Olsen, Andrew --- "The Imposition of IPA Planning Schemes - Validity Under the Native Title Act 1993 (Cth)" [2002] JCULawRw 7; (2002/2003) 9 James Cook University Law Review 226

THE IMPOSITION OF IPA PLANNING SCHEMES — VALIDITY UNDER THE NATIVE TITLE ACT 1993 (CTH)*

ANDREA OLSEN**

*This paper was prepared as part of a Research Masters of Law currently being undertaken at James Cook University. I wish to gratefully acknowledge the in- kind support of the Environmental Defenders Office (North Queensland) in the completion of my Research Masters and the support of my supervisor, Malcolm Barrett. I also extend my thanks to Dr Alex Amankwah for reading drafts of the paper and offering his valuable comments.

**LLB(Hons) (JCU).

INTRODUCTION

This chapter aims to demonstrate that the judicial determinations upon which prevailing academic opinion rests were based on the characterisation of native title as an underlying interest in land. The chapter then probes whether the view that planning schemes do not affect native title adversely can be sustained in light of the recent High Court finding in Western Australia v Ward[1] that native title rights and interests may more appropriately be described as a ‘bundle of rights’.[2]

The impact of planning schemes upon native title is of obvious import to government. The recognition of native title and the continued subsistence of use rights mean the State can no longer view native title land as unburdened property available for its unqualified use.[3] Instead, government will need to consider the impact of planning control on native title rights and interests and the prospect that the future acts provisions of the Native Title Act 1993 (Cth) (‘the NTA’) may be triggered into operation. Because non-compliance with the future acts regime renders an act invalid, an important preliminary question for government, and one which this chapter addresses, is whether the adoption of a planning scheme in compliance with the Integrated Planning Act 1997 (Qld) (‘the IPA’) constitutes a future act.

In the event that the imposition of planning control on native title land constitutes a future act, the chapter finally focuses on the implications for local government in terms of the statutory rights that must be conferred upon native title holders to ensure the validity of any government action.

The Function of Planning Schemes

Whilst the IPA’s inception was principally motivated by an agenda of microeconomic reform,[4] its stated objective is the achievement of ecological sustainability. Ecological sustainability is defined in the IPA as a balance that integrates protection of ecological processes and natural systems with economic development and maintenance of the cultural, economic, physical and social well-being of people and communities.[5]

The significance of ecological sustainability is evident in both the statutory purpose of the Act and its imposition of an explicit duty to advance ecological sustainability or at least have regard to it in any exercise of power pursuant to the Act.[6]

One of the principal means of achieving ecological sustainability identified by the IPA is the coordination and integration of all matters, including core matters, at the local, regional and State levels[7] with the coordination and integration of planning occurring largely within local government planning schemes. The core matters identified and defined in the IPA include ‘land use and development’, ‘infrastructure’ and ‘valuable features’. [8] The first of these core matters, ‘land use and development’, embodies issues such as the effects of land use and development; the location and relationship between various land uses; and development constraints.[9] ‘Infrastructure’ embraces ‘land, facilities, services and works used for supporting economic activity and meeting environmental needs’.[10] So-called ‘valuable features’, another core matter, are resources or areas of ecological significance or economic value, and areas that are significant in terms of amenity or cultural heritage.[11]

One outcome of the focus on ecological sustainability is that the emphasis of planning schemes is now one of function over form.[12] As planning schemes are instruments to advance ecological sustainability, their principal function is to identify desired environmental outcomes for the planning scheme area and to provide performance indicators to assess whether the environmental objectives have been achieved.[13] Formerly, local government planning schemes were required to incorporate zoning plans within which areas are designated for a particular category of use and subject to distinctive planning controls. [14] Whilst zoning plans may still be utilised as a planning tool under the IPA, there is no prescription as to the types of measures that can be employed to achieve ecological sustainability.[15]

Local government, however, does not have unqualified freedom and flexibility in matters of form. A minimum requirement under the IPA is that planning schemes distinguish types of development and the manner in which a particular development is assessed.[16] At all times the impact of development must be assessed against the desired environmental outcomes; hence the identification of development as exempt, assessable or self-assessable, and the form that assessment will take, will be based upon the potential for adverse impact on the environment.

