Aboriginal people and the law - Legal Information Access Centre

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62 The Law HandbookAct had proceeded to hearing by the Federal Court. In DeRose v State of South Australia [2013] FCA 988 MansfieldJ made a consent determination in relation tocompensation for the extinguishment of the native titlerights of the De Rose Hill native title holders (asdetermined by the Full Court in De Rose v South Australia(No 2) (2005) 145 FCR 290). Due to resolution of thecompensation application by consent between the nativetitle holders and the State the terms of theagreement remain confidential.[2.370] Lodging a claimThe Native Title Act sets out the process bywhich native title rights and interests can bedetermined.Claims are lodged with the Federal Court,which has exclusive jurisdiction to hear anddetermine native title applications. This doesnot mean that other courts cannot deal withnative title issues in particular circumstances(see Wilson v Anderson [1999] NSWSC 8,20 January). Aboriginal people can lodgeapplications to:• determine that native title exists• revoke or vary a determination of nativetitle• determine compensation for extinguishment(s 13).Claims must be lodged in a prescribedmanner and comply with Federal Courtrules. NSW NTSCORP is funded by theCommonwealth government to provide nativetitle services to traditional owners whoclaim native title rights and interests inNSW.What the application must containApplications must contain:• a clear definition of the people claimingthe native title rights• information on the extent and nature ofthe rights and interests claimed• information allowing boundaries to beeasily identified• a description of the facts that are the basisof the claim• details of the current activities of theclaimant group on the land (s 62(2)).What cannot be claimedA claim may not cover an area where nativetitle has already been determined or thatwas the subject of a previous exclusivepossession act (see Extinguishment of nativetitle at [2.360]), nor can it be for exclusivepossession, occupation and use if the area isthe subject of a previous non-exclusivepossession act (s 61A).Where previous extinguishment may be ignoredThe previous extinguishment of native titlemay be ignored where native title claims arelodged over:• certain freehold interests or pastoral leasesheld by or for the benefit of Aboriginalpeople (ss 47, 47A), or• vacant crown land occupied by Aboriginalpeople at the time the application islodged (s 47B).Registration of native title claimsSome procedural rights conferred by theNative Title Act, including the right tonegotiate, are available only to native titleclaimants whose claims are registered. Whenan application is filed in the Federal Courtthe court must provide a copy to theNational Native Title Tribunal.The registrar of the Tribunal (the NativeTitle Registrar) then assesses the applicationagainst the threshold test provided in theNative Title Act. In short, the Registrar mustbe satisfied that:• the claim has been properly authorisedby the claim group• the area claimed and the people makingthe claim are adequately described• the rights and interests claimed are setout• there is some evidence which, on its face,would demonstrate that native title rightsand interests may exist.If the claim has not been properlyauthorised, it may be struck out, but theFederal Court has a discretion to permit theclaim to progress even if the authorisationrequirement is not met.Notification requirementsWhether or not the claim is registered, theRegistrar must give notice of any applica
2 Aboriginal people and the law 63tion referred to him or her to persons orbodies that may include:• other native title claimants or bodies• other bodies representing Indigenouspeople who may be affected• relevant Commonwealth or stateministers• anyone who has a proprietary or otherinterest in the area affected• anyone who may have an interest in theproceedings (s 66(3)).A person is entitled to become a party to anative title claim if their interests may beaffected by a determination in the proceedings(s 84).[2.380] Future acts affectingnative titleThe Native Title Act regulates the way inwhich native title is to be affected by futureacts.A future act is:• the making, amendment or repeal oflegislation after 1 July 1993, or• any other act after 1 January 1994, whichaffects native title. To affect native title, anact must be wholly or partly inconsistentwith the continued existence, enjoymentor exercise of native title rights (s 227).A future act is invalid if it does not complywith the Act (s 24OA). If a future act isinvalid, it has no effect on native title rightsand interests. The Native Title Act (s 7)expressly provides that the Racial DiscriminationAct 1975 applies to the performanceof functions and the exercise of powersconferred or authorised by it.Native title holders and registered nativetitle claimants have different proceduralrights, depending on the nature of the futureact.What acts are included?Some common types of future act that mayaffect native title rights and interests and theprocedural rights expressly provided by theNative Title Act are described below. If thefuture act is not specifically dealt with in aparticular section, it is subject to the generalrequirement of non-discrimination, and nativetitle holders have the same proceduralrights as non-native title holders:• Agreements with native title claimants,Indigenous land use agreements (ILUAs),which may relate to activities in particularregions or procedures to apply in aparticular region, can override the proceduresof the Act. The Act prescribes howILUAs may be reached and registered(ss 24BA – 24FE).• If native title is found not to exist, or anapplication is made by a non-native titleparty, and after three months there is noregistered native title claimant, any futureact occurring in the area is valid. If nativetitle is later found to exist, the act remainsvalid (s 24FA) but compensation may bepayable for the effect of the act on nativetitle.• Most future acts relating to primaryproduction activity are valid. These includecultivating land, keeping, breedingor agisting animals, catching fish, andhorticultural and aquacultural activities.Such acts do not extinguish native titlerights, and native title holders are entitledto compensation.• Legislation dealing with the regulation ormanagement of water, living aquatic resourcesand airspace is valid. Aboriginalpeople must be notified beforehand, andmay comment. Native title rights are notextinguished, and native title holders areentitled to compensation (s 24HA).• The exercise of a legally enforceable rightcreated before 23 December 1996, and therenewal, re-grant or extension of certainlicences, leases and permits, are valid(s 24IC). The renewal, re-grant or extensionmust not create a right of exclusivepossession over any of the area coveredby the lease, or create a new proprietaryinterest. Native title holders are entitledto compensation.• Acts done by the government in relationto a dedication, reservation, condition,permission, authority or lease are valid(s 24JB). Native title is extinguished onlyif the act comprises a public work. Nativetitle holders are entitled to compensation.• The construction, use, maintenance orrepair of facilities for services to the
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