Commonwealth 

The Commonwealth Native Title Act is the main piece of legislation governing native title in Australia. It aims to protect native title, but also to provide certainty over 'past acts' such as grants of title prior to 1994, writes Partner Ben Zillmann (view CV).

It's vital that project proponents consider the effects of the NTA when their projects involve land over which native title exists or may exist. They also need to consider other Commonwealth Acts covering conservation and heritage issues, as well as the relevant State or Territory legislation.

Last updated August 2007

Commonwealth Native Title Act 1993 (NTA)

• Objectives
• Validation of past acts and procedures for future acts
• Procedural rights
• Alternate State and Territory provisions
• Indigenous land use agreements (ILUAs)
• Registration of claims
• Role of the National Native Title Tribunal
• Reforms to native title system in 2007

Heritage legislation

• Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)
• Significant Aboriginal area or objects
• Environment Protection and Biodiversity Act 1999 (Cth)

Commonwealth Native Title Act 1993 (NTA)

Objectives

The Commonwealth Native Title Act 1993 (NTA) has four stated objectives:

1. Protection of native title: to provide for the recognition and protection of native title.
    
2. Validation of past and intermediate period acts: to provide for, or allow, the validation of past acts - and intermediate period acts - invalidated because of the existence of native title.
    
3. Valid future acts: to establish ways in which future dealings affecting native title may proceed, and to set standards for those dealings.
    
4. Native title claims: to establish a mechanism for determining claims to native title.

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Validation of past acts and procedures for future acts

Grants made before 1 January 1994 ('past acts')

'Past acts' apply to land and to inland and offshore territorial waters.

In this context, 'past acts' describes, inter alia, grants of titles made prior to 1 January 1994 that, but for the NTA, would be invalid because of the existence of native title. It includes extensions and renewals of such grants. The term 'past acts' does not cover grants that are valid independently of the NTA.

The NTA validates past acts attributable to the Commonwealth and provides that the States and Territories can similarly validate their own past acts. This includes validation of extensions and renewals. Validation of past acts and payment of compensation for the past impairment or extinguishment of native title is the responsibility of the government that made the grant.

The effect of validation on native title depends on the category of grant involved. There are four types of past acts:

1. Category A past acts - These comprise freehold estates, commercial leasehold interests (for example, a lease for the development of a tourist resort), pastoral leasehold interests (if granted primarily for pastoral purposes) and agricultural and residential leasehold interests. Validation will extinguish native title except if the grant contains any native title reservations and conditions.
2. Category B past acts - These are leasehold interests other than those included in Category A or Category C. Validation extinguishes native title to the extent of any inconsistency between the native title rights and the leasehold interests.
3. Category C past acts - Category C past acts comprise mining leases, including leases to explore and prospect, to extract petroleum or gas (onshore and offshore) and to quarry. Validation does not extinguish native title, but suspends its operation for the duration of the grant to the extent of any inconsistency. Native title rights revive when the grant expires. This is the 'non-extinguishment principle'.
4. Category D past acts - Category D past acts comprise any past acts not covered by the other categories. As with category C past acts, the non-extinguishment principle applies.

Grants made between 1 January 1994 and 23 December 1996 ('intermediate period acts')

'Intermediate period acts' are certain acts that took place between 1 January 1994 and 23 December 1996 which would have been invalid due to native title (if not for the provisions of the NTA). The significance of the date 23 December 1996 is that this is the date the High Court handed down its judgment in the Wik case. Prior to Wik, it had been generally assumed that leasehold titles extinguished native title and therefore governments considered they were free to grant further rights and titles over areas covered by leasehold interests without having regard to native title and without complying with the 'future act' procedural requirements of the NTA. The decision in Wik cast doubt over these assumptions, and therefore the validity of titles granted based on those assumptions.