An important measure available to local government under the IPA is the ability to designate land for existing or planned community infrastructure. Schedule 5 of the IPA defines community infrastructure to include hospitals, educational facilities, railway facilities, parks and recreational facilities, government administrative offices and works depots. The power of local government or any Minister of the State to designate land derives from section 2.6.1 of the IPA and any such designation forms part of a planning scheme.[17] Designation allows land to be used for community infrastructure without the need for approval. However, it does not conclusively decide the use to which land will be put. Despite designation, applications for alternative development may be made.[18] Further, a designation of land may be repealed at any time but will otherwise, subject to exceptions, remain in effect for a period of six years.[19]

The role of planning schemes, therefore, in elementary terms, is the identification of the desired environmental, social and economic objectives of the community and regulation of the use of land so as to facilitate the achievement of those objectives.

I THE IMPACT OF PLANNING SCHEMES ON NATIVE TITLE – A REVIEW OF THE PRE-WARD AUTHORITIES

It is now settled that the types of legislative or executive acts which may extinguish native title are: those which simply extinguish native title; those which create rights in third parties or provide for the assertion of rights that are inconsistent with the continued enjoyment of native title rights; or those by which the Crown appropriates for itself, land that was previously subject to native title.[23] Local government’s power to implement planning schemes in the State derives from the Local Government Act 1993 (Qld) and although, as local government instruments, planning schemes cannot be classified as subordinate legislation,[24] they are statutory instruments under the Statutory Instruments Act 1992 (Qld) which, upon adoption, have the force of law.[25] Further, in adopting a planning scheme, local government assumes the power, pursuant to statutory authority (Local Government Act 1993 (Qld)), to coordinate competing land use claims and regulate development in a manner consistent with the achievement of the community’s environmental, social and economic objectives. Thus, planning schemes could fall within either the first or second category of legislative or executive acts previously identified as potentially extinguishing acts.[26]

In order to effect extinguishment the legislative or executive act, which purports to extinguish native title rights, must evince a ‘clear and plain’ intention to do so.[27] The requisite intention need not be expressed in the legislation but may be implicit due to the effect of the act on the continued right to enjoy native title.[28] The search for intent, therefore, involves an objective inquiry into inconsistency of rights and, as Brennan J (as he then was) pointed out in Mabo [No 2], legislation that merely regulates native title or ‘which creates a regime of control that is consistent with the continued enjoyment of native title’ reveals no such intention.[29] Whilst Australian courts have not directly addressed the impact of planning schemes upon native title rights, Brennan J’s comments in Mabo [No 2] quoted above have been cited with approval in a number of subsequent decisions involving analogous regulatory schemes.[30]

A The Impact of Analogous Regulatory Schemes

Whilst both Priestley JA and Kirby P agreed that native title encompassed traditional rights to fish,[32] the Court was unanimous in holding that the appellant failed to establish that he was exercising that right when apprehended.[33] The question of extinguishment, therefore, did not arise although Kirby P considered it useful to address the issue. Referring to Brennan J’s judgment in Mabo [No 2] , Kirby P stated that the Regulation, whilst establishing a regime of control, neither expressly nor by necessary implication extinguished native title rights. In his view ‘that the right is controlled in great detail by the regulations does not mean that the right is thereby extinguished.’[34] Although Kirby P acknowledged that regulation might be so stringent as to curtail the enjoyment of proprietary rights, generally control and regulation of rights was consistent with their continued exercise.[35]

The High Court was called upon to consider the extinguishing effect of regulatory schemes upon native title in Yanner v Eaton.[36] In a factual situation similar to that of Mason v Tritton, the appellant was charged with taking and keeping fauna, in this case estuarine crocodiles, without a permit, thereby contravening the Fauna Conservation Act 1974 (Qld). The appellant argued that the right to take crocodiles was a native title right recognised and protected by the NTA; thus the Fauna Conservation Act, to the extent that it restricted and prohibited that right, was invalidated by s 109 of the Constitution.[37]

