21 September, 2017
What you need to know
It has been a busy time in native title in NSW: the Federal Court has recently made three determinations of native title in a week, including the State's first determination recognising native title over the sea.
There are currently about 33,000 Aboriginal land claims under the Aboriginal Land Rights Act 1983(NSW). With the High Court providing guidance on the meaning of "lawfully used and occupied", land users can hope that some of that huge claim backlog will be cleared.
A new draft Aboriginal Cultural Heritage Bill will soon be released for public comment. A Proposal Paper explaining the key proposals in the draft Bill has just been released, with public consultation on the proposed new legal framework open from 11 September to 18 December 2017.
New Crown lands management legislation is set to commence in early 2018 and includes native title compensation pass through provisions that will impact many land users.
What you need to do
Consider how the expanding native title determinations footprint across NSW (and the State's approach to claims' settlement) affects your operations.
Obtain a copy of the Proposal Paper and keep an eye out for a draft Aboriginal Cultural Heritage Bill in the coming months. Register to attend a public information session and be ready to provide feedback during the consultation period.
Be prepared for conversations about native title compensation when seeking access to local council land or land vested in
Crown land managers.
Current snapshot of NSW native title and Aboriginal land claims environment
Currently on foot in New South Wales are:
Please click on the image to enlarge.
Developments in the NSW native title claims landscape
For further details, the map illustrating native title application and determination areas in New South Wales can be found here.
First determination of native title over sea in NSW
History was made when the Federal Court determined for the first time that native title exists over the seas of NSW.
In a consent determination made on 31 August 2017 (Yaegl People #2 v Attorney General of New South Wales[2017] FCA 993), the Federal Court recognised that the Yaegl People hold native title to the seas within 200 metres from the mean low water mark between Woody Head and Wooli, extending out to 350 metres in a buffer zone around the culturally significant area of Dirrungun Rocks at the mouth of the Clarence River at Yamba.
The Yaegl People's native title rights and interests include the right to take, use, share, offer and exchange resources in the determination area for non-commercial purposes (except in the buffer zone around Dirrungun Rocks), and the right to maintain and to protect places, objects and areas of importance or significance under traditional laws and customs.
The decision means that the native title holders cannot be restricted from fishing or gathering resources from the area for personal, domestic or non-commercial communal needs. It does not, however, confer a right to control access to or use of the determination area or affect the rights of other people to access and use the area.
The determination is the final chapter in the Yaegl People's 20 year claim to have their rights to their traditional country recognised, and comes just over two years after the Federal Court recognised the Yaegl People's native title rights and interests to the land based portion of their claim.
Second consent determination for Barkandji People
In the preceding week, on 22 August 2017, the Federal Court determined by consent for the second time that the Barkandji and Malyangapa People hold native title to land and waters in south-west NSW (Barkandji Traditional Owners #8 (Part B) v Attorney-General of New South Wales [2017] FCA 971).
The recent determination addressed approximately 50 parcels of land for which consensus could not be reached in time for the earlier consent determination in June 2015 (plus an additional 21 parcels that had not been previously formally described).
There were several reasons for the lack of consensus. Most notably, the local government parties were not satisfied with the State's assessment of the native title status of about 40 parcels of reserved Crown lands in which they had an interest.
The State had opted not to undertake a comprehensive tenure history for most the approximately 3500 Crown land parcels reserved for public purposes, and on that basis, accepted the existence of non-exclusive native title. The August 2017 determination identifies native title as having been extinguished to 40 parcels of reserved Crown land, which had, presumably, been originally assessed by the State as subject to native title.
Western Bundjalung People hold native title in northern NSW
On 29 August 2017, the Federal Court determined by consent that the Western Bundjalung People hold native title to numerous areas of land and water situated between Casino, Grafton and Tenterfield in northern NSW (Western Bundjalung People v Attorney General of New South Wales [2017] FCA 992).
The determination takes effect upon the registration of an indigenous land use agreement between the Western Bundjalung People and State, negotiated as part of the claim resolution process, which is expected to occur before 28 May 2018.
The decision recognises the non-exclusive native title rights and interests of the Western Bundjalung People, which include the rights to gather and use the traditional natural resources of the area and the right to take and use water for personal, domestic and communal purposes (including cultural purposes).
The determination also provides that native title has been extinguished to much of the claim area, and in doing so provides a greater degree of certainty to land users than the common practice in Queensland of simply not referring in the determination to land where native title has been extinguished.
Registered native title claim over Central West NSW
On 1 September 2017 the Warrabinga-Wiradjuri #7 native title claim was accepted for registration by the National Native Title Tribunal (NNTT).
The large claim covers approximately 14,139 square kilometres of central west NSW, including the towns of Gulgong, Mudgee, Lithgow and surrounding areas.
Once the three month notification period commences, a person with interests in the claim area that may be affected by a determination in the proceeding can apply to the Federal Court to become a party.
What this means for land users in NSW
With more determined native title land and large areas subject to registered native title claims, compliance with the Native Title Act 1993 (Cth) (Native Title Act) should be a key focus for project development and for the numerous small activities impacting these areas. In addition, as claims are determined, native title compensation liability moves from theoretical to real for at least some land users and certainly for government. This is discussed further the context of the Crown Land Management Act 2016 (NSW) below.
