The Native Title Act and Petroleum Titles
- What is Native Title?
- Native Title Act 1993 (NTA)
- Offshore Native Title
- Complying with the NTA
- Petroleum (Submerged Lands) Act 1967
What is native title?
Native title is the recognition in Australian law that Indigenous people had a system of law and ownership of their lands before European settlement. Where that traditional connection has been maintained, and where government acts have not removed it, native title can be recognised by the law.
Native title is a pre-existing right and may be present over land and water even if there is no court determination or native title claim. Native title can also exist offshore.
Native Title Act 1993 (NTA)
In summary, the Native Title Act 1993:
- recognises and protects native title;
- validates some acts done in the past which may have been invalid because of the existence of native title;
- confirms the extinguishment of native title in some circumstances;
- creates a ‘future act’ regime which sets out conditions for the doing of acts affecting native title lands or waters;
- enables the relevant parties to enter into so-called “Indigenous Land Use Agreements” to settle any native title issues; and
- provides a process by which claims for native title and compensation can be determined.
Offshore native title
In 2001, the High Court of Australia handed down its decision in Commonwealth v Yarmirr; Yarmirr v Northern Territory (the Croker Island Sea Case). The High Court held that native title can exist offshore within the limits of Australia’s territorial sea. It is unclear whether native title can exist in waters beyond the limit of the territorial sea, that is, seaward of the 12 nautical mile boundary.
The High Court held that offshore native title can only be non-exclusive. This means that native title holders will not have the right to exclude others from accessing the sea or sea bed in the waters where native title exists. The future act regime also applies offshore.
Complying with the NTA
The Native Title Act allows future acts to be done offshore, as long as the procedural requirements of the future act regime are complied with. In most cases, native title parties must be provided with the same procedural rights as other parties who hold non-native title interests in the offshore area. In some cases this will amount to a right to be notified about the proposed grant of a mining or petroleum tenure. However, it is important to note that the “right to negotiate” provisions in the Native Title Act do not apply offshore.
Where an act that affects native title has been done, the native title holders for the relevant area may be entitled to compensation. On the current state of the law, it is not possible to predict the likely quantum of any compensation.
Petroleum (Submerged Lands) Act 1967
Section 124 of the PSLA, requires that offshore petroleum operations be carried out in a manner that does not unduly interfere with other rights and interests, including native title rights and interests. To this end, the Australian Government consults with native title parties regarding acreage releases. It is recommended that individual companies initiate their own consultative processes to develop good working relationships with the Indigenous people in the area.
For further information contact:
General Manager
Mining Industries Branch
Resources Division
Department of Industry, Tourism and Resources
GPO BOX 9839
CANBERRA ACT 2601
AUSTRALIA
Telephone: +61 2 6213 7520
Facsimile: +61 2 6213 7970
First Assistant Secretary
Native Title Unit
Legal Services and Native Title Division
Attorney-General’s Department
Robert Garran Offices
National Circuit
BARTON ACT 2600
AUSTRALIA
Telephone: +61 2 6250 5551
Facsimile: +61 2 6273 7871
E-mail: native.title@ag.gov.au
Web Page: www.ag.gov.au
National Native Title Tribunal
GPO Box 9973 Perth WA 6848
PERTH WA 6000
AUSTRALIA
Telephone: +61 8 9268 7272
Facsimile: +61 8 9268 7299
E-mail: enquiries@nntt.gov.au
Web Page: www.nntt.gov.au