Australian Local Government Association

Issues paper No.5

Following the Future Act Processes under the Native Title Act 1993 (Cth)

Ed Wensing FAPI MPIA
August 2000

What should Council do if it is unable to develop an Indigenous Land Use Agreement (ILUA) in relation to future acts in areas where native title exists or may exist?

What is a future act?

A future act is an act that is neither a past act nor an intermediate period act. It is an act in relation to land or waters that either:

• consists of the making, amendment or repeal of legislation on or after 1 July 1993, that affects native title; or
• any other act done by a Government or person on or after 1 January 1994, that affects native title

Future acts may involve some kinds of Council activities, such as: gravel pits; the provision of facilities for services to the public; the grant or renewal of a lease or licence; low impact future acts; the conferral of a right of exclusive possession to an area; excavation or clearing; construction; the installation/construction of sewerage disposal facilities, waste disposal; or the storage or disposal of hazardous substances. Some kinds of future acts, however, are not done by Councils but by State or Territory Governments or by Councils under a delegated authority from a State/Territory agency or department.

Valid and invalid future acts

Future acts that affect native title are classified as valid or invalid under the Native Title Act 1993 (Cth) because of the existence of native title. In this context 'valid' means 'having full force and effect'.

The Act provides processes, in tandem with existing land management systems, whereby future acts that take place over land or waters where native title exists or may exist are valid. If Council does not follow these processes, the particular future act may be rendered invalid at a later date. If an act is declared or found to be invalid in terms of its effects on native title, the native title holders may be entitled to compensation, damages or any other remedy, such as an injunction.

If an act does not affect native title in any way, the future act regime will not apply.

What are the processes?

In situations where the native title holders or claimants are known, parties proposing future acts have the option of either:

• developing an Indigenous Land Use Agreement (ILUA); or
• following the future act processes

Under the Act, the provisions relating to ILUAs take precedence over all other procedures for dealing with future acts. If Council can negotiate an Indigenous Land Use Agreement (ILUA) with the registered native title body corporate and/or registered native title claimants about a future act or classes of future acts, the subsequent provisions for dealing with future acts do not apply.

In other words, the complex processes for dealing with future acts in the Native Title Act 1993 (Cth) can be set aside and the parties can seek to work it out directly between themselves.

Or if it is not possible for whatever reasons to develop an ILUA about a particular future act or entire classes of future acts, then Council will need to follow the future act processes in the Native Title Act 1993 (Cth).

These processes must be followed in areas where native title exists or may exist, irrespective of whether or not there are any native title determination applications or determinations in relation to the area.

A proposed future act in an area where native title exists or may exist may fall within any one of the future act provisions. The order of application of the future act provisions, is as follows:

1. Indigenous Land Use Agreements (ILUAs) (s24BA, 24CA, 24DA)
2. Section 24FA protection (non-claimant applications) (s24FA)
3. Primary production and associated activities (s24GB, 24GD, 24GE)
4. Management of water and airspace (s24HA)
5. Renewals and extensions of leases, licences, permits etc (s24IA)
6. Use of reserved land and reserved Council lease-holdings(s24JA)
7. Providing or maintaining facilities for services to the public (s24KA)
8. Low impact future acts (s24LA)
9. Acts that pass the freehold test (s24MD)
10. Acts affecting offshore places (s24NA)

These provisions are hierarchical. To the extent that a future act is covered by a particular provision in the future act hierarchy in the Act, it will be made valid by that particular provision and will not be covered by any provisions relating to a category lower in the list. By checking the hierarchy and following the correct processes for the relevant category set out in the Native Title Act 1993 (Cth), Council is able to ensure that a proposed future act will be valid.

If a particular future act is not covered by any of the provisions in the future act hierarchy, it can only be validly done by way of an Indigenous Land Use Agreement (ILUA). Unless a future act is covered by one of the provisions in the future act hierarchy, including by way of an ILUA, the future act is invalid to the extent that it affects native title (s24OA of the Act).

Procedural rights

Under the future act provisions in the Native Title Act 1993 (Cth), registered native title bodies corporate, registered native title claimants and/or Native Title Representative Bodies are entitled to specific procedural rights to ensure the validity of most future acts. No procedural rights arise under the Act for unregistered native title applicants, although it may be useful to do so in the interests of good governance.

The rights that registered native title bodies corporate and/or registered native title claimants may be entitled to in relation to a future act will depend on the kind of act being done. Failure to treat native title holders and registered claimants in the way set out under the Native Title Act 1993 (Cth), and/or under complementary State or Territory legislation, may mean that Council's future act is invalid.

