Doing Business in Australia: Chapter 20 - Native title and Aboriginal cultural heritage

Native title legislation exists at both the federal and state levels. The principal legislation is the Native Title Act 1993 (Cth) (NTA), which came into effect on 1 January 1994. The purpose of the NTA is to recognise and protect native title. The NTA covers five main areas:

1. Native title claims and determinations;
2. extinguishment of native title;
3. confirmation of the validity of certain statutes, land titles and public works;
4. land access procedures where the grant of an interest in land or waters may affect native title ('future act' procedures); and
5. compensation.

Under the NTA, Aboriginal people may lodge an application for a determination that native title exists. This involves a hearing by the Federal Court as to whether a particular group of Aboriginal persons can establish that native title continues to exist in relation to particular land and waters, and has not been extinguished. Native title may be determined not to exist if an Aboriginal group loses its connection with its traditional lands.

The National Native Title Tribunal (NNTT) and/or the Federal Court may offer assistance in mediating an outcome, and many determinations are made by consent of the parties.

If a lodged native title claim passes a statutory test, then it will be registered by the NNTT. From the point of registration, those claimants will be entitled to receive the benefits of certain procedural rights under the future act provisions of the NTA.

Native title may be extinguished over land or waters in a number of ways including by legislation, or by the grant of interests in land which are inconsistent with the continued existence of native title.

The NTA clarifies the types of acts that have resulted in the extinguishment of native title. Each of the states and territories have enacted legislation which provide that comparable acts taken by the state and territory governments also extinguished native title, although there are minor differences between them.

Native title may be extinguished in whole or in part. For example, the grant of a freehold title is completely inconsistent with native title so the grant of such title prior to 1994 (with some exceptions) will have wholly extinguished native title. In contrast, the grant of a pastoral lease may only be partially inconsistent with native title so the grant of such a lease may have extinguished some native title rights over the relevant land (such as any right to control access or use) but may not have extinguished other rights such as a right to pass over, or a right to collect bush medicine on the land.

The NTA and complementary state and territory statutes ensure that any interest in land or waters granted before the commencement of the NTA in 1994 are valid in native title terms and the rights under those titles are fully exercisable. The validity of titles and other interests can also be confirmed through Indigenous land use agreements (ILUAs).

Non-legislative acts done after the commencement of the NTA on 1 January 1994 which affect native title (such as grants of freehold titles, mining and petroleum titles and other Crown tenures) must comply with the future act provisions of the NTA. These provisions provide certain procedural rights to native title holders and registered native title claimants.

Depending upon the nature of the interest to be granted, the procedural rights accorded to native title holders and registered claimants will range from a right to receive notice or an opportunity to comment, through to a right to negotiate with the prospective grantee.

Titles or interests which are granted in compliance with the future act provisions are valid. They will affect native title in the manner set out in the NTA. Mining interests do not usually extinguish native title rather they usually prevail over native title rights for the duration of the grant.

Titles or interests which are not granted in compliance with the future act provisions of the NTA may be invalid.

Importantly, if it can be demonstrated that native title has already been extinguished in relation to the land, the NTA will have no operation.

Under the future act regime of the NTA, there are a number of compliance pathways available to proponents seeking to undertake ‘future acts’, including the negotiation of an ILUA.

ILUAs

An ILUA is a key compliance pathway as the types of ‘future acts’ to which an ILUA can apply are unlimited in scope and, unless the act is the surrender of native title, the non-extinguishment principle can apply to each ‘future act’. Being an agreement based option, an ILUA requires negotiation and authorisation by the native title party. It is common for ILUAs to be accompanied by a confidential ancillary agreement, which contains the commercial terms agreed between the parties, including with respect to compensation for the ‘future acts’ and other non-native title matters, such as protection of Aboriginal cultural heritage, environmental management and ongoing engagement between the proponent and native title party.

Some states and territories have legislation which creates certain types of Aboriginal land. There are usually additional procedural requirements in relation to accessing this land.

The Australian Government and states and territories each have legislation which protects Aboriginal cultural heritage.

While the regimes differ in detail, it is generally an offence to disturb Aboriginal cultural heritage without obtaining a consent. It may also be necessary to prepare a plan for the management of cultural heritage during construction or operation of a project.