HOW THE NATIVE TITLE COMPLIANCE SYSTEM WORKS

 

iMPACT is IPWEA-QNT’s Integrated Management Portal for Native Title and Cultural Heritage Compliance. It has been developed to assist councils and other infrastructure providers in ensuring the projects they undertake are carried out validly according to the legislation contained in the Native Title Act (1993), the Aboriginal Cultural Heritage Act (2003), and the Torres Strait Islander Cultural Heritage Act (2003). These pieces of legislation are fundamental to any assessment of native title and cultural heritage but are not the only ones that bear upon compliance. At different points, the portal intersects with other legal documents as they become relevant. Some of the more important additional legislation arises out of the list below:

 

• Racial Discrimination Act, 1975 (Cth)
• Aboriginal and Torres Strait Islander Heritage Protection Act, 1984 (Cth)
• Aboriginal Land Act, 1991 (Qld)
• Torres Strait Islander Land Act, 1991 (Qld)
• Native Title (Queensland) Act, 1993 (Qld)
• Land Act, 1994 (Qld)
• Aboriginal Land and Other Legislation Amendment Act, 2008 (Qld)

There are three central principles which have underpinned the development of the portal:

 

    

•  MAKING THE COMPLEX LEGISLATION UNDERSTANDABLE: by enabling users to find the most direct and efficient path through the complex legislation associated with their native title/cultural heritage obligations. 
•  PROVIDING ACCESS TO ESSENTIAL RESOURCES: by bringing together the various resources, housed across a range of government and non-government organizations that are vital to performing any comprehensive native title/cultural heritage assessment. 
• FACILITATING RIGOROUS RECORD KEEPING: Provides a detailed record keeping system which generates an end-document containing all elements of the assessment including textual evidence, geospatial mapping, information registers and databases, and photographic evidence to support the 'reason for the decision'. This is the end point of the assessment and is arrived at by taking a proposed activity through the path of native title or cultural heritage compliance. 

 

                                                                                                                                                    

 

 

The portal is structured around a step-by-step question and answer format that addresses the requirements of the act in the order they must be addressed, providing a logical framework for the assessment. Native Title assessments and Cultural Heritage assessments are conducted separately. The landing page gives the user the option of beginning a new assessment or continuing with an assessment already begun. For cultural heritage compliance there is the option to begin an assessment for a project that has already undergone a native title assessment. In that case, the tool will auto-fill the details of the activity and the area it is to be done, based on the information provided in the native title assessment of the same title.  This will allow the user to avoid duplicating work and save time and resources. 

The centrepiece of the portal is the Native Tile and/or Aboriginal Cultural Heritage Assessment Form. The answers provided therein will help users determine whether the activity they are proposing is either compliant or non-compliant with the legislation and provide guidance as to the appropriate action to be taken for both scenarios.

The form is accompanied by a range of essential resources for each question it asks. Those resources are located to the left of the questions, within the clearly labelled Resources rectangular box. For every question there is a corresponding set of resources and instructions which allow the user to compartmentalise each section and complete it with confidence before moving on the next question.

 All the information provided throughout the question and answer process is brought together at the end of the assessment in the form of a PDF document containing all the essential details for each section, and all the textual, photographic or diagrammatic evidence supporting that information. 

 

AT ANY POINT YOU WISH TO RETURN TO THE DASHBOARD, CLICK ON THE IPWEAQ OR 'HOME' LOGOS AT TOP LEFT

 

Some Basic Terminology

An important part of the terminology of native title compliance is the notion of Future Acts. A Future Act refers to any activity that has the potential to impact upon native title rights. It can be a physical activity such as building infrastructure, or non-physical activity such as the granting of a lease or permit. Public works activities that can affect native title are outlined in detail within the relevant areas of the assessment tool, but include:

• Constructing Infrastructure
• Maintaining Infrastructure
• Operating Infrastructure
• Statutory Approvals
• Tenure Grants

Native title provides a bundle of rights and interests over land and waters akin to ownership, which can be impaired, infringed upon, or extinguished by particular Future Acts. It is important to remember that it is not just the physical construction of a pipeline or bridge, for example, that requires native title compliance. An act as simple as issuing a permit to collect firewood is also a future act and can impact on native title. Both these activities need to be done 'validly' if they are to be compliant with the legislation. 

The central focus of the compliance system is to establish if the Proposed Future Act is a Valid Future Act, and if valid, which part of the legislation gives it that validity. 