The procedural rights that apply to the different categories of future acts are summarised in the Table below. The table sets out the order of application of the future act provisions according to which a future act or classes of future acts must be considered. The table also shows the nature of the procedural rights that apply in each case.

The procedural rights include:

• the opportunity to comment
• the right to be consulted
• the right to negotiate

These rights sit between:

• the same rights as a freeholder is entitled to (the freehold test)
• no procedural rights

The opportunity to comment involves the right to be given:

• notification in writing including an adequate explanation of the future act
• a reasonable time to make comments

The full bench of the Federal Court in Harris v the Great Barrier Reef Marine Park Authority [2000] FCA 603 (14) states that the opportunity to comment is a right to proffer information and argument to the decision-maker that it can make such use of as it considers appropriate.

The right to be consulted involves the right:

• to be notified about the act
• to lodge an objection within two months of notification
• for objectors to be consulted about ways of minimising the impact of the act on native title rights and interests, any access rights, and the way in which anything permitted by the act can be done
• for objections to be heard by an independent body or person
• to seek compensation for loss or impairment of native title rights and interests

The Federal Court in Harris v the Great Barrier Reef Marine Park Authority [2000] FCA 603 (9) citing a case from New Zealand observes that consultation may be a continuous process, with the happenings at one meeting forming the background to a later one.

The right to negotiate involves the right for all native title parties affected by the act to:

• be notified in writing, with an adequate explanation of the future act
• become a party to the process within 4 months after notification
• lodge a claimant application within three months and to be registered within four months of notification, so as to become a party to the negotiations
• be provided with an opportunity to make submissions in relation to the future act

All parties must negotiate in good faith with a view to reaching agreement about the doing of the act, or the doing of the act subject to conditions. If any party so requests, the arbitral body must mediate among the parties to assist in reaching an agreement. If agreement cannot be reached, the relevant Commonwealth, State or Territory Minister may make a determination about the future act.

According to the Federal Court, again in Harris v the Great Barrier Reef Marine Park Authority [2000] FCA 603 (15), the right to negotiate is "designed to achieve agreement" and can be seen as an entitlement for the native title holders "to participate closely in the validation process".

The same rights as a freeholder depends on the rights given to freeholders under the relevant legislation. Future acts that pass the freehold test must not put native title holders in a worse position than ordinary or freeholder owners.

No procedural rights means that Council need not take any action to notify or to consult about the doing of a particular act. The only type of future act that does not involve any procedural rights is a low impact future act. A low impact future act can take place over an area without public notice or negotiation with any potential native title holders before a determination that native title exists is made, although it may be useful to do so in the interests of good governance. However, low impact future acts cannot continue after such a determination is made unless the native title holders agree that the act may continue.

What is the effect of a future act on native title?

Unless otherwise stated under the Native Title Act 1993 (Cth), the non-extinguishment principle generally applies to valid future acts. This means that native title rights and interests continue to exist in an area covered by a valid future act but that native title can not impede the doing of the act. Inconsistent native title rights and interests are suppressed for the duration of the future act.

The only valid future acts that will extinguish native title in relation to an area are:

• the surrender of native title by agreement
• the exercise of a right created on or before 23 December 1996 that grants freehold or exclusive possession
• the construction of a public work on reserved land or on a lease that has been granted to a statutory authority for that or a similar purpose
• the compulsory acquisition of native title (ALGA et al 1999:158)

Summary

In circumstances where native title exists or may exist, local Councils and proponents of future acts must comply with the provisions of the Native Title Act 1993 (Cth) concerning future acts. In a very limited number of circumstances it may be necessary to comply with provisions under complementary State or Territory legislation where they have legislated to make alternative right to negotiate provisions and/or they have legislated to replace the Commonwealth right to negotiate scheme in certain areas to which the Commonwealth right to negotiate would otherwise apply. At the very least, native title holders and registered native title claimants are entitled to be notified as if they were freehold or ordinary title holders.

The primary objective is to manage the risk associated with invalid future acts. If native title is not taken into consideration or the correct processes are not followed in areas where it may exist, then the act may be deemed invalid in so far as it affects native title. The effect of an invalid act on native title is not certain. Common law remedies, such as damages or an injunction, may be available to the native title holders for invalid future acts that affect their rights and interests.

By becoming familiar with the relevant provisions, Council will be able to:

• determine whether a proposed future act can affect native title
• the procedural rights that any native title holders/claimants have in relation to the act
• any details involving compensation

By following the correct processes, Council can be confident that its future acts are valid in so far as they affect native title rights and interests.

However, if Council opts to follow the future act processes rather than negotiate an agreement, it is a complex step and it will be necessary to obtain independent professional advice on the requirements for compliance.