Consent Determination (Native Title Act 1993 (Cth)) (Australia)


A decision by the Federal Court, High Court or a recognised body in relation to native title rights and interests that reflects an agreement reached by the parties under the Native Title Act 1993 (Cth). Consent determinations are an alternative to litigated determinations.

Extended Definition

Consent determinations aim to provide an efficient and resourceful means of settling native title issues. The process has been described as: encouraging relationship building between Indigenous communities and others; less intrusive on Aboriginal culture than litigated determinations; and often more expert driven (Paul Scheiner).

The Native Title Act 1993 (Cth) sets out that a native determination can be made by an Australian Court (such as the Federal Court or High Court) or another 'recognised body'. A recognised body must be a court, office, tribunal or body of a State or Territory that the Commonwealth Attorney-General has formally recognised to make determinations in relation to areas of particular land or waters. The Attorney-General must be satisfied that the body will operate in a way that is consistent with the Act.

In making a determination of native title, the court (or recognised body) must:
- decide whether or not native title exists in respect of the determination area;
- identify the group that holds native title;
- state the nature and extent of the native title rights and interests; and
- set out other rights and interests in the determination area and the relationship between those rights and native title.

The court or recognised body is allowed to make a determination without holding a hearing, where there is agreement (consent) between the parties, or where the orders sought by the applicants are unopposed.