Glossary

This is a corporation which may be appointed by the Minister for a particular area on behalf of the Aboriginal group for the area. an Aboriginal Cultural Heritage Body is not an Aboriginal Party. However, if there is no obvious Aboriginal Party for a Proposed Activity Area, an Aboriginal Cultural Heritage Body can help Council or another proponent identify who the Aboriginal Party is.

This is a register maintained by the Department of Aboriginal and Torres Strait Islander Partnerships website, which records information about Aboriginal Cultural Heritage derived from Cultural Heritage Studies and CHMPs.  In order for there to be a Registered Significant Area or a Registered Significant Object, the area or object must be recorded in the Aboriginal Cultural Heritage Register (as distinct from the Aboriginal Cultural Heritage Database). The register does not contain a definitive record of all Aboriginal Cultural Heritage.

there are a few references to this phrase in these procedures. For example, section JAA of the Native Title Act 1993 provides one compliance option.  However, it only applies to land held under a form of Aboriginal freehold title in the Aboriginal Land Act 1991 (Qld) and reserves and DOGITs (Deed of Grant in Trust) for the benefit of Aboriginal people.  It is land tenures of this kind that are referred to as Aboriginal Land.

a type of Indigenous land use agreement.

an Act of the Australian Parliament that amended the Native Title Act.

the hearing or determining of a dispute between parties.

the process native title holders must use to give permission for:

• an area agreement (a type of Indigenous land use agreement) to be made on their behalf
• an application for a determination of native title or compensation application to be made on their behalf and to give the applicant the power to deal with matters arising in relation to that application.

The process by which the relevant native title representative body or bodies or appropriate native title service for an area, can certify the authorisation requirements of the Native Title Act have been met (s 203BE NTA) in relation to:

• applications for a determination of native title
• area agreements (a type of Indigenous land use agreement).

Native title service providers may also be able to perform the certification function (s 230FEA NTA).

the existence and exercise of native title rights alongside the rights of others over the same area of land or waters. For example, native title rights to go onto land and hold ceremonies may ‘coexist’ with the rights of a pastoral leaseholder to graze cattle. Coexistence is about sharing the land and waters in a way that recognises everyone's rights and interests in the area.

an application made by Indigenous Australians seeking compensation for loss or impairment of their native title.

the relationship that must be shown between Aboriginal people and Torres Strait Islanders with the land and/or waters over which they want native title recognised. To establish ‘connection’ the native title group must show they have continued to observe and acknowledge, in a substantially uninterrupted way, the traditional laws and customs that give rise to their connection with the claim area, from the time of the assertion of sovereignty by the British to the present day (s 223(1)(b) NTA).

The obligation to ensure native title compliance falls on the person proposing to do a Future Act (proponent).  Council will often be the proponent.  For example, where it proposes to grant a lease or construct infrastructure.  In those cases, Council as Proponent must address native title compliance.  In other cases, Council may benefit from or receive a Future Act done by another proponent. For example, the State of Queensland in granting a tenure interest to Council. In those cases, you have the “State as Proponent”.

These agreements are also called Cultural Heritage Management Agreements and are a compliance option under the Aboriginal Cultural Heritage Act and Torres Strait Islander Cultural Heritage Act for projects and activities that would otherwise give rise to an offence. Such agreements are also referred to as 'other agreements' to differentiate them from Indigenous Land Use Agreements (ILUA).  

This is a search of the land register to ascertain the current land title for a particular lot.

This is the Council Officer with responsibility to undertake the planning or preparation for a project or activity that may constitute a Future Act.  

Formal binding instructions to the parties from a court or tribunal made as part of the management of the case.

this refers to the fast-tracking process for future acts that might have minimal impact on native title, such as the grant of some exploration and prospecting licenses. If this procedure is used, and ‘no objection’ is lodged and the future act can be done without the normal negotiations with the registered native title parties required by the Native Title Act.

this term is used when Australian law does not recognize native title rights and interests because some things governments did, or allowed others to do in the past, have made recognition legally impossible. These things include the passing of laws or the grant of other interests inconsistent with the continued enjoyment of native title.

Native title is a bundle of rights. Complete extinguishment is when the whole bundle of rights is extinguished. Partial extinguishment is when one or more specific rights are extinguished.

