10 Jun 2021

NT Government to grant freehold to holders of exclusive native title in Territory towns

By Mark Geritz, Tosin Aro, Ruby Rayner and Georgia Davis

Holders of exclusive native title in Territory towns will have the opportunity to apply for alienable freehold title as a part of the NT Government’s Town Lands Native Title Policy.

Key reforms required to give effect to the Town Lands Native Title Policy have been implemented by the passing of the Land Title Amendment Act 2021 (NT) on 13 May 2021.

The Policy, which has been branded the first of its kind in Australia, seeks to:

  • reduce the barriers for Indigenous economic development;
  • provide holders of exclusive native title in Territory towns (whose native title rights and interests already confer the right to possession, occupation, use and enjoyment of their lands to the exclusion of all others) with the added benefits of freehold land ownership, including the ability to sell, lease and mortgage their land;
  • increase land availability and the options for secure tenure to support development without the need for compulsory acquisition or the surrender or extinguishment of native title rights and interests; and
  • provide greater transparency and certainty for all stakeholders by including native title information on the Integrated Land Information System Record of Administrative Interests and Information (ILIS).

The Northern Territory, in common with a number of States across Australia, already has a mechanism for the grant of Aboriginal freehold land.  However, the process contemplated by the Amendment Act is different – granting alienable freehold title that will give exclusive native title holders greater flexibility to take steps that can secure their future economic development.

The Northern Territory Government's media statement on 13 May 2021 notes that the Amendment Act:

"will ensure exclusive native title holders where the land is within a gazetted town and is vacant Crown land, will have all the options and flexibility of a freehold land owner – meaning they can hold onto it, lease it, mortgage it or sell it."

The Amendment Act simply amends the Land Title Act 2000 (NT) to allow for the registration of native title determinations and Indigenous Land Use Agreements (ILUAs) on title records in the land title register.    

The freehold grants in question will be conditional on the registration of an ILUA between the Registered Native Title Body Corporate (RNTBC) that holds the exclusive native title on trust for (or is the agent of) the native title holders, the applicable Land Council and the Territory Government.  The registered ILUA, which will be listed on ILIS, will need to provide for the “non-extinguishment principle” to apply to the grant of one or more fee simple estates over the ILUA area, as well as to any subsequent dealings with those estates.  This will allow fee simple estates (and any subsequent derivative titles) to be granted over exclusive native title land without the need to first extinguish native title rights and interests, although the native title rights and interests will have no effect to the extent they are inconsistent with the rights and interests conferred by the fee simple estate/s.  In short, native title will be suppressed while the fee simple estate/s are in effect, and will revive if and when the estate/s are surrendered or otherwise extinguished.

The Policy includes a pro-forma ILUA, which contemplates that the RNTBC will nominate the entity that will hold the freehold title.  Interestingly, beyond a requirement that the nominated entity be majority-owned by the native title holders, neither the Policy nor the pro-forma ILUA contemplate that the nominated entity will hold the new fee simple estate or estates on trust for the native title holders generally.  This will hopefully allow scope for different groups of exclusive native title holders to develop, autonomously, their own models for delivering economic empowerment to their communities.

As the first of its kind in Australia, we will monitor with interest the implementation and the success of the Policy. It will also be instructive to see whether (and, if so, how long it takes for) the other States and Territories to follow the Northern Territory's lead. 

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.