Amendments to the NTA introduced in 1998 validated the so-called 'intermediate period acts' in much the same way that past acts had been previously validated by the legislation. An 'intermediate period act' is an act that took place between 1 January 1994 and 23 December 1996 on land that was at the time covered by either a freehold or leasehold tenure, or on land on which a public work was constructed.

Like past acts, intermediate period acts are divided into categories A, B, C and D. These categories mirror the categories of 'past acts' (described above) and these acts have the same effect on native title.

Grants made after 31 December 1993 ('future acts')

'Future acts' include, inter alia, any grant made on or after 1 January 1994 that affects native title in onshore land, inland waters or the offshore territorial waters, excluding past acts (as described above).

Only certain future acts are permitted under the NTA ('permissible future acts'), and even permissible future acts must follow procedures set out in the NTA if they are to be valid. If a future act is not made in accordance with the NTA, that future act is invalid.

There are numerous future acts permitted under the NTA, such as:

• future acts pursuant to an Indigenous Land Use Agreement (ILUA);
• future acts where a non-claimant application for determination of native title either results in no claimants coming forward or a determination that native title does not exist in the area;
• the grant of additional 'primary production' rights in respect of a certain exclusive agricultural and pastoral lease land;
• future acts that relate to water or air space or living aquatic resources;
• future acts that are the exercise of a pre-existing right or the renewal of an existing interest (eg, renewal of a validated mining lease);
• future acts made pursuant to a reservation made prior to 23 December 1996 and which has no greater impact on native title rights;
• future acts that involve the construction, operation or use of facilities that are services for the public (eg, roads, railways, pipelines);
• future acts that are 'low impact future acts' (the grant of minor licences and permits);
• all future acts relating to an off-shore place are valid even if the place is subject to native title; and
• a future act that passes the 'freehold test'. This provides a residual category of permissible future acts where none of the specific categories of permissible future acts apply. The freehold test only applies to on-shore places. Basically, where an act can be done over freehold land, then that act may be permitted over land that is subject to native title. Examples of future acts that generally pass the freehold test are the grant of mining interests and the compulsory acquisition of land.

The 'non-extinguishment principle' generally applies to all future acts, although some acts (such as compulsory acquisition) are capable of extinguishing native title.

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Procedural rights

Generally, native title claimants will have procedural rights in regard to a future act. In some cases, these procedural rights merely give native title claimants the right to 'comment' on the future act (such as acts relating to water and air space). Native title claimants also generally have the same procedural rights as a holder of a freehold title.

However, the NTA does provide a special 'right to negotiate' to registered native title claimants in respect of certain future acts. Generally, the following future acts will trigger the right to negotiate procedures:

• the creation or variation of a right to mine in relation to an on-shore place; and
• the compulsory acquisition of native title in respect of an on-shore place.

There are several important exceptions to this general rule that should always be considered. Future acts that relate to the construction of certain infrastructure are excluded. Further, some mining activities excluded from the right to negotiate procedure are:

• activities pursuant to an ILUA;
• mining rights granted for the sole purpose of constructing infrastructure associated with mining;
• renewals of existing mining leases on the same terms; and
• mining activities that relate to land or waters in an off-shore place.

In essence, the 'right to negotiate' procedures under the NTA involve the following:

1. The Government must give a notice to native title claimants and to the public that it is considering doing the future act in question. If there are no registered native title parties or no objection by registered native title parties within four months, then the act may proceed.
2. If registered native title claimants object to the future act, the parties will go through a procedure of negotiating in good faith to try and agree upon the conditions on which the future act can be performed.
3. If the parties cannot agree within six months of the original notice, any party may apply to the National Native Title Tribunal (or a 'recognised' or 'equivalent' State or Territory body that performs a similar role) for a determination as to whether the future act can proceed and on what terms. The Tribunal will then consider the arguments of both parties and will either determine that the act can proceed (or proceed subject to certain conditions) or that the future act cannot be done.