In response it was argued that the protection and recognition of rights conferred by the NTA were irrelevant to the proceedings as the native title right to hunt crocodiles was extinguished by s 7(1) of the Fauna Conservation Act prior to enactment of the NTA. Section 7(1) of the Fauna Conservation Act purportedly vested the property of some fauna in the Crown.[38]

The majority of the High Court held that the word ‘property’ in s 7(1) of the Fauna Conservation Act defined the legal relationship between the Crown and the fauna purportedly vested in it. That is, the use of the word ‘property’ did no more than indicate the type of interest created in the Crown.[39] According to Gleeson CJ, Gaudron, Kirby and Hayne JJ:

The ‘property’ which the Fauna Act and its predecessors vested in the Crown was … no more than the aggregate of the various rights of control by the Executive that the legislation created. So far as now relevant those were rights to limit what fauna might be taken and how it might be taken, rights to possession of fauna that had been reduced to possession, and rights to receive royalty in respect of fauna that was taken (all coupled with, or supported by, a prohibition against taking or keeping fauna except in accordance with the Act). [40]

Thus the question for the Court was whether that right of control extinguished native title rights.

After confirming that native title included the right to hunt crocodiles, the majority rejected the respondent’s argument that the right was extinguished by the Fauna Conservation Act, stating:

It is sufficient to say that regulating the way in which rights and interests may be exercised is not inconsistent with their continued existence. Indeed, regulating the way in which a right may be exercised presupposes that the right exists. [41]

B Native Title As An Underlying Interest in Land

But in deciding whether an alleged inconsistency is made out, it will usually be necessary to keep well in mind that native title rights and interests not only find their origin in Aboriginal law and custom, they reflect connection with the land. [44]

From the characterisation of native title as an interest in land, it followed that:

Regulating particular aspects of the usufructuary relationship with traditional land does not sever the connection of the Aboriginal people concerned with the land (whether or not prohibiting the exercise of that relationship altogether might or might to some extent).[45]

Their Honours, therefore, appear to support the notion that an intention to extinguish will only be evident where there is ‘fundamental inconsistency’ with native title rights, rejecting that ‘partial extinguishment’ can occur where the underlying connection to land continues.

The approach of Gleeson CJ, Gaudron, Kirby and Hayne JJ is consistent with that of Lee J at first instance in Ward v Western Australia[46] where he stated:

Fundamental inconsistency between the exercise of rights granted to third parties by act of the Crown and the exercise of any right that attaches to native title may show an intention by the Crown to extinguish native title, but inconsistency with the exercise of some only of those rights will not. Native title will remain a right to land under which other native title rights may be enjoyed. [47]

Earlier in his judgment, Lee J rejected the characterisation of native title as a ‘bundle of rights’, the various components of which were susceptible to extinguishment. Instead he described native title as an interest in land upon which various rights were ‘parasitic’, the strict regulation of which did not result in their extinguishment.[48]

When planning schemes and the previously discussed statutory regimes are juxtaposed it is possible to conclude that if native title is an interest in land, it is not extinguished by the imposition of planning control. That proposition is supported by the judgment of North J of the Federal Court in Western Australia v Ward. His Honour specifically addressed the effect of town planning legislation on freehold title and opined that town planning legislation would regulate the manner in which such title could be used and enjoyed but would not, however, have the affect of extinguishing freehold title.[49]

C Native Title As A Bundle of Rights

The manner in which native title is characterised is fundamental to determining the issue of extinguishment; hence, recognition of the concept of ‘partial extinguishment’ demands reconsideration of the effect of planning schemes upon native title. That effect can no longer be measured in terms of the impact on any underlying interest in land. The ‘inconsistency of incidents’ test of extinguishment involves a comparison of the legal nature of the statutory right and the native title right asserted.[52]

Thus, if native title is properly described as a ‘bundle of rights’ susceptible to ‘partial extinguishment’, the inquiry into inconsistency must narrow in focus to the effect of the act on the particular right asserted. Further, to determine inconsistency the content of both the statutory right and the native title rights being asserted must be identified and defined with some degree of specificity.[53]

