Agreements under the Native title Act 1993 (Cth)
The Native Title Act 1993 (Cth) (the NTA) sets out agreement-making provisions relating to native title interests and rights, as well as activities that may have an effect on native title. Some of the most common types of agreement are consent determinations, Indigenous Land Use Agreements (ILUAs), and Future Act Agreements.
In 2009, the Native Title Amendment Act introduced provisions providing the Court the power to make consent determination orders in relation to matters other than native title (see Schedule 2 of the Native Title Amendment Act 2009).
Unlike countries such as Canada and New Zealand, Australia does not have a nationwide comprehensive settlement framework. Some landmark settlements have been reached between Traditional Owners and state governments. See our summary of some of these comprehensive settlements.
Consent determinations
A consent determination is a decision made by the Federal Court, High Court or another recognised body in relation to native title rights and interests that shows an agreement reached under the NTA. Consent determinations are an alternative to litigated determinations (determinations reached through a court trial). Consent determinations aim to provide an efficient way to settle native title issues.
What consent determinations require +
The court or recognised body can make a consent determination if there is agreement between the parties involved (for example, between government and traditional owners), or if there is no opposition to the terms those making the claim for native title have put forward.
In making a determination of native title, the court or recognised body must:
- decide whether native title exists in the determination area;
- identify the group that holds native title;
- state the nature and extent of the native title rights and interests; and
- set out other rights and interests in the determination area and the relationship between those rights and native title.
Reaching these legal milestones calls for evidence, discussion and consideration of various points of view.
Writing about the difference between consent determinations and litigated determinations in the context of the Gunaikurnai people's native title claim in Victoria, Katie O'Bryan writes:
'[T]hese meetings brought people with interests in the Gippsland region face to face with the Gunaikurnai, which was crucial in opening channels of communication. This could not have occurred in a fiercly litigated native title claim where the only contact would have been in a court setting through the intermediary of lawyers.'
— Katie O’Bryan, ‘Native Title and Reconciliation: the Gunaikurnai consent determination’
Reaching a consent determination +
Successful consent determinations often rely on the work of many participants over many years. Some of the key factors people working towards a consent determination need to consider include:
Historical connection with the land. Showing evidence of a continuing connection to the land is important in native title decisions. However, even in cases where this historical connection has been interrupted, it is still possible that a native title claim can be successful.
Relationships within the group making the claim. The traditional owners making the native title claim may need to reach their own internal agreements about their aims and about who is involved in the claim as part of reaching the final consent determination.
The position of State Government. Because consent determinations can take many years to achieve, State Governments may change over this time. Some State Governments may be more interested in working towards litigated determinations, rather than negotiating towards a consent determination.
The influence of other laws and legal decisions. Even though consent determinations do not involve a court trial, other laws and legal decisions still have an influence on the final decision. For example, if an Indigenous Land Use Agreement has previously been reached in the area where the native title claim is being made, this may have an effect on the consent determination (see 'Indigenous Land Use Agreements' below).
Other groups with connections to the land. These groups could include neighbouring Traditional Owner groups, the Commonwealth Government, local governments, mining, forestry and telecommunication companies, farmers, water rights holders, people with fishing interests, beekeepers and people who use the land for recreation.
Indigenous Land Use Agreements (ILUAs)
An ILUA is a voluntary agreement between a native title group and others about the use and management of land and waters.
A registered ILUA is legally binding on the people who are party to the agreement and all native title holders for that area, even if they were not involved in the agreement.
ILUAs allow people to negotiate agreements to suit their particular circumstances. They can be made separately from the formal native title process, but may also be a step towards, or part of, native title determinations.
ILUAs are intended to:
encourage certainty and cost effectiveness
establish a process of registration, objection and resolution of objections by the Tribunal or an equivalent body
bind all native title parties whether they were parties to an agreement or not, including future generations
provide contractual validity and increased security for parties to the agreement
allow for wide consideration of Indigenous and other rights and interests in land
encourage practical solutions to competing land use management issues
enable native title agreements to be reached without the immediate resolution of legal issues, such as the determinations of native title or extinguishment
limit the level of compensation for acts affecting native title to levels negotiated under an ILUA.
Future Act Agreements
A Future Act Agreement can be made about a proposed activity or development that may affect native title and which requires an agreement with native title parties in order to be valid.
These agreements only need to be made for future acts that require either a determination from the National Native Title Tribunal about whether the act can be done, or the consent of the relevant native title party.
These types of future acts afford the relevant native title parties the 'right to negotiate' under the NTA and include the grant of exploration or mining tenements and some compulsory acquisitions of land.
Other types of future acts, where the right to negotiate does not apply, only give the right to be informed or consulted. Future Act Agreements do not need to be made for these types of future acts.
Read more about the NTA.
Read more +
There are a number of useful resources on native title that you can visit for more information:
References and acknowledgements +
Cited on this page:
- O'Bryan, K., 2012. 'Native title and reconciliation: the Gunaikurnai consent determination.' In: A. Gunstone, ed., Reconciliation in Regional Australia: Case Studies from Gippsland. Melbourne: Australian Scholarly Publishing, pp.127-152.