Janet Moss, A/Assistant Crown Solicitor
In NSW there are currently 25 native title claimant applications. There are four Federal Court determinations that non-exclusive native title rights and interests exist in the land in NSW. These determinations are:
There are also currently three native title claimant applications for which the State has indicated that it has found the applicant's evidence sufficient to join with the applicant to apply to the Federal Court for a consent determination that non-exclusive native title rights and interests exist (subject to extinguishment).
Native title means the communal, group or individual rights of Aboriginal and Torres Strait Islander people in land and waters according to their traditional laws and customs. (s. 223 Native Title Act)
Extinguishment of native title occurs when a government deals with land in a way that is inconsistent with the continued exercise of native title.
Extinguishment of native title is dealt with in two different ways under the Native Title Act 1993 ("NT Act").
Firstly, it confirms the partial or complete extinguishment of native title by acts done by the Commonwealth. (The Native Title (New South Wales) Act 1994 reflects the provisions of the NT Act for acts done by the state of New South Wales.) These acts are either previous exclusive possession acts ("PEPAs") or previous non-exclusive possession acts ("PNEPAs").
PEPAs are defined in s. 23B NT Act and include various acts carried out prior to 23 December 1996 and include:
- the granting of certain freehold estates and leases
- the construction/establishment of public works or
- an act listed in Sch. 1 of the NT Act (a scheduled interest).
PEPAs and PNEPAs include acts that were validated under the NT Act and also those acts that were valid at the time they were carried out.
Secondly the NT Act deals with extinguishment by validating acts that were invalid because of the existence of native title. These acts are called past acts (s. 14) and intermediate period acts (s. 22A).
The major concern behind the need for validation was the effect of the Racial Discrimination Act 1975 (Cth) ("RDA") which would be inconsistent with, and thereby have invalidated to the extent of the inconsistency, discriminatory State laws or grants of interests.
Past acts occur after the date of commencement of the RDA (31 October 1975) and before 1 July 1993 for legislative acts and before 1 January 1994 for all other acts.
Intermediate period acts took place between 1 January 1994 and 23 December 1996.
Apart from the NT Act, native title can also be extinguished under the common law.
Broadly speaking an act is a future act in relation to land or waters if that act affects native title. Future acts are not past acts and they take place on or after 1 January 1994 for non-legislative acts and on or after 1 July 1993 for legislative acts. (Future acts are defined in s. 233 NT Act.)
The proposed act must take place in an area where native title may exist. The proposed act must affect native title. If an act does not affect native title it is not a future act.
An act affects native title if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise. (s. 227 NT Act)
An act is defined in the NT Act at s. 226.
It is the policy in NSW (as in many other jurisdictions) to follow the future act regime in relation to land where it cannot be shown by a prior extinguishing act that any native title that may have existed on the land has been extinguished.
The future act regime at Pt 2 Div. 3 of the NT Act divides future acts into a range of categories or subdivisions.
To the extent a future act affects native title it will be valid if covered by a subdivision of the future act regime and invalid if not (s. 24AA(2)).
The subdivisions (except those which provide for Indigenous Land Use Agreements) are designed to be used as a cascade, so that if a future act can be done under a subdivision higher in the list, it cannot be done under a subdivision lower in the list (s. 24AB(2)).
The subdivisions within the future act regime
Subdivisions B, C and D deal with future acts that can be done in accordance with Indigenous Land Use Agreements (also known as ILUAs).
There are three types of ILUA: a Body Corporate agreement (Subdiv. B); an Area agreement (Subdiv. C); and an Alternative Dispute agreement (Subdiv. D).
Subdivision E sets out the effect of registered ILUAs and provides that Registered ILUAs have a contractual effect between the parties and also binds all native title holders for the area regardless of whether they are parties to the agreement (ILUA).
Once an ILUA is registered (Pt 8A) it ensures the validity under the NT Act of all future acts which the agreement covers or authorises.
If a future act is validated in an ILUA, it may not be covered by any of the following categories in the future act regime (s. 24AB(1)).
Briefly, non-claimant applications are lodged by persons who, or government entities which, hold a non-native title interest, such as a non-exclusive lease or licence in the application area (s. 61(1) Table (2)). Future acts will be valid if done in an area covered by a non-claimant application provided that the non-claimant application has undergone the prescribed notification period and at the end of that period there is no relevant native title claim (s. 24FB and s. 24FC NT Act).
The native title holders, if any exist, are entitled to compensation for any affect to their native title caused by any future act done under the "s. 24FA protection".
Subdivision G deals with acts relating to primary production activities or incidental activities carried out on non-exclusive leases.
Subdivision H covers future acts related to the management of water and airspace.
Subdivision I deals with renewals and extensions of valid or validated leases, licences, permits or authorities as well as pre-existing rights based acts, which are acts carried out after 23 December 1996 but which give effect to a prior arrangement or agreement.
Subdivision J deals with future acts arising on pre-23 December 1996 reservations of land or waters for a particular purpose or on a pre-23 December 1996 lease to a statutory authority for a particular purpose.
Subdivision K deals with services to the public. Compulsory acquisition cannot be used under this subdivision.
Subdivision L deals with future acts which have little impact on native title.
Subdvision M deals with legislative and non-legislative future acts that pass the freehold test, ie. acts that can take place on land held in freehold.
This Subdiv. only applies to a future act to the extent it relates to an onshore place (land or waters within the limits of a State to which the NT Act extends).
Legislation will be valid if it affects native title land in the same way, or no less beneficially, as it affects freehold land.
Non-legislative acts under Subdiv. M are acts that could be done on freehold land. These include the creation or variation of a right to mine (including under s. 24IC) and the compulsory acquisition of native title rights and interests.
Compensation is payable for acts under Subdiv. M and except for the compulsory acquisition of native title rights and interests, the non-extinguishment principle applies.
The Subdiv. M future acts to which the right to negotiate is not required for validity are:
- compulsory acquisitions that confer rights or interests on the government; a statement to that effect is to be made and the procedural rights to which the native title holder is entitled are the same rights as would be given to the holder of ordinary or freehold title.
The following future acts under Subdiv. M provide the native title stakeholders with the right to object (s. 24MD(6B)):
- compulsory acquisitions that confer rights on a non-government body for the purpose of an infrastructure facility, and
- the creation of a right to mine for the sole purpose of constructing an infrastructure facility associated with mining.
Briefly, the procedures involved in the right to object include:
- the right to be notified about the act
- the right to lodge an objection within two months of the notification
- the right for objectors to be consulted about ways of minimising the impact of the act on native title, any access rights, and the way in which anything permitted by the act may be done
- for the objections to be heard by an independent body or person (in NSW this is the NSW Civil and Administrative Tribunal).
The right to negotiate under Subdiv. P applies to future acts which include the conferrals of certain mining rights, certain compulsory acquisitions and to certain future acts carried out under s. 24IC.
The procedures included in the right to negotiate are the right for all native title parties affected by the act to:
- be notified in writing with an adequate explanation of the future act
- become a party to the process within four months after notification
- lodge a claimant application within three months and to be a registered claimant within four months so as to become a party to the negotiations
- be provided with an opportunity to make submissions in relation to the future act
- all parties must negotiate in good faith with a view to reaching agreement about the doing of the act
- if agreement is not reached following the negotiations, then after a prescribed period, any negotiation party may apply to the arbitral body for a determination.
The final subdivisions are Subdiv. N which relates to future acts occurring in an off shore place and Subdiv. JAA which deals with building houses and other infrastructure on Aboriginal land.
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