What is Native Title?

 
Native title deals with the legal recognition of the traditional native title rights and interests which Aboriginal people have in land and water, where Aboriginal people have continued to exercise their rights and interests in accordance with traditional law and custom.

Native title rights exist over all land and water in Australia unless there has been an act of prior ‘exclusive possession’.

Matters relating to native title fall within the Commonwealth jurisdiction of the Native Title Act 1993 (Cth) (Native Title Act). Native title claims are administered by the Federal Court of Australia and registered with the National Native Title Tribunal.

Native Title Rights

 
Native title rights will vary depending on an individual group’s traditional laws and customs but generally will include:
 

  • The right to hunt, fish, gather and use resources from the land;
  • The right to gather bush medicine;
  • The right to perform traditional ceremonies on the land;
  • The right to access and occupy the land;
  • The right to camp on the land;
  • The right to live on certain land;
  • The right to possess the land for particular traditional customs; and
  • The right to speak for country.

Extinguishment of Native Title

 
Generally, native title rights will continue to exist unless they have been ‘extinguished’, prior to 23 December 1996, by the following actions:
 

  • the native title claim group has failed to continue to observe their traditional laws and customs, or where they fail to demonstrate continued observance.
  • an exclusive possession property interest by the Crown that is inconsistent with the continuance of native title rights.

Land where Native Title applies

 
Native title will generally apply to Crown land, however, it is not limited to Crown land and can continue to be recognised in:
 

  • Crown land, including vacant and unallocated Crown land, Crown reserves, Crown land under a permissive occupancy or licence, land under non-exclusive lease;
  • National Parks and State Forests;
  • Waterways, lakes and inland seas, including both the beds and banks of the waterways

Native Title Claims

 
A ‘Native Title Determination Application’ or a Native Title Claim is an application made to the Federal Court under the Native Title Act.

A native title claim is different from an Aboriginal Land Claim under the NSW Aboriginal Land Rights Act, 1983.

Each application is seeking a Federal Court determination as to whether native title continues to exist over the claim area and in what form the continuing rights exist (i.e. whether native title rights wholly or partially remain and type of rights that remain).

Native Title Claims

 
A ‘Native Title Determination Application’ or a Native Title Claim is an application made to the Federal Court under the Native Title Act.

A native title claim is different from an Aboriginal Land Claim under the NSW Aboriginal Land Rights Act, 1983.

Each application is seeking a Federal Court determination as to whether native title continues to exist over the claim area and in what form the continuing rights exist (i.e. whether native title rights wholly or partially remain and type of rights that remain).

Claimant Applications

 
A claimant application is made by a group of people, a native title claim group, who declare they hold rights and interests in an area of land and/or water according to their traditional laws and customs.

The members of the native title claim group are seeking a decision from the Court that native title exists, so their rights and interests are recognised by the common law of Australia. This is called a native title determination.

A determination is a decision by the Federal Court or High Court of Australia, or a recognised body, that native title either does or does not exist in relation to a particular area of land or waters.

Non-claimant Applications

 
A non-claimant application is made by a person who holds a non-native title interest in an area of land and/or water. This could be the Commonwealth or a State, or a person or organisation that holds a lease or licence.

A non-claimant applicant is seeking a decision from the Court as to whether native title exists in relation to the area of land and/or water covered by the application.

Non-claimant applications cannot be made in areas where it has already been determined that native title exists.

In most cases it will not be necessary for a person or an organisation making a non-claimant application to obtain a determination of native title. This is because where a non-claimant is unopposed, protection for doing the future act will apply under section 24FA of the Native Title Act.

Dealing in Land where Native title applies

 

The Native Title Act allows for ‘Future Acts’ to be undertaken on land where native title applies subject to procedural rights.

A future act is a proposal to deal with land in a way that affects native title rights.

Examples of future acts include:

  • the grant of a mining tenement;
  • the compulsory acquisition of land;
  • the construction of a public work;
  • the issue of some tenures over land; and
  • the adoption of a plan of management which allows tenures or public works

A future act will be invalid where it affects native title unless it complies with the procedures set out in the Native Title Act. These procedures vary depending on the nature of the future act.

Training

 

Landsas provides targeted native title training and documentation to assist local government in:

  • understanding native title and aboriginal land rights;
  • addressing native title within specific projects using project management frameworks including:
    • the future acts regime around reserve management and development, occupations and plans of management;
    • land status;
    • evidencing the existence and extent of a public work
  • meeting obligations under the Native Title Act 1993 and the Crown Land Management Act 2016.

How Landsas can help – Native Title

Landsas assists in navigating the complexities of dealing with land where native title applies.

Landsas has the necessary skills and knowledge needed to research and assess the impacts of native title dependant on the requirements of a specific client.

In order to appropriately address the Native Title Act Landsas can manage the various application, procedural, notification and negotiation requirements of clients, be it over a single parcel or across a vast tract of land.

We can provide assistance to Traditional Owners, Local Aboriginal Land Councils ,Commercial Operators, Reserve Managers and Government in the undertaking of a future act, the negotiation of Indigenous Land Use Agreements and other agreements under the Native Title Act.

Local Government

Landsas is a native title manager under the Crown Land Management Act 2016 and can assist Councils in all aspects of the Crown land they manage.

Specifically, Landsas assists Councils:

  • assess whether native title has been extinguished over land they own or manage;
  • provide advice as a native title manager and obtain legal advice in relation to native title;
  • determine the appropriate future act to allow an activity to be validly undertaken on land subject to native title ;
  • prepare and submit non- claimant applications to the Federal Court for land managed by Councils;
  • provide training and protocol documents to Council staff ensuring Councils are compliant with the Native Title Act ;
  • negotiate Indigenous Land Use Agreements; and,
  • ensure Council plans of management meet the requirements of the Native Title Act.

Local Aboriginal Land Councils

Landsas assists Local Aboriginal Land Councils:

  • address native title restrictions on land titles held by the Land Council.
  • prepare and submit non- claimant applications to the Federal Court for land managed by Councils; and,
  • negotiate Indigenous Land Use Agreements.

Traditional Owners

Landsas assists Traditional owners negotiate Indigenous Land Use Agreements.

At Landsas we believe that knowledge and experience matter. Our experience provides unique insights into the challenges that our clients are facing. Our knowledge gives us the capability to analyse complex issues and develop innovative, practical solutions that we see through to implementation.

Vanessa Field is one of the State’s preeminent experts in relation to property law in general and Native Title in particular. Having spent 10 years as the principal lawyer managing Native Title issues for the State she has advised the Attorney General, other Ministers and the Executive of various government departments on all aspects of native title law and policy.

Craig Barnes has been a senior executive and operational manager of Crown land for over 20 years and has extensive experience in public land management and administration, Native Title and negotiation with the public and private sector. Craig has undertaken a series of public work and past act investigations on behalf of local governments and commercial clients to determine whether native title has been extinguished. He led negotiations on behalf of the State Government with the Lakkari people to deliver the first section 31 agreement in the resolution of Native Title.