Native title and Aboriginal cultural heritage

Native title legislation exists at both the federal and state levels. The principal legislation is the Native Title Act 1993 (Cth) (NTA), which came into effect on 1 January 1994. The purpose of the NTA is to recognise and protect native title. The NTA covers five main areas:

1. Native title claims and determinations;
2. extinguishment of native title;
3. confirmation of the validity of certain statutes, land titles and public works;
4. land access procedures where the grant of an interest in land or waters may affect native title ('future act' procedures); and
5. compensation.

Native title may be extinguished over land or waters in a number of ways including by legislation, or by the grant of interests in land which are inconsistent with the continued existence of native title.

The NTA clarifies the types of acts that have resulted in the extinguishment of native title. Each of the states and territories have enacted legislation which provide that comparable acts taken by the state and territory governments also extinguished native title, although there are minor differences between them.

Native title may be extinguished in whole or in part. For example, the grant of a freehold title is completely inconsistent with native title so the grant of such title prior to 1994 (with some exceptions) will have wholly extinguished native title. In contrast, the grant of a pastoral lease may only be partially inconsistent with native title so the grant of such a lease may have extinguished some native title rights over the relevant land (such as any right to control access or use) but may not have extinguished other rights such as a right to pass over, or a right to collect bush medicine on the land.

Non-legislative acts done after the commencement of the NTA on 1 January 1994 which affect native title (such as grants of freehold titles, mining and petroleum titles and other Crown tenures) must comply with the future act provisions of the NTA. These provisions provide certain procedural rights to native title holders and registered native title claimants.

Depending upon the nature of the interest to be granted, the procedural rights accorded to native title holders and registered claimants will range from a right to receive notice or an opportunity to comment, through to a right to negotiate with the prospective grantee.

Titles or interests which are granted in compliance with the future act provisions are valid. They will affect native title in the manner set out in the NTA. Mining interests do not usually extinguish native title rather they usually prevail over native title rights for the duration of the grant.

Titles or interests which are not granted in compliance with the future act provisions of the NTA may be invalid.

Importantly, if it can be demonstrated that native title has already been extinguished in relation to the land, the NTA will have no operation.

Under the future act regime of the NTA, there are a number of compliance pathways available to proponents seeking to undertake ‘future acts’, including the negotiation of an ILUA.

ILUAs

An ILUA is a key compliance pathway as the types of ‘future acts’ to which an ILUA can apply are unlimited in scope and, unless the act is the surrender of native title, the non-extinguishment principle can apply to each ‘future act’. Being an agreement based option, an ILUA requires negotiation and authorisation by the native title party. It is common for ILUAs to be accompanied by a confidential ancillary agreement, which contains the commercial terms agreed between the parties, including with respect to compensation for the ‘future acts’ and other non-native title matters, such as protection of Aboriginal cultural heritage, environmental management and ongoing engagement between the proponent and native title party.

The Australian Government and states and territories each have legislation which protects Aboriginal cultural heritage.

While the regimes differ in detail, it is generally an offence to disturb Aboriginal cultural heritage without obtaining a consent. It may also be necessary to prepare a plan for the management of cultural heritage during construction or operation of a project.