There is provision for the relevant Commonwealth, State or Territory Minister to overrule the determination of the arbitral body if it is considered to be in the national interest or the interest of the State or Territory to do so.

When determining whether a grant can be made, the arbitral body must take into account specified matters, including:

• the effect the grant will have on native title rights and interests; the way of life, culture and traditions of native title parties;
• the development of social, cultural and economic structures of native title parties;
• the freedom of access and ability to carry out traditional activities by native title parties;
• areas of particular significance to native title parties and the natural environment;
• the interests, proposals, opinions and wishes of the native title parties;
• the economic or other significance of the grant to Australia and the State or Territory concerned; and
• any public interest in the grant proceeding.

The conditions imposed by the Tribunal can include the payment of compensation to the native title claimants. This compensation may be payable in trust, whereby the native title claimants can only access it if they eventually establish their claim. However, the conditions of a grant imposed by an arbitral body cannot include an obligation on the grantee to make payments to native title parties based on profits, income flow or production (although a negotiated settlement between the parties may include a condition of that nature).

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Alternate State and Territory provisions

The NTA provides for States and Territories to develop their own 'alternate procedures' in substitution for the 'right to negotiate' procedures which would otherwise apply to certain State and Territory acts. The NTA authorises States to introduce alternate procedures for the following:

• 'approved exploration acts', being the grant of rights to explore, prospect and fossick for minerals;
• 'approved gold or tin mining acts' which relate to the grant of mining rights for alluvial gold and tin;
• an alternate 'right to negotiate' procedure which replaces the Commonwealth right to negotiate procedure; and
• an alternate procedure which replaces the right to negotiate under the NTA where the act in question falls within an 'alternate provision area'. The alternate State procedure in this case does not need to maintain the 'right to negotiate'. An 'alternate provision area' is an area that is or was covered by a freehold estate or by a lease (other than a mining lease), over which all native title rights and interest have not been extinguished. For example, an area of land covered by a pastoral lease is an 'alternate provision area'.

In all cases, any alternate regime sought to be implemented by a State or Territory must be consistent with prescribed conditions specified in the Commonwealth legislation. Alternate procedures will only be valid and only take the place of the provisions of the NTA if the Commonwealth Attorney General provides a written determination that the alternate State or Territory procedures comply with the Commonwealth Act. The Attorney General's determinations are 'disallowable instruments', which means they can be disallowed by either House of Federal Parliament. To date, several States and Territories (including the Northern Territory, Queensland and Western Australia) have had their alternate legislation disallowed by the Senate in whole or in part.

'Exclusive possession acts'

As noted above, restrictions on the making of future grants apply only to future grants which affect native title. An act will 'affect' native title if it extinguishes native title or is otherwise wholly or partly inconsistent with the continued existence, enjoyment or exercise of native title rights. If native title has already been extinguished over the area, then the act will not 'affect' native title and therefore the procedural rights attached to future acts do not apply.

As already mentioned, the decision of the High Court in Wik triggered major amendments to the NTA. One of those amendments was the introduction of Division 2B in Part 2 of the Act which confirms that various valid granted titles (including titles validated by the NTA itself) either completely or partially extinguished native title. The insertion of Division 2B could be seen as a direct response to the perceived uncertainty created by the Wik decision as to which titles may have extinguished native title and which titles did not.

Division 2B introduces the concept of 'previous exclusive possession acts' and 'previous non-exclusive possession acts'.

If an act is a previous exclusive possession act, then native title has been extinguished over the relevant area which is subject to that act. If an act is a previous non-exclusive possession act, then:

1. where the act involves a grant of rights and interests that are not inconsistent with native title rights, the granted rights and interest prevail over the native title rights, but do not extinguish them;
2. if the act involves a grant of rights and interest that are inconsistent with native title rights, then:
   
   • if apart from the NTA , the act would extinguish native title rights and interests (ie at common law), then the native rights and interests are extinguished; and
   
   
   • in any other case, the native title rights and interest are suspended while the lease concerned remains in force.

