Aboriginal people and the law - Legal Information Access Centre

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64 The Law Handbookpublic which do not prevent Aboriginalpeople having reasonable access to theirland are valid. Native title is not extinguishedby the act, and compensation ispayable. Native title holders have thesame procedural rights as other titleholders in relation to such acts (s 24KA).• Certain “low impact” future acts are validif they occur before a determination thatnative title exists. Native title is notextinguished by those acts (s 24LA).• Other categories of future acts mustcomply with the “freehold title test”(s 24MA), which generally means that anact is valid if it could be done if the nativetitle holders held freehold title. It doesnot apply to offshore areas. Native titleholders have additional procedural rightsin certain compulsory acquisition matters(s 24MD(6B)).• Acts in offshore places are valid. Exceptin the case of compulsory acquisitions,native title is not extinguished. Nativetitle holders have the same proceduralrights as other title holders (s 24NA).• A special right to negotiate applies tofuture acts involving the grant of certainmining interests and compulsory acquisitions(ss 25–44).Native title can be validly extinguishedunder the future act regime, for examplewhere native title rights and interests aresubject to compulsory acquisition, but generallythe non-extinguishment principleapplies, and the native title holders areentitled to compensation for the impairmentof native title. In some cases, the future actwill be valid notwithstanding that the proceduralrequirements might not be observed(for example, under s 24KA – Lardil Peoples vQueensland [2001] FCA 414; (2001) 108 FCR453).Hunting, gathering and fishingThe Act provides for the preservation ofhunting, gathering and fishing rights, andcultural activities as long as they are noncommercialand amount to the exercise ofnative title interests. These activities mayoccur even if a licence is required for suchactivities by non-native title holders (s 211and Yanner v Eaton (1999) 201 CLR 351).The High Court has confirmed that acoastal grant of Aboriginal land in theNorthern Territory stretches to the lowwater mark and includes the intertidal zone.Significantly, coastal native title holders inthe Northern Territory have a right toexclude others from an Aboriginal intertidalzone. Recognition of this right greatly enhancesthe negotiating power of native titleholders regarding public access to the intertidalzone and commercial interests in thosenatural resources (Northern Territory v ArnhemLand Aboriginal Land Trust (2008) 248ALR 195 (Blue Mud Bay case)). The case didnot consider the status of grants under otherland rights legislation. In NSW, grants madeunder the Aboriginal Land Rights Act willonly extend to the limits of the land claimed,which is usually defined by the depositedplan, but may extend to the mean highwater mark. Where native title is recognisedin coastal waters, the right will be subject tothe general public right to fish and of safenavigation, and native title will not beexclusive: Commonwealth v Yarmirr [2001]HCA 56; (2001) 208 CLR 1.[2.390] Resource lawA number of laws regulate the protection,use, exploitation and management of naturalresources in NSW. Many of them makespecial provision for the involvement ofAboriginal people.[2.400] FishingThe Fisheries Management Act 1994 (NSW)states that it is not intended to affect nativetitle rights (s 287). An amendment in 2000 tointroduce a general salt water recreational
2 Aboriginal people and the law 65fishing licence allows exemptions from feepayment for Aboriginal people who are partof the native title claimant group for an areain which there is a registered native titleclaim.Exemptions can also be granted to Aboriginalpeople to fish for cultural purposesunder s 37 of the Fisheries Management Act1994. In practice, the exemptions are grantedby NSW Fisheries on production of a letterfrom the relevant local Aboriginal landcouncil. In 2009, the Fisheries ManagementAct 1994 was amended to introduce a rightto fish for the purpose of Aboriginal culturalfishing (fishing for the purpose of satisfyingpersonal, domestic or communal needs, orfor educational, ceremonial or other traditionalpurposes, and which do not have acommercial purpose) but that amendmenthas not yet been proclaimed to commence(as at 1 October 2014).Forests and Crown landsThe Forestry and National Park Estate Act 1998(NSW) transfers certain former state forestsand Crown lands to local Aboriginal landcouncil ownership.[2.410] Marine parksThe Marine Parks Act 1997 (NSW) states thatit is not intended to affect native title rights,and provides for Aboriginal representationon the Marine Parks Advisory Council.[2.420] Land clearingThe Native Vegetation Act 2003 (NSW) effectivelygoverns land clearing and repeals theNative Vegetation Conservation Act 1997(NSW). The Act provides for the certificationof property vegetation plans, which must beconsistent with the catchment managementplan for the particular catchment.Unlike the previous legislation, the NativeVegetation Act 2003 contains no requirementfor consultation with Aboriginal people ororganisations.[2.430] CatchmentmanagementThe Catchment Management Authorities Act2003 (NSW) set up 13 catchment managementauthorities covering the whole ofNSW. The authorities had boards of five toseven people, and developed draft catchmentmanagement plans for considerationby the Natural Resources Commission. Theauthorities replaced most of the existingnatural resource advisory councils andcommittees. This legislation was replaced in2013 by the Local Land Services Act 2013(NSW) which revised the boundaries andabolished the catchment management authoritiesin favour of a statutory authority,the Local Land Service, and local landboards.The Local Land Services Act 2013 does notmake provision for Aboriginal membershipof the authority, or on local land boards, butthe authority and the local boards arerequired to develop a strategy for engagingwith the Aboriginal community in the regionin relation to local land services. Theseservices are broadly defined to includebiosecurity, chemical management, stockmovements, agricultural planning and naturalresource management. The regulationsprovide that one of the skills which isrelevant for membership of a local landboard is the ability to work with Aboriginalgroups and communities, but it is not amandatory requirement.The Natural Resources CommissionThe Natural Resources Commission, under the NaturalResources Commission Act 2003 (NSW), replaces anumber of committees that had Aboriginalrepresentation. There is no guaranteed representationfor Aboriginal people on the commission, but it doeshave guiding principles that it must adhere to in makingits decisions, which include the “Indigenous knowledgeof natural resource management” (s 14(e)).
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