Native Title Rights v Compulsory Acquisitions

Changes to Queensland mining legislation, including the Mineral Resources Act 1989, in August 2013 have created some uncertainty in relation to the acquisition of land where Native Title rights and resource interests are present.

This article will examine the current legal position when acquiring Queensland land subject to Native Title rights, as well as the liability implications of the August 2013 amendments.

What is Native Title?

Native Title is the recognition by Australian law that Indigenous people have rights and interests to their land that come from their traditional laws and customs. Native Title rights and interests depend on both Indigenous traditional laws and customs, and the interests of others in the area concerned.

What is a Resource Interest?

A resource interest is the right to exploit resources from the land. Resource interests are usually granted by the State under the Mineral Resources Act 1989 or Petroleum and Gas (Production and Safety) Act 2004.

Compulsory Acquisition

The State or another Constructing Authority has the power to acquire anyone’s land for use by the Constructing Authority, including land subject to Native Title. The Constructing Authority can acquire the land for a variety of purposes as set out in the Acquisition of Land Act 1967 (ALA) including, but not limited to, the construction of new roads and other public infrastructure.

Implications of August 2013 amendments

The August 2013 amendments to mining legislation make it clear that when acquiring land potentially subject to Native Title rights, the acquisition of land does not necessarily extinguish resource interests over the land other than to the extent provided for in the acquisition notice for the taking of land.

Prior to the August 2013 changes it was commonly assumed that when land was acquired, so too were any resource interests associated with the land in accordance with the Native Title Act 1993 (Cth) (NTA).

The August 2013 amendments therefore pose an issue with regards to s 24MD(2) of the NTA which requires that:

“the whole, or the equivalent part, of all non native title rights and interests, in relation to the land or waters to which the native title rights and interests that are compulsorily acquired relate, is also acquired …”

In order to be in compliance with s 24MD(2) of the NTA, all non Native Title rights and interests must be acquired, including resource interests.

Department of Natural Resources and Mines’ Current Position

The Department of Natural Resources and Mines (DNRM) reviews applications for the compulsory acquisition of Native Titles rights and interests by constructing authorities under the ALA.

As a result of the amendments to the mining legislation DNRM currently requires that when acquiring Native Title land it is also necessary to acquire all resource interest tenements, including exploration permits and information permits.

DNRM has adopted this position in order to ensure that it complies with s 24MD(2) of the NTA as these interests comprise non Native Title rights and interests in relation to the land.

If a local government or other Constructive Authority wishes to acquire Native Title rights over land where resource interest tenements are an issue, it must organise the surrender or cancellation of the resource interest tenements prior to submitting an acquisition application to DNRM. DNRM will not accept an acquisition application with outstanding resource interest tenements issued.

DNRM current position therefore places the onus on the Constructing Authority to deal with resource owners directly in order to ensure appropriate compensation arrangements are made to enable the acquisition of their resource interest.

Native Title (Queensland) Act 1993

Whist the Native Title (Queensland) Act 1993 (NTQA) does not currently provide for the acquisition of non Native Title rights in land (as is required in order to comply with s 24MD(2) of the NTA) proposed amendments to the NTQA intend to address this issue.

However until such time as the amendments are passed, a Constructing Authority must comply with DNRM’s current processes.

Other Issues

When acquiring land, including land subject to Native Title rights a Constructing Authority must also consider whether the land owner has the right to:

  • object to the acquisition; or
  • negotiate the terms of the acquisition.

The Right to Object to an Acquisition

Landowners should be aware that the ALA provides a right to object to a proposed acquisition of their property in certain circumstances. Examples of where an objection may be able to be made include where:

  • the proposed acquisition is not authorised under the ALA;
  • the land proposed to be acquired is not appropriate for the works intended to be carried out on the land once acquired, or a more appropriate site exists;
  • only part of a property is proposed to be acquired and subsequent access to the remaining property will be unreasonably restricted as a result of the acquisition; and
  • the acquisition would unreasonably interfere with the use of the remaining property by the Landowner in the future.

Right to Negotiate Terms of Acquisition

Whether or not native title right holders have the right to negotiate the terms of the acquisition of their land is largely dependent upon the purpose for which the land is being acquired.

If the Constructing Authority is acquiring the land for other people (ie mining companies or developers) the parties have certain rights including the right to negotiate.

In accordance with the NTA, the Constructing Authority and the developer must negotiate in good faith with the native title holder(s) with a view to reaching an agreement.

Under these processes the parties will be allocated a timeframe (not exceeding 6 months) to reach an agreement regarding the terms and conditions of the acquisition.

If an agreement is not reached within 6 months then the case will be heard before the National Native Title Tribunal.

However, if the land is being acquired for government purposes (ie public works) native title holders are provided with fewer rights and the right to negotiate will not apply to the compulsory acquisition.

Watch this Space

Once further amendments have been made to the NTQA we will provide a further update.