As a general rule, once they are extinguished, native title rights can never be recognised again under Australian law. However, in certain circumstances, the Native Title Act allows the courts to ignore the effect of extinguishment. Generally, this may happen if, at the time the application is made, the relevant area is:

• vacant Crown land or unallocated State land (and not subject to reservation etc. for a public purpose) 
• a pastoral lease held by, or for, the claimants
• specifically set aside for, or held for the benefit of, Aboriginal People or Torres Strait Islanders (for example, under land rights legislation or as a reserve for the use and benefit of Indigenous Australians).

this test requires that, when certain future acts are proposed, native title holders must be given the same procedural rights as those who hold ‘ordinary title’. In everywhere but the Australian Capital Territory and the Jervis Bay Territory, ‘ordinary title’ means freehold (s 253, Subdivision M of Part 2 Division 3 NTA).

Any area of land or waters directly or indirectly affected by a Proposed Future Act is referred to in these procedures as the Future Act Area.  If the Proposed Future Act is a tenure dealing, the Future Act Area will be the lot concerned.  However, where the Proposed Future Act involves physical activities, also identify any adjacent, upstream or downstream areas which will be affected.  As well as identifying lots, it may help you to sketch out the Future Act Area on a map or plan.

a decision by the National Native Title Tribunal either that a future act cannot be done, or can be done with or without conditions. In making the determination, the Tribunal takes into account (among other things) the effect of the future act on the enjoyment by the native title party, of their registered rights and interests, and the economic or other significant impacts of the future act and any public interest in the act being done.

This is the notice that Council will often need to use in order to satisfy Procedural Rights in relation to a Proposed Future Act.  A template Future Act Notice is contained at the bottom of each provision where it is a condition of validation to give notice.  The instructions accompanying each provision contain guidance on how to give a Future Act Notice and who to give it to.

the person or corporation who has applied to the government for it to do a future act in relation to which the right to negotiate applies. Most commonly this is for the grant of mining tenements such as exploration licenses and mining leases (s 29(2)(c) NTA).

The Path through Native Title Assessment also requires you to assess whether there has been Extinguishment of native title on Public Work grounds. Where the Extinguishment could have been caused by a historical Public Work which no longer exists, a Historical Land Use Search may be needed.

Sections 24BA to 24EC describe how different types of ILUAs can be used to render a Proposed Future Act valid. Essentially the validity is derived from an ILUA containing a Native Title Party’s consent to the Future Act.  The ILUA must however be registered on the Register of Indigenous land use agreements.  This register is maintained by the National Native Title Tribunal.  At the time of Version 1 (April 2015) of these procedures, there were no registered ILUAs for Council.

when the National Native Title Tribunal hears evidence and submissions by parties who are in a right to negotiate inquiry (i.e. a future act determination application inquiry or an expedited procedure objection application inquiry). In some cases, a determination will be made, based on written evidence submitted to the Tribunal, without holding an inquiry hearing.

Where a Future Act is done by or for Council in a way which is not compliant with the Native Title Act 1993, it will be an Invalid Future Act.  There may be consequences to Council for an Invalid Future Act.  The native title compliance system aims to help Council avoid any Invalid Future Acts.

see determination.

the process of bringing together people with an interest in an area covered by a native title claimant application who are parties to the application, to help them to reach agreement about such things as:

• whether or not native title exists
• who holds the native title
• what the native title rights and interests are
• what other interests exist in the area
• the relationship between native title and other rights and interests.

Mediation allows everyone involved to explore the potential for agreement, including agreement about a consent determination or an Indigenous land use agreement.

a person appointed by the Governor-General as a member of the National Native Title Tribunal under the Native Title Act. Members are classified as presidential and non-presidential. Some members are full-time and others are part-time appointees.

See Tribunal.

an independent statutory body established under s 107 Part 6 of the Native Title Act to assist people to resolve native title issues. The Tribunal has a number of powers and functions under the Act including:

• mediating between the parties to native title applications at the direction of the Federal Court (Part 6, Divs 4 to 4AA, Division 5, Subdiv AA)
• acting as an arbitrator in situations where the people cannot reach agreement about certain future acts, such as mining projects (In South Australia the Tribunal only performs this role in relation to the grant of petroleum tenements. The Supreme Court and the Environment, Resources and Development Court undertake this function in relation to the doing of certain other future acts under the alternate right to negotiate provisions that operate in South Australia)
• helping people to negotiate Indigenous land use agreements (ss 24BF, 24CF and 24DG) and determining any valid objection to the registration of an Alternative Procedure Agreement (a type of ILUA) (Part 6 Division 5 NTA).

an application for a determination of native title, a revised determination of native title or a compensation application under s 61 of the Native Title Act.

– It is the overall guide to help you make a Native Title Assessment for your Proposed Future Act. It is explained in Chapter 3. A template checklist is contained in paragraph 2.1 in Chapter 2.  Print off a copy of the checklist and tick the boxes as you go.

