Australian Local Government Association

Issues paper No.1

Adopting a precautionary approach

Ed Wensing FAPI MPIA
August 2000

One of the misconceptions surrounding native title is that it only arises in an area if there is a native title claim or determination. Nothing could be further from the truth.

Native title is an existing right that originates in Indigenous law and custom (as opposed to a Crown grant). As such, it pre-exists European settlement and, in certain areas, continues to the present day. Native title is a common law right that may already exist over areas of land or waters owned, controlled or held in trust by local councils, irrespective of whether there are any native title claims or determinations in the area.

As decision makers on matters affecting Crown land and other areas where native title exists (co-exists) or may exist (co-exist), local councils are responsible for complying with the requirements of the Native Title Act 1993 (Cth) and complementary state/territory legislation. The Act provides for the recognition and protection of native title, and such rights and interests cannot be extinguished contrary to the Act. Local councils should therefore, know how to work with native title effectively and competently.

Acts affecting (extinguishing, impairing or limiting the enjoyment and exercise of) native title rights and interests are known as 'future acts' under the Native Title Act 1993 (Cth). In order to ensure that future acts are valid in so far as native title is concerned, certain processes under the Act must be followed. This means that Councils must become familiar with the processes in the Act to ensure that whatever it does in an area where native title exists or may exist, is valid in so far as native title is concerned.

The effects of invalidity are less certain. Native title holders may be entitled to damages or other common law remedies for any activities that invalidly impact on their native title rights and interests. Following the correct native title processes and adopting a precautionary approach to native title matters will ensure that:

• everyone's legal rights are recognised
• council's exposure to any claim for damages is minimised if not eliminated
• following the proper procedures will ensure that development outcomes are lawful and valid in so far as they affect native title

A precautionary approach

So, what is involved in adopting a precautionary approach? The Australian Local Government Association, with the assistance from the Aboriginal and Torres Strait Islander Commission (ATSIC) and the National Native Title Tribunal (NNTT), has developed a six-step action plan that councils can adopt to implement a precautionary approach to native title matters.

Step 1. Search

Examine the Registers and the Schedule of Applications held by the National Native Title Tribunal or the equivalent State/Territory body to establish whether there are any determinations of native title, registered Indigenous Land Use Agreements (ILUAs), registered claimant applications or unregistered native title determination applications in the Council area. If the search reveals the existence of an application, a determination or an agreement, then the registered claimants or common law native title holders will be entitled to certain procedural rights under the Native Title Act 1993 (Cth) for acts that affect their native title rights and interests.

As an existing right, native title may exist in an area irrespective of whether or not there is an application or determination of native title.

Step 2. Analyse

Analyse what council should do where there are any registered native title bodies corporate, registered native title claimants, or unregistered native title applicants on the Registers or the Schedule of Applications, or where there are no native title holders/claimants entered on the Registers or the Schedule. Registered native title claimants, registered native title bodies corporate and Native Title Representative Bodies may be entitled to the 'right to negotiate', the 'right to be consulted' or the 'opportunity to comment' in relation to certain future acts that are to take place in areas where native title exists or may exist.

Remember that native title may exist in an area whether or not there are any applications or determinations in an area.

Step 3. Becoming a party

Council may need to decide whether or not to become a party to any native title applications in the area, and, if it chooses to become a party, whether the best method of resolving the matter is by negotiation of an agreement or by litigation. According to Lane and McRae (1999:412), "litigation is not an efficient method for determining the existing rights and obligations of negotiating parties. The primary interest in the question of whether to litigate or negotiate, from an economic perspective, should be, which alternative produces the greatest possibility of satisfaction of a party's interests at the least cost? Even on an intuitive level, the balance comes down firmly in favour of negotiation." Experience internationally, and in our short history of native title indicates that agreement is the most economically and socially efficient way of resolving uncertainties about land title, access and the doing of future acts.

Step 4. Identify

This step is divided into three parts and by carrying out each part sequentially, council will be able to identify where native title may exist or has been extinguished in relation to all land or waters owned, controlled or held in trust by Council.

