by King & Wood Mallesons

What aspects of Native Title and Indigenous heritage do you need to consider?

Before commencing or continuing a project, there is a need to check if Native Title or Indigenous heritage laws apply to the area in question.

The Native Title Act 1993 (Cth) (NTA) recognises and protects the rights and interests in Australia of Aboriginal and Torres Strait Islander people in land and waters according to their traditional laws and customs. These rights are referred to as “Native Title”. Australian law also separately protects Aboriginal and Torres Strait Islander peoples’ archaeological and ethnographic heritage.

Native Title

Projects in Australia may be impacted by Native Title in two key ways:

  • the project owner needing to negotiate or consult with Native Title holders or claimants to obtain new or extended project tenure. For example, Native Title often impacts the grant and renewal of mining tenements and pastoral leases. Native Title will not amount to a veto on the grant of tenure but will often give the Native Title party a right to object, be consulted or to negotiate about (and receive compensation for) the implications or the impacts of the tenure on the native title holders or claimants; and
  • the project owner needing to comply with existing agreements made with Native Title holders or claimants in respect of past grants of tenure. Agreements typically deal with matters such as compensation for the effect of acts on Native Title rights and interests (including employment opportunities for Indigenous peoples), access to traditional lands and waters, protection of Aboriginal heritage, and ongoing consultation.

The existence of Native Title rights and interests in a project area will depend upon whether the relevant Indigenous peoples have maintained their connection with the land and waters.

Native Title rights and interests can only exist if they have not been extinguished by the prior valid grant of rights in the land by Government which is inconsistent with the continuation of Native Title rights and interests (such as a freehold grant). To date, there have only been a small number of Native Title claims that have been determined by the Federal Court to hold Native Title. However, there are a large number of Native Title claims that have been registered by the National Native Title Tribunal. Each of these claims means the claimants attract Native Title procedural rights which mean claimants need to be negotiated with or consulted even if they are ultimately not found to have Native Title.

If Native Title is not extinguished on land, then Native Title procedural requirements under the NTA must be followed before tenure can be granted. There are several forms of procedural requirements, depending on the type of tenure being granted.

In general terms, the more significant the tenure being granted, the more extensive the procedures. So mining tenements (which give the holder exclusive possession of an area for the purpose of mining) are subject to the Native Title claimant’s right to fully negotiate with the grant holder and be compensated for impacts to Native Title, while lesser tenure which only gives the holder rights to access an area will only require consultation with the Native Title claimant.

Indigenous heritage

The protection of Indigenous heritage is separate to Native Title, and is dealt with by both Commonwealth and State heritage legislation. Indigenous heritage legislation protects sites and objects of significance to Aboriginal and Torres Strait Islander people. Indigenous heritage sites may exist on land that is not the subject of Native Title. Indigenous heritage issues may also be problematic even though the Native Title process has been followed.

It is an offence to disturb or interfere with an Indigenous heritage site, so consent of the relevant Government minister may be required if use of the land may disturb or destroy Indigenous sites. The Commonwealth legislation provides for emergency (and permanent) declarations if State legislation fails to protect a significant Indigenous site.

Generally speaking, projects need to undertake Indigenous heritage surveys (usually pursuant to a heritage agreement with a local Aboriginal group) to determine whether there are any archaeological or ethnographic heritage sites on the land before they commence ground disturbance. The various registers kept by Government agencies are usually not a complete record of every heritage site on the land. Once the surveys are completed and sites are identified, the proponent can elect to change the areas it proposes to disturb (e.g. by moving an infrastructure corridor) to avoid identified heritage sites or seek authorisation to disturb the site, usually from a Government agency.

As part of Native Title negotiations, heritage agreements that outline how surveys are to be done are often reached. If there is no existing heritage agreement, then obtaining heritage clearance in an area can be more difficult.

National Native Title Tribunal: