A non-claimant application can be made to the Federal Court to seek a determination that native title does not exist in the area covered by the application.

Any person can make a non-claimant application if they hold a non-native title interest in relation to the whole of the area covered by the application. Corporations, Commonwealth, State and Territory Ministers, statutory authorities and other government bodies can also make non-claimant applications.

Non-claimant applications are sometimes used as part of a future act ‘clearance’ process to invoke the protections under s 24FA of the Native Title Act and enable State and Territory governments to deal with areas where native title may exist, but where no determination of native title has been made. Where s 24FA is enlivened, any future acts in the area remain valid even if it is later found that native title exists or existed in relation to the area at the time.

Non-claimant applications are notified by the Native Title Registrar, for a three month period, to give notice to any persons who may hold native title or other interests in the relevant area. The notice also advises that unless there is a relevant native title claim (as defined in s 24FE of the Native Title Act) over the area covered by the non-claimant application by the end of the three months, the area may be subject to protection under s 24FA, which means that any future acts done in the area will be valid.

Once s 24FA protection applies, the applicant may ask the Federal Court to adjourn the non-claimant application until the future act they want to ‘protect’ has been completed, for example the grant of a title to allow for a development.

After the future act has been done, the applicant may wish to discontinue the application or consent to its dismissal, which means there will be no final determination by the Federal Court of whether or not native title exists in relation to the area. However, if this is done before the act is completed, the s 24FA protection will not apply and the future act may not have been done validly. Where an application remains on foot, the Federal Court will make orders as to how the matter will proceed.

The NNTT can assist by advising whether there is an existing claimant application or a determination of native title over the relevant area. A search request can be made by emailing a geospatial search form to geospatialsearches@nntt.gov.au. You may also wish to conduct your own search through the native title search page.

To make a non-claimant application, a Form 2 Non-claimant application must be filed in the Federal Court. Further information regarding how to file a Form 2 or the non-claimant process, should be directed to the Federal Court. It is recommended that independent legal advice be sought prior to commencing any Court proceedings.