A 'previous exclusive possession act' is, generally speaking, a valid act that took place before 23 December 1996 which consists of the grant or vesting of any of the following:

1. a 'scheduled interest';
2. a freehold estate;
3. a commercial lease that is neither an agricultural lease nor a pastoral lease;
4. an exclusive agricultural lease or an exclusive pastoral lease;
5. a residential lease;
6. a community purposes lease;
7. certain parts of particular mining leases on which residential buildings may have been constructed; and
8. any lease (other than a mining lease) that confers a right of exclusive possession over particular land or waters.

A previous exclusive possession act may also consist of the valid construction or establishment of any public work where construction or establishment commenced before 23 December 1996.

Many of the terms mentioned above, such as 'commercial lease' and 'pastoral lease' are given specific definitions by the NTA and these must be carefully considered in each set of circumstances to determine whether the title in question falls within the definitions. Also, consideration needs to be given to whether the title in question is a 'scheduled interest'. Schedule 1 to the NTA sets out in substantial detail a wide range of titles which are 'scheduled interests' and therefore previous exclusive possession acts which extinguish native title.

Care must also be taken to ensure that even if you have a prima facie previous exclusive possession act, some of the exceptions contained in Division 2B do not apply (for example, the grant of a scheduled interest to the Crown or a Crown instrumentality is not deemed by the NTA to be a previous exclusive possession act).

Pursuant to sections 47A and 47B of the NTA, the extinguishing effects of previous exclusive possession acts can be disregarded in some circumstances, enabling native title to 'revive'. Broadly speaking, to rely on these provisions, the land must either be vacant Crown land or be held for the benefit of Aboriginal or Torres Strait Islander people. The land cannot be covered by a reservation, dedication, authority or other specified Crown conferral under which the land is to be used for a public or particular purpose and it must also be shown that the area is occupied by a member of the claimant group when the application is made.

A 'previous non-exclusive possession act' is a valid act that took place before 23 December 1996 and which consisted of the grant of a non-exclusive agricultural lease or a non-exclusive pastoral lease.

The NTA confirms that previous exclusive possession acts performed by the Commonwealth extinguish native title and also confirms the effect of previous non-exclusive possession acts (as set out above) performed by the Commonwealth. The NTA then goes on to allow the States and Territories to enact their own legislation, giving similar effect to previous exclusive possession acts and previous non-exclusive possession acts performed by the States and Territories.

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Indigenous land use agreements (ILUAs)

One method by which parties can avoid the 'right to negotiate' procedures associated with certain future acts is by entering into ILUAs. The concept of ILUAs was introduced into the NTA by the 1998 amendments.

Where a future act is covered by the terms of a registered ILUA, that future act will be valid. There are three types of ILUAs:

1. body corporate agreements, which are relevant where there has been an approved determination of native title over the entire area concerned;
2. area agreements, which are relevant where there has not been a determination of native title over all of the area concerned; and
3. alternative procedure agreements, which can be used as 'regional' agreements covering a large area.

There are specific requirements as to who must be the parties to each agreement and what procedure must be followed in order to have the agreement registered.

There is no fixed time period for negotiating an ILUA and no trigger which would refer the negotiations to a judicial body to make a determination, such as is the case with the right to negotiate procedures.

The parties are generally free to agree on whatever terms they wish to negotiate for an ILUA. Matters covered by an ILUA may include conditions of access to land, compensation and, in some cases, extinguishment of native title. An ILUA can also apply to a 'future act' that has already occurred.

Importantly, once the ILUA is registered, it has effect as if it were a contract among the parties to the agreement and will bind all persons holding native title in relation to any of the land or waters in the area covered by the agreement, even if those persons are not already parties to the agreement.

Before any type of ILUA can be registered, some form of notification must be given and this gives an opportunity for possible further native title claimants to object to the agreement.  

