Native title policy for NSW

The Government has an obligation to recognise native title rights where they exist and is committed to supporting native title groups to achieve this recognition through negotiation.

The Federal Court can make a consent determination that native title exists in a particular area of the State if the NSW Government and the native title group reach agreement. For this to occur the native title claim group must provide credible evidence of their connection to the land and waters claimed, and the NSW Government will still need to be satisfied about: 

• whether native title exists
• who holds the native title
• the nature and extent of native title rights and other interests.

Settling a consent determination while a whole-of-government Indigenous land use agreement (ILUA) and compensation package are also being worked out, should lead to better outcomes for native title groups. It will be quicker, less expensive, and less of a struggle for all parties.

The NSW Government recognises that some of its past activities have taken away or interfered with Aboriginal people’s native title rights and interests. As a result, some native title holders are entitled to compensation under the Native Title Act 1993 (Commonwealth).

The proposed native title policy would give native title groups an out-of-court compensation settlement option. This option would be available to native title groups who:

• have been recognised as native title holders by the Federal Court; and
• have entered into an Indigenous land use agreement (ILUA) which is registered with the National Native Title Tribunal.

Native title groups who accept a compensation settlement under the policy would agree not to lodge a compensation application with the Federal Court for pasts acts over the same area.

How compensation would be calculated

The NSW Government proposes a consistent method under the policy for calculating compensation to offer more timely settlements and support the aspirations of the native title group over an inter-generational timeframe.

This method would be based on calculating:

• the annual costs of running a registered native title body corporate, including employment, office space, operating, and governance costs
• the annual costs for joint management governance of national parks in the native title holder’s Country
• the annual costs of resourcing a joint management ranger program
• an annual budget to support the realisation of the economic, environmental, social, and cultural aspirations determined by the registered native title body corporate, including through acquisition of land and water if the group chooses.

The calculation would not be based on trying to value land or cultural loss, or on analysing the history of each parcel of land, as would be relevant to compensation determined by the Federal Court through litigation. It would enable compensation to be paid to native title holders more quickly than if a compensation claim was filed in the court.

Compensation paid into a trust

A trust is a type of legal agreement where an independent person or entity (the trustee) is appointed to manage money or assets on behalf of others (the beneficiaries). A trust deed, which is a legal document that sets out the terms of the trust, controls how the trustee manages the trust and makes sure they are accountable to the beneficiary.

Under the proposed policy, compensation settlements would be paid as a lump sum into a trust set up by the registered native title body corporate. The trust would operate long term, providing benefit to current and future generations of native title holders (the beneficiaries).

The interest and income earned by the trust would make sure that the registered native title body corporate has a sustainable income stream. The NSW Government would not be involved in decisions about how funds in the trust are invested or how the interest and income earned is spent. The proposed policy allows native title groups to identify and deliver on their own priorities.

How would the trustee be appointed?

A trust deed would set out how the trust is managed. It would include a set of governance principles that ensure the trustee is acting in a transparent way and is accountable to the registered native title body corporate and native title group.

A professional trustee would be appointed initially with the trust deed describing the process for the transition to a trustee appointed by the registered native title body corporate.

An Indigenous land use agreement (ILUA) is a voluntary legal agreement between native title holders and other people or organisations about the use and management of areas of land and water.

Under the proposed policy, an ILUA would set out the agreement between the native title group and the government about how the group’s native title rights would interact with the Government’s responsibilities for managing land and water.

In the past, the NSW Government has sometimes taken many years to negotiate ILUAs with native title groups after their native title rights have been determined.

The NSW Government wants to speed up the process by proactively negotiating an ILUA with native title holders at the same time as both parties work towards a determination of native title rights by agreement (the ‘consent determination’). The ILUA would bring together all relevant NSW Government agencies into a whole-of-government agreement with the native title group.

The proposed policy would also apply where native title groups already have a consent determination but do not already have a compensation settlement.

The NSW Government proposes that all of these ILUAs would include:

• a plan to manage the coexistence of rights with government responsibilities (sometimes called a ‘risk management regime’)
• procedures for future acts that the Government may wish to undertake
• outcomes for native title holders, in exchange for ways in which they may agree to modify exercise of their rights under the ILUA.
   

A plan to manage the coexistence of rights

The Government has statutory responsibilities to undertake land management activities on public land in NSW. At times, these statutory responsibilities may conflict with native title groups’ rights and interests on this land. An ILUA can help make sure that both parties can exercise their rights and carry out their obligations safely and sustainably.

The ILUA that is negotiated will seek that the native title holders agree to certain restrictions on the exercise of their native title rights, which may include things such as: 

• agreeing not to hunt with firearms
• agreeing not to light fires at certain times
• agreeing not to take dogs into certain areas
• agreeing to camp only in certain areas.

Procedures for future acts

Establishing procedures for future acts helps simplify future negotiations about how Government deals with or undertakes certain activities, providing certainty and clarity around consultation and engagement processes. 

Examples might include:

• responding to emergency incidents
• remediation works
• leases and licences with third parties on public lands
• construction of public works and visitor facilities
• land management activities, for example, fire, weed and pest management.

Outcomes for native title holders

Where native title holders agree to change how they exercise their rights to help Government uphold its land and resource management responsibilities, they have an opportunity to secure additional outcomes and commitments. In the past, ILUAs have included the Government’s agreement to:

• transfer parcels of Crown Land to the native title group
• appoint the registered native title body corporate as Crown Land Manager
• disregard the prior extinguishment of native title over national parks
• establish arrangements for the joint management of national parks
• establish and maintain cultural heritage events, programs, or assessments
• establish employment and commercial opportunities
• commit to preferential land management contracting for the native title group. 

Funding for native title groups to negotiate an ILUA

The NSW Government recognises the importance of well-resourced native title groups for successful ILUA negotiations. When seeking to negotiate an ILUA, the Government will provide funding for the registered native title body corporate to participate in the agreement making process.