Australian Local Government Association

Development officers

Native Title checklist for development assessment officers

Contents

• What is native title?
• Where does native title exist?
• Where has native title been extinguished (removed)?
• What are the implications for development assessment officers?
• Do development assessment decisions affect native title rights and interests?
• Do development controls and environmental protection measures apply to native title holders?
• Checklist - An action plan for development assessment officers
• Where can Council get assistance with these matters?
• Print copy of checklist
• Disclaimer

What is native title?

Native title is the term used by the High Court to recognise certain communal, group or individual rights of Aboriginal and Torres Strait Islander people in land and waters according to their traditional laws and customs.

The native title of a particular group will depend on the traditional laws and customs of those people. The content of native title may include a variety of rights and interests, such as living, hunting, gathering, fishing, ceremonial, rights of access, use and occupation, and visiting to protect important places. It may include the right to be consulted about decisions or activities that could affect the enjoyment of native title rights and interests.

Where does native title exist?

Native title can only be claimed in areas where it has not been extinguished (removed). Native title may exist on:

• Unallocated Crown land
• State forests, possibly some National Parks, public reserves and certain land reserved for particular purposes or uses depending on when and under what legislation such parks or reserves were made (this will vary between states/territories)
• Land set aside for the benefit of or granted to Aboriginal and Torres Strait Islander people
• Oceans, seas, reefs, lakes and inland waters
• Some leases, such as non-exclusive pastoral and agricultural leases, depending on the State/Territory legislation under which they were issued

In most areas where native title is determined by the Federal Court to exist, it will co-exist with the rights and interests of non-native title holders.

Where has native title been extinguished (removed)?

The Australian legal system does not recognise native title rights and interests in some areas where things have been done to extinguish native title. In those areas native title may be partly or wholly extinguished.

Native title has been wholly extinguished on areas such as:

• Privately owned land (including family homes and privately owned freehold farms);
• Residential, commercial, community purpose and certain other leases;
• Areas where governments have built roads, schools and other public works on or before 23 December 1996.

These areas of land cannot be included in an application for a determination of native title. They are generally excluded from the area description in the application.

What are the implications for development assessment officers?

Local Government development assessment officers may, particularly in rural, regional and remote areas and in some coastal areas, need to consider the impact of development approvals on native title. When considering development assessment applications on land or waters where native title exists or may exist, there are processes that Council will need to follow for the activity to be valid, or for it to be immune from injunctive action. If these procedures are not followed, an activity may be invalid and Council may at some time in the future be exposed to an injunction and/or claims for damages and compensation. Compensation may be payable in any event. Even where the activity would be valid notwithstanding that the processes are not followed, native title holders may succeed in getting an injunction to prevent the activity being undertaken.

Do development assessment decisions affect native title rights and interests?

Only decisions is in relation to (Council or private) development on Crown land or on other lands where native title has not been extinguished by an act of exclusive possession by the Crown prior to 23 December 1996 and where Aboriginal or Torres Strait Islander people can demonstrate a continuing connection with the area will affect native title rights and interests.

Most development assessment applications are in relation to developments on private freehold land issued prior to 23 December 1996 where native title has been extinguished, so native title is not a consideration.

Do development controls and environmental protection measures apply to native title holders?

At this stage it is clear that native title holders are subject to existing Commonwealth, State and Territory and local laws, including land use planning schemes, development controls, health and building by-laws and environmental protection legislation in relation to their native title rights and interests. Generally, all State/Territory and Local Government laws apply to native title provided they are consistent with the Native Title Act 1993 (Cth). Care must also be taken not to breach the Racial Discrimination Act 1975 (Cth) when applying State or local laws to native title holders/registered applicants.

Checklist - An action plan for social planners / community development officers

The Australian Local Government Association has developed a six-step Action Plan* to assist Councils in adopting a precautionary approach.

Step 1. Searching the Registers

Three formal Registers of native title amd an informal Schedule of Applications are held by the National Native Title Tribunal.

Development Assessment Officers need to know whether a proposal for development assessment is in an area subject to a native title determination or a registered application or a registered Indigenous Land Use Agreement. The formal Registers of native title and the Schedule of Applications need to be searched. (See pp79-81 of WWNT Guide.)

Step 2. Analysing Council's responsibility for procedural rights

In certain circumstances native title holders and registered claimants (also known as applicants) are entitled to certain procedural rights. That is, the right to be notified and given an opportunity to comment, the right to be consulted, or the right to negotiate.

Development Assessment Officers need to understand the proper processes before assessing a development proposal that affects native title and when and how the procedural rights apply.

Development Assessment Officers also need to understand who to contact and consult in the event that there are currently no known native title holders for an area. This can be done by contacting the relevant Native Title Representative Body. (See pp88-93 of WWNT Guide.)

Step 3. Becoming a party to an application for a determination of native title

Being a party means that Council gets to join in the process and be able to participate in mediation and, if necessary, in court.

Development Assessment Officers need to be aware of whether Council is currently a party to an application for a determination of native title in the Federal Court and involved in mediation. If so, are there any current applications for Development Assessment that may need to be taken into consideration? (See pp95-109 of WWNT Guide.)

Step 4. Identifying where native title exists or has been extinguished

It is possible to identify in general terms, areas where native title exists or has been extinguished.

Development Assessment Officers need to know, in general terms, where native title exists, may exist or has been extinguished, especially if a proposal is on land or waters where native title exists or may exist. (See pp111-151 of WWNT Guide.)

Step 5. Future acts: Council's responsibility for validity

There are processes under the Native Title Act 1993 (Cth) for ensuring activities are valid and lawful in so far as they affect native title rights and interests.

Development Assessment Officers need to be familiar with the relevant processes under the Native Title Act 1993 (Cth) for ensuring activities are lawful and valid in so far as they affect native rights and interests. Different procedural rights apply to different types of activities. Indigenous Land Use Agreements take precedence over the other processes for future acts in the Native Title Act 1993 (Cth). (See pp161-200 of WWNT Guide.)

Step 6. Negotiate agreements

Indigenous Land Use Agreements take precedence over all other processes and can be negotiated at any time.

Development Assessment Officers need to be aware of the opportunities for agreements and when it may be appropriate to register an Indigenous Land Use Agreement. (See pp214-220 of WWNT Guide.)

Where can Council get assistance with these matters?

Your state/territory Local Government Association.

Australian Local Government Association
Phone 02 6122 9400.
Email: alga@alga.asn.au
Website: www.alga.asn.au

Commonwealth Attorney-General's Department (in relation to financial assistance), Phone 02 6250 6770.
Website: www.ag.gov.au

National Native Title Tribunal,
Phone freecall: 1800 640 501.
Website: www.nntt.gov.au

To find the relevant NTRB for your area visit the NTRB website and click on the map of NTRB's for Australia.

Print copy of checklist

Download: Native Title checklist for development assessment officers [PDF 138 KB]

Disclaimer