Native Title Law

Contributed by PaulSheiner and KelsiForrest and current to 27 July 2018

The Mabo Decision

In June 1992 the High Court handed down its decision in the case of Mabo v the State of Queensland [1992] HCA 23; (1992) 175 CLR 1 (“Mabo”). That decision changed the law in relation to Aboriginal land rights and made it possible, in certain circumstances, for Aboriginal groups to prove that they have "native title" to their traditional land.

Before Mabo, common law decisions concerning title to land in Australia were based on the notion of 'terra nullius': that the land belonged to no one prior to the British Crown's assertion of sovereignty. The High Court decided in Mabo, however, that the idea of terra nullius could not be supported, that although the British Crown acquired sovereignty (supreme rule), it did not become the proprietor (owner) of land occupied by Aboriginal inhabitants. Whether native title to particular land continues to exist today depends on whether traditional owners have continued to occupy or maintain connection with the land in accordance with their traditional laws and customs, and whether native title has been extinguished (destroyed) by later dealings with the land.

In summary, to prove they have native title an Aboriginal group or community has to show:

• occupation of or connection with the land by the ancestors of the claimant group at the time the British Crown asserted sovereignty;
• occupation of or substantial maintenance of connection with the land since the time it was taken over until today; and
• that the group claiming title comprises or is part of a viable society.

Native title is extinguished where certain things have happened, or been done, to the land. For example, where freehold title to land has been granted, native title is extinguished. Any action by the Crown which is inconsistent with the continuing enjoyment of native title, such as a grant, reservation, dedication or other appropriation will have extinguished or impaired the native title.

Although the Crown has had the power to extinguish native title, since the introduction of the Commonwealth Racial Discrimination Act 1975 (Cth) (“RDA”) such titles have been given some protection: see also Mabo v Queensland [1988] HCA 69; (1988) 166 CLR 186 (“Mabo No.1”).

Where native title has been extinguished, and this occurred prior to the RDA, no common law claim is possible. Therefore, those Aboriginal groups most clearly and extensively dispossessed by European contact - for example, those whose traditional lands comprise urban and metropolitan regions - derive least advantage from Mabo.

Native Title Act 1993 (Cth)

The Native Title Act 1993 (Cth) (“NTA”) came into force on 1 January 1994. It stipulated 1 July 1993 as the date after which future acts, comprising the enactment of a law, and 1 January 1994 for other acts (both Commonwealth and State), which affected native title rights and interests, could not be validly done without complying with the requirements of the NTA. Acts prior to that time were placed into various categories of past act which were declared to be valid and to have varying levels of extinguishing or impairing effects on native title and native title rights. The NTA also provided an ongoing process for bringing native title claims and established the National Native Title Tribunal as a mediation, arbitral and decision-making body.

In what was a significant compromise by indigenous negotiators, at the time the NTA was being formulated, it was agreed with the Keating government that there would be no right of veto over mining and other major developments on land where native title continued to exist. This is unlike the situation in the Northern Territory where the Land Rights Act 1976 (NT) provides for recognized Aboriginal traditional owners to be able to veto such developments on their land. The indigenous negotiators also agreed that there would be blanket validation of all land dealings since 1975, because those dealings could have been invalid due to the operation of the RDA. Only compensation could be claimed for any such dealings which extinguished fully or partially, or otherwise affected, native title.

In return indigenous leaders accepted:

• a claims and compensation process and a right to negotiate where governments proposed to grant mining rights on land which could have an effect on native title, and where governments proposed to compulsorily acquire native title rights and interests in order to confer a benefit on a third party (such as granting a person a lease or freehold interest on Vacant Crown Land which was subject to a claim of native title rights and interests, in order for that person to conduct commercial operations);
• a provision in the NTA (Section 47) which deemed that where land is now a pastoral lease held by native title claimants, any past extinguishment of native title would be disregarded;
• the creation of the Indigenous Land Fund so that those people most dispossessed and who have lost the ability to prove their traditional native title could purchase land; and
• a Social Justice Package to specifically address issues such as health, housing, education, community infrastructure and the like.