If the Proposed Future Act is taken through the compliance tool and no application of the legislation validates it, the work remains in contravention of the law and should not proceed in its present form. The relevant section from the Native Title Act is reproduced below:

 

Section 24AA (2) of the Native Title Act states,
 

"...to the extent that a future act affects native title, it will be valid if covered by certain provisions of Part 2 Division 3 and invalid if not"

 

Section 227 of the act defines what is meant by 'affects' in this context. It states that: 

 "An act affects native title if it extinguishes native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise"

 

THE STRUCTURE OF THE PORTAL

The portal is structured around a set of questions which will investigate the status of the land and the nature of the project being undertaken to establish what action if any needs to be taken to ensure compliance with the law. Below is a diagrammatical representation of the portal's structure with detailed explanations of each section following. 

            

                                                                                    

   

 

The central section of each page of the portal represents the Native Title Assessment Form, or Cultural Heritage Assessment Form, which must be filled out satisfactorily to have completed an assessment. The tool will not allow the user to continue to a later section of the form if an essential section has been left unfilled earlier. The compliance tool is structured in such a way as to simplify the process of native title assessment without in any way simplifying the content of the legislation which must be addressed in all its detail and complexity for the tool to work effectively.

The law around native title and cultural heritage is complex and the resources needed to unpack that complexity are spread around a large number of government departments and non-government agencies. iMPACT brings all those resources together in one space and makes them readily available for users to access in establishing compliance. A substantial benefit of the compliance system is that it allows the user to deal with information specific to the particular project at hand, and so put aside the information irrelevant to it. In practice this means not having to go through the entire legislative requirements each time a project is assessed for native title or cultural heritage compliance. Instead, the questions move from the general to the specific in order to establish which areas of the legislation will bear upon the project being assessed. If, for example, the Proposed Future Act Area is one over which native title has been entirely extinguished, the activity can proceed and the proponent would need to go no further through the question and answer process in regard to native title.  The activity in this instance would not be a Future Act at all because if native title is extinguished than the activity cannot impair native title rights, which is the defining element of the Future Act. It is important to remember that cultural heritage would still need to be addressed even in areas where native title has been historically extinguished.

 iMPACT allows anyone tasked with establishing validity to take their project through this series of questions, starting from the most general conditions that validate the project, and working through increasingly specific areas of the legislation that may allow the project to proceed validly. 

 

THE NATIVE TITLE COMPLIANCE SYSTEM

The broad sections of the Assessment form are labelled according to the information they ask the user to provide, and are presented in the following order:

 

DETAILS (Who, What, When & Where)

EXTINGUISHMENT

DETERMINATIONS (WHICH INCLUDES REGISTERED CLAIMS)

INDIGENOUS LAND USE AGREEMENTS (ILUAs)

PROVISIONS FOR FUTURE ACT VALIDITY (Section 24) 

PROCEDURAL RIGHTS

Each of these sections has its own set of instructions and resources on the page dedicated to it, but below is a brief description of the elements that make up each part. 

 

DETAILS

The four things you’ll need to know to start any native title or cultural heritage assessment is the WHAT, WHO, WHEN AND WHERE of the project. You’ll be asked this information when you begin filling out your assessment form. Resources are provided at every step that assist you in producing and storing the documentary evidence required to support the information you supply.

WHAT does it involve?

Describe the Project or Proposed Future Act. What does the activity involve - is it a physical act such as building or maintaining infrastructure, or a non-physical Future Act such as the issuing of a grant or lease?

WHO is the proponent?

The Proponent is the person or body undertaking the Proposed Future Act or other activity. For example, is the Proposed Future Act to be done by Council as Proponent or the State as Proponent or a Private Contractor as Proponent?

WHEN will the Proposed Future Act take place?

Provide approximate dates when the Proposed Future Act is likely to be undertaken. Give descriptions of any variables which might affect the probable timeline.

WHERE will the Proposed Future Act take place?

Provide details of the Project Area, including lot and plan numbers for all parcels of land within that area. There are maps and registers within the RESOURCES section that allow easy access to geospatial and other data in determining this information. 

 

EXTINGUISHMENT

The questions about extinguishment are designed to establish the status of the land the project is to be done on. If the Future Act Area is one on which native title has been extinguished, the activity can go ahead without breaching the legislation. An activity undertaken on land where native title has been extinguished will not be a Future Act.  The three broad categories by which extinguishment occur are described and explained within the RESOURCES function to the left of the questions within this section of the portal. These categories need to be interrogated thoroughly to determine if native title has been extinguished over the entire area in question. Some of the extinguishing activities such as a pre-existing tenure grant or the gazetting of a road may have occurred long ago, and records could be difficult to uncover. This issue is discussed in more detail in the Extinguishment Resources instructions. 

