What does native title mean for local government?

Local government is the custodian of substantial areas of community land. Understanding native title legislation—and related issues—is an important part of managing this land.

Native title is important for local government

Certain things that a local government does in relation to land, may affect native title rights and interests. Councils should be familiar with the areas over which native title determination applications have been made, or, in some areas, where native title has been found to exist by the Federal Court. As well, councils should be aware that previous grants, licences and activities in their area may have extinguished (blocked recognition of) native title.

When carrying out day-to-day functions, councils may need to consider the impact of their activities on native title, such as when they construct facilities on reserves or lease reserves over which they have control.

Council obligations

Most of the activities within local government areas which may affect native title are likely to be initiated by the State (or, more rarely, the Commonwealth) government in relation to crown land, such as the grant of leases, the creation or revocation of reserves. When certain activities or developments are planned in an area where native title may exist, a series of procedures may need to be followed for the activity to be valid. These procedures operate through what is known as the ‘future act’ regime set out in the Native Title Act 1993.

To the extent that local government is interested in these activities, local councils may assist in the formation of agreements between native title holders, governments and third parties by acting as facilitators of, for example, ‘heritage agreements’ or by concluding agreements with native title holders in relation to the provision of council services and assistance.

Assistance, information and advice

To meet the costs of responding to native title applications and negotiating agreements, the Commonwealth Attorney-General’s Department can provide financial assistance to local governments. Guidelines for the provision of assistance in native title cases are available at www.ag.gov.au or by calling the department on (02) 6250 6770.

The Australian Local Government Association (ALGA) in conjunction with the National Native Title Tribunal, and other key organisations, has produced useful guides for local governments involved in native title: Working out Agreements: A Practical Guide to Agreements between Local Government and Indigenous Australians and Working with Native Title: A Practical Guide for Local Government. For further information see contact details listed below.

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This fact sheet is provided as general information only and should not be relied upon as legal advice for a particular matter.

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