Native Title

The High Court of Australia’s Mabo (No 2) decision in 1992 overturned the concept of ‘terra nullius,’ that the Australian was a ‘land belonging to no-one’ when Europeans first arrived. The decision recognised that, in some cases, the rights of Aboriginal and Torres Strait Islander people under their traditional laws and customs survived colonisation.

The Native Title Act 1993 (Cth) (NTA) recognises and protects native title rights and interests within Australia. The Act outlines how native title claims can be made; how governments can make decisions about and create interests in land validly if native title exists; and validates some past activities. Native Title claims are decided in the Federal Court of Australia and each case is unique. Native title can exist alongside other interests in land, such as pastoral leases, or Crown Land. If native title has been extinguished, it can only be revived in limited circumstances prescribed by the NTA.

The NTA also outlines the circumstances in which an activity or development proposed in an area covered by a native title determination or a registered native title claim will be valid and the procedural rights that flow to the native title party. This is commonly known as the Future Acts Regime. ‘Future acts’ may also be validated by negotiating an Indigenous Land Use Agreement (ILUA). To learn more about native title, see the National Native Title Tribunal website.

Almost 90 per cent of WA’s land mass is subject to a native title determination, with a form of native title recognised over approximately three quarters of the State. Where native title is recognised in a determination, it will set out where the native title exists, who the native title holders are, and the rights and interests that are recognised.

The National Native Title Tribunal has useful information about the native title claims process, maintains statutory registers of native title claims, native title determinations and Indigenous  Land Use Agreements, and offers access to an interactive mapping portal depicting these registers and other spatial information.

A large proportion of determinations of native title in WA have been made by consent between native title claimants, the WA Government and other interested parties.

Whilst there are areas of land throughout the State that are yet to be determined and a number of native title claims are still before the Court, WA is now rapidly transitioning into a post-determination environment. Native title compensation is an emerging area of law and government policy, which will continue to evolve as new settlements are reached and test cases are decided by the Courts.

When a determination of Native Title is made, the NTA requires the Native Title holders to establish a Prescribed Body Corporate ꟷ also known as a Registered Native Title Body Corporate (RNTBC) ꟷ to hold in trust, or act as agent, to manage their Native Title rights and interests.
The Prescribed Body Corporate is the first point of contact for those wishing to undertake activities on determined land and represents Native Title holders in future act matters and in ILUA negotiations.
Prescribed bodies corporate are regulated by the following legislation:

• Native Title Act 1993 (Cth)
• Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth)
• Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)

Prescribed Bodies Corporate in Western Australia

For a comprehensive listing of PBCs and profile information, visit the AIATSIS Native Title Bodies Corporate website or the Office of the Registrar of Indigenous Corporations website.

Future acts can also be validated through Indigenous Land Use Agreements (ILUAs). ILUAs are flexible instruments and can cover a wide range of matters. In a Local Government context, an ILUA can deal with land access, development, heritage management, compensation and commercial arrangements, among other things.

Local Governments should seek legal advice on options for negotiating an ILUA as these are context dependent and vary according to the impact the proposed activity may have on native title rights and existing land tenure arrangements.

The State Government is party to a wide range of registered ILUAs, each with its own unique scope and purpose. Some ILUAs involve a single native title party, while others are regional in scope and involve multiple native title parties.

Significant native title agreements in WA include:

• South West Native Title Settlement
• Yamatji Nation Indigenous Land Use Agreement
• Tjiwarl Palayakuwa (Agreement) Indigenous Land Use Agreement
• Gibson Desert Nature Reserve Compensation and Lurrtjurrlulu Palakitjalu Settlement Agreement
• Yawuru Agreement
• Browse Agreement
• Burrup Native Title Agreement document
• Ord Final Indigenous Land Use Agreement
• Murchison Radio-astronomy Observatory Indigenous Land Use Agreement

The Land Administration Act 1997 (WA) governs the administration of Crown land in Western Australia, including:

• land tenure dealings, such as leases, licences and reserves
• acquiring and divesting land assets on behalf of the State Government, and
• land assembly for state significant projects, public works and infrastructure projects.

A significant proportion of Crown Land in WA is managed by Local Governments.  The Department of Planning, Lands and Heritage (DPLH) is required to consult Local Governments before exercising most powers in relation to Crown land.

DPLH have a responsibility for delivering substantial land tenure outcomes under native title agreements, examples include:

• the Noongar Land Estate under the South West Native Title Settlement covering 101 Local Governments
• the Yamatji Land Estate under the Yamatji Nation Indigenous Land Use Agreement covering 12 Local Governments
• the Tjiwarl Land Estate under the Tjiwarl Palyakuwa Indigenous Land Use Agreement covering 3 Local Governments.

DPLH is required to refer land under consideration for possible transfer to the relevant Local Government.  This creates an opportunity for Local Governments to consider and provide advice on any strategic land activation plans, zoning under the Local Planning Scheme and any additional factors that may impact or guide the ongoing use and management of land.  A Crown land enquiry can be made to DPLH for more information on specific land.

Partnership opportunities between Local Governments and Native Title bodies may become evident through this process, where mutually beneficial land use and management aspirations can be realised.

The Aboriginal Lands Trust (ALT) estate refers to land owned or managed either separately or jointly by the Aboriginal Lands Trust and the Aboriginal Affairs Planning Authority.

The ALT estate consists of 284 properties covering some 21 million hectares, or about 7.9 per cent of the landmass of Western Australia. Both the Aboriginal Lands Trust and the Aboriginal Affairs Planning Authority hold parcels of land in freehold, leasehold, as a vested reserve under the Aboriginal Affairs Planning Authority Act 1972 and as a managed reserve under the Land Administration Act 1997.

An estimated 12,000 people live on the ALT estate in 143 permanent Aboriginal settlements, ranging from those with larger populations comparative to regional towns, to small family settlements.

Almost all the ALT estate is over land subject to a positive determination of native title or a registered native title claim.

Entry Permits are required for entry onto or through proclaimed Aboriginal Lands Trust reserves.

Most people passing through or visiting communities on Aboriginal Lands Trust reserves proclaimed under Part III of the Aboriginal Affairs Planning Authority Act 1972 must obtain an Aboriginal Affairs Planning Authority (AAPA) Lands Permit (ALPS) to comply with the Act.