The NTA was therefore part of a package of measures to address the needs of indigenous people, including land. The NTA has three main objects:

• To provide for the recognition and protection of native title. This object is achieved by the declaration in Section 3(a) that native title is not able to be extinguished contrary to the NTA. The NTA constitutes an exclusive code in relation to the manner in which the extinguishment or impairment of native title is permitted, and conformity with that code is essential to extinguish or impair native title.
• To give full force and effect to past acts which might not otherwise have been effective extinguishing or impairing native title due to the operation of the RDA since 31 October 1975. An act, whether in the past or future, includes the making, amendment or appeal of any legislation, the exercise of any executive power of the Crown in any of its capacity, (whether or not under legislation) and the grant, creation, variation or extinguishment of interests in land or other rights by the Crown in any of its capacities or by any other person. The past acts which are validated are those done before 1 July 1993 in relation to an enactment of a law, and 1 January 1994 in relation to other acts, which were to some extent invalid because of the existence of native title. The NTA authorised States to pass legislation validating past State acts, as long as the legislation conformed with the provisions of the NTA which validated past Commonwealth Acts. In the case of Western Australia the Act is the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA).
• To give full force and effect to future acts which otherwise might not be effective in extinguishing or impairing native title. The NTA defines and creates a number of categories of future acts. As a general rule a future act will only be valid if it follows various procedural requirements of the NTA. These include:
  • the possible requirement that a notice of an intention to do the future act and any other procedural right be given to native title holders who may be affected by the doing of the act; and
  • a requirement, in the case of some future acts, that native title holders be given the right to negotiateabout the doing of the future act and if agreement is not reached, to have the question decided by the National Native Title Tribunal.

The entitlement of native title holders to notice and to other procedural rights arises if they would be entitled to those rights were they the owners in fee simple of the land affected. This right to negotiate is conferred on registered native title claimants and holders, when the Commonwealth, a State or a Territory proposes to create, vary or extend a right to mine, or to acquire compulsorily native title rights and interests in order to confer rights or interests on third parties.

In response to the High Court decision in Wik Peoples v The State of Queensland [1996] HCA 40; (1996) 187 CLR 1 ("Wik") (see below), the Commonwealth Government developed a Ten Point Plan for amendment of the NTA. Following a lengthy debate in the Parliament and many amendments to the Commonwealth's Bill being made by the Senate, the Native Title Amendment Act 1998 (Cth) (“NTAA”) received royal assent on 30 September 1998. The NTAA had various significant effects:

• It retrospectively validated all non-Aboriginal grants from 1994 until the date of the Wik decision (intermediate period acts), and correspondingly extinguished all native title inconsistent with those grants.
• It deemed extinguishment of native title in respect of a large number of categories of Scheduled Interests identified by the States, many of which were leases under statute for various purposes.
• It deemed the future renewal, re-grant or extension of interests granted before 1994 to be a past act.
• It validated any future act done in accordance with any prior reservation.
• It provided that any act of primary production activity or tourism on an agricultural or pastoral lease, irrespective of any limitation on the rights originally granted, would over-ride native title.
• It provided that non-claimant applications might be made seeking a determination that native title does not exist.
• It provided that all legislation relating to the regulation of water, aquatic resources and airspace would override native title.
• It provided an array of 31 different forms of procedural rights, ranging from notice and a right to comment to a right to negotiate, in relation to future acts, varying according to the type of act, its effect and its location.
• It introduced the notion of Indigenous Land Use Agreements, which are registrable and enforceable under the NTA.
• It transferred the native title application and determination process from the National Native Title Tribunal to the Federal Court.
• A complex test was introduced for registration of a claim by the Native Title Registrar before a native title claim group would have rights to negotiate or be notified or consulted under the NTA. It required a high level of precision in formulating a claim and a process of authorisation of the applicant by the native title claim group.
• Sections 47A and 47B were added to deem that where land is now an Aboriginal Reserve or Vacant Crown Land covered by a native title application, all prior extinguishment of native title is to be disregarded.

High Court decisions since Mabo

Since the enactment of the NTA there have been several significant High Court decisions which have developed the law in relation to proof and extinguishment of native title, and, in some cases, have led to amendment of the NTA. Some of these cases are discussed in this section.

