Managing Crown Land - Fact Sheet - Native Title Issues for Managers of Crown Land

Header: Crownland Information Fact Sheet

Introduction

The Native Title Act (Cth) 1993 recognises and protects the native title rights and interests of Aboriginal and Torres Straight Islander people across Australia. The Native Title Act provides a way of acknowledging the existence of native title and sets out procedures that managers of Crown land must comply with.

Native title must be considered when Government or other Crown land managers (such as Committees of Management [CoMs]) are permitting or carrying out any activity on Crown land. Therefore it is important that such managers address native title issues when developing and implementing management activities on a reserve.

Activities Which Impact on Native Title

Any activity on Crown land where native title is not considered to be extinguished (see explanation of extinguishment below) may impact on native title. The construction of new buildings and other facilities, issue of any new lease or licence and any major earthworks may impact on native title. Some examples include:

construction of new facilities such as toilet blocks, walking tracks, tennis courts, grandstands and barbecues
extensions to existing buildings
new roads or tracks
installation of infrastructure such as powerlines, sewerage pipes, etc.

Any activity that impacts on native title is considered to be a “future act” under the Native Title Act (see native title future acts fact sheet for further information). Some activities require a notice to be forwarded to the native title claimants’ representative body.

Extinguishment of Native Title

Some reserves will have had past usages, occupations or works constructed on them that may have extinguished native title. Native title exists on Crown land and waters if it has not been extinguished (removed) by a valid act of government, or some other event. Native title can be extinguished by the grant of freehold land, the issue of Crown leases, and the construction or establishment of public works.

Public works undertaken prior to 23 December 1996 (when the amended Native Title Act began) will extinguish native title. For example, existing buildings such as halls, toilet blocks and change sheds, structures such as tennis courts, ovals, light poles, barbecues, fences, access and walking tracks, and car parks would be considered to have extinguished native title on Crown reserves, provided they were established prior to 23 December 1996. In addition, for public works constructed after 1 January 1994, the work must have been in accordance with the purpose for which the land was reserved, or at least have no greater impact than any activity that could have been done under the reserve purpose, for extinguishment to occur.

If an area of land meets the extinguishment criteria, native title does not exist and there are no requirements under the Native Title Act.

Activities on Crown Reserves that Require Notification

Only developments that are considered to be “Public Works” such as the construction of new buildings, structures that are fixtures, roads, wells, bores or any major earthwork require notification of the works be forwarded to the native title claimants representative body.

Activities that will not require notice are everyday reserve management activities. For example, renovating existing buildings such as toilet blocks, halls, kitchens, repairing existing facilities like fences, driveways, roofs and mowing ovals, landscaping, revegetation, and pest plant and animal eradication do not require notification. However, if you are in doubt you should contact your local Departmental Native Title Co-ordinator for advice.

Frequently Asked Questions

How does a Committee of Management give notice of a future act on a Crown reserve?
Notices will be prepared by the Department of Environment and Primary Industries (DEPI) on behalf of the CoM. Information regarding any proposed works, including a site plan and specifications of the works will need to be forwarded to DEPI for assessment. The normal period allowed for comment is 28 days, however a longer period can be arranged in certain circumstances. When planning works on the reserve, CoMs should therefore allow for the notification period to be completed prior to any works commencing on the ground.

In addition all activities that involve earthworks on Crown land must be conducted in a manner consistent with the State and Commonwealth Cultural Heritage legislation. Aboriginal Affairs Victoria (AAV) within the Department of Victorian Communities is the authority responsible for the administration of those Acts, and the CoM is advised to contact AAV in relation to these matters.

What happens if Native Title is determined to exist over a Crown reserve?
In most developed reserves native title may have been extinguished as the reserves have been significantly modified through Public Works or have been previously freehold land. However, some areas may still be subject to native title. The law states that native title cannot take away the valid rights and interests of other citizens, including lease, licence or permit holders.

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