The Crown Land Management Act 2016 (NSW) (CLM Act) commenced on 1 July 2018. The NSW Department of Industry (Department) has said that this new legislation will “ensure decisions about Crown land” consider “environmental, social and cultural heritage” as well as reduce duplication and “red tape”. 

In this short update, our dedicated Native Title team endeavours to illuminate some of the changing Department policies to reflect the new legislation (especially on the topic of Aboriginal land claims and native title) that may influence local Governments in NSW.

Crown land legislative changes

The CLM Act introduced substantial changes to the ownership, use and management of Crown land in NSW. The CLM Act does not affect existing reserve trusts, lessees, or licence holders of Crown land, however, a few of the most noteworthy amendments include:

  • The CLM Act for the first time will include provisions for Aboriginal management of Crown land;
  • The majority of Crown land that is identified as ‘local land’ was transferred to local councils as “community land” and will be managed under the Local Government Act 1993 (NSW); and
  • A single incorporated manager (the ‘Crown land manager’) will replace the current three-tier structure of reserves, reserve trusts and reserve trust managers.

The new CLM Act explicitly recognises and supports Aboriginal land rights, native title rights, and their interests and involvement in the management of Crown land. There is a specific provision under the CLM Act to facilitate compliance with the Native Title Act 1993 (Cth) (NTA) and prescribes that all vesting of land in local councils is subject to native title rights and interests in the land.

Native Title and Aboriginal Lands Claim considerations

When assessing an application for a lease or licence of Crown land the Department considers many issues including the:

  • requirements of the NTA; and
  • any pending Aboriginal land claims lodged under the Aboriginal Land Rights Act 1983 (NSW) (ALR Act).

The Department may terminate a licence (after it has been granted) following a native title consent determination, an Aboriginal land claim being granted, or if an Aboriginal land agreement or Indigenous Land Use Agreement (ILUA) have been ratified in respect of the land.

Separately, the Department’s approach with respect to dealings in Crown land (i.e. registration of an easement or sale of Crown land) has become far more stringent following the implementation of the CLM Act. A proposed dealing in Crown land where the land is subject to an Aboriginal land claim cannot progress in recognition of the inchoate interest (i.e. not a legal interest) held, unless the claim is withdrawn or determined or the relevant Aboriginal Land Council consents to the dealing. Likewise, if evidence cannot be adduced to demonstrate native title has been extinguished, then steps are required to be taken by the applicant before the dealing can proceed.

Native Title has not been extinguished – what next?

When the NTA was first introduced in 1993, it was legislated that native title rights subsist on any Crown land in Australia – unless a previous act of exclusive possession had occurred before the onset of the NTA – in which case native title is considered legally extinguished. “Future acts” are acts that would extinguish Native Title in the future (i.e. after the introduction of the NTA). A “future act” is an act that would “affect native title in relation to the land or waters to any extent” (section 233 NTA).  A future act cannot proceed without addressing the native title requirements – of which the Department has indicated that there are generally two options to be followed by the applicant:

  • Seeking a non-claimant application determination (NCA) through the Federal Court of Australia; or
  • Entering into an Indigenous Land Use Agreement (ILUA) with native title groups that may have an interest in the area and progressing to the registration of the ILUA with the National Native Title Tribunal (NNTT).

Despite the above, more streamlined processes under the Future Acts regime may be available in limited circumstances where the proposed dealing is consistent with the existing Crown reservation.

Compensation

The NTA has, since commencement, provided a right for holders of native title to claim compensation for certain acts extinguishing native title.  The person liable to pay the compensation was determined by reference to which person was responsible for the extinguishing act.  Liability to pay compensation for acts attributable to the State, which would include acts by Councils acting under authority given by State legislation, would lie with the Crown.

Critically, the CLM Act now provides that a Council or non-Council Manager who engages in conduct that would give rise to a right to compensation under the NTA will be the person who is liable (rather than the State) for the compensation, and will indemnify the State for any compensation liability owed by the State.

This is a potential game-changer for Councils. 

For further information on any of the issues raised in this alert, please contact our below team.