Wik Case

In the Wik Peoples v The State of Queensland [1996] HCA 40; (1996) 187 CLR 1 ("Wik") the Wik and Thayorre People claimed native title rights and interests over land in Far North Queensland. There were two pastoral properties within the boundary of the claim area and mining operations were occurring on the land.

The core argument put against the Wik claimants was that the grant of each of the pastoral leases extinguished native title rights because the grants conferred exclusive possession of the land on the grantees, and that entitlement to exclusive possession was inconsistent with the continuance of any native title rights.

The High Court (by a majority) decided that these pastoral leases were peculiarly Australian creatures of statute, and unlike common law leases, did not confer exclusive possession and thereby extinguish native title. The High Court (by a majority) found that the statute enabling the grant of these two pastoral leases did not contain a clear and plain intention to extinguish native title, and therefore the leases which were issued pursuant to that statutory power could coexist with native title.

Yarmirr, Ward and Yorta Yorta

The High Court's decisions in Commonwealth v Yarmirr [2001] HCA 56; (2001) 184 ALR 113 (“Yamirr”); Western Australia v Ward [2002] HCA 28; (2002) 191 ALR 1 (“Ward”) and Yorta Yorta v Victoria [2002] HCA 58; (2002) 194 ALR 538 (“Yorta Yorta”) further developed the law in relation to both proof of native title and how it may be validly extinguished.

In Yarmirr (the Croker Island decision), the High Court held that native title could exist beyond the low water mark and that the common law was able to recognise native title rights to engage in traditional activities offshore. However, it found that a claim to the right to exclude others from any area of the sea had been extinguished by the international law right of innocent passage, the common law right of navigation and public right to fish.

In Yorta Yorta the claim was to vacant crown land, mostly adjacent to and comprising the waterways covering a region of what is now farming land straddling the Victoria/New South Wales border. Justice Olney found that the claim group were not following the laws and customs of their ancestors and the sands of time had washed away their traditional connection with the lands they were claiming. On appeal it was argued that Olney J had taken a "frozen in time approach" to the continuity of native title. A majority of the Full Federal Court and the High Court disagreed. The Yorta Yorta people were ultimately determined not to have any native title. The High Court, in the course of its reasons, provided an analysis of what must be proved in order for native title to survive a process of social change.

In particular, the High Court in Yorta Yorta found that native title rights and interests must originate in a body of norms or a normative system that existed before sovereignty, and that that system must have had a continuous existence and vitality since sovereignty.

The requirement since sovereignty of continuous (without substantial interruption) acknowledgment and observance of those laws and customs does not mean that the content of law and customs must be the same as they were pre-contact. What must continue is observance or acknowledgment of the same normative system. Traditional laws and customs may change, evolve or be transformed without losing their traditional character.

The Ward decision concerned the native title claim of the Miriuwung and Gajerrong people to land in the East Kimberley region of Western Australia comprising the Ord River Scheme area, some tidal plain on the North coast, Lacrosse Island and a small pastoral lease held by an Aboriginal Corporation. On appeal it was concluded that the cumulative effect of numerous past grants in the Ord River Scheme area was such that native title had been extinguished for the whole of that area. Native title was found to exist in other parts of the claim area, however. Ultimately the claim was settled by consent after being remitted to the Full Federal Court for further determination.

The High Court decision in Ward was significant in explaining further the concept of native title and how it can be validly extinguished. The Court emphasised the importance of following the words of the NTA in making an approved determination of native title, rather than attempting to draw a definition of native title from the common law cases. Native title was affirmed as comprising a bundle of rights, the separate components of which may be extinguished one by one, and a detailed analysis was made of the inconsistency between certain native title rights claimed and numerous forms of land grant and statutory rights.

Procedure for making a Native Title Claim

Under the NTA an application is made by or on behalf of an Aboriginal group or community to the Federal Court for a determination as to whether native title exists in relation to a particular area. Native title applicants may be assisted in the preparation and presentation of their claims by Aboriginal and Torres Strait Islander Representative Bodies, Aboriginal Corporations who have responsibility for native title and related matters throughout WA. There are five representative bodies covering WA: the Goldfields Land and Sea Council, the Yamatji Marlpa Aboriginal Corporation, the South West Aboriginal Land and Sea Council, the Kimberley Land Council and Central Desert Native Title Services.

