Managing native title in Local Government
The Mabo decision of the High Court and the introduction of the Native Title Act 1993 (Cth) have significant ramifications for Local Government. Any land dealings where it cannot be established beyond doubt that native title has been extinguished and is not a consideration, needs to commence with the proposition that in certain circumstances native title exists and is a reality that needs to be taken into account.
The Australian Local Government Association in conjunction with the National Native Title Tribunal and the Aboriginal and Torres Strait Islander Commission, is currently preparing a detailed guide to native title for Local Government. This Guide will take account of recent amendments to the Native Title Act 1993 (Cth) and is expected to be available by November 1998.
As a result of Mabo, it is no longer appropriate to disregard Indigenous interests in certain types of land (for example, 'unallocated' Crown land), irrespective of whether a determination has been made, either by agreement or as a result of a contested application. As a common law right, Indigenous interests in land must frequently be considered, especially in land use planning and management processes.
There are a number of simple steps that Councils can take in responding to native title matters and managing the exposure to the risk of claims for compensation. This is especially the case in so far as Council's land holding, land management and public works and service delivery responsibilities are concerned.
At the very least, Councils need to:
- identify the areas where exposure is probably non existent
- highlight the areas of possible exposure; and
- have a reasonable understanding of the extent of exposure in each of those areas.
A detailed step by step risk management strategy has been developed. It is set out in detail in an information paper on ALGAs website (http://www.alga.com.au). The amendments to the Native Title Act 1993 (Cth) strengthens the status of local or regional agreements between native title holders and any other parties, including local Councils, by providing flexibility, certainty and mechanisms for enforcement. These amendments were widely supported.
The amendments mean that agreements about the use of land between Indigenous peoples and other interest holders remains the most important way of resolving applications for a determination of native title. Agreements are therefore an important consideration in responding to native title matters. This option is included in the management strategy.
To assist in this approach, ALGA has prepared a detailed guide titled 'Working out Agreements: A Practical Guide to developing agreements between Local Government and Indigenous Australians'.
Copies of the guide can be purchased from ALGA for $30 each including postage and handling within Australia. A six page brochure about the guide can be accessed on ALGA's website. Information papers on the amendments to the Native Title Act 1993 (Cth) and about agreements under the Act have been prepared. These can be accessed on ALGA's website.
If you have any further queries you can contact ALGA's Native Title Project Manager, Ed Wensing on (02) 6281 1211 Extension 24 or by email (email@example.com).