Native title and cultural heritage
Since 1992, the Australian courts have recognised that a form of native title – one that reflects the entitlement of the Indigenous inhabitants of Australia to their traditional lands, in accordance with their laws and customs – may have survived the process of European settlement.
The courts have held that native title survives unless extinguished either by:
- an act of Government that is inconsistent with the continued existence of native title rights and interests; for example:
- the grant of freehold title
- the creation of a lease giving the right of exclusive possession
- the construction or establishment, by or on behalf of the Crown, of certain public works such as buildings and roads
- the concerned group or clan of Aboriginal or Torres Strait Islander peoples losing connection with their traditional lands.
This means native title may continue to exist over large areas of the Australian continent – particularly in relation to state-owned reserves, parks, forests, beaches and other Crown lands, as well as in relation to waters both within and beyond the territorial limits of each state and territory.
The Native Title Act 1993 (Cth) (NTA) supports these developments in the common law, which establishes a framework for recognising and protecting native title. It does so by creating procedures for Aboriginal and Torres Strait Islander peoples to claim native title in relation to land and waters where native title has not been extinguished, and for such claims to be determined by the Federal Court.
When developing a project in Australia, it is crucially important to rule out any uncertainty about the validity of titles and permits that governments grant for the purposes of the project.
Under the NTA, any act of Government – such as the grant of a freehold or leasehold estate, or of the statutory authority to use Crown land – done after 1 January 1994 that would extinguish (or be otherwise inconsistent with the continued existence or enjoyment of) native title, will be invalid to the extent that it affects native title, unless the act is covered by (and, where relevant, is done in accordance with) a relevant provision of the NTA. These Government acts, where they affect native title, are known as ‘future acts’.
All people doing business in Australia must consider the extent to which future acts may be required for their projects or transactions. If future acts are planned and are covered by relevant provisions of the NTA, there may also be a requirement to follow particular procedures laid down in the NTA. These procedures typically give registered holders of, and registered claimants to, native title the right to be notified about – and to make submissions in relation to – the future acts.
In some instances, particularly with respect to the grant of mining tenements, these procedures include a requirement to negotiate with the relevant native title party to obtain their agreement to the doing of the future act in question. Validation procedures such as this have been prescribed for various types of future acts, including those that permit the construction or operation of certain types of infrastructure that will be operated for the general public.
Since 1998, the NTA has allowed an alternative future act process. Many businesses and developers find it more convenient to begin negotiating and seeking registration of an Indigenous land use agreement (ILUA) with the people who hold or may hold native title over the project area (for example, the registered native title claimants) at an early stage of project development. With a registered ILUA in place, a future act will be valid if there is included in the ILUA a statement that the parties agree to the doing of the act.
ILUAs commonly deal with matters such as the preservation of sacred or important sites; the exchange of important cultural information concerning the Indigenous group or clan concerned; the project developer employing members of the group or clan; and the payment of compensation for the effect of the project development on native title.
However, starting early on negotiations with native title holders or claimants will generally result in native title presenting no insurmountable obstacles to a successful project.