Whilst the types of rights that local government asserts in adopting an IPA planning scheme are clear as outlined earlier, identifying and defining native title rights in order to evaluate the potential for conflict is a more onerous task. First, native title is conceptually complex, and due to the embryonic state of Australian jurisprudence a comprehensive doctrine of native title is only beginning to emerge. The difficulty in conceptualising native title stems from the need to first identify and characterise rights and interests that inhere in an unfamiliar legal and social context and then to ‘artificially’ define those rights in a manner recognisable by the common law.[54]

The fact that native title is defined according to the common law’s ability to recognise rights and interests adds another dimension of difficulty, particularly to questions of extinguishment. Because ‘recognition may cease where, as a matter of law, native title rights have been extinguished’,[55] issues of extinguishment are inexorably linked to determinations as to the existence of native title rights and interests. The tendency, thus far, has been to express determinations in general terms. The approach preferred by the High Court is to express native title rights by reference to the kinds of activities that may be undertaken on native title land as of right.[56] To do otherwise is not only contrary to the provisions of the NTA[57] , but also, the failure to precisely identify native title rights may, as the High Court hypothesised, facilitate a finding of regulation rather than extinguishment.[58]

The accuracy or otherwise of the High Court’s hypothesis is best demonstrated by considering the impact upon native title of the reservation or designation of land and comparing the findings of the High Court in Ward with previous judicial determinations with respect to the issue.

In Fourmile v Selpam Pty Ltd[59] the issue for determination by the Full Court of the Federal Court was whether the designation of land for a public road extinguished native title rights. Drummond J, with whom Burchett J concurred, held that it was the creation of inconsistent rights that worked extinguishment of native title, and that where land is set aside for immediate use as a public road, a right to use the road is conferred upon members of the public. Such a right is inconsistent with the continued enjoyment of native title rights in the designated land. Where land is merely reserved from sale or lease for future use, no such right is created in the public. As no legal right is created, the Crown’s radical title is not altered and native title rights are not extinguished.

The views of Drummond J in Fourmile are consistent with those of Brennan J in Mabo [No 2] where his Honour stated that the mere reservation of land for a public purpose was insufficient to extinguish native title.[60] Both Drummond and Brennan JJ also considered that extinguishment will only occur when land is subsequently used for the intended purpose and such use is inconsistent with the continued exercise of native title rights. There are, however, clear differences in the reasoning of both judges. To illustrate, Drummond J positioned the reservation of land within the second category of extinguishing acts and asked whether the reservation of land created rights in others that were inconsistent with native title rights and interests. Brennan J, on the other hand, appears to consider the reservation of land as a legislative or executive act of the third kind, that is, one by which the Crown appropriates for itself, land that was previously subject to native title. In his judgment in the Wik decision, Brennan J explained that it is only when the land is actually used for some purpose inconsistent with native title rights that appropriation of land gives rise to the Crown’s beneficial ownership. He continued by stating that ‘until such a use takes place, nothing has occurred that might affect the legal status quo.’[61]

Referring to this aspect of Brennan J’s judgment, the High Court in the 2002 Ward decision warned against focusing on inconsistency of uses and emphasised that the inquiry into inconsistency should rather focus on the rights created or asserted and not on the use to which land is put.[62] Thus, the High Court endorsed the approach of the Full Court of the Federal Court in Fourmile v Selpam Pty Ltd. However, after determining that native title is a ‘bundle of rights’, the separate components of which are susceptible to individual extinguishment, the High Court identified and defined the specific native title right being asserted as a right to control the use of land.[63] In stark contrast to Fourmile the High Court ultimately decided that the reservation of land for a public purpose would extinguish that native title right.

