When native title has not been extinguished

If native title has not been extinguished over the land making up a reserve, the reserve trust must not undertake any activity which would ‘affect’ native title unless it is done in compliance with the Native Title Act (Cth) 1993. Under that Act, an action ‘affects’ native title if it operates in

10

The Native Title Act (Cth) 1993 s 238.

such a way as to extinguish any native title that exists, or if it is inconsistent with the ‘continued existence, enjoyment or exercise of native title rights and interests’.11

Reserves created on or before 23 December 1996

Under Subdivision J of the Native Title Act (Cth) 1993, all acts undertaken in the care, control and management of the reserve may be validly undertaken even though they might affect native title- provided the action is undertaken in good faith and is either in accordance with the

reservation, or the actions impact on native title is no greater than the impact could have been by any action undertaken in accordance with the reservation.12 An action will not be regarded as undertaken in good faith if it is undertaken for the principal purpose of extinguishing or otherwise affecting native title.

Subdivision J does not necessarily authorise all acts undertaken in relation to an additional purpose authorised under Sections 34A, 112A and 121A of the Crown Lands Act (NSW) 1989. However, if the new purpose has no greater impact than anything that can be done under the original reservation purpose then Subdivision J (specifically s.24JA) of the Native Title Act (Cth) 1993 would operate to authorise those acts.

Public works

A public work is defined in the Native Title Act (Cth) 1993 to include a building or other structure (including a memorial) that is a fixture; a road, railway or bridge; a well or bore for obtaining water or any major earth works (that is, earth works other than in the course of mining whose construction causes major disturbance to land, or to the bed or subsoil under waters). Where a proposed action that is a public work is likely to affect native title, before that public work is undertaken a notice must be served on:

• any registered native title body corporate (i.e. corporations established to hold native title where there has been a determination of native title) for the land

• any registered native title applicant for the land

• the Aboriginal and Torres Strait Islander Representative Body for NSW (currently NTSCORP).

The notice must describe the proposed action and provide an opportunity for the recipient to comment on the proposal. The recipient must be given sufficient time in which to comment, usually between 28 and 60 days. The Crown Lands Reserves Team can help you draft

appropriate notices and responses and can also advise whether the land is affected by a native title determination or a registered claim.

Where a public work is validly constructed or established the act extinguishes any native title in relation to the land or water on which the completed or established public work is situated and the extinguishment is taken to have occurred when the construction or establishment of the public work began.13

Leases and licences

Where the reserve trust proposes to grant a lease, licence or other right which authorises or requires the holder to undertake a public work, the granting of the lease, licence or right is to be regarded as a proposal to undertake a public work.

11 Ibid. 12 _{Section 24JA.} 13 Section 24JB.

The granting of a lease or licence that does not require or authorise the construction of a public work does not require the service of any notice. Subdivision J provides that such leases do not extinguish native title.

Native title holder’s right to compensation

A native title holder has a right to claim compensation for any effect an action undertaken under Subdivision J of the Native Title Act (Cth) 1993 has on native title. The legislation imposes this obligation to pay compensation on to the State, but in some circumstances the State may pass that obligation on to the reserve trust.

You will need to discuss this issue with the Crown Lands Reserves Team if you propose to undertake actions which will extinguish native title and either there is a determination of native title in force, or a registered claim affects the land.

Reserves created after 23 December 1996

Subdivision J of the Native Title Act (Cth) 1993 does not apply to reserves created after 23 December 1996.

It may be possible to undertake some actions that have minimal effect on native title under Subdivision L (section 24LA) as “low impact acts”, provided the act takes place before, and does not continue after, an approved determination of native title is made in relation to the land or water where the determination holds native title exists.

Low impact acts might include:

• actions that do not involve the construction of buildings, fixtures (other than a fence) or clearing or excavations

• the granting of a licence or other right which does not confer any right to exclusive possession or permit the construction of buildings, fixtures (other than a fence) or clearing or excavations.

Generally, clearing which is reasonably necessary for public health and safety, for bushfire protection, or for environmental protection work can be undertaken or authorised under Subdivision L.

Any proposal to prepare a plan of management, undertake public works, or grant leases or licences which may affect native title and which do not fall under Subdivision L should be discussed with the Crown Lands Reserves Team.

The following acts are NOT low impact acts under the Native Title Act (Cth) 1993: • A grant of freehold estate; or

• The grant of a lease; or

• The conferral of a right of exclusive possession over any of the land or water; or • Excavation or clearing of any of the land or water; or

• Mining; or

• Construction of any building, structure (other than fencing or a gate); or

• Disposal or storing on the land or water of any garbage or poisonous, toxic or hazardous substance.