The Native Title (Queensland) Act is the primary piece of native title legislation in Queensland, and validates 'past acts' which have occurred in Queensland. Other State Acts aim to identify and preserve Aboriginal cultural heritage, writes Partner Ben Zillmann (view CV).
Last updated October 2006
State native title legislation
Land rights legislation
- Aboriginal Land Act 1991 (Qld)
- Torres Strait Islander Land Act 1991 (Qld)
- Land Act 1994 (Qld)
- Aborigines and Torres Strait Islanders (Land Holding) Act 1985 (Qld)
- Local Government (Aboriginal Lands) Act 1978 (Qld)
- Nature Conservation Act 1992 (Qld)
- Aboriginal Cultural Heritage Act 2003
- Torres Strait Islander Cultural Heritage Act 2003
- Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)
State native title legislation
Native Title (Queensland) Act 1993
- validates past and intermediate period acts in accordance with the terms and requirements of the Commonwealth Native Title Act 1993 (the NTA);
- confirms the past extinguishment of native title by certain valid or validated acts, including previous exclusive possession acts, in accordance with the NTA; and
- confirms Queensland's existing ownership of any natural resources; Queensland'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 Queensland Government is liable for any compensation payable as a result of validation of past or intermediate period acts, and the past extinguishment of native title.
The Commonwealth Native Title Act (the NTA) allows for the States and Territories to establish their own alternate regimes in certain circumstances to take the place of the 'right to negotiate' procedures in the Commonwealth legislation. From September 2000 to April 2003 Queensland had in place an alternate regime under the Mineral Resources Act 1989 relating to native title and the grant of mining tenements. The regime provided for (amongst other things) the grant of low impact exploration titles without having to proceed through the 'right to negotiate' procedures (but access could only be obtained after entering into 'Access Agreements' with the native title claimants).
However, the State alternate regime is no longer in place. From April 2003, the 'right to negotiate' procedures under the NTA again applies to the granting of mining tenements in Queensland.
The reversion back to the Commonwealth regime in 2003 was not a complete change as the reality was that many of the native title processes under the Commonwealth legislation were similar to those under the Queensland regime. The main changes that came from reversion back to the Commonwealth regime were as follows:
- mining tenement applicants now need to rely upon the State to initiate the 'right to negotiate' procedure, which was automatically initiated under the alternate Queensland regime simply by lodging the application;
- the National Native Title Tribunal is now the body that rules on disputes between mining tenement applicants and native title parties instead of the (former) Queensland Land and Resources Tribunal; and
- the 'low impact' exploration permit regime is no longer available, but exploration permit applicants now have access to the Commonwealth 'expedited procedure'.
Expedited procedure and native title protection conditions
One of the benefits of reversion to the Commonwealth regime, is that explorers are able to apply for exploration permits under the expedited procedure in the NTA (ie the tenements can be granted without proceeding through the 'right to negotiate' procedure). However, the Queensland Government's position is that in order to access the expedited procedure, the explorer must accept the "Native Title Protection Conditions" (NTPCs) as a condition of the permit. These are standard conditions imposed by the State on exploration permits where native title is an issue. The conditions essentially set out procedures that must be followed before exploration begins on the land and are heavily focussed on cultural heritage protection.
Land rights legislation
Aboriginal Land Act 1991 (Qld)
This Act aims to clarify the grounds on which Aboriginal people can claim and be granted freehold or perpetual leasehold title to land, or a lease for a term of years.
Definitions and concepts
The Act establishes four categories of land:
- transferred and transferable land (land which is granted or is to be granted for which there is no claim by Aboriginal people); and
- granted and claimable land (land which has been granted or for which there is a claim by Aboriginal people).
Transferable and transferred land
Transferable land includes:
- Aurukun Shire lease land;
- Mornington Island Shire lease land;
- Aboriginal reserve land; and
- certain land under the Land Act 1994.