II WARD V WESTERN AUSTRALIA

In their joint judgment, Gleeson CJ, Gummow, Gaudron and Hayne JJ reiterated that ‘the ultimate question is whether, by the steps that were taken, the Crown created in others, or asserted, rights in relation to the land that were inconsistent with native title rights and interests over the land.’ [68]

Although the manner in which land is used may provide evidence of the rights created or asserted, ‘the basic inquiry is about inconsistency of rights, not inconsistency of use.’[69]

After examining the provisions of the Western Australian statutes, the majority rejected the State’s contention that the reservation of land for a particular purpose amounted to a dedication to that purpose, or prevented the land from lawfully being used for any other purpose. Nevertheless, the majority held that in designating land for a public purpose, even where that purpose was broadly defined, the executive had exercised its legislative power to determine the use to which the land could be put. Whilst the exercise of that power was not necessarily inconsistent with the continued right to use the land, any native title right to control the use of land was thereby extinguished.[70]

The reasoning of the High Court in Western Australia v Ward clearly supports a finding that at least one aspect of a planning scheme, the designation of land for community infrastructure, will extinguish any native title right to control the use of land. Further, it is submitted that from the perspective that a right is asserted, or a power exercised, in a manner inconsistent with the native title right to determine how land is used, adopting a planning scheme is analogous to the reservation of land. Thus, whilst upon the imposition of planning control the native title right to use the land will be merely regulated, any native title right to control the use of land will be extinguished.

In submitting that planning schemes may potentially extinguish native title rights, it is important to note that a native title right to determine how the land is used will not exist merely due to the fact of occupation of the land.[71] According to the High Court, the right to control the use of land is ‘encapsulated in the assertion of a right to speak for country’[72] which is expressed at common law as the right to possession, occupation, use and enjoyment of the land to the exclusion of all others.[73] Not only will expressing native title rights and interests in those terms seldom be appropriate or sufficient, [74] but the High Court also considered that without a right of possession of that kind, it is doubtful that a right to control the use of land will exist.[75]

III PLANNING SCHEMES AS FUTURE ACTS

A The Relevance of the Future Acts Regime

1975 (Cth) the Crown could validly extinguish native title without consent or compensation. It follows that planning schemes adopted on or before October 1975 would have been valid at common law to extinguish any native title right to control the use of land. The question which therefore arises for consideration is why it is now necessary to consider the validity of planning schemes under the NTA.

In 1979 the High Court held in Brisbane City Council v Group Projects Pty Ltd[77] that neither the City of Brisbane Town Planning Act 1964 (Qld)[78] nor the Town Plan were binding on the Crown. Planning control did not, therefore, extend to Crown land. As a result of the High Court decision express provisions to that effect were incorporated into the Local Government Act 1936 (Qld) and subsequently into the IPA’s immediate predecessor, the Local Government (Planning and Environment) Act 1990 (Qld).[79] It followed that planning schemes implemented pursuant to those statutory authorities, either implicitly or expressly, did not extend to Crown land. Where native title survived on Crown land, the provisions excluding Crown compliance with planning schemes extended also to the holders of such native title.[80]

Unlike its legislative forerunners, the IPA does bind the Crown; hence Crown land is now subject to the provisions of local government planning schemes.[81] The application of planning schemes to Crown land has significant implications in terms of augmenting the potential for interaction between planning schemes and native title rights and interests. Whilst the IPA has retained the outmoded and somewhat ambiguous term ‘Crown land’, amendments to the Land Act 1862 (Qld) make it clear that the term is now reserved for unallocated state land, that is, vacant land over which no interests have been granted. As one of the principal means by which native title is extinguished is the grant of an interest inconsistent with the continued exercise and enjoyment of native title rights, it is apparent that the possibility of native title rights continuing to subsist is more likely where unallocated State land is involved. Further, the application of the IPA to unallocated State land will mark the commencement of some areas of native title land becoming subject to planning control.

The enactment of the NTA, after native title was first recognised in Mabo

[No 2], meant that compliance with its provisions is the only means to the validity of various acts that impact upon native title land. The Act, among other things, aims to provide a mechanism for the protection of native title; thus it introduces comprehensive provisions governing future dealings with respect to land over which native title may exist. Termed the ‘future acts’ regime, the provisions identify those activities that may validly impinge upon existing native title rights and interests, and establish procedural rights for native title holders.