This is a proceeding in the Federal Court brought by an Aboriginal group seeking formal recognition of its native title.  Shortly after a Native Title Claim is filed with the Court, the National Native Title Tribunal will apply a threshold registration test.  Native Title Claims which pass that test are then called registered Native Title Claims.  Native Title Claims which do not pass the test or which have not yet been tested, are called unregistered Native Title Claims

a decision by an Australian court or other recognised body that native title does or does not exist.  A determination is made either when parties have reached an agreement after mediation (consent determination) or following a trial process (litigated determination). This refers to the decision of the Federal Court which determines whether a Native Title Claim is successful or not.  A Native Title Determination may recognise the existence of native title on the basis that the Aboriginal group has maintained connection with the claim area.  However, where the effects of European settlement have caused a loss of connection, the Court may determine that native title does not exist.  In that instance there is a “Negative Determination”.

a person who has native title rights and interests over a particular area of land or waters or, where there has been a determination of native title, and a prescribed body corporate (PBC) is registered on the National Native Title Register as holding native title rights and interests on trust (s 224 NTA).

see Registrar.

A statutory office holder who performs a range of native title related functions and also assists the President in the management of the administration of the Tribunal.

see native title.

the communal, group or individual rights and interests of Aboriginal people and Torres Strait Islander people in relation to land and waters, possessed under traditional law and custom, by which those people have a connection with an area which is recognised under Australian law (s 223 NTA).

This is a reference to the procedures which the Queensland Government uses to assess native title for Future Acts for the State as Proponent.  The Native Title Work Procedures are broadly consistent with Council’s native title compliance system but involve much more detail.  Different steps in the Native Title Assessment Checklist are the subject of Modules in the Native Title Work Procedures.  These Modules can be of assistance where you want to check any aspect of your Native Title Assessment. Each provision within the portal has a link to the relevant work procedure for that particular provision. There is enough information in the resources to make your decision without reference to the procedures but they are useful for double checking if you are in any doubt as to whether the provision in question applies to your Future Act or not. 

an individual, group or organisation that may participate as a party to proceedings in a right to negotiate inquiry, namely the:

• government party (usually a state or territory government who proposes to do the future act)
• grantee party (the person who has requested the future act be done)
• native title party (registered native title bodies corporate or registered native title claimants) for the area where it is proposed the future act be done.

where an act, such as a lease, that would normally wholly or partially extinguish native title, does not have that effect. Rather any inconsistent native title rights and interests are merely suspended while the particular act has effect (s 238 NTA).

the 'notification day' is, among other things, the day identified in the notice of various applications under the Native Title Act as the day from which the notification period will often be calculated. A notification day is included in most of the notices given by the Native Title Registrar, and those issued under s 29 NTA by the relevant state or territory governments.

Native Title Act 1993 (Cth) as amended by amendment Acts.

registered native title claimants and registered native title bodies corporate (RNTBC) can object to a tenement grant being fast-tracked using the expedited procedure. They have four months from the notification day to lodge an objection. If the objection is successful, the development cannot go ahead without the normal negotiations required by the NTA.

description applied to activities that take place on the relevant area of land, for example mediation conferences or Federal Court hearings can take place on or near the area covered by a native title application.

a person or organisation who either:

• enters into an agreement, such as an Indigenous land use agreement, with another person or organisation
• is a participant in a legal action or proceeding such as an application for a determination of native title?

organisations which represent people with common interests in relation to native title e.g. a farmers’ federation, fishing industry councils, native title representative bodies and local government associations.

prescribed body corporate, a body nominated by native title holders which will represent them and manage their native title rights and interests once a determination that native title exists has been made. 

previous non-exclusive possession acts are valid or validated grants of non-exclusive agricultural or pastoral leases that took place:

• before 24 December 1996
• after 23 December 1996 (the date of the Wik decision), and would be PNEPA except that they were not done on or before 23 December 1996 but were done:
  
  • under a legally enforceable right, offer or arrangement made on or before 23 December 1996
  • in good faith as the result of an offer, commitment, arrangement or undertaking made or given in good faith on or before 23 December 1996 of which there is reasonably contemporary written evidence (ss 23F (2) and (3) NTA).

If the effect of such a lease on native title rights and interests at common law would be to extinguish those rights and interests s 23G provides that under the Native Title Act the effect is the same. If that is not the effect at common law, the lease will merely suspend the native title rights and interests for as long as it is in force. (If the grant of the lease is also a category A past act then native title is fully extinguished.)

