Native title is extinguished by valid grants of land or waters to people other than native title holders in ways that exclude co-existent indigenous rights. Because of its serious consequences for indigenous property rights, extinguishment requires a clear and plain intention. Native title cannot displace privately owned homes or other private property, such as farms, commercial or residential property, which is held under freehold title. If an indigenous group achieves recognition of their native title, their title is still subject to any valid grant that has been made over the same land. In other words the rights of existing landowners are protected.
Native title recognises rights that have previously been denied on the basis of race.
Other British-based common law countries, such as the USA, Canada and New Zealand, have long recognised indigenous property rights. Statutory land rights flow from the Crown under legislation, similar to freehold and leasehold titles. Native title is not a grant created through legislation. Native title comes from indigenous law and custom which pre-exists the Crown. Native title is a pre-existing right that has now been recognised by Australian common law since the High Court Mabo Decision in 1992.