Transferable land is granted by the minister who directs the Registrar of Titles to prepare deeds of grant showing that the land is held by certain grantees appointed by the minister as trustees for the benefit of Aboriginal people. The Governor-in-Council may grant such land in fee simple.
Transferred land is transferable land granted for the benefit of Aboriginal people without a claim being made under the Act.
Claimable and granted land
Claimable land is Crown land declared to be available by the Governor-in-Council. It may also be 'transferred land'. Claimable land must generally be land in which only the Crown has an interest, although Crown land may still be claimable land even if another party has a mining interest over it.
Aboriginal people may claim claimable land on behalf of their group on the grounds of traditional affiliation, historical association and economic or cultural viability.
All claims must be made before 20 December 2006.
The Land Tribunal, a tribunal established for the purposes of the Act, may, if it considers a claim is established, recommend to the minister that a freehold or leasehold title be granted. The minister then directs the Registrar of Titles to prepare the appropriate deed of grant (either in fee simple or leasehold). As with transferred land, the minister appoints the grantees as trustees for the benefit of Aboriginal people. The Governor-in-Council may grant such land in fee simple, a lease in perpetuity or a lease for a term of years.
Deeds of grant of granted land, transferred land and an Aboriginal lease must contain a reservation to the Crown of all minerals and all petroleum on or below the surface of the land.
Effects of the legislation
Existing mining interests in transferable or granted land are preserved.
Creation of new mining interests
The Aboriginal grantees of land under the Act may consent to the creation of a mining interest in the land and may enter into an agreement with the Crown (State or Commonwealth) in relation to extraction and sale of quarry material above, on or below the land.
The grantees are required to explain to the Aboriginal people concerned with the land the nature, purpose and effect of the proposed consent or agreement. They must give the people adequate opportunity to express their views and must obtain their general assent to the arrangements.
Grantees have no absolute veto over a mining application.
How the land is treated for mining purposes
Generally, all land which is transferable, transferred and claimable is treated as a 'reserve' for the purposes of the Mineral Resources Act 1989 (Qld) unless there is already a mining interest on claimable land. In the latter case, the land is not treated as 'Aboriginal land' for the purposes of the existing mining interest.
The Mineral Resources Act 1989 states, in relation to land that is a 'reserve':
- a mining lease applicant must obtain written consent of the owner or consent of the Governor-in-Council before a mining lease will be granted over the surface, and if granted may be subject to the conditions of consent;
- a mineral development licence holder must obtain consent of the owner or the Governor-in-Council to enter land;
- an exploration permit holder must obtain the consent of the owner or the Governor-in-Council to enter land; and
- a mining claim applicant must obtain consent of the owner. If the owner's consent is not obtained, the Land Court hears and makes a recommendation to the minister for decision, before seeking the consent of the Governor-in-Council.
Access to mining tenements
The holder of a mining lease must, before applying for a 'transportation' mining lease under s316 of the Mineral Resources Act or a variation of access to a mining lease under s317 of that Act, consult and try to reach agreement with the Aboriginal people concerned with the land about the route of proposed access over the land.
If the State receives a royalty under the Mineral Resources Act or Petroleum Act in relation to Aboriginal land (other than that subject to an Aboriginal non-transferable land lease), the grantees of the land are entitled to receive out of money appropriated by parliament, a percentage of the royalty amount, which is to be applied for the benefit of Aboriginal people for whom the land is held, particularly those that are affected by the activities to which the royalty amount relates. The percentage of royalties the grantees are entitled to decreases, as the royalty amount paid increases (ie. 50 per cent for each $1 up to $100,000 down to 5 per cent for each $1 more than $1,000,000).
Torres Strait Islander Land Act 1991 (Qld)
This Act provides the grounds on which Torres Strait Islander people can claim and/or be granted freehold or perpetual leasehold title to land, or a lease for a term of years.
The concepts and effects of the legislation are substantially the same as those discussed under the Aboriginal Land Act 1991 (Qld).