There are three categories of things that, can have caused the Extinguishment of native title over particular parcels. The first is the dedication of a road in certain circumstances.  The second is the doing of a Public Work in certain circumstances.  The third is the grant of certain types of land tenure. The latter is referred to in these procedures as a Prior Extinguishing Tenure Grant.

More information about the type of grants they include is contained in the Prior Extinguishing Tenure Grant Checklist

See FUTURE ACT. The Proposed Future Act describes any project of activity that affects Native Title, whether that be a physical act or a non-physical act such as the issuing of a lease, permit or authority. 

You need to know the precise meaning of Public Work in order to assess whether there has been Extinguishment of native title for the Future Act Area. The definition in the Native Title Act 1993 is as follows: “public work means:

1. any of the following that is constructed or established by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities:
   
   1. a building, or other structure (including a memorial), that is a fixture; or
   2. a road, railway or bridge; or
      (ilia) where the expression is used in or for the purposes of Division 2 or 2A of Part 2—a stock-route; or
   3. a well, or bore, for obtaining water; or
   4. any major earthworks; or
2. a building that is constructed with the authority of the Crown, other than on a lease.

Note: In addition, section 251D deals with land or waters relating to public works”.

The Resources within the Extinguishment question helps you identify Extinguishment by a Public Work.  In it, you will see reference to a “Section 251D Area”.  This is the area to which Extinguishment from the construction of a Public Work applies.  It includes both the footprint of the Public Work plus any adjacent area necessary or incidental to the construction, establishment or operation of the Public Work.

a record of all Indigenous land use agreements that have been registered.  An ILUA can only be registered when there are no obstacles to registration or when those obstacles have been resolved.  

a prescribed body corporate (PBC) nominated by native title holders to represent them and manage their native title rights and interests once a determination that native title exists has been made. Once the court determines that the corporation is to be the PBC, it is entered onto the National Native Title Register as a registered native title body corporate (ss 193(2)(e) and 253 NTA). This is the Native Title Party for a Future Act Area where there is a Native Title Determination recognising the existence of native title.  It is a corporation which either holds the native title in trust for the Aboriginal group or acts as the agent of the Aboriginal group in relation to native title. At the time of Version 1 (April 2015) of these procedures, there was no Registered Native Title Body Corporate for any part of Council’s local government area.

See Native Title Registrar.

A statutory office holder who performs a range of native title related functions and who also assists the President in the administration of the management of the Tribunal.

A form of delegated legislation i.e. legislation made by a non-parliamentary body acting according to an Act of parliament where things are or may be, prescribed by regulations (ss 215 and 253 NTA).

the revocation or variation of an existing approved determination of native title (ss13(1) and 61 NTA).

an interest (usually a lease of some kind) that is listed in Schedule 1 of the Native Title Act and falls within the definition found in s 249C NTA. This phrase is relevant to assessing whether there has been Extinguishment in respect of a Future Act Area from a Prior Extinguishing Tenure Grant.  The grant of a Scheduled Interest is an example of a Prior Extinguishing Tenure Grant.  A list of all the different types of grants which constitute a Scheduled Interest can be found at the link below:

http://www5.austlii.edu.au/au/legis/cth/consol_act/nta1993147/sch1.html

This refers to the geographic area in respect of which Extinguishment arises in relation to a Public Work.  The Extinguishment area may not just be the footprint of the Public Work but can also include adjacent areas which are or were necessary for, or incidental to, the construction, establishment or operation of the Public Work.

a meeting of the parties, similar to the preliminary conference, which is held four weeks before the first direction is due. The purpose of the status conference is to ascertain whether negotiations have been, or are likely to be, successful.

the Native Title Amendment (Technical Amendments) Act 2007 (Cth) most of which came into force on 1 September 2007.

when an Act is amended there is often a need to provide for the transition of the operation of some sections in the pre-amended Act and the amended Act. These are called transitional provisions. Transitional provisions are included in the Native Title Amendment Act 1998, the Native Title Amendment Act 2007 and the Native Title Technical Amendments Act 2007 and among other things, have effect on the application and timing of the s 190A registration test.

this is land held by the crown which may be able to be claimed under the Native Title Act.

this generally means land that is not held under private ownership. It might be subject to rights granted by the Crown under legislation, such as a mining tenement. It may also be subject to native title.

the decision by the High Court in Wik Peoples v State of Queensland (1996) 187 CLR 1 that, depending on the terms of the lease, non-exclusive native title rights and interests could co-exist with the rights of non-exclusive pastoral leaseholders.