The "current level tenure" approach adopted by the State in the Barkandji claim settlement and encouraged by Federal Court judges in NSW and Queensland also creates some challenges. Where land users have relied on historical extinguishment to conclude that Native Title Act compliance is unnecessary, it will be important for them to participate in native title claims to advocate for an extinguishment outcome consistent with the assumed position.
High Court confirms principles in determining Aboriginal land rights claims
There are approximately 33,330 claims made under the Aboriginal Land Rights Act 1983 (NSW) (Land Rights Act) on foot in NSW today (according to the Office of the Registrar).
To resolve these, the Crown Lands Minister has to decide whether the whole or part of each parcel of land claimed in each case is "claimable Crown lands" within the meaning of the Land Rights Act.
The definition of "claimable Crown lands" includes Crown lands that, at the time the Aboriginal land claim is made, are not "lawfully used or occupied".
Following the decision of the High Court of Australia in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 91 ALJR 177; 339 ALR 367, there is now greater certainty as to the test for whether land is "lawfully occupied".
The case involved a claim made by the NSW Aboriginal Land Council over land that had been the site of a gaol and correctional centre in Berrima.
The claimed land had been the subject of various dedications for gaol purposes over the years. While the correctional centre closed in 2011, Correctional Services NSW had a continuing presence on the land, maintaining the buildings, gardens and lawns. The land was also used by offenders on community service orders.
At the time of the claim, consideration was being given to future ownership and management arrangements for the land.
The High Court held the land was "lawfully occupied". The Court decided the State's occupation of the land was lawful and rejected the NSW Aboriginal Land Council's submission that lawful occupation requires use which is consistent with the dedicated purposes of the land.
What this means for land users in NSW
In 2012, the NSW Aboriginal Land Council assessed the number of unresolved land claims at 22,000. Five years later, that number has increased to 33,000. The challenges in dealing with land subject to unresolved land claims are well known.
With the legal uncertainty about the interpretation of "lawfully occupied" definitively resolved, the Minister should be in a position to resolve some of the backlog claims quite quickly. The High Court's decision also raises the bar for the assessment of land as "claimable". This is unlikely, however, to act as a disincentive to the lodgement of new claims.
Land councils seem to be willing to lodge claims even where there is little prospect of success.
Aboriginal cultural heritage reform
In July 2017, the State announced that:
- a draft Aboriginal Cultural Heritage Bill would be released in the second half of 2017 for a three month period of public consultation; and
- public feedback will be used to refine the draft Bill before its introduction to Parliament in 2018.
This is a welcome announcement, signifying the final stage in a lengthy consultation process about reforming NSW's Aboriginal cultural heritage legislation, which began in November 2011.
A Proposal Paper on the new legal framework was released on 11 September 2017. The Proposal Paper provides a plain English explanation of the key proposals in the draft Bill. Public consultation on the proposed legal framework opened on 11 September and will end on 18 December 2017. As at the date of this Alert, the draft Bill is yet to be released.
What this means for land users in NSW
Land users wishing to provide feedback on the new legal framework for managing and conserving Aboriginal cultural heritage in NSW should visit the Office of Environment & Heritage website for more information about the release of the draft Bill and details of how to register to attend public consultation sessions.
New Crown land management legislation includes native title compensation pass on provisions
Native title is far more likely to exist in relation to Crown land than any other form of tenure. Unlike freehold, Crown land is less likely to have been subject to extinguishing grants of tenure or other acts of the Crown.
Despite this, native title is not referred to in Crown lands legislation currently in operation in NSW (the Crown Lands Act 1989 (NSW), Crown Lands (Continued Tenures) Act 1989 (NSW) and Western Lands Act 1901(NSW)).
This Crown lands legislation will be repealed, consolidated and replaced by the Crown Land Management Act 2016 (NSW) (CLM Act). It is anticipated that the relevant operative provisions of CLM Act will commence in early 2018.
The CLM Act contains a number of provisions relating to native title, including:
- requiring Crown land managers to employ or engage native title managers to provide advice on certain dealings with land that may affect native title rights and interests; and
- passing liability for native title compensation on to local councils vested with Crown land or Crown land managers for dedicated or reserved lands.
What this means for land users in NSW
There are presently no native title compensation claims in NSW. However, the State of NSW has, perhaps, been more enthusiastic than other States to ensure that liability in respect of post-Native Title Act impacts rests with the land user. NSW legislation passes through responsibility for native title compensation to the grantees of mining leases and to statutory authorities compulsorily acquiring land. NSW Crown leases and licences commonly allocate responsibility for native title compensation to grantee parties. Now, from 2018, the CLM Act will pass through native title compensation in additional scenarios.
Native title compensation is still very new territory for Native Title Law generally and for NSW. However, the expanding native title determination foot print combined with the legislative and contractual pass through provisions that are now common, mean that proponents in NSW need to be across native title issues when obtaining interests on Crown land.
For further information, please contact:
Clare Lawrence, Partner, Ashurst
clare.lawrence@ashurst.com