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Registration of claims

In order for claimants to have their native title claim registered, that claim must first pass a threshold test, commonly referred to as the 'registration test'. The purpose of the registration test is to ensure that only those claims which appear to have some merit are registered. Therefore, the native title claimants must establish, at a basic level, that they prima facie have grounds for claiming native title over the area in question. Only registered native title claimants receive certain procedural rights under the NTA, such as the right to negotiate.

However, registration of a native title claim does not mean that native title necessarily exists over the area in question. Likewise, the fact that an application has not passed the registration test does not mean that native title cannot be established over the area, and even an 'unregistered' application can proceed towards a determination as to whether native title exists over the area.

Determination of claims

Only the Federal Court, the High Court or a recognised State or Territory body can make an 'approved determination of native title'. That is, only these bodies can make a determination of native title which formally recognises and protects the native title rights of traditional owners. A 'recognised State or Territory body' is a body (such as a court, office, or tribunal) which is established under the laws of the State or Territory and which is recognised by the Commonwealth pursuant to the NTA. Essentially, a State or Territory body will only become a 'recognised State or Territory body' if it provides for procedures which are consistent with those under the NTA. An application for determination of native title may only be made over an area where there is no current 'approved determination of native title'.

Claimants who wish to establish that native title exists over the area in question, must establish that claim in accordance with the principles laid down at common law. Importantly, the claimants will need to establish that they have maintained their connection with the land and that native title has not been extinguished by an inconsistent legislative or executive act. Hearings for the determination of native title are often lengthy and expensive exercises, as they often involve very detailed evidence and arguments. Ultimately, the court must determine whether or not native title exists, and if it does exist, who holds rights, and how extensive they are.

Registered native title corporations

If it is determined that native title does exist, the court must specify a body corporate that will hold the native title either as the trustee or as the agent for the common law native title holders. Normally, this would be a body corporate nominated by the native title holders.

Registration of determinations

If the court determines that native title exists, that determination will be entered into the Native Title Register, which is maintained by the Native Title Registrar. This register contains details of all approved determinations of native title made by the Federal Court, the High Court and recognised State or Territory bodies. It also contains details or determinations of native title made by other courts or tribunals, but such determinations do not confer recognition of native title upon the claimants.

Variation of determinations

Even where an approved determination has been made, an application may subsequently be made for the determination to be revoked or varied on the ground that supervening events have caused the determination to no longer be correct or that the interests of justice require a variation or revocation of the determination. Only the following parties can make such an application:

• the registered native title body corporate;
• the Commonwealth Minister;
• the relevant State or Territory Minister; or
• the Native Title Registar.

Compensation

An application for the determination of native title and an application for compensation do not necessarily go hand in hand. They are in fact two separate applications and compensation is only sought where the native title claimants or holders are claiming that their native title rights have been impaired. As a general rule, native title holders are entitled to compensation on just terms for any loss, diminution, impairment or other effect on their native title interests.

There is currently little case law which assists in determining how to value native title rights for compensation purposes. For the purposes of determining compensation, the holders of native title are generally considered to be, at best, in an equivalent position to that of a holder of a freehold title. However, this will always depend upon exactly what native title rights are being compensated. The general principle under the native title legislation is that the relevant government is responsible for paying compensation to native title holders for acts attributable to that government. However, this will not always be the case and it is possible that the applicant for a title (such as the applicant for a future mining lease) may be the party responsible for payment of compensation pursuant to specific legislation.

As for future acts, the National Native Title Tribunal may order that a future act can proceed on condition that the applicant for the future act pay compensation into trust, pending the outcome of the determination of native title over the relevant area. If the Federal Court, the High Court or the recognised State or Territory body then decides that native title does exist over the area and that compensation is payable, the funds held in trust can be paid to the successful native title holders.

