Land craft

Jean Bursle and Matthew Edwards report on how the Australian property market and the recognition of native title have found some middle ground

It took the Australian legal system more than 200 years to recognise the existence of basic indigenous property rights in the form of native title. In the 12 years since the High Court recognised the possibility of native title, much has changed. Although the promise of native title has not met the expectations of all, a broadly workable system has developed.

Mabo v Queensland (1992)
The landmark Mabo decision overturned nearly 150 years of common law when Australia’s High Court established the legal principles necessary to underpin the recognition of native title in Australia. The High Court held that the common law can recognise native (or Aboriginal) pre-existing title to land where the holders have maintained a sufficient connection with their traditional lands (establishment) and provided the Crown has not extinguished that native title at any time between acquisition of sovereignty and the present day (extinguishment).

Mabo did not confirm the existence of native title to any particular part of the mainland, the rights it comprises nor the indigenous groups that hold it. Those questions are determined on a case-by-case basis.

Evolution of the law
Since Mabo, there has been a series of High Court and Federal Court decisions that have provided clarity and certainty to the operation of the Native Title Act 1993 (NTA) and its interaction with the common law.

The native title establishment test was articulated in Yorta Yorta. That decision set the bar high for claimants, requiring them to demonstrate that: the rights and interests said to be possessed are founded on traditional laws and customs which existed at the time of the acquisition of sovereignty; and that there has been continuity of acknowledgment and observance of those laws and customs.

Despite the growing body of case law, the picture remains incomplete, particularly regarding questions such as compensation.

The Native Title Act 1993
The NTA was enacted in 1993 to create a system for the recognition and regulation of native title. It sets out a process for the making and determination of native title claims; prohibits arbitrary extinguishment of native title and confirms a right to compensation where native title is extinguished or impaired; confirms the validity of non-native title interests; and provides a process for the creation of interests over native title land.

While the processes in the NTA are not perfect, they are generally workable. Attempts to amend the NTA have proved highly controversial and divisive. The (only) comprehensive amendments made in 1998 were a significant and highly political public issue.

Although the provisions of the NTA have remained virtually unchanged since 1998, its operation has been dynamic.

Making and determining native title claims
The NTA establishes a framework for making native title claims and their determination by agreement or by the Federal Court.

Much of Australia, particularly remote areas, are covered by native title claims. The claim environment has now stabilised and new claims are becoming less common.

Nevertheless, the resolution of native title claims is proceeding slowly. Fifty-two determinations of native title have been made since the NTA commenced (including determinations that native title does not exist).

Litigated determinations
The experience to date is that it generally takes at least three years, and often much longer, for a claim to be brought to trial. There have been 12 litigated determinations. Native title trials are generally very long (a recent trial took 100 days of hearing time), expensive and involve many parties. They also often involve large and remote areas of land (one recently determined claim covered an area approximately two-thirds the size of the UK).

Consent determinations
The majority of Australian state governments currently favour mediation over litigation.

Consent determinations have been most successful (in terms of area determined) in remote areas of Western Australia, where a lack of competing native title claims and other interests simplify matters.
Nevertheless, efforts to settle claims have not been widely successful to date. Twenty-eight determinations of native title have been made by consent. Reaching agreement is often complicated by overlapping (or competing) native title claims or numerous parties with many interests that may be affected by a determination.

Confirmation of validation and extinguishment
The NTA confirms the extinguishment of native title by inconsistent acts of the executive or legislature and the validity of certain acts made before the existence or extent of the implications of native title were understood.

As the principles become more settled, proponents and state governments are more able to decide with certainty about the effect of an act on native title.

Future act processes (procedural rights)
‘Future act’ processes apply under the NTA before native title can be affected validly by the creation of non-native title interests, such as mining leases. Aboriginal people who are determined to hold native title are afforded these rights, as are native title claimants who meet the ‘registration test’ – a prima facie testing of the merits of their claim.

The future act process depends on the type of non-native title interest proposed. The process may confer no more than a right to be notified of the act. At the other end of the spectrum, the ‘right to negotiate’ requires proponents to negotiate in good faith with native title claimants for at least six months about the grant of mining leases and some other forms of rights.

The success of the future act procedures in balancing the needs of proponents to gain access to land and the rights of native title claimants to have their rights (or asserted rights) taken into account has been somewhat mixed across Australia. However, with some notable exceptions, the future act procedures offer a workable process and the number and variety of agreements reached under the NTA is significant.

The mining industry in particular utilises widely the processes and has delivered significant benefits to native title claim groups as a consequence. Headline figures of some agreements are in excess of A$60m (£23.4m).

The NTA sets out principles for determining compensation. A proponent or the state or Commonwealth government may be liable for compensation depending on when an act is done and the type of act. These principles have been largely untested in the courts.

The NTA purports to cap compensation at the (unimproved) freehold value of the land concerned. But the Australian constitution requires that compensation for a compulsory acquisition be on just terms. It is possible that in these circumstances, then, compensation may exceed freehold value. This question is currently before the Federal Court.

Non-native title responses to the development of native title law
The NTA is no panacea to the difficult issues associated with balancing the traditional interests of Aboriginal people with the requirements of proponents and governments. Other options are increasingly being explored to meet aspirations.

Claim alternatives
Governments, claimants and non-native title interest holders are exploring ‘non-native title outcomes’. The proposals vary, but are often in the nature of statutory rights to access land and a watered down version of the future act processes.

Alternative means of holding and maintaining a connection to land are also being adopted by Aboriginal people, for example with the purchase of pastoral leases. Particular statutory regimes also provide for the creation of reserve land or Aboriginal land, which is usually held on trust for the relevant Aboriginal people and confer rights generally equating to that of a freehold owner.

Aboriginal heritage and environmental laws
Aboriginal heritage laws protect archaeological and ethnographic sites of significance. In most states, compliance with these laws requires, at a minimum, consultation with relevant Aboriginal people. It is not uncommon for Aboriginal heritage laws to give rise to more onerous or more time-consuming approvals processes than the NTA procedures.

Environmental protection laws and other statutes which confer consultation or objection rights on the public (for example mining legislation) are also routinely invoked by Aboriginal people to give them a say in development. Many environmental laws in Australia recognise the particular significance of Aboriginal culture as part of Australia’s physical, social and cultural environment.

In the relatively short period of time since the recognition of native title as a property right in Australia, the uncertainty it introduced to the legal framework of Australian land law has been largely overcome. From a legal perspective, the developing body of case law is increasing the understanding of the nature and content of native title rights and their interaction with non-native title interests.

From a practical perspective, the radical upheaval first expected from the recognition of native title has also not been sustained. Today, while experiences vary and shortcomings with the system remain, development proponents and native title claimants alike are getting on with business.

Jean Bursle is a senior associate in Blake Dawson Waldron’s Perth office, and Matthew Edwards a senior associate in London