Australia: Crown land policies in New South Wales

Last Updated: 11 February 2019
Article by Dominic McGann, Peter Stokes, Liam Davis, Patrick Holland and Kate Swain

WHO SHOULD READ THIS

  • Developers, explorers, local councils and land managers that require access to or acquisition of Crown land.

THINGS YOU NEED TO KNOW

  • The Crown Land Management Act 2016 (NSW) (CLM Act) commenced on 1 July 2018;
  • The Department is presently updating all of its policies regarding the management of Crown Land, including the Native Title and Aboriginal Land Claim assessment process ; and
  • There are a number of options for dealing with Crown land where native title has not been extinguished.

WHAT YOU NEED TO DO

  • Explorers and developers should be familiar with the new Department policies for any Crown land related dealings. For guidance, please contact McCullough Robertson's Native Title team.

The Crown Land Management Act 2016 (NSW) (CLM Act) commenced on 1 July 2018.  The NSW Department of Industry (Department) has said that this new legislation will "ensure decisions about Crown land" consider "environmental, social and cultural heritage" as well as reduce duplication and "red tape".  In this article, our dedicated Native Title team endeavours to illuminate some of the changing Department policies to reflect the new legislation (especially on the topic of Aboriginal land claims and native title) that may influence developers and explorers in NSW.

As outlined in detail within our previous Insight article, the CLM Act introduced substantial changes to the ownership, use and management of Crown land in NSW.  The CLM Act does not affect existing reserve trusts, lessees, or licence holders of Crown Land, however a few of the most noteworthy amendments include:

  • The CLM Act for the first time will include provisions for Aboriginal management of Crown land;
  • The majority of Crown land that is identified as 'local land' was transferred to local councils as "community land" and will be managed under the Local Government Act 1993 (NSW); and
  • A single incorporated manager (the 'Crown land manager') will replace the current three-tier structure of reserves, reserve trusts and reserve trust managers.

The new CLM Act explicitly recognises and supports Aboriginal land rights, native title rights, and their interests and involvement in the management of Crown Land.  There is a specific provision under the CLM Act to facilitate compliance with the Native Title Act 1993 (Cth) (NTA) and prescribes that all vesting of land in local councils is subject to native title rights and interests in the land.

Changes to the Department's policies on Native Title

The Department is presently updating all of its internal policies regarding the management of Crown land.  These policies guide the Department's decisions and actions in implementing the new CLM Act.  These policies include (among others):

  • the Sale of Crown Land (Division 5.4 of the CLM Act);
  • Leasing of Crown Land (Division 5.5 of the CLM Act);
  • Licencing of Crown Land (Division 5.6 of the CLM Act); and
  • Purchasing Crown leasehold land to obtain freehold title (Schedules 1 to 4 of the CLM Act).

In each of the above scenarios, the Department guidelines contain an assessment process to ensure that the outcomes of any transaction "are aligned with the broader public interest the department will also consider economic, social, cultural and environmental values". In practice, this means that a proponent may need to undertake additional assessment and consultation before the Department will permit any dealings with Crown land. These practical implications are discussed in further detail below.

Native Title and Aboriginal Lands Claim considerations

When assessing an application for a lease or licence of Crown land the Department considers many issues including the:

  • requirements of the NTA; and
  • any pending Aboriginal land claims lodged under the Aboriginal Land Rights Act 1983 (NSW) (ALR Act).

The Department may terminate a licence (after it has been granted) following a native title consent determination, an Aboriginal land claim being granted, or if an Aboriginal land agreement or Indigenous Land Use Agreement (ILUA) have been ratified in respect of the land.

Separately, the Department's approach with respect to dealings in Crown land (i.e. registration of an easement or sale of Crown land) has become far more stringent following the implementation of the CLM Act. A proposed dealing in Crown land where the land is subject to an Aboriginal land claim cannot progress in recognition of the inchoate interest (i.e. not a legal interest) held, unless the claim is withdrawn or determined or the relevant Aboriginal Land Council consents to the dealing.  Likewise, if evidence cannot be adduced to demonstrate native title has been extinguished, then steps are required to be taken by the applicant before the dealing can proceed.

