Section 16 of Doing Business in Australia
Australian Native Title
Native title describes the rights and interests of Aboriginal and Torres Strait Islander people in land under their traditional laws and customs. Native title matters in Australia are governed by the Native Title Act 1993 (Cth) (as amended). Some states have also introduced complementary legislation which deals with certain aspects of native title.
The existence of native title depends on whether the group of people claiming to hold native title rights have maintained their traditional connection with the land to the satisfaction of the courts. The existence and content of native title rights are determined by the Federal Court.
The Native Title Act distinguishes between grants of interests in land prior to, and after, 23 December 1996. All grants of interests in land before that date have generally been validated by the Native Title Act. Grants of interests after 23 December 1996 in respect of land which either is, or may be, the subject of native title will be valid provided that the applicable “future act” procedures prescribed by the Native Title Act have been complied with.
Where a person proposes to do something that affects native title over land which is subject to a registered native title claim or determined native title rights or interests, the native title claimants or holders must be notified. This triggers certain processes under the Native Title Act, including:
- the “right to negotiate” process, which requires the state and the proponent to negotiate in good faith with the claimants or holders in order to obtain their agreement to the proposal (generally resulting in execution of either an Indigenous Land Use Agreement, which is then registered and has the effect of law between the parties, or a land access agreement, which is an unregistered agreement), failing which the matter can be referred to the National Native Title Tribunal for determination;
- an expedited process which can apply where the proposal has a minimal impact on the land; or
- a notification and consultation process where the rights to be granted relate to infrastructure.
If a grant of an interest in land is made without the appropriate process under the Native Title Act being followed, this can result in the invalidity of that grant to the extent that it is inconsistent with the continued existence or enjoyment of any native title rights in the subject land.
Separate from the question of native title is the issue of protection of sites and items of significance to Indigenous people, which is dealt with through various state and Commonwealth laws. Negotiations regarding matters of Indigenous heritage are often conducted contemporaneously with the negotiation of native title issues. Consent of the relevant government minister may be required if activities on the land may damage sites or items of significance.
The Native Title Act also specifies the procedures by which people determined to hold native title can claim compensation. Such compensation is payable by the Crown in the first instance, but depending on the circumstances the Crown might have a right of recovery against a title holder.
Compensation may also be payable by a person as a result of agreements made pursuant to the “right to negotiate” or other grant process, and depending upon the terms of the payment, this may be set off against any compensation payable to the native title party or to the Crown.
This guide is current as of April 2021.