Australian Local Government Association

Issues paper No.6

Future Acts in areas where the Native Title holders are unknown

Ed Wensing FAPI MPIA
August 2000

What should Council do if it is proposing to carry out a future act (an act affecting native title) on land or waters where native title exists or may exist and the native title holders are unknown? One course of action that is frequently canvassed is to lodge non-claimant applications with the Federal Court. There are significant costs and timeframes involved with non-claimant applications and in many circumstances they may not be really necessary.

Processes

Native title is an existing right which continues to exist in certain areas. Under the Native Title Act 1993 (Cth) local Councils are required to comply with certain processes in areas where native title exists or may exist in order to ensure that Council's future acts are lawful and valid in so far as they affect native title.

These processes include:

• Indigenous Land Use Agreements or ILUAs in situations where the native title holders are known. For example, in areas where there are determinations that native title exists or there are registered applications for a determination of native title; or
• Non-claimant applications in situations where the native title holders are unknown. For example, in areas where there are no determinations or no registered applications; or
• Following the future act processes under the Native Title Act 1993 (Cth). Under the future act processes Councils are required to provide native title holders and registered native title claimants with certain procedural rights. The procedural rights include the opportunity to comment, the right to be consulted or the right to negotiate. The nature of the future act will determine which procedural right must be provided; or
• Compulsory acquisition. These processes are complex and involve following processes under the Native Title Act 1993 (Cth) as well as the authorising State legislation. It will also incur a liability for compensation. There will generally be other preferable avenues, and should only be used only when all other avenues have been exhausted

Under the Native Title Act 1993 (Cth) the provisions relating to Indigenous Land Use Agreements take precedence over all other procedures for dealing with future acts.

How do non-claimant applications work?

A non-claimant application is an application seeking a determination that native title does not exist in relation to an area, by a person who neither claims to hold native title nor is acting on behalf of those who do. Such an application can provide interim protection that allows Council to validly undertake a future act in an area where native title may exist. The interim protection has effect until such time as a determination of native title is made in relation to the area. When a determination is made that native title exists then the protection no longer applies, at which time the parties may need to come to an agreement about compensation. Council may be liable for compensation if the future act affected native title rights and interests by extinguishing native title or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise. Compensation may not necessarily be monetary, it may include other things such as recognition of country or land swaps, provided the parties can reach agreement. For some future acts the non-extinguishment principle applies and compensation will not be payable.

Non-claimant applications cannot be made in areas where it has already been determined that native title exists or where there are registered native title claimants. Inquiries about determinations and applications can be made to the National Native Title Tribunal.

Lodging a non-claimant application with the Federal Court involves the engagement of legal representation and the preparation of affidavits and other documents. The Court checks the application for compliance with criteria under the Native Title Act 1993 (Cth) before referring the application to the National Native Title Tribunal for public notification. The Tribunal sets a public notification date and advertises the non-claimant application in the print media. It also notifies the Native Title Representative Body (NTRB) for the area. The notification must also state that anyone has three months as from the notification day to become a party to the non-claimant application.

Outcomes

There are two possible outcomes from a non-claimant application.

If at the end of a three-month notification period, no relevant native title claims are lodged in response to the notification, the applicant can obtain from the Court s24FA protection that allows the future act to proceed. It will not be necessary to following the future act processes in the Native Title Act 1993 (Cth) when carrying out future acts in the area. Any future act done in the area at the time s24FA protection applies will be valid to the extent that it affects native title and cannot be undone at any time.

If a relevant native title claim is lodged by the end of the notification period, the applicant cannot obtain s24FA protection. In this situation, Council has three options. Council may either:

• commence negotiating an agreement immediately with the native title claimants in relation to the proposed future acts that Council is proposing to carry out in the area; or
• register as a party to the claimant application and then wait for the applications to be judicially determined concurrently; or
• follow the relevant future act processes in the Native Title Act 1993 (Cth)

Councils need to be aware of what is happening in practice.

In response to non-claimant applications, the Native Title Representative Bodies will generally assist Aboriginal people and/or Torres Strait Islanders to lodge an application for a determination of native title (a relevant native title claim) over a much larger area than the area the subject of the non-claimant application. The NTRB's do this to ensure they can be included in any discussions about proposed future acts that may affect their native title rights and interests.

When an application for a determination of native title is lodged in response to a non-claimant application, the Federal Court generally directs the parties to mediation in order to gain validity for proposed future acts. Whether or not a future act can proceed does not require a judicial decision by a Court. That is a matter for consultation and negotiation between the parties. Hence, this is why Indigenous Land Use Agreements take precedence over all other procedures for dealing with future acts, and why Councils should consider the possibility of developing an agreement before embarking on litigation.

Summary

Councils can spare themselves of the expense of lodging non-claimant applications with the Federal Court by contacting the Native Title Representative Body (NTRB) for the area in the first instance.

The NTRB may be able to inform Council of whether any applications for a determination of native title are likely to be made for the area, and who Council should be speaking to in relation to matters affecting any native title rights and interests in relation to a particular area. The NTRB can notify any native title holders for the area in relation to any future acts that Council may be proposing to do and can also assist the parties to reach agreement. If s24FA protection is deemed necessary for any particular reason, the NTRB can also assist in obtaining an agreement not to respond to a non-claimant application with an application for a determination of native title, so that an area can be subject to s24FA protection and an entry can be made on the National Native Title Register specifying that no native title exists in relation to the area.

The costs and time delays associated with going through the formalities of a non-claimant application can be avoided or minimised by first discussing the proposed future acts with the NTRB for the area in the first instance.

For details of the NTRB for your, area contact the State or regional office of ATSIC in your area, the National Native Title Tribunal or contact LGAQ.

Councils may also refer to pages 159-160 and 165-168 of the Australian Local Government Association's (ALGA) 'Working with Native Title: A Practical Guide for Local Government' for more information.