 

DETERMINATIONS

The questions in this section will establish if there has been a determination made about the status of native title over the Proposed Future Act Area, and the implications of that decision. A negative determination across the entire area for example will mean the activity can proceed because there has been a decision that native title does not exist over the area. If no determination has been made the user will also be asked if there is a registered native title claim over the area and to provide details of the claim. 

 

INDIGENOUS LAND USE AGREEMENTS (ILUAs)

This question is to ascertain if there is an ILUA in place for the Proposed Future Act Area, and if so, do the conditions of the ILUA cover the project in question.  The proponent will need to know if an agreement is in place because if there is, the Future Act will only be valid if it is done in strict accordance with the conditions set out in that agreement. As is the case with all sections of the portal, the individual instructions around ILUAs need to be read carefully before deciding the activity can proceed. 

 

PROVISIONS FOR FUTURE ACT VALIDITY

If none of the broad categories listed above apply, the next set of questions speak to the provisions in the act which apply specifically to Future Acts. These provisions are set out in Section 24 of the Native Title Act 1993 and are explained individually within the RESOURCES at left of each question. It will establish if any of the provisions apply to the Proposed Future Act. The proponent must use the first provision that applies to the Proposed Future Act in the order they are presented within the portal. This is a rigid hierarchical system, and the proponent cannot select a provision which looks like it may be applicable if there is an earlier one in the regime that also applies. 

 

A Summation

Once you have gone through the system you will have provided full details of the project and the area in which it is to take place. You will have established if native title has been extinguished in the area, if there has been a native title determination over the area and if so, what that determination was. If no determination has been made you will have established if there is a native title claim over the area. If by that point in the process the activity is still unable to be undertaken legally, then the system will ask if there is an ILUA in place that covers that activity. If so, the proponent will need to act in strict accordance with the conditions of the ILUA in undertaking the project. If no ILUA exists, or if the ILUA that exists does not apply to the proposed activity, the Future Act may be validated by one of the provisions in Section 24 of the Native Title Act. That will take you to the end of the compliance assessment and if you have validated your future act you will fill the details in the 'reason for decision' section of the submission form. The compliance tool will then create a PDF document that reproduces the relevant information across the assessment form and allows you to upload all supporting documentation so that you will finish with a rigorous and complete record for that native title assessment. The Aboriginal cultural heritage tool works in the same way and is described in detail below. 

 

THE CULTURAL HERITAGE COMPLIANCE SYSTEM

In the same way that the native title system moves from the general to the specific in validating future acts, the cultural heritage system begins by asking the broad questions of cultural heritage compliance and then gets progressively more specific in detailing the ways activities can be assessed in terms of harm to cultural heritage. It also provides detailed information on the compliance options involved once levels of likely harm to cultural heritage have been established. Unlike the native title system, the cultural heritage form is a single logical flow that is not compartmentalised into separate sections. This is because it is based on the Cultural Heritage Duty of Care Guidelines that arise out of the Aboriginal Cultural Heritage Act (2003) and the Torres Strait Islander Cultural Heritage Act (2003). Within this single framework though, there are clear sections within the assessment form represented by the categories listed below. 

Emergency Situations

Maintenance

Categories 1-4 of the Duty of Care Guidelines

Category 5 of the Duty of Care Guidelines

Risk Management Decision around Taking Appropriate Measures

Cultural Heritage Compliance Options

Each of these categories are explained in detail in the relevant section of the portal.

 

IMPORTANT NOTE: Strictly speaking, the Duty of Care Guidelines function as a self-assessment for councils and other infrastructure providers. Despite that, it is important to engage with the relevant indigenous body or group from the earliest possible time. In quite a few cases this is not a legal requirement but is recommended as a cultural courtesy, and as a way of establishing good relationships with the people on whose lands council and other proponents undertake projects. Activities covered by categories 1-4 above for example, involve no surface disturbance or no additional surface disturbance to what has been done historically. That means the activity will bring no harm to cultural heritage and is compliant. Even under those circumstances though there is value in informing the relevant Indigenous group that some level of activity is going to take place. It is vital to establish a cultural heritage compliance process built on consultation and negotiation.