Land Act 1994 (Qld)
This Act makes provision for land to be set aside in the form of a reserve or deed of grant in trust. Deeds of grant in trust may be granted for the benefit of Aboriginal and Islander inhabitants or for Aboriginal and Islander purposes. Such grants may exclude existing infrastructure on the land and an Act of Parliament is required to delete land from the grant.
How the land is treated for mining purposes
Read together, the Land Act 1994, the Petroleum Act 1923, the Petroleum and Gas (Production and Safety) Act 2004 and the Mineral Resources Act 1989 provide that all land granted or leased under the Land Act 1994 is subject to the reservation of minerals and petroleum in the Crown. For each deed of grant or lease of unallocated State land, there is also a right of access for prospecting, exploring or mining for minerals, and for exploring for and obtaining petroleum, including access for pipelines etc necessary to extract petroleum.
Land granted in trust for Aboriginal or Torres Strait Islanders is treated as 'reserve' land for the purposes of the Mineral Resources Act 1989.
Aborigines and Torres Strait Islanders (Land Holding) Act 1985 (Qld)
This Act deals with grants of leases in perpetuity to members of communities of Aborigines and Torres Strait Islanders. The lease is granted over trust land that has been designated by the Governor in Council for the benefit of Aboriginal or Islander inhabitants. Under the Act, a member of an Aboriginal community may make an application to the trustee council of the land for the lease to be granted.
Local Government (Aboriginal Lands) Act 1978 (Qld)
This Act provides for the creation of a local government area at Aurukun and Mornington Island. Under the Act, the Governor in Council granted to the Council of the Shire of Aurukun and the Council of the Shire of Mornington leases of the land comprising the shires.
The grant of the land does not affect the Crown's mineral rights, and all gold, minerals and petroleum are reserved to the Crown. The grant of land also does not restrict access to the land for the purposes of searching for or working gold, minerals or mines, or conducting operations of obtaining petroleum.
Nature Conservation Act 1992 (Qld)
This legislation restricts access to, and use of, certain areas. It includes national parks, conservation parks, and world heritage management areas.
Division 3 of Part 4 details protected areas that are Aboriginal or Torres Strait Islander land.
All natural resources in these areas are the property of the State. Tenements under the Mineral Resources Act 1989 may not be granted for these areas.
Aboriginal Cultural Heritage Act (2003)
This is the primary piece of Queensland legislation that protects the cultural heritage of Aboriginals.
The aim of the legislation is to put in place a system for the preservation and protection of areas and objects which are of significance to Indigenous people (Aboriginal cultural heritage). The Act makes it mandatory for all new major developments and mines (which have an EIS associated with them) to carry out surveys and assessments of cultural heritage in the area of the proposed development and subsequently prepare Cultural Heritage Management Plans (CHMPs) detailing how any cultural heritage in the area will be protected.
The legislation also establishes a 'duty of care', which puts a positive obligation on any person carrying out an activity to take all reasonable and practical measures to ensure that the activity does not harm Aboriginal cultural heritage.
CHMPs must be prepared in consultation with representatives of relevant Indigenous groups, and, if approved, the CHMPs are binding upon the developer/miner.
Offences under the Act
It is an offence under the Act to possess, harm, excavate or relocate Aboriginal cultural heritage, unless authorised to do so pursuant to the Act. It is also an offence to breach the cultural heritage duty of care established by the Act.
The Act provides for the establishment of an Aboriginal Cultural Heritage Register, however the absence of an area or object of Aboriginal cultural heritage from the register does not mean the area or object is not protected by the Act, and a person can still be liable for interfering with such cultural heritage (but may affect the penalty imposed). A court may consider whether a person has consulted the register in determining whether the person has breached the cultural heritage duty of care.
Torres Strait Islander Cultural Heritage Act 2003
This Act is in similar terms to the Aboriginal Cultural Heritage Act 2003 discussed above and applies to Torres Strait Islander cultural heritage.
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 that is capable of operating concurrently with the Act. Under the Act, the Minister cannot make a declaration without consulting the appropriate State Minister as to whether, under State 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.