The Native Title Act 1994 (ACT) validates past acts attributable to the ACT, but does not cover future grants. Meanwhile, other Acts aim to identify and preserve Aboriginal heritage places and objects, write writes Partner Tony Wassaf and law graduate Brendan Fyfe.
Last updated November 2005
State native title legislation
State native title legislation
Native Title Act 1994 (ACT)
- validates past acts in accordance with the terms and requirements of the Commonwealth Native Title Act 1993 (the NTA); and
- confirms the Australian Capital Territory's (the ACT) existing ownership of any natural resources; the ACT's existing rights to use, control and regulate the flow of water; existing fishing access rights; and existing public access to waterways and public places.
The ACT Government is liable for any compensation payable as a result of validation of past acts.
Unlike the Acts of most states, this Act does not validate intermediate period acts, nor does it confirm the past extinguishment of native title by certain valid or validated acts, including previous exclusive possession acts. This was not seen as necessary because of the nature of land tenure in the ACT (there are no pastoral leases).
The ACT Act does not contain any provisions dealing with future grants. As a result, the future act provisions (including the right to negotiate procedure) in the NTA govern future acts (including grants of interests in land) in the ACT.
A number of laws cover land in the ACT in which Aborigines have an interest. These must be taken into account when considering mineral or petroleum exploration and development work:
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)
This Act gives the Commonwealth Minister for Aboriginal Affairs wide powers to protect significant Aboriginal areas or objects which may be under threat of injury or desecration. The protection is achieved by a ministerial declaration, which can follow an application from an Aboriginal person or group.
The declaration must sufficiently describe the area or object to enable it to be identified. It must contain measures to protect and preserve the area or object from injury or desecration. It is an offence to contravene a provision of a declaration.
The legislation is not intended to exclude or limit the operation of the law of a State or Territory that is capable of operating concurrently with the Act. Under the Act, the Minister cannot make a declaration without consulting the appropriate State or Territory Minister as to whether, under State or Territory law, the area or object is effectively protected from threat, injury or desecration. As soon as practicable after making the declaration, the Minister must take reasonable steps to notify people who are likely to be substantially affected by the declaration.
Heritage Act 2004 (ACT)
The Heritage Act replaces the Heritage Objects Act 1991 (ACT) and came into effect in March 2005. The Act contains the principal provisions relating to heritage conservation of places and objects in the ACT. The Act aims, among other things, to identify places and objects of Aboriginal heritage and to make provision for their protection.
'Aboriginal place' and 'Aboriginal object' are defined as a place or object of particular significance to Aboriginal people because of Aboriginal tradition or history of the Aboriginal people.
'Aboriginal tradition' describes the traditions, observances, customs or beliefs of the people who inhabited Australia before European colonisation and include traditions, observances, customs and beliefs that have evolved or developed from that tradition since European colonisation.
Effects of the legislation
The main effects of the heritage provisions of this Act are to provide for the establishment of a Heritage Register to identify Aboriginal places and objects of heritage significance and the establishment of the Heritage Council to assess, conserve, promote, assist in management of, educate, and advise the Minister on heritage places and objects. The Act stipulates approval for any work which affects the conservation of a place or object listed in the register. It provides for public consultation in the listing of places and objects of Aboriginal heritage on the register.
The Heritage Act does not allow for compensation to be paid when an object of Aboriginal heritage is included in the Heritage Objects Register.
In considering an application or a proposal to include an Aboriginal object on the Heritage Objects Register, the Heritage Council is required to consult with - and consider the views of - any relevant Aboriginal organisation. The Act defines 'relevant Aboriginal organisation' as:
- an organisation or association comprised substantially of Aboriginal people;
- with the conservation of Aboriginal tradition in the ACT amongst its principal objects; and
- which has an object or interest directly relevant to or affected by the proposed listing.
Where land development applications relate to a registered place or object, the Council must provide advice to the planning and land authority on the effect of the proposed development on the place or object. The authority must then consider the advice in determining the application.
A person who discovers a place or object believed to be an unregistered Aboriginal object must report the discovery to the Council within five working days and must not, without reasonable excuse, disturb, damage or destroy an unregistered Aboriginal object.
Breaches and penalties
Offences against the Act include engaging in conduct that diminishes the heritage significance of a place or object or damages that place or object, failing to report a relevant discovery, intentionally contravening a Ministerial heritage direction, or publishing restricted information about a place or object.
The maximum penalty for an offence against the Act is $100,000 for an individual and $500,000 for a corporation. An individual executive officer may also be individually liable for offences against the Act committed by a corporation.
There are appeal procedures relating to decisions by the Council to include an Aboriginal place or object in the Heritage Register, decisions by the Council to cancel the registration of a place or object, or decisions by the Minister to make a heritage direction. Applications for administrative review under the Act are made to the Administrative Appeals Tribunal under the Administrative Appeals Tribunal Act 1989 (ACT).