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 extinguished it, native title can be recognised by the law.
Native title is a right that 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 NTA:
- 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 (for example, the grant of a license to mine);
- enables the relevant parties to enter '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 (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 seaward of Australia's territorial sea.
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 to acts done offshore, for example the grant of a permit to produce petroleum.
Complying with the NTA
The NTA 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.
Offshore Petroleum and Greenhouse Gas Storage Act 2006 (OPGGSA)
The OPGGSA, 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 about the Native Title Act contact:
Principal Legal Officer
Future Acts Team
Future Acts and System Coordination Branch
Native Title Unit
Classification, Legal Services and Native Title Division
Robert Garran Offices
BARTON ACT 2600
Telephone: +61 2 6218 6921
Facsimile: +61 2 6218 6889
Web Page: www.ag.gov.au
National Native Title Tribunal
GPO Box 9973 Perth WA 6848
PERTH WA 6000
Telephone: +61 8 9268 7272
Facsimile: +61 8 9268 7299
Web Page: www.nntt.gov.au
For further information about the Offshore Petroleum and Greenhouse Gas Storage Act contact:
Offshore Resources Branch
Department of Resources, Energy and Tourism
GPO BOX 1564
CANBERRA ACT 2601
Telephone: +61 2 6213 7928
Facsimile: +61 2 6213 7970