What is native title?
Native title is the name Australian law gives to the traditional rights and interests that indigenous groups have practised, and continue to practise, over land and water. Native title reflects the close and continued connection indigenous groups have with land and water.
Native title rights and interests may include the right to live and camp in an area, conduct ceremonies, hunt and fish, collect food and resources, build shelters and visit places of cultural importance.
Native title rights are recognised through the native title claim process and formal determinations that native title exists by the Federal Court of Australia.
What are the options for dealing with native title in NSW?
Where native title exists, the NSW Government and MEG are legally bound to follow the processes set out in the Native Title Act 1993 (NT Act). For the purposes of processing applications, MEG considers native title to exist until proven otherwise.
For mining and assessment leases, this usually requires compliance with the Right to Negotiate (RTN) process, unless the applicant can satisfy the Minister that native title has been extinguished.
For exploration licences, there are several options for compliance with the NT Act:
- Request a standard licence that includes a condition requiring the Minister’s consent before carrying out prospecting activities on land or water where native title might exist. If the applicant wishes to prospect on areas where native title may exist, they must complete the RTN process at that time or satisfy the Minister that native title has been extinguished.
- Satisfy the Minister that native title has been extinguished before your application is granted.
- Undertake the RTN process or an applicable alternative process provided for in the NT Act before your application is granted.
- Apply for a low impact licence.
It may also be possible to excise areas of land from an application where the Minister is not satisfied native title has been extinguished.
Additionally, the applicant may be able to negotiate an Indigenous Land Use Agreement with the relevant native title parties.
MEG is in the process of reviewing native title procedures. More detailed information on the native title options will be provided when available.
Please contact us if you would like more information on the options outlined above.
Assertion that native title is extinguished
When applying for the grant of an authorisation, the applicant may assert that native title is extinguished over the entire area of land to which the application applies. In this case the applicant must provide evidence to support that assertion in accordance with the MEG’s Protocol for evidencing proof of extinguishment. Generally, this means the submission of a native title extinguishment report with copies of the applicable current and historic land tenures.
MEG requires that prior to a grant, the Minister administering the Mining Act must have no doubt that native title is extinguished. If there is doubt that native title is extinguished, the NT Act must be complied with in another way.
For further information
MEG’s Minview system contains useful spatial information for applicants and title holders, including layers showing where native title exists and where it is extinguished, the location of native title claims, and other useful information.
Information on native title and native title processes can also be found on the National Native Title Tribunal website.
Assessments and Systems
Phone: +61 (0)2 4063 6600
Postal address: Assessments and Systems, Mining, Exploration and Geoscience, Department of Regional NSW, PO Box 344 Hunter Region Mail Centre NSW 2310
Office: 516 High Street Maitland NSW 2320