Explanation of a Native Title Determination Claimant Application

Native title is claimed by an Applicant filing a ‘Form 1’. The Form 1 is a court document that sets out basic information about the claim. This is a brief explanation of each section and can be used as a general guide for the preparation of a claim.

The Applicant means the person or persons who are authorised by the native title claim group to make the application. The person or persons are jointly the applicant. The applicant may deal with all matters arising under the Native Title Act 1993 (NTA).[1] None of the other members of the native title claim group are the applicant. However, the decision to authorise an application must be made by the claim group.[2]

The Form 1 is available on the Federal Court website.

Native title law and processes are difficult. If you are intending to prepare, authorise and file a Form 1, we recommend you seek legal advice.

Authorisation

At the start of the Form 1, a statement is required that explains that the Applicant has been authorised by the claim group to make the Application.

An affidavit for each applicant setting out the process of decision-making used to obtain authorisation is required.[3] The affidavit can detail, for example, if meetings were held, or how direct authorisation was given to the applicants by individual claim group members. The affidavit(s) must also state the following:

(a) that the applicant believes that the native title rights and interests claimed by the native title group have not been extinguished in relation to any part of the area covered by the application;

(b) that the applicant believes that none of the area covered by the application is also covered by an approved determination of native title;

(d) that the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it.[4]

There are many court decisions and articles on native title authorisation. A helpful summary on relevant principles is available through AIATSIS.

Schedule A – Native Title Claim Group

This Schedule requires a clear description of who is in the native title claim group, so that the Registrar can assess whether any person belongs to the claim group or not. The native title claim group is all the people who, under traditional law and custom, hold the rights and interests that make up the claimed native title.

Providing information about the claim group

Generally, information to describe or identify the claim group is provided by:

· a complete list of the names of the people in the native title claim group; or

· a description of the native claim group with sufficiently clear criteria to define who is a member of the group, for example, descendancy from named ancestors or the whole family tree that includes the full names of the people in the family tree and their birth dates.

Further information about factors required for membership in the claim group is usually attached to the Form 1 and marked ‘Attachment A’.

Schedule B – Identification of boundaries

This Schedule provides a description of the boundaries of the claim so that other people know what area has been claimed.

A clear statement that the claim extends to only non-exclusive (or exclusive) native title rights and interests is also necessary. Non-exclusive rights are those rights that exist along side other rights, like pastoral activities.

There are two key things that should be included:

1) a written description of the outer boundaries of the area covered by the application (including the written description as Attachment B, and a map of the claim area as Attachment C); and

2) the ‘General Exclusions’ from the claim.

The boundaries of the area claimed in the application may be described by:

a) listing each area, or parcel of land, claimed with reference to Lot or Plan numbers;

b) giving coordinates of the boundaries of the application area; or

c) using geographical features, such as rivers, mountain ranges, shorelines or the sea to describe the boundaries, with enough precision to make those outer boundaries clear.

The ‘General Exclusions’ from the claim are those areas within the outer boundary where native title is not claimed. Generally, these areas are not claimed either because there is already a determination of native title or something has happened with the land that is inconsistent with the exercise of native title rights and interests. Areas where native title cannot be claimed include:

· residential freehold;

· farms held in freehold;

· pastoral or agricultural leases that grant exclusive possession;

· residential, commercial or community purpose leases; or

· public works such as roads, schools or hospitals.

Areas where native title is not claimed may be referred to specifically or through a general statement excluding all areas of a particular kind from the area covered by the application.

Schedule C – Maps

This Schedule requires a map of the boundaries of the claimed area. The included map should be sufficiently detailed.

Features of the map should include:

· a North Point;

· a scale-bar;

· the datum used; and

· a legend displaying any tenure searches conducted.

The map can be included as an Attachment C.

Schedule D – Searches

A list of any searches that have been carried out on behalf of the claim group to find out whether there are already rights and interests held by someone in the area other than the native title claimant group. These rights and interest could be, for example, pastoral leases or mining tenements.

If any searches for rights or interests in the area have been conducted, they should be included. These may be tenure documents, a tenure history report, an index or a spreadsheet showing what other rights and interests exist over the area, or a map with a legend that shows in detail the types of tenure identified.