If the funds held in trust exceed the amount of compensation determined, the rest is refunded. If the amount of compensation eventually determined exceeds the amount held in trust, the government is liable to make up the deficiency. If native title is deemed not to exist, the entire amount of money held in trust is refunded.

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Role of the National Native Title Tribunal

When the NTA was originally introduced, the National Native Title Tribunal was established to enable the effective administration of native title claims. The powers of the National Native Title Tribunal originally included the determination of compensation and the determination of unopposed native title applications. However, following the decision in Brandy v Human Rights and Equal Opportunity Commission, it was considered that some of the powers delegated to the National Native Title Tribunal may be unconstitutional, so its role was scaled back and the role of the Federal Court increased.

The major functions of the National Native Title Tribunal now consist of:

• hearing applications and making determinations on whether future acts may proceed and, if so, on what conditions; and
• acting as the mediator between claimants and other parties over the determination of native title.

'Equivalent State or Territory bodies' can be established by the States or Territories to perform the role of the National Native Title Tribunal. As with 'recognised State or Territory bodies', such bodies require the sanction of the Commonwealth. The main distinction between an 'equivalent State or Territory body' and a 'recognised State or Territory body' is that only a 'recognised' body can determine native title and compensation.

Surrender of Native Title

Native title holders may, by agreement with the Commonwealth, a State or a Territory, either surrender their native title interests to the relevant government and thereby extinguish those rights and interests, or authorise a future act which will affect the native title rights and interests. In exchange for a surrender of native title, the native title holders may accept a grant of a freehold estate or other interest in land.

Negotiations and delays

Procedural requirements, which include negotiations with native title holders and native title claimants, may cause delays in obtaining grants. It is even possible that grants may not be allowed to proceed if the matter is referred to an arbitral body for a decision.

Negotiations with claimants

Companies are required to negotiate not only with native title holders, but with registered native title claimants. There may be multiple claimants, which may make negotiation and agreement more difficult. In addition, time and resources may be invested dealing with persons whose claims do not ultimately succeed.

Non-claimant applications

Companies with an existing interest in land can apply for a determination of whether native title exists over that land. This is a 'non-claimant application'. If it is determined that native title exists, the company will need to reassess its investment and how to proceed. However, if it is determined that native title does not exist, or if no native title claimants come forward to object to the application within three months of notice of the application being given, new grants which are made over the land do not need to comply with the procedural requirements which otherwise might apply to future acts.

If, subsequently, an approved determination is made that native title does exist over the land, the validity of the grant made is not affected. Nor is the company liable to pay compensation. The government making the grant is responsible for any compensation payments.

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Reforms to native title system in 2007

The Native Title Amendment Act 2007 (Cth) (the Amendment Act), which was assented to on 15 April 2007, amends the NTA and provides the most significant native title legislative changes since the 1998 amendments. The Amendment Act will allow native title claims to be managed more efficiently and promotes agreements to resolve native title issues by:

• improving the effectiveness of native title representative bodies (NTRBs) including multi-year funding and changes to eligibility requirements for recognition as an NTRB;
• broadening the scope of the financial assistance program for respondent parties by providing funding to cover legal and other costs associated with developing standard form agreements and participating in the 'right to negotiate' process;
• improving the flexibility of the prescribed bodies corporate (PBC) governance regime and amending some of the provisions in relation to exercise of the native title rights and interests by the PBC;
• clarifying the roles of the Federal Court (the court) and the National Native Title Tribunal (NNTT) to:
  • improve co-ordination and communication between the court and the NNTT;
  • remove duplication of functions between the court and the NNTT;
  • increase powers and functions of the NNTT, including the power to make directions; and
  • increase the effectiveness of NNTT mediation.

The Native Title Amendment (Technical Amendments) Act 2007 was assented to on 20 July 2007, although some of the provisions did not commence as at that date. This Act makes minor and technical amendments to the NTA aimed primarily at improving procedural efficiency and processes, including amendments in relation to aspects of the registration test, notification requirements and clarification of provisions regarding ILUAs and the right to negotiate.