A copy of the application is given to the Registrar of the National Native Title Tribunal (s63). The Registrar then notifies other parties who have an interest in the area under claim (the WA State government, local government, pastoral, mining and fishing interests, for example) (s66). The Registrar also assesses whether the claim should be registered (Part 7 NTA). Registration provides the claimants with the right to negotiate about certain development proposals on their land.

The Federal Court then refers the application to mediation between parties in an attempt to settle the claim without it going to court. This process may take several years and has successfully resulted in many Consent Determinations in WA (eg Spinifex ([2000] FCA 1717), Tjurabalan ([2001] FCA 1140), Ngurrara peoples ([2018] FCA 289)).

Where parties to a native title claim cannot resolve their differences, the claim will go to a hearing in the Federal Court. The claim is heard before a single judge, who will usually make orders for the taking of evidence from Aboriginal witnesses on their own country, including at sites of significance. Other orders specifically crafted for the native title process have dealt with the taking and publication of gender restricted evidence and the taking of group evidence (where family or community members all contribute to the evidence given on a particular topic).

Following a hearing about proof of native title, which involves evidence from the Aboriginal claimants and experts in support (such as anthropologists and historians), evidence is taken about extinguishment by the grant of various tenures in the claim area. To date there have been a number of determinations of native title made by the Federal Court in WA following contested hearings, including in respect of the Yawuru people in the West Kimberley (Rubibi Community v State of Western Australia [2001] FCA 1533; [2006] FCA 82; 459), the Banjima people in the Pilbara (Banjima People v State of Western Australia [2013] FCA 868; [2014] FCA 201), and Ngadju People in the South (Graham on behalf of the Ngadju People v State of Western Australia [2012] FCA 1455; [2014] FCA 1247).

Details of these determinations, as well as other useful information about the process of claims in both the National Native Title Tribunal and the Federal Court can be found on the National Native Title Tribunal's website: www.nntt.gov.au

Native Title and Mining

The issuing of exploration and mining tenements under the Mining Act 1978 (WA) (“Mining Act”) are considered “future acts” which are subject to requirements set out in the NTA.

The NTA provides registered native title claimants and determined native title holders with a right to negotiate in respect of the grant of mining leases. The right to negotiate does not however generally apply to the grant of exploration tenure such as exploration licences and prospecting licences. This is because the State usually asserts that the grant of exploration tenure is an act to which the expedited procedure applies.

Right to Negotiate

The Right to Negotiate is set out in subdivision P of Division 3 of the NTA . This subdivision provides that parties, usually the Department of Mines, Industry Regulation and Safety (“DMIRS”) and the mining company who applies for a mining lease, must negotiate in good faith with native title to reach an agreement on the terms on which the mining lease may be granted.

The kinds of agreements reached through the right to negotiate process usually include the following types of obligations:

• consent and support provided by the native title group for the mining company’s mining lease and other business (usually restrictions are placed on when a native title group can object to future acts under NTA processes);
• payment of compensation by the mining company to the native title group generally in the form of royalties calculated on a percentage of the value of the minerals mined;
• employment and contracting opportunities to be provided to members of the native title group by the mining company;
• the process for the mining company to make applications under the AHA to disturb or destroy an Aboriginal Site on the mining lease; and
• the process for undertaking heritage surveys with the native title group for identification of Aboriginal sites or clearance of the mining company’s work program.

If the parties cannot agree within a six-month period, any party may apply to the National Native Title Tribunal for a determination as to whether the mining lease should be granted but only where the National Native Title Tribunal is satisfied that the parties have negotiated in good faith.

In Western Australia/Johnson Taylor on behalf of the Njamal people/Gary Ernest Mullan[1996] NNTTA 34, the National Native Title Tribunal outlined some actions or inactions that may show a party hasn’t negotiated in good faith. This list is not exhaustive, and it is the behaviour of the State and mining company as a whole which indicate a failure to negotiate in good faith. These behaviours have been called the Njamal Indicia and they include:

• unreasonably delaying the initiation of communications;
• failing to communicate with the other parties within a reasonable time without explanation;
• failing to make proposals, counter proposals or do what a reasonable person would do in the circumstances;
• stalling negotiations by unexplained delays in responding to correspondence;
• unnecessarily postponing meetings;
• sending negotiators to meetings who do not have authority to agree to terms;
• refusing to agree on trivial matters;
• shifting position just as an agreement is in site;
• adopting a rigid non-negotiable position; or
• issuing inappropriate press releases.

