Notification of the Cape York United People

As it stands, registered native title claims overlap a significant portion of Queensland. For those who have an interest within an area covered by such a claim, there are a number of options available to you regarding your involvement.

This article explores those options, while considering the registration of the Cape York United People native title claim (CYUP), which was registered on the National Native Title Tribunal (NNTT) register earlier this year.

Background on the CYUP’s claimant application

The CYUP application covers approximately 79,680 square kilometres of Cape York Peninsula, spanning an area 20 kilometres north of Mossman to 70 kilometres south of Bamaga. Stemming from the registration of this claim, letters were sent out from the NNTT as a requirement under the Native Title Act 1993 (Cth) (NTA) to provide notice to persons or bodies who hold an interest in an area of Crown land or waters covered by the application. During the corresponding notification period, which runs from 11 March 2015 to 10 June 2015, a person or organisation with an interest in the CYUP application area can seek to become a respondent party to the application in the Federal Court.

This means that such persons that would like to be joined as parties to the proceedings must apply to do so, in writing, on or before 10 June 2015. After 10 June 2015, the Federal Court’s permission to become a party is required.

How is this relevant to you?

Although set out in the context of the CYUP claim, the laws, practical considerations and options outlined below are relevant for any native title claim across Australia where your interests are affected by the claim.

What does it mean to claim native title?

The NTA allows native title parties to lodge an application with the Federal Court for a determination that native title exists over a particular area.

The native title claim will only be accepted for registration if it satisfies requirements under the NTA in respect of both the merits and the procedural aspect of the claim (Preliminary Requirements). Of relevance, the CYUP claim has satisfied the Preliminary Requirements to be registered on the NNTT register. Following from this, the CYUP application will then progress through the Federal Court until a determination is made that native title exists over the claimed area or the application is dismissed or struck out for not meeting other NTA requirements.

If the Federal Court determines that native title exists over the claimed area, the actual rights and interests of the native title group will depend on their traditional laws and the capacity to recognise those rights alongside existing rights and interests under Australian law. These rights and interests may either be exclusive or non-exclusive rights.

What follows from the CYUP’s registered native title claim?

The Queensland Government, as the manager of Crown land in the State, will be the primary respondent to the native title proceedings. This means that the State will have the primary conduct of the response to the CYUP’s native title claim. Other parties that submit Form 5s for the purposes of being joined as a party to the proceedings during the three month notification period may also be joined as respondents if they can establish an interest in the claimed area.

The CYUP must provide evidence to establish that they have the continuity of traditional connection to the land. If this is proved, the State’s primary role will then be to demonstrate the extent to which native title has been extinguished within the claimed area.

If the Federal Court makes a determination that native title exists in the claimed area, the determination will be subject to any validly granted rights or interests already existing under law at the time of the determination. This means that the native title rights granted will be non-exclusive rights. To provide comfort to persons or organisations that already have existing rights over the land to, for example, mine under a Mining Lease or drill under an Exploration Permit, these existing rights will not be affected.

What are your options?

We explore three options that are open to any person or organisation whose interests are affected by a native title claim, including the CYUP native title claim, below.

OPTION ONE – JOIN AS A RESPONDENT TO THE NATIVE TITLE PROCEEDINGS

This requires you to complete a Form 5, which we are able to assist with. Your role will be limited to the extent that the court asks a party to provide your views on how certain elements of the native title claim will affect your particular interest in the claim area.

The Federal Court has recently moved towards encouraging respondents to be ‘active’ respondents. Being an active respondent involves occasional court appearances/directions hearings and mediation conferences which will ensure that the native title claim proceeds in an orderly fashion. You should be aware that if the court considers that you are not being an ‘active’ participant, it may remove you as a party from the proceedings.

OPTION TWO – INACTIVE MONITORING

You may instead choose to request us to assist with the monitoring of the progress of the native title claim through public searches and other Federal Court updates to keep apprised of the progress of the proceedings.

You will not be joined as a party to the proceedings and this will simply involve frequent correspondence with us on relevant matters that are published publicly from the native title proceedings.

OPTION THREE – DO NOTHING

Alternatively, you may decide not to do anything but instead, rely upon the State to act in a manner consistent with your interests.

There are benefits and risks relating to each of these options that we would be happy to discuss with you.