This section is optional. If no searches have been conducted, the section does not need to be filled out.

Schedule E – Description of Native Title Rights and Interests

This is a clear description and list of all native title rights and interests being claimed.

The rights claimed depend on traditional laws and customs and the type of land over which native title is claimed.

(a) What rights and interests may be claimed in relation to the land?

If you are claiming land that has never previously been in the possession of someone outside of the claim group, a right to full possession and occupation of the area to the exclusion of all others (exclusive possession) may be claimed in relation to that area. Exclusive possession includes the right to control access to, and the use of, that area. These sorts of rights may be available for any unallocated or vacant Crown land, some areas already held by, or on the behalf of, native title claimants, as well as certain pastoral leases held by, or on behalf of, any members of the claim group. These sorts of rights will only be available for limited and very specific areas of land.

It is more common to have areas of land over which non-exclusive rights can be claimed. Those rights in relation to that area may include the right to:

· live;

· use and enjoy;

· access;

· camp or do ceremonies;

· visit and protect important places, sites and the natural environment;

· hunt, fish and gather food and resources like water, wood and ochre;

· trade and exchange resources and goods, although our experience is that this can be difficult to prove; and

· teach law and custom on country.

In areas over which someone else has previously held the area in exclusive possession, no native title rights and interests can be claimed. These areas may include those where there is:

· a grant of freehold title;

· a grant of an ‘exclusive’ pastoral lease;

· a residential, commercial or community purpose lease; or

· public works (such as a building of a road).

These different types of rights need to be described separately, so as to make the claimed rights and interests easily understood. It is best to separate native title rights between those being claimed to the exclusion of others (such as the rights to control and refuse access) and those that are not claimed to the exclusion of others (such as the rights to enjoy, use and access land).

(b) What rights and interests cannot be registered?

Certain rights and interests will not be recognised, even if they exist under traditional laws and customs. These include:

· exclusive rights to fish offshore;

· excusive possession of offshore areas;

· rights to ownership of minerals and petroleum; and

· the right to control the use of cultural knowledge beyond the right to control access to land or waters.

Schedule F – General Description of Native Title Rights and Interests

A general description of the facts that support the claim to the native title rights and interests listed in Schedule E. The description must be clear enough to prove that the group exists, and has existed, as a distinct community. Facts should be provided to show:

1) that the group and its ancestors have an identifiable connection to the land claimed;

2) that the group and its ancestors possess rights and interests under traditional laws and customs that the group observes; and

3) that the group continues to hold native title in accordance with those traditional laws and customs.

1. The group has an identifiable connection to the land claimed

The facts should show that the whole group has a connection with the whole claim area. A connection to the whole area by the whole group may be demonstrated with facts showing the connections that multiple claim group members have with several places within the claim area.

The facts must also show that the ancestors of the claim group had a connection with the area since the time of sovereignty, or, if this is too difficult to prove, at the time European settlers first arrived in the area.

The description can detail instances when the group’s connection has been recorded, and what those records consist of. This may be early settler or explorer accounts, reports, correspondences or any other historical document that mentions the ancestors of the ancestors of the group and their connection to the area.

The description might also include a list of traditional activities that demonstrate the group’s ongoing connection with the claimed lands and waters. These could include hunting, fishing, conducting ceremonies, or any other relevant activity.

These details of the group’s society before sovereignty, their acknowledgement and observation of laws and customs, and their continuing traditional association with the claimed land may be included as an ‘Attachment F’. Anthropological reports and affidavits of native title claim group members can be included.

2. The claimed rights and interests exist under traditional laws and customs

The facts should show that there were, and continue to be, traditional laws and customs followed by the group that give rise to traditional rights and interests over the area.

‘Traditional’ means that the laws and customs must have existed at the time the British first asserted sovereignty over the claim area, and have continued to exist among the group up until the present. Those laws and customs must also be ‘normative’, meaning that the members of the group are bound by them as standards of conduct.

