Australian Local Government Association

Engineers

Native Title checklist for engineers/works managers

Contents

• What is native title?
• Where does native title exist?
• Where has native title been extinguished (removed)?
• What are the implications for engineers/works managers?
• Checklist - An action plan for engineers/works managers
• 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 engineers/works managers?

Engineers/Works Managers may, particularly in rural and non-metropolitan areas and in some coastal areas, need to consider the impact of their activities on native title. When carrying out day-to-day activities or when a new activity or development is planned for an area where native title exists or may exist, there are due 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 obtaining an injunction to prevent the activity being undertaken.

Native title rights and interests should be taken into account when planning new public works or undertaking augmentations to existing public works in areas where native title exists or may exist. Aboriginal and Torres Strait Islander people should be consulted about Council's intentions just as other people are consulted.

Different procedural rights apply to different types of activities. Further details are provided in the ALGA's 'Working with Native Title' Guide. Contact details provided below.

Checklist - An action plan for engineers/works managers

Step 1. Searching the Registers

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

Engineers/Works Managers need to know whether or not their project or public work 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.

Engineers/Works Managers need to understand the proper processes before approving or commencing a project or public works.

Engineers/Works Managers also need to understand who to contact in the event that there are currently no known native title holders for an area if Council is proposing to carry out a project or public work in an area where native title exists or may exist. This can be done by contacting the relevant Native Title Representative Body (NTRB). (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.

Engineers/Works Managers need to know whether or not Council is party to an application for a determination of native title in the Federal Court and whether Council is currently involved in mediation. Particular projects or public works, including the maintenance of existing facilities, 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.

Engineers/Works Managers need to know, in general terms, where native title exists, may exist or has been extinguished, especially for land or waters under Council's care, control or custody. (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 Engineers/Works Managers 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. Engineers/Works Managers need to be aware of the opportunities for Indigenous Land Use Agreements (ILUA) and when it may be appropriate to register an ILUA (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 engineers/works managers [PDF 138 KB]

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