About notification of compensation applications

1. Why the Tribunal gives notice of applications

Notification generally

Section 66 of the Native Title Act 1993 (Cwlth) (the Act) provides that the Registrar must give notice of any claimant, non-claimant, or compensation application or any revised native title determination application.

Underpinning the specific obligation to give notice in s 66(3) of the Act is the natural justice principle applied in the case of WMC v Lane (1997) 73 FCR 366 [see also French J in Robert Bropho v The State of Western Australia FCA [2000] 1 at para 17]. This principle holds that all those whose interests may be affected should have a reasonable opportunity to become aware of, and become parties to, the application.

Section 66(3): Notification to individual interest holders

The Registrar must give notice (containing details of the application) to all persons or bodies who may have an interest in the area of the application. This specifically includes any relevant registered native title claimant, registered native title body corporate, representative Aboriginal/Torres Strait Islander body, local government body, and the Commonwealth Minister.

The Registrar must also give a copy of the notice to the Federal Court and to the relevant State or Territory Minister.

The Registrar must give notice to any person who, when the application was filed in the Federal Court, held a registered proprietary interest over any of the area covered by the application.

The Registrar must also give notice, where he/she considers it appropriate, to any person (or class of persons) whose interests may be affected by a determination in relation to the application.

Section 66(3): Public notification

The Registrar must give notice of the application to the public. The Native Title (Notices) Determination 1998 specifies the ways in which the Registrar should notify the public of an application.

Section 66(5): The Registrar's discretion

Section 66 (5) of the Act allows the Registrar some flexibility in the notification process [French J in Bropho para 15]. The Act gives the Registrar discretion to dispense with individual notification to registered proprietary interest holders where it would be unreasonable to so notify.

For example, where interests are difficult to identify, it may be that the Registrar can exercise the discretion to dispense with individual notice and give notice instead to the relevant peak industry body in accordance with s 66(3)(a)(vii).

Similarly, where the Registrar exercises the discretion to dispense with individual notification, it may, in some circumstances, be appropriate for the Registrar to instead rely upon general public notification to inform such interest holders.

2. Notification of compensation applications

Notification of compensation applications raises different issues to the notification of claimant applications. Freehold grants, as well as other previous exclusive possession acts (PEPAs) will often be included in the application area for a compensation claim because the applicants seek compensation for the creation of that freehold (or earlier extinguishment).

The primary issue, therefore, is whether or not individual notification should be given to PEPA interest holders whose interests are included in compensation applications. In other words, would it be reasonable for the Registrar to give individual notice to a class of interest holders whose interests would probably not be affected by a determination of native title made as part of the compensation proceedings?

Because of the particular nature of compensation applictions, the Registrar has made a policy decision which endeavours to achieve a balance between the dual imperatives of operational efficacy and procedural fairness.

Factors considered by the Registrar in making this decision were:

For individual notification Against individual notification
  1. The doctrine of procedural fairness.
  2. A strict reading of ss 66(3)(a)(iv) and 66(3)(a)(vii) of the Act, which provide that, where a person may be affected by a determination of native title, they must be notified.
  3. The risk that a freehold title may be found to be invalid for reasons other than the existence of native title at the time of the grant.
  4. A person may wish, in the context of commercial dealings, to be notified of the existence of a compensation application
  1. The Crown in right of the Commonwealth, a State or a Territory will usually bear the liability for compensation, unless they have legislated to transfer that liability, or there is an agreement in place under which any such liability is passed to another or waived, eg an ILUA.
  2. Public notification of the compensation application will be given.
  3. Freehold interests, other than 'Aboriginal' freehold, are highly unlikely to be affected by a determination of native title unless a challenge is raised to the validity of the grant of freehold on grounds other than the existence of native title.
  4. In the unlikely event that a freeholder's interests are affected, they can seek to become a party at any time - s 84(5).

The Registrar, having considered these factors, issued the following policy guidelines for use within the Tribunal.

3. Tribunal policy for notification of compensation applications

The Registrar will give notice of compensation applications to:

  • any relevant registered native title claimant;
  • any registered native title body corporate;
  • any native title representative body;
  • the State or Territory Government;
  • the Commonwealth Minister;
  • the local government body or bodies.
and
  • place an advertisement in the metropolitan daily and regional newspapers, including any newspaper that circulates particularly to Indigenous Australians, to advise the public generally of the compensation application.

This approach is based on the grounds that there are difficulties in obtaining historical tenure, and that ultimately it will be either State, Territory or Commonwealth governments that will bear the liability for compensation claims, subject to any statutory or other arrangements that they may have with grantees.

Flexibility where circumstances demand

The Registrar recognises that there will be circumstances where compensation notification will need to be conducted across a broader spectrum than that specified above. The Tribunal's State and Territory managers can exercise their discretion with regard to the particular circumstances of the application.

Notifying interest holders in certain circumstances

Where the compensation application involves a claim for partial extinguishment of native title over previous non-exclusive possession act (PNEPA) areas, eg. a non-exclusive possession lease, the Registrar must notify the individual interest holders involved. The Tribunal's State and Territory managers are alert to, and check for, the possibility that a compensation application may involve or include a claim for partial extinguishment.

Certain tenement holders must be notified

Tenement holders who were granted their tenement by a State or Territory government subject to compensation provisions should be individually notified of a compensation application. The Tribunal's State and Territory managers are alert to, and check for, the possibility that a compensation application may involve or include a tenement of this type.