Laws and customs may include standards of conduct such as rules around hunting, marriage, and the use of laws and mechanisms that were and are in place to regulate those rules (such as punishment and education).

The information provided should be sufficiently detailed to capture all those rights and interests that have been listed in Schedule D.

3. The group continues to hold native title in accordance with traditional laws and customs

Information should show that the group continues to hold the claimed native title rights and interests in accordance with its traditional laws and customs. Any information which shows that at any time the group had stopped acknowledging and observing traditional laws and customs may suggest that those laws and customs are no longer ‘traditional’.

The facts that demonstrate the holding of the native title rights and interests claimed in Schedule E may include such things as:

· recognition of common ancestors;

· traditional systems of communal title to lands and waters through connection with certain ancestral beings and stories;

· transmission of native title rights and interests according to traditional laws and customs; and

· recognition of the individuals’ connection to land and waters through their place of birth and through their mother’s, father’s and grandparent’s place of birth.

Activities that demonstrate a continuing connection to the area through traditional laws and customs may include such things as:

· caring for country;

· controlling access to country; and

· holding ceremonies on country.

Any such laws and customs should be particular to the claim group, and not general enough to apply to all groups.

Schedule G – Activities

This is to list and detail any activities the native title claim group members do on the claimed area in accordance with traditional laws and customs. This may involve repeating any of the activities already listed at Schedules E and F.

The details should be accompanied by evidence of the activities, as well as of the group’s current observance of traditional laws and customs. The evidence should relate directly to the listed activities. This is often achieved by affidavits from members of the claim group, detailing examples of the activities currently carried out in the claim area.

Schedule H – Details of any other applications

This schedule is to include any known overlapping native title applications. The National Native Title Tribunal (NNTT) can provide help to identify existing native title applications.[5] A copy of any NNTT overlap analysis that has been provided can be included in the Schedule.

Schedule HA – Details of Section 24MD notices

This schedule is to include details of any notices issued by the government which relate to any part of the claimed area.[6] These notices are made where the government requires compulsory acquisition of native title rights and interests.

This section does not apply where no known notice has been issued in relation to the claimed area.

Schedule I – Details of section 29 notices

This section is to include any notices issued by the government in relation to the claim area which describe the government’s intentions to let certain things happen on land,[7] such as where it intends to grant a mining lease.

An overlap analysis from the NNTT that details such notices may be included as an Attachment I.

Schedule J – Draft orders

This section is to include a description of how the Court should describe the native title in a determination if the application is unopposed.

In reality, the relevant State Government will become a party to the application when it is made. As a result, it can be written: ‘The application is not unopposed’.

Schedule K – Native Title Representative Bodies

This schedule is to include the name of each representative native title representative body for the application area. This information is available from the NNTT Registrar.[8]

Schedule L – Tenure and land issues

This is to describe any areas over which the benefits of sections 47, 47A or 47B of the NTA apply. If any of these sections apply to an area, then extinguishment of native title can be disregarded.

In many cases, these areas may not yet be known at the time of filing a claim.

Schedule M – Traditional physical connection

This schedule is to include the details of any land or waters in the application area where one or more members of the claim group has a traditional physical connection. Usually, there is no need to include any supporting material beyond that already included in Attachments F and G.

Schedule N – Prevention of access

Details of any member of the claim group having ever been prevented from going onto any part of the application area can be provided in this section.

The Schedule is optional, and there are no benefits to claimants in completing it.

Schedule O – Membership of any other claim groups

This schedule is to include details of any member of the native title claim group who is a member of any other native title claim group that has made an application over the whole or parts of the application area.

An application will not be registered if there is an overlapping claim if the Registrar is satisfied that:

· a person included in the claim group is a member of a claim group for an application that overlaps, in whole or in part, the application area;

· the overlapping application was on the Register of Native Title Claims (i.e. it was registered) when the current application was made; and

· the previous application was on the register, or was not removed from the register, because it had passed the registration test conditions.[9]

Schedule P – Claims for exclusive possession of offshore places

This schedule is to include details of any claim to exclusive possession of an offshore place. This is only relevant for claims that are coastal.