Firstly, the requirements to maintain inventories of all land and waters that are owned, controlled or held in trust by local councils varies between jurisdictions in Australia. So it may be necessary for councils to begin by establishing such an inventory.

Secondly, it may be necessary to conduct a tenure history search. The purpose of such a search will be to establish from s23 of the Native Title Act 1993 (Cth), and state/territory legislation enacted pursuant to s23E of the Native Title Act 1993 (Cth), whether there have been any extinguishing events in any of the land or waters owned, controlled or held in trust by council. We suggest you do not rush into this step. Your state/territory government may have already undertaken some title searches you should liaise with your state/territory land administration agency.

Thirdly, examine all tenure histories and site inspection reports to identify any acts that took place in the past and that may have extinguished native title by being completely inconsistent with its continued existence or co-existence. An alternative approach is to reach an agreement with any native title holders/claimants for the relevant areas.

This is a complex step and councils are urged to seek independent professional advice.

Step 5. Future acts

Council may be proposing to carry out an activity in relation to an area where native title exists or may exist. If so, it should do so validly and follow the correct processes.

Activities that take place in relation to land or waters are referred to as acts under the Native Title Act 1993 (Cth). Any act that a council carries out in an area where native title exists or may exist may impact on native title rights or interests. Acts affecting native title that take place after 1 January 1994 and do not fall within the definition of intermediate period acts or past acts, are referred to as future acts. To carry out a future act validly in an area where native title may exist, the correct processes must be followed irrespective of whether there are any native title determinations or applications in the area.

For each kind of future act, there will be specific processes to follow under the Native Title Act 1993 (Cth) or, in some cases, under state/territory legislation. By following the correct processes under the Act and/or complementary state or territory legislation, council can endeavour to ensure that any future acts in relation to an area are valid in terms of their effect on native title. An agreement may also be reached with native title holders and/or claimants to validate council future acts.

For a future act to be valid to the extent that it affects native title, it must come within one of the provisions in the future act hierarchy in the Native Title Act 1993 (Cth). If not, it will be invalid to the extent that it affects native title (s24OA of the Native Title Act 1993 (Cth)). If a future act does not fall within any of the provisions in the future act hierarchy the only way of ensuring validity is to negotiate an Indigenous Land Use Agreement (ILUA).

This is also a complex step and councils are urged to seek independent professional advice.

see also: Isses paper No.5 and Isses paper No.6

6. Negotiate agreements

In a native title context there will always be a need for agreements.

The amendments made to the Native Title Act 1993 (Cth) in 1998 strengthen the status of local and regional agreements between native title holders and other parties, including local councils, by providing flexibility, certainty and mechanisms for enforcement. These amendments were widely supported by all stakeholders. The amendments mean that agreements about the use of land between native title holders/claimants and other interest holders remain the most important way of resolving native title matters. Indeed, the more complex processes can be avoided by negotiating an agreement with native title holders and claimants.

There is ample opportunity for local councils to resolve native title matters by agreement in the interests of good governance, in a way that maintains and promotes community cohesion as well as providing certainty. Local councils can also benefit from a productive working relationship with Aboriginal peoples and Torres Strait Islanders, especially where the parties are able to work together for a common purpose or purposes.

Agreements between local councils and Indigenous Australians can be about any matter or matters the parties choose and they can be negotiated at any stage.

see also: Isses paper No.3 and Isses paper No.4

Conclusion

At the very least, councils, planners and land managers need to:

• identify the areas where native title no longer exists, for example areas covered by private freehold, grants of exclusive possession or public works;
• highlight the areas where native title may continue to exist;
• keep an inventory of where native title has been determined by the Federal Court;
• consult with registered native title bodies corporate, registered native title claimants and/or unregistered native title applicants to obtain a better understanding of native title matters; and
• have a reasonable understanding of what councils can and cannot do in terms of native title rights and interests in areas affected by native title.

As a prudent management strategy, native title should be included as a consideration in all dealings involving land where it cannot be established beyond doubt that native title has been extinguished. Adoption of a precautionary approach in relation to native title matters will ensure council meets its obligations under the Native Title Act 1993 (Cth) and complementary state or territory legislation. This can only be done by following the correct processes.