The Act provides a review mechanism to allow claimants to seek an internal reconsideration of the registration decisions by the NNTT. The amendments to the NTA also establish a more flexible scheme for payments held under right to negotiate processes and replace the trust regime with a bank guarantee regime.

For more detail on the reforms see the Focus: Native Title - May 2007.

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Heritage legislation

Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)

This Act provides for the preservation and protection of 'significant Aboriginal areas' and 'significant Aboriginal objects' of particular significance to Aborigines in accordance with the Aboriginal tradition.

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. 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.

Significant Aboriginal area or objects

Effect of the legislation

The Minister or an authorised officer may make a declaration providing for the protection and preservation of a significant Aboriginal area or a significant Aboriginal object that is under threat of injury or desecration. 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.

The Minister can make an emergency declaration of preservation where an Aboriginal place is under threat of injury or desecration. These may operate for up to 30 days, and if the Minister is satisfied that it is necessary, be extended by a further 30 days.

Breaches and penalties

It is an indictable offence for anyone to deface, damage or otherwise interfere with or do anything likely to endanger an 'Aboriginal object' or 'Aboriginal place' which contravenes the terms of any type of declaration.

Contravention of a declaration relating to a significant Aboriginal area or object may result in a fine of up to $10,000 and/or up to five years' imprisonment for a person and a fine of up to $50,000 for a body corporate. The maximum penalties for the contravention of a declaration relating to a significant Aboriginal object or objects are $5,000 and/or up to two years' imprisonment for an individual and $25,000 for bodies corporate. Corporations are liable for the actions of directors, servants and agents.

Aboriginal remains

A person who discovers anything that on reasonable grounds may be Aboriginal remains must report the discovery and location to the Minister. Failure to do so is an offence, punishable by a fine of $500. By inference, the suspected remains should not be disturbed.

Future Commonwealth legislation

There has long been proposed a more comprehensive Commonwealth regime for the protection of aboriginal heritage. The Aboriginal and Torres Strait Islander Heritage Protection Bill 1998 (Cth) was first introduced in November 1998. Since introduction, it has lapsed twice, the last time being in October 2001, and since has not been reintroduced. The aim of the proposed Bill was to preserve and protect aboriginal objects and areas, and also establish procedures for the accreditation of legislative heritage protection regimes in force in the States and Territories. At present, there is no indication that the Bill will be re-introduced, however there is always the possibility that it may do so in the future.

The Aboriginal and Torres Strait Islander Heritage Protection Amendment Act 2006 (the Amendment Act) (Cth), which was assented to on 7 December 2006, does not propose the comprehensive regime discussed above. The amendments ensure that declarations under the Act cannot be used to prevent the return of cultural objects imported temporarily to Australia under the Protection of Moveable Cultural Heritage Act 1986 (Cth). The Amendment Act also provides for the repeal of provisions in the Act that apply to places in Victoria, to enable the Victorian government to administer heritage protection through its own legislation.  

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Environment Protection and Biodiversity Conservation Act 1999 (Cth)

This Act provides for the protection and conservation of certain property and areas of cultural or natural significance under the United Nations Convention for the Protection of World Heritage and Natural Heritage. A site of Aboriginal heritage may be placed on the list of World Heritage Properties.

It is unlawful for a corporation to take an action that has, will have, or is likely to have a significant impact on the world heritage values of the world heritage property, without the approval of the Commonwealth Environment Minister. To obtain approval, the action must undergo a rigorous environment and assessment approval process.

The Environmental Reform (Consequential Provisions) Act 1999 (Cth) repealed the World Heritage Properties Conservation Act 1983 which applied before the Environment Protection and Biodiversity Act 1999 was passed. However, the repealed Act continues to apply to all properties and sites included in the World Heritage List under that Act.

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