Native title is an extremely specialised area of law which, in relative terms, remains very young. Native title affects many areas in regional Australia, particularly in Cairns and other areas of regional Queensland, the Northern Territory, and Western Australia.
Our team of native title lawyers have unparalleled experience in acting for:
- Graziers and landholders
- Local government organisations
In both responding to native title claims and, more importantly, in dealing with native title as to how it affects the use of our client’s property and assets. In this article, we detail a number of frequently asked questions our lawyers receive about native title.
Does native title affect my property?
Only the Commonwealth Courts can recognise the existence of native title over land in Australia by making a determination that native title exists. To date, there have been more than 100 determinations that native title exists in Queensland, including 97 by consent. On 1 April 2015, there were a further 63 registered applications seeking determination. Over 300 determinations have been made across Australia.
If the courts have not recognised the existence of native title over land, an interested landholder can seek a determination from the courts that native title does not exist, or that native title has been extinguished.
Native title can be extinguished by acts of the Commonwealth or the State and may occur where the tenure (or interest) granted to a person gives the right of exclusive possession. For example, freehold land, and some leases that confers a right of exclusive possession are likely to have extinguished native title.
Whilst there are a raft of misconceptions about native title (such as that traditional owners will have the right to “take your land”), if native title has not been extinguished you may be required to address native title if you seek to upgrade land tenure, or undertake an activity that is not consistent with the purpose of the existing interest, for example, upgrading land tenure from a lease to freehold, or operating a camp ground on a grazing property.
Where native title has not been extinguished a landholder can engage with the traditional owners to negotiate, where necessary, arrangement to allow certain action or development which may otherwise be restricted or prohibited as a result of the land being the subject of a native title determination.
What is an Indigenous Land Use Agreement, and when do I need one?
An indigenous land use agreement (ILUA) is an agreement about the use and management of land and waters made between people who hold, or may hold, native title in the area, and other people, organisations or governments that wish to do an act that affects native title over the land. An ILUA is a flexible agreement where the native title parties consent to the doing of an act that will affect native title, which address the statutory requirements of the Native Title Act 1993 and which enables a land user to validly undertake an activity on the land.
You may need an ILUA if:
- native title exists, or may exist; and
- the activity will “affect native title”; and
- the Native Title Act 1993 does not provide any other way to validate the doing of the act.
If an ILUA is required, the native title party is likely to require compensation for the effect the activity will have on native title rights and interests. Therefore, it is important to obtain legal advice from a Lawyer prior to commencing ILUA negotiations, to ensure an ILUA is required. Our Lawyers at Preston Law in Cairns have experience in providing legal advice on this complex issue.
Can I upgrade my tenure if my land is subject to native title?
Depending on the type of tenure a landholder has, State of Queensland may allow you to upgrade land tenure to a higher tenure status.
The State will require a landholder to address native title prior to upgrading a land tenure. Native title may be addressed in a number of different ways, but usually an ILUA will be required if native title exists.
Our team of native title lawyers is the largest practising in a private law firm in regional Australia. Given that our native title lawyers are based in Cairns (one of the epicentres for native title claims in Australia), we have unparalleled experience in acting for all parties affected by native title. Our team has in excess of 60 years practical experience in acting in respect of native title matters for clients of all descriptions.
If you need a native title lawyer in Queensland (or anywhere in Australia for that matter), please do not hesitate to contact our team to arrange a free over the phone or face to face consultation so that we can help you. Preston Law Cairns ph 4052 0700