Australia: NSW passes on native title compensation

Last Updated: 6 July 2018
Article by Jenny Humphris

Most Read Contributor in Australia, September 2018

On 1 July, Part 8 of the Crown Land Management Act 2016 (NSW) (the Act) came into effect in NSW.

Part 8 has broad implications for councils and other managers of dedicated, reserved and vested transferrable Crown land (reserve Crown land) relating to native title management. Notably, in certain circumstances the obligation to pay native title compensation for the construction of public infrastructure will shift from the State to the councils/managers.

Compensation - Proponent's responsibility

Previously state governments were responsible for the payment of native title compensation for the impact of acts on native title done by councils and other managers of reserve Crown land in reliance upon Subdivisions F-N of the Native Title Act 1993 (NTA).

From 1 July, the responsibility for native title compensation shifted from the NSW State government to the councils/managers when they carry out acts in reliance upon sections 24 JAA, 24 KA, 24 MD and 24 NA of the NTA on reserve Crown land. This includes compensation arising from the construction by councils/managers of water, sewerage and transport infrastructure land and for the provision of public housing and associated facilities..

It is to be noted that compensation has not been passed onto councils/managers who continue to rely on sections 24HA or 24JA of the NTA to construct infrastructure, grant tenure or do other future acts on reserve Crown land.

Councils and managers will need to consider their liability for native title compensation and provision accordingly before undertaking dealings in reliance upon sections 24 JAA, 24 KA, 24 MD and 24 NA of the NTA.

What native title is 'worth' from a compensation perspective is still the subject of judicial consideration. The Full Federal Court decision in Northern Territory of Australia v Griffiths [2017] FCAFC 106 has been appealed to the High Court and is scheduled to be heard on 3-6 September 2018.

Native title managers

Other notable provisions that commenced on 1 July include the requirement to appoint native title managers and the introduction of native title certificates.

Division 8.3 of the Act requires councils/ managers of reserve Crown land to employ or engage a native title manager, to ensure compliance with native title legislation when dealing with the land. Native title managers must have the training or qualifications that are approved by the Minister.

The council/manager must obtain the advice of the native title manager before it can grant certain interests over the land including leases, licences, permits, forestry rights and easements or rights of way. It also cannot place restrictions on use or approve a plan of management for the land without native title manager advice.

The requirement to appoint a native title manager or to obtain their advice before undertaking certain dealings does not apply to 'excluded land'. This includes land the subject of a court determination that native title has been extinguished or does not exist or where native title has been compulsorily acquired. It also includes where the Minister for Lands and Forestry has issued a native title certificate with respect to the land.

Native title certificates

Division 8.2 of the Act provides for the issue of a native title certificate by the Minister for Lands and Forestry stating that, following investigations by the Department, there is adequate evidence to show that native title rights and interests in land have been extinguished or do not exist.

The Act does not however appear to make clear to what extent an enquirer may rely on a certificate and in fact states that the requirements of the NTA is not affected by the issue of the certificate (s 8.4(5)). It is to be noted that only the court can ultimately decide whether or not native tile exists (refer to section 225 of the NTA). It follows that even with a certificate a council/manager intending to undertake work over reserve Crown land remains legally responsible for compliance with the NTA.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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