Native Title Year in Review 2022-2023

What you need to know

• Section 47C of the Native Title Act 1993 (Cth) allows for prior extinguishment to be disregarded in relation to national parks and other conservation reserves where agreed by the relevant government.  
• The Federal Court recently made its first determination considering the effect of section 47C (Ward, on behalf of the Pila Nature Reserve Traditional Owners v State of Western Australia [2022] FCA 689).  
• In other recent determinations, parties agreed to defer determining certain areas in order to reach agreement under section 47C about disregarding extinguishment. 
• It is also possible that existing determinations will be re-opened under the revised native title determination application process already available under the Native Title Act.

What you need to do

• Parties that hold interests in areas covered by national parks and other similar reserves should be aware not only of section 47C applying to future determinations, but also of the potential to re-open current determinations to change the outcome or the park areas. 
• Stakeholder should monitor public notices of future section 47 agreements that may affect their interests.  

Native Title Act reforms allow for extinguishment to be disregarded for national parks

The Native Title Act 1993 (Cth) was amended in 2021 to insert section 47C, which allows extinguishment to be disregarded for areas covered by national parks and similar reserves (also known as park areas).

Previously, the High Court had held in Western Australia v Ward (2002) 213 CLR 1 that the designation and vesting of certain kinds of reserves extinguished native title.  Section 47C allows extinguishment by reservation – and all other forms of prior extinguishment for the area – to be disregarded, effectively sidestepping the Court's decision.

However, unlike sections 47, 47A and 47B which simply do or do not apply in accordance with their terms, in order for section 47C to apply, the claimants must reach an agreement with the government that created the park or reserve.  All section 47C agreements must be publicly notified.  

It is important to note that a section 47C agreement can be reached for areas which have already been determined – assuming that the government party agrees – using the revised native title determination application process already available in the Native Title Act.

First determination including section 47C agreement made

On 15 June 2022, the Federal Court made a determination by consent in Ward, on behalf of the Pila Nature Reserve Traditional Owners v State of Western Australia [2022] FCA 689.

Prior to the Native Title Act amendments that introduced section 47C, the claim group initially made a claim for compensation under the Native Title Act for the vesting of the Pila (formerly Gibson Desert) Nature Reserve.  This reserve had (per the High Court in Ward) extinguished native title.

While the compensation application was on foot, the parties became aware of the intention to introduce section 47C.  The claimant and the WA government then agreed as part of the settlement package that the extinguishment could be disregarded pursuant to section 47C, and began negotiating on that basis even prior to the commencement of the Native Title Act amendments.

The parties subsequently entered into a formal section 47C agreement.  The Federal Court made orders by consent recognising non-exclusive native title over the area of the nature reserve, disregarding prior extinguishment.

Future section 47C agreements flagged in a number of recent determinations

Since the Pila Nature Reserve decision, only one other decision has included a determination under section 47C Drill (on behalf of the Purnululu Native Title Claim Group) v Western Australia (No 2) [2022] FCA 1538.  However, there has been a recent trend in determinations flagging the future application of section 47C to park areas.

As we noted in our Native Title Year in Review 2020 article "Native Title Act reforms finally enacted", part of the purpose of section 47C is to allow existing determinations to be re-opened to obtain the benefit of this section.  This is, ordinarily, by way of a revised native title determination application under sections 13(1)(b) and 13(5) of the Native Title Act.

A recent example is Austin on behalf of the Eastern Maar People v State of Victoria [2023] FCA 237.  In that case, it was specifically noted in the determination that section 47C could apply to certain park and reserve areas in the determination, but that no agreement had been reached by the date of the determination.  The parties agreed to negotiate in good faith about these areas – and that the State and Commonwealth would not oppose the Eastern Maar people amending their original application to include those areas, or bringing a new application for them.

The State of Victoria publicly notified the intention to enter into a section 47C agreement on 2 June 2023.  

The Cape York United #1 proceedings, from which multiple determinations have been made, have also included similar clauses in their determinations indicating that the parties were intending to negotiate a section 47C agreement and make an application to revise the determination.  

According to the NNTT website, no revised native title determination applications have yet been made to take advantage of section 47C.  We will continue to monitor this. 

The Western Australian government recently announced it had settled compensation claims made by the Tjiwarl people with a comprehensive settlement agreement known as the Tjiwarl Palyakuwa (see the media statement here).  This agreement includes the creation of a new park, the Tjiwarl Conservation Estate, from some former reserve areas and an additional area excised from a pastoral lease.  It also includes an agreement, pursuant to section 47C, that section 47C would apply to that park, allowing exclusive native title to be recognised over it.

What's next?

It is likely that more section 47C agreements will be reached in those states and territories where parks and reserves would otherwise extinguish native title.  

When such agreements are reached, it is not just the extinguishment by the creation of the park area that is disregarded, but all prior extinguishment on the relevant land (in a similar way to sections 47, 47A and 47B).

This will affect current claims proceeding to determinations as well as existing determinations where extinguishment has already been determined and may be re-opened under section 47C via a revised native title determination application.  Proponents with tenure or prospective projects in current or former "park areas" may see these kinds of negotiations form part of the negotiation towards a consent determination.

Key insights

Outside of current claims, proponents should keep track of public notices to see whether relevant governments are intending to enter into section 47C agreements that could affect their interests.  As noted above, the relevant government must give public notice of proposed section 47C agreements.  It must also provide 'interested persons' with a three month window to make comments under section 47C(6) before entering into any such agreement.  

Public notice may be the first you hear of the proposed agreement, so the opportunity for comment should not be wasted.

Proponents with tenure or prospective projects on areas that are, or have historically been, park areas will need to consider whether future grants, renewals and operations may require Native Title Act compliance.  They should also consider whether a section 47C determination might trigger un-anticipated native title compensation liability.  On the other hand, compensation liability for the historical prior extinguishing acts may be reduced to reflect the changed circumstances.

Author: Martin Doyle, Lawyer.