If the obligation to negotiate in good faith is satisfied, the National Native Title Tribunal can then make one of the following determinations (NTA Section 38):

The National Native Title Tribunal can consider any matter it determines relevant but it must take into account the following matters when making a determination (NTA Section 39):

• the effect of the act on
  • the enjoyment of native title rights and interests;
  • the way of life, culture and traditions of the native title party;
  • the development of social, cultural and economic structures of the native title party;
  • the native title party’s freedom to access the area subject to the lease for ceremonies and other cultural activities; and
  • any site of significance to the native title holders;
    
    
• the wishes, opinions and proposals of the native title holders to use and manage the lands or waters that will be affected by the lease;
• the economic significance of the lease; and
• any public interest.

On occasion in WA, the National Native Title Tribunal has determined that the grant of mining leases must not be done because the interests and wishes of the native title party in relation to the land subject to the leases should be given greater weight than the potential economic benefit or public interest in granting the mining leases. Examples of these Determinations include:

• Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu)/Western Australia/Holocene Pty Ltd [2009] NNTTA 49 where a mining lease applied for fell over Lake Disappointment, a registered Aboriginal site and culturally significant area for the Martu people; and
• Weld Range Metals Limited/Western Australia/Ike Simpson on behalf of the Wajarri Yamatij [2011] NNTTA 172 where four mining leases were applied for across land known as the Weld Range and surrounding area which is associated with a number of important lore stories and significant sites for the Wajarri Yamatji people.

Some larger mining agreements are often registered with the National Native Title Tribunal as Indigenous Land Use Agreements (“ILUAs”). There is a registration process under the NTA for ILUAs which the National Native Title Tribunal manages and this includes public notifications and an objection process (NTA Sections 24BH; 24CH; 24CI; 24DI; 24DJ). Once an ILUA is registered, it provides greater certainty for the parties to the agreement because it binds not only the parties, but all the persons holding native title in the area subject to the ILUA (NTA Section 24EA). The National Native Title Tribunal maintains a Register of ILUAs (NTA Sections 24B1; 24CK; 24CL; 24DL).

Expedited Procedure

The NTA provides that future acts which attract the expedited procedure are not subject to the right to negotiate procedure (NTA Section 237). A future act attracting the expedited procedure is one which is unlikely to:

In Western Australia, DMIRS assert that all exploration and prospecting licenses are acts attracting the expedited procedure.

After a mining company applies for a license, the expedited procedure commences when DMIRS issue a notice which outlines its intention to grant the license (NTA Section 29). The native title claim group or prescribed body corporate then have a four month period in which they can lodge an objection in the National Native Title Tribunal to the assertion by the State that the act attracts the expedited procedure (NTA Sections 32(3); 75). If the native title group do not lodge an objection then the license can proceed to grant under (NTA Section 32(2)). If an objection is lodged, it is then managed by the National Native Title Tribunal who hold regular status conferences between the parties as to how the objection will be resolved, usually by agreement or through an Inquiry process (NTA Section 32(4)).

There is no obligation for the mining company to negotiate in good faith in resolution of an objection made in the expedited procedure, however objections can be resolved by agreement. Many native title groups have their own preferred standard set of terms for an agreement in relation to exploration and prospecting, these are sometimes called an Alternative Heritage Agreement by DMIRS. These agreements provide for Heritage Surveys, the process to be undertaken in relation to applications by the mining company under the AHA to destroy or damage a site and generally how the parties will work together. Exploration and prospecting agreements are usually not as comprehensive as mining agreements in terms of benefits to the native title party but can sometimes include a regular monetary payment by the mining company to the native title party. If parties cannot agree to an Alternative Heritage Agreement, there are several Regional Standard Heritage Agreements (“RSHAs”) which were negotiated with the State, peak mining industry bodies and Native Title Representative Bodies (“NTRBs”). The RSHAs provide for a standard baseline of fees and procedures to ensure Surveys are undertaken that can allow for heritage clearances which are acceptable to industry. The obligation to enter into an RSHA can be imposed as a condition on the grant of the exploration or prospecting tenement by DMRIS if requested by the native title party. The RSHAs are available for download on the DMIRS website: www.dmp.wa.gov.au/minerals/Native-Title-Act-Process-5548.aspx