Native Title has not been extinguished – what next?

When the NTA was first introduced in 1993, it was legislated that native title rights subsist on any Crown land in Australia – unless a previous act of exclusive possession had occurred before the onset of the NTA – in which case native title is considered legally extinguished.  "Future acts" are acts that would extinguish Native Title in the future (i.e. after the introduction of the NTA). A "future act" is an act that would "affect native title in relation to the land or waters to any extent" (section 233 NTA).  A future act cannot proceed without addressing the native title requirements – of which the Department has indicated that there are generally two options to be followed by the applicant:

  • Seeking a non-claimant application determination (NCA) through the Federal Court of Australia; or
  • Entering into an Indigenous Land Use Agreement (ILUA) with native title groups that may have an interest in the area and progressing to registration of the ILUA with the National Native Title Tribunal (NNTT).

Despite the above, more streamlined processes under the Future Acts regime may be available in limited circumstances where the proposed dealing is consistent with the existing Crown reservation.

Non-claimant application

A NCA is an application to the Federal Court seeking a determination that native title does not exist in relation to an area. The Registrar of the NNTT (the Registrar) must publicly advertise a NCA in order to identify if there are any claims of native title over the area.  This notification process takes three months, by the end of which time if no claimants have come forward the NCA is taken to be "unopposed".

If the NCA is unopposed, an applicant may either rely upon section 24FA of the NTA, which will apply to any future acts done on the area, or might in other circumstances consider it necessary to proceed to a final determination.  In either case, this process can be relatively quick.  Note, though, if an individual or group does step forward, their claim will need undergo the usual court procedure (which can take a significant length of time) before the NCA can be determined.

There have been recent developments regarding the Federal Court's approach to NCAs, so keep an eye out for our future insight on this.

If there is a current (but undetermined) native title claim currently existing over the land the subject of the proposed future act, then it is not recommended that the NCA pathway be taken.

Indigenous Land Use Agreement

An ILUA is a voluntary agreement between a native title group and others about the use of land and waters.  An important feature of ILUAs is that, while registered, they bind all persons holding native title even those who are not parties to the agreement.  Having an ILUA in place enables proponents to carry out activities and developments on the land and waters in the agreement area even before native title has been determined and offers an alternative to making a native title determination application.  The ILUA process may facilitate applications to compulsorily acquire land and extinguish native title.

Negotiations can begin at any time before or after the applicant has applied to the Department for the proposed dealing.  ILUAs take time to negotiate to ensure that adequate consultation takes place for informed consent by all persons who hold or may hold native title.  Our advice is usually that developers should allow at least 6 months for the negotiation process, and then an additional 6 months following the submission to the NNTT for registration.

Compensation

The NTA has, since commencement, provided a right for holders of native title to claim compensation for certain acts extinguishing native title.  The person liable to pay the compensation was determined by reference to which person was responsible for the extinguishing act.  Liability to pay compensation for acts attributable to the State, which would include acts by Councils acting under authority give by State legislation, would lie with the Crown.

Critically, the CLM Act now provides that a Council or non-Council Manager who engages in conduct that would give rise to a right to compensation under the NTA will be the person who is liable (rather than the State) for the compensation, and will indemnify the State for any compensation liability owed by the State.

This is a potential game changer for Councils and non-Council Managers.  This at a time when governments across Australia are watching with keen interest the developments in the first determination of compensation under the NTA in favour of the Ngaliwurri and Nungali People in the town of Timber Creek, NT.  That determination was appealed to and considered by the High Court in 2018, and the Court's judgment is pending.

Summary

The CLM Act allows for greater local decision-making and strengthens opportunities for community involvement.  Importantly, the CLM Act for the first time includes provisions for Aboriginal management of Crown land.  Often addressing pending Aboriginal land claims and native title extinguishment can be time consuming and costly.  To recap, it is imperative to understand and navigate the Department's assessment policies to ensure a timely outcome is achieved.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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