Australia: Native title claim proceedings – Practical guidance for local governments in NSW

WHO SHOULD READ THIS

Local governments in New South Wales.

THINGS YOU NEED TO KNOW

Councils are able to join native title claim proceedings in the Federal Court as a respondent party. There are many reasons why a council might decide to participate in a native title claim, including to protect its interests and stay informed about future implications of the claim for the local government area.

WHAT YOU NEED TO DO

Keep an eye out for notifications of new native title claims and consider whether Council should join the proceeding to protect its interests.

Being a respondent to a native title claim proceeding allows councils to participate in the court process to protect their interests in land and monitor the likelihood and extent of compensation liability for past extinguishment of native title.

Background

In recent years, native title claims have gained increasing attention in New South Wales. As it stands, approximately 30% of the State is covered by a native title claimant application and just over 1% is subject to a determination as to whether native title exists.

Native title claim proceedings are commenced in the Federal Court pursuant to the Native Title Act 1993 (Cth) (Native Title Act). Under the Native Title Act, recognition of native title rights and interests requires the claimant to demonstrate continuing connection with the land and waters.

In New South Wales, certain crown land can also be claimed by Aboriginal Land Councils under the Aboriginal Land Rights Act 1983 (NSW) (ALR Act). This regime operates separately to native title. Importantly, a land rights claim made in an area where there is a registered native title claimant application must be refused. Conversely, a native title claimant application may be made over land that has already been the subject of grant under the ALR Act.

Native title claim proceedings

A native title claim typically involves the following stages:

Once a native title claim has been filed, it will be assessed by the National Native Title Tribunal for registration. The Tribunal will then publicly notify the claim and will individually notify certain persons with an interest in the claim area, including any relevant local government authorities. Persons who are notified may join the proceeding by filing a notice of intention to become a respondent party in the Federal Court within the public notification period. If a person applies to become a respondent party at a later stage, there will be a separate hearing before the Federal Court in relation to whether that person should join as a party.

The State will have a key role in considering the claimant's connection material, which typically involves complex anthropological evidence. It also involves consideration of the nature of the particular native title rights that are asserted by the claimant. If the connection material is accepted by the State and no other party objects to the connection material or the bundle of rights asserted by the claimant, the proceeding may proceed to a consent determination.

As part of a consent determination, the parties will negotiate on how the land within the claim area will be treated under a determination. Namely, the parties will investigate in which areas native title has been previously extinguished (such as by a valid grant of freehold), and which areas remain subject to native title.

Why councils should join

A respondent party is permitted to, among other things, contribute to the evidence about specific land within the claim area in which that respondent party has an interest. This evidence is then required to be considered by the claimant and the State, and ultimately by the Court.

Any land where native title has not been extinguished, potentially including significant land administered by councils, will be directly impacted by the outcome of a native title claim, as any native title rights and interests determined to exist will co-exist with any pre-existing interests.

For areas where native title has been extinguished, there may be a compensation liability owing to the native title holders if the claim is successful. For example, there may be a compensation liability for past extinguishment caused by the conversion of land to freehold by the State, or the establishment of a public work by council, and a council may be liable for this compensation even where the act was not performed by the council.

As part of a determination of a native title claim, councils may also choose to negotiate Indigneous Land Use Agreements with the native title holders to address issues such as compensation and land use post determination.

How we can help

Being a respondent party to a native title claim proceeding can involve minimal activity until the claim progresses toward a determination. We can assist by being on the record and receiving notifications from the Court, appearing at case conferences where necessary, updating you on the progress of the proceeding and advising you on how and when Council should actively participate to protect its interests.

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.