If an Agreement cannot be reached by the parties, the objection may proceed to an Inquiry where the native title party must submit contentions and evidence as to why the license should not be considered an act attracting the expedited procedure. The native title party has to submit contentions under the one or all of the three grounds of Section 237 of the NTA. The State and mining company also provide contentions and evidence as to why the tenement is an act attracting the expedited procedure. The evidence and contentions are heard by a Member of the National Native Title Tribunal who determines the outcome of the Inquiry, being either:

• the expedited procedure applies and so the tenement proceeds to grant; or
• the expedited procedure does not apply and so the right to negotiate process is to be followed by the parties.

The expedited procedure can take from 6-12 months before resolution of the objection.

The Australian Institute of Aboriginal and Torres Strait Islander Studies (“AITSIS”) Native Title Research Unit (“NTRU”) publish monthly updates in the ‘What’s New in Native Title’ publication which includes summaries of all recent future act determinations and expedited procedure inquiry outcomes.

Obligation to Consult

Another type of tenure that is usually applied for in relation to a mining project is a miscellaneous licence to for the creation of an infrastructure facility. An infrastructure facility is defined under Section 253 of the NTA as:

The creation or variation of a right to mine for the sole purpose of the construction of an infrastructure facility goes through a notification process under Section 24MD(6B) of the NTA whereby the native title holders/claimants have a two-month period for which objections can be lodged. When an objection is lodged under this section, the mining company who applied for the miscellaneous license has an obligation to consult with the native title group about ways of minimising the act’s impacts on native title rights and interests (NTA Section 24MD(6B)(f)). If the native title group requests, the objection can be heard by an independent person or body for determination (NTA Section 24MD(6B)(f)).

Prescribed Native Title Body Corporates

When the Federal Court determines native title, it also determines how the native title will be held and by whom (NTA Sections 55-56). This involves the appointment of a Prescribed Body Corporate (“PBC”) to hold native title on trust or as agent on behalf of the native title holder. All PBCs are required to be incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (“CATSI Act”) and have the letters RNTBC at the end of their name which stand for “Registered Native Title Body Corporate” (CATSI Act Section 88.10). PBC manages and protects native title on behalf of native title holders and is the first point of contact for government, mining companies or other organisations who want to engage with the native title holders and/or have dealings with land that is subject to the native title determination.

When PBC makes a native title decision it has the obligation to consult with and obtain the consent of the native title holders in accordance with the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) (“PBC Regulations”). A native title decision is a decision to surrender native title rights and interests or to do or agree to any act that would affect native title rights and interests (PBC Regulation 8(1)). An example of a native title decision is the approval of a Mining agreement that provides consent to the grant of a mining lease.

The PBC must ensure the native title holders understand the purpose and nature of the native title decision and this includes consulting with and obtaining the views of the relevant NTRB (PBC Regulation 8(2)). If, under the traditional laws and customs of the native title holders, there is a decision-making process for providing consent to a native title decision (or a decision of that kind), then that process must be followed (PBC Regulation 8(3)). Otherwise, the consent should be given through another decision-making process that is adopted by the native title holders such as, for example, decision-making by majority (PBC Regulation 8(4)).

Native Title Representative Bodies

NTRBs are organisations that are appointed under the NTA in relation to specific regional areas to assist Aboriginal people to make native title claims and with other aspects such as future act agreement negotiation when the claim process is still on foot. NTRBs usually provide legal, anthropology, administrative and governance services to native title claim groups. In WA, there are 4 NTRBs:

• South West Aboriginal Land and Sea Council (“SWALSC”);
• Yamatji Marlpa Aboriginal Corporation (“YMAC”);
• Goldfields Land and Sea Council (“GLSC”);
• Kimberley Land Council (“KLC”); and
• Central Desert Native Title Service (“CDNTS”) (CDNTS is a native title service provider).