General of NSW [2019] FCA 936 at [29]-[33].

Analysis of registration of title "irrelevant"

Kennett J concluded that, as a PEPA, the compulsory acquisition extinguished native title by operation of section 23E of the Native Title Act and section 20(1) of the Native Title (New South Wales) Act 1994 (NSW). His Honour said that, if this conclusion was correct, it displaced the earlier effect of former sections 23(2) and (3) of the Native Title Act (discussed above), rendering the analysis of the registration of title "irrelevant".

Key insights

The Torrens registration analysis is a notable feature of this decision. Although His Honour noted that this analysis was not determinative once the PEPA conclusion was reached, the reasoning may open an additional avenue for establishing extinguishment in future cases.

In an earlier decision, Metropolitan Local Aboriginal Land Council v Attorney-General of NSW [2025] FCA 1183, McDonald J briefly mentioned the "interesting" issue of extinguishment by Torrens title registration (and the arguments for and against) but found that it was not necessary to resolve it. The Court found that the David Berry Hospital Act 1906 (NSW) vested certain land in the Crown "free from all estates and interests", language the Court held was sufficiently broad to demonstrate a legislative intention to vest an estate equivalent to fee simple (notwithstanding the absence of the words "fee simple"), thereby extinguishing native title. As to general law validity, the parties could not rely on an 1825 grant of freehold because there was insufficient evidence that it was valid at general law. Questions were also raised about the validity of a 1967 special lease.

Resumption of land under the Land Act 1962 (Qld) extinguished native title

In Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 39) [2026] FCA 670, the Federal Court considered whether proclamations by the Governor in Council in the 1980s resuming two parcels of land in the Cooktown area under section 306 of the Land Act 1962 (Qld) extinguished native title rights and interests held by the Guugu Yimidhirr People.

The applicant contended that "land" in section 308 referred only to legal or equitable rights in land – that is, the leasehold interest – rather than the physical land itself. On this reading, the resumptions merely terminated the leases without extinguishing native title, analogous to the form of resumption under the WA Land Act considered in Western Australia v Ward (2002) 213 CLR 1.

Stewart J rejected that construction. His Honour held that "land" in section 308 includes the physical land itself, not merely incorporeal rights and interests. Accordingly, the Court held that the resumptions vested the land in the Crown freed of all interests, including native title. Stewart J found that the Land Act 1962 resumption regime was analogous to the Public Works Act 1902 (WA) provisions held in Ward to extinguish native title, rather than the Land Act 1933 (WA) provisions which did not. 

The applicant also advanced an alternative case based on procedural fairness. On this alternative case, the applicant contended that the power to make a resumption proclamation was subject to a statutory implication of procedural fairness owed to those who would be affected by the proclamation, including any native title holders. The applicant argued that as procedural fairness was not afforded to the applicant, the proclamations are affected by jurisdictional error.  

The Federal Court rejected this argument on the basis that, at the time of the 1980s resumptions, there was no evidence available on which a conclusion could have been reached that native title holders had an interest in the proposed resumptions and should have been given notice in advance. Stewart J found therefore that there was no obligation to take any steps, such as to notify native title holders, in relation to procedural fairness.

Extinguishment by scheduled interests and public works in NSW non-claimant applications

In Coffs Harbour and District Local Aboriginal Land Council v Attorney-General of New South Wales [2025] FCA 1492, a contested non-claimant application turned on whether a 1910 special lease for "residence, grazing and agriculture" was a PEPA. The list of purposes for a special lease under section 90 of the Crown Lands Act 1884 (NSW) (CL Act 1884) to qualify as a Native Title Act scheduled interest does not include grazing while the equivalent list for a special lease under section 75 of the Crown Lands Consolidation Act 1913 (NSW) (CLC Act 1913) includes both "residence" and "agriculture (or any similar purpose) and grazing combined".  

Viewed as a special lease granted under CL Act 1884, the Court found that it could not be a scheduled interest. The lease required bona fide use for all three purposes, and “grazing” was not a scheduled category. However, the CLC Act 1913 deemed special leases granted under section 90 of the CL Act 1884 as having been granted under section 75 of the later act. The Court considered at length whether the legal fiction of the deeming provision could be applied to allow the re-characterisation of the special lease for the purposes of the Native Title Act. Concluding that it could, the Court found it was appropriate to view the CL Act 1884 special lease as also granted under the CLC Act 1913. With each of "residence", "grazing" and "agriculture" listed in the Native Title Act as purposes for a CLC Act 1913 special lease to qualify as a scheduled interest, the Court found the deemed grant extinguished native title.

In Hay Local Aboriginal Land Council v Attorney-General of NSW [2025] FCA 1581, the Court determined that native title had been extinguished by public works, including a residence constructed around 1898 for the Hay Courthouse caretaker and the Hay Courthouse itself. The Court rejected the primary submission that the whole parcel was one public work. Instead, section 251D of the Native Title Act extended the footprint of each public work to adjacent land necessary for or incidental to its operation. While the Court was ultimately satisfied that native title was extinguished across the whole parcel, evidence of use was required to establish this. The decision illustrates the functional reach of section 251D.

Extinguishment not to be disregarded – operation of section 47B of the Native Title Act

Two recent Federal Court decisions have held that a WA mining lease and a Queensland petroleum lease are each a "lease" for the purposes of section 47B(1)(b)(i) of the Native Title Act, such that historical extinguishment cannot be disregarded (Gilla on behalf of the Yugunga-nya People v State of Western Australia (No 5) [2026] FCA 1255 and Doyle on behalf of the Iman People #4 v State of Queensland (No 2) [2026] FCA 1334). This issue has been unresolved since the High Court decision in Tjungarrayi v Western Australia (2019) 269 CLR 150.

For more information about these decisions, see our Native Title Year in Review 2025-2026 article, "Mining and petroleum leases prevent application of section 47B Native Title Act". 

Future Queensland extinguishment decision to monitor in 2026-2027

We wrote about Redland City Council's three non-claimant applications in South East Queensland in our 9 September 2025 alert, "Full Court upholds negative determination in contested non-claimant application". According to Council, these were filed to obtain certainty in respect of extinguishment of native title in the context of the 530km² Quandamooka Coast Claim. The Quandamooka Coast Claim and Council's first two non-claimant applications were partly heard in September and December 2025, with judgment reserved. Council's third non-claimant application (filed in June 2025) is progressing towards hearing separately. We expect a decision in these proceedings to consider the impact of a range of Queensland tenures and Council public works on native title.

Want to know more? 

• Full Court upholds negative determination in contested non-claimant application (9 September 2025)
• Native Title Year in Review 2024-2025 (9 September 2025)
• Mining and petroleum leases prevent application of section 47B Native Title Act (30 October 2026)

Authors: Clare Lawrence, Partner; Libby McKillop, Partner; Leonie Flynn, Expertise Counsel and Lydia O'Neill, Lawyer.