It is important to note that applications containing a claim to native title rights and interests in relation to waters in offshore places that exclude all other rights and interests cannot be registered.[10] It is for this reason that it is necessary to include a clear statement that the claim does not extend to this kind of interest if it is not claimed.

An ‘offshore place’ is defined as those lands or waters that are not within the limits of a state or territory, such as waters beyond the territorial sea.

Schedule Q – Claims to any resources owned by the Crown

This schedule is to include the details of any claim to ownership of minerals, petroleum or gas wholly owned by the Crown.

Similar to the consequences mentioned in regards to Schedule P, applications claiming native title rights and interests to the ownership of minerals, petroleum or gas wholly owned by the Commonwealth, state or territory governments cannot be registered.[11]

For this reason, it is necessary to include a clear statement that the claim does not extend to the minerals owned by the Commonwealth, state or territory governments.

Schedule R – Certification of authorisation

If the application is certified by a native title representative body for the application area, a copy of the certificate, can be included as an ‘Attachment R’.

If the application is not certified, information needs to be provided on how the people listed as ‘the applicant’ have been authorised by the members of the claim group to make the application and deal with matters arising in relation to it.

This requires a statement that the person listed as the applicant in the application:

· is a member (or are members) of the native title claim group; and

· is (or are) authorised to make the application by the native title claim group and act on their behalf in relation to the application.

This should be accompanied by reasons.

Where there exists a decision-making process under its traditional laws and customs, then that process must be used to authorise the applicant.

If the claim group does not have a traditional decision-making process when making decisions of this kind, then it must agree on, adopt, and use a process for making the decision about who to authorise to make the application on the group’s behalf.

For this reason, it is advisable to include as much information about the authorisation process as possible. It should be clear if the decision-making process used is part of traditional laws and customs, or whether the group has adopted a specific process to make the decision about who to authorise to make the application. If there is not enough space in the Schedule to include such information, it can be provided as Attachment R.

The information must show:

· that the applicant(s) is a member of the native title claim group;

· that the applicant(s) is authorised by all the native title claim group members to make the application and to deal with matters arising in relation to it;

· which decision-making process was used (i.e. traditional and customary or agreed to and adopted for the purposes of authorisation);

· and why the Registrar should be satisfied that the applicant has been authorised by the claim group to make the application and do things in relation to it.

Schedule S – Amended applications

This schedule is to include the details of any amendments made to the application, and what the changes are. If the application is new, this Schedule is not applicable.

Schedule T – Any other relevant application

This Schedule asks for any other information relevant to the application.

This Schedule is optional, and it is usually unnecessary to provide further information if the Form 1 has been completed properly.

Conclusion

This article has summarised the Form 1 for claiming native title. Once an application is properly authorised, the Form 1 is filed in the Federal Court of Australia, assigned to a Judge and referred to the NNTT. The NNTT then applies the registration test and gives notice of the claim. If the NNTT registers the claim, the claim group will have procedural rights. However, this does not mean that native title rights have been recognised. Rather, the claim group will still need to provide evidence to prove that those native title rights should be recognised. This could be through a trial, or, through an agreement. We suggest to always first attempt to reach an agreement rather than going to a trial. Ultimately, though, the claim group and the respondents (parties who respond to the claim, like the relevant State), will need to follow the orders of the Federal Court of Australia about how the claim should be progressed.

If a claim group is considering preparing, authorising or filing a Form 1, legal advice should be sought. We also recommend that claim groups contact the relevant native title representative body for the region to discuss any facilitation or assistance that may be required.

For more information, contact MPS Law Principal, Michael Pagsanjan, at michael@mpslaw.com.au.

[1] Native Title Act 1993 (Cth) (NTA) s.62A.

[2] NTA s.62(1)(a)(iv).

[3] See NTA s.251B describes the process for obtaining authorisation for an application.

[4] NTA s.62(1).

[5] Information about assistance can be found at www.nntt.gov.au

[6] NTA s.24MD.

[7] NTA s.29.

[8] Assistance is available at www.nntt.gov.au

[9]NTA s.109C(3).

[10] NTA s.109(C)(9)(b).

[11] NTA s.190B(9)(a).