B Invoking Procedural Rights

The first step in the process towards registration involves the lodgment of an application for a determination of native title with the Federal Court of Australia.[83] A ‘determination of native title’ encompasses an order of the Court as to whether or not native title exists. Where native title does exist, the Court will determine the identity of the persons or group of persons who hold that title and the nature and extent of their native title rights and interests. The Court will also determine the nature of any other interests in relation to the determination area and the relationship between those other interests and the native title rights and interests.[84]

Applications lodged with the Federal Court, together with accompanying documents and affidavits, are then referred to the National Native Title Tribunal (‘NNTT’), which is responsible for various administrative functions including notification, mediation and registration of claims.[85]

Since the 1998 amendments to the NTA, registration of a claimant application no longer coincides with lodgment. Instead, registration is conditioned upon applications meeting the statutory requirements of the registration test.[86] The imposition of the registration test ensures that although claimants will have access to procedural rights prior to a determination as to the existence of native title, there will be no impediment to economic development where a native title claim has ‘no reasonable chance of success.’[87]

The conditions to be satisfied in order for a claim to be registered encompass matters with respect to both merit and procedure. In considering the merits of the claim, the Registrar must be satisfied that:

• the claimant area and the composition of the native title group can be identified with reasonable certainty and the native title rights and interests being claimed can be readily identified;[88]

• there is a sufficient factual basis for the assertion of native title rights and a prima facie case establishing the existence of at least some of those rights;[89]

• at least one member of the native title claim group has a ‘traditional physical connection’ to the land, or had, and would reasonably be expected to still have such a connection had the actions of the Crown, a statutory authority of the Crown, or a leaseholder, not prevented them from doing so;[90]

• the application excludes claims to areas where native title has been extinguished and claims to exclusive possession are not made over areas where native title rights have been impaired but not extinguished.[91]

Meeting the conditions with respect to procedural matters requires that:

• the application contains all of the information required under sections 61 and 62 of the Act and the person or persons making the application are members of the native title claim group and are authorised to make the application on behalf of the group’s members;[92]

• the claim does not overlap with an existing registered claim where the native title claim group for the pre-existing claim and the claim under consideration, share common members.[93]

An application that meets those statutory requirements must be registered.[94]

IV THE FUTURE ACTS REGIME

A Defining ‘Future Acts’

(a) the making, amendment or repeal of any legislation;

(b) the grant, issue, variation, extension, renewal or revocation or suspension of a licence, permit, authority or instrument;

(c) the creation, variation, extension, renewal or extinguishment of any interest in relation to land or waters;

(d) the creation, variation, extension, renewal or extinguishment of any legal or equitable right, whether under legislation, a contract, a trust or otherwise;

(e) the exercise of any executive power of the Crown in any of its capacities, whether or not under legislation;

(f) an act having any effect at common law or in equity.

As previously indicated, a planning scheme is a legal instrument with the force of law and thereby falls within the definition of an ‘act’ for the purposes of the NTA. Subsection 3 of s 226 further provides that such an act may be done by the Crown in any of its capacities or by any other person.

Under the NTA an act affects native title if ‘it extinguishes the native title rights and interests or if it is wholly or partly inconsistent with their continued existence, enjoyment or exercise.’[95] If, as submitted, planning schemes, or the designation of land within such schemes, works extinguishment of the native title right to control the use of land, it follows that both constitute future acts, the validity of which will depend upon government compliance with the regime established by the NTA.

B Validating ‘Future Acts’

Further validating provisions contained in section 24AA(4) of the NTA include:

(a) future acts where procedures indicate absence of native title;

(b) acts permitting primary production on non-exclusive agricultural or pastoral leases;

(c) acts permitting off-farm activities directly connected to primary production activities;

(d) granting rights to third parties etc. on non-exclusive agricultural or pastoral leases;

(e) management of water and airspace;

(f) acts involving renewals and extensions etc. of acts;

(g) acts involving reservations, leases etc.;

(h) acts involving facilities for services to the public;

(i) low impact future acts;

(j) acts that pass the freehold test;

(k) acts affecting off-shore places.

The order of the subdivisions, as outlined above, is not only deliberate, but also important for determining the requirements for validation of the future act. First, once the impugned act is validated by a subdivision, it is unnecessary to consider those lower in the order.[98] To illustrate, sections 24AA(4)(a) and 24AA(4)(j) of the NTA cover two of the bases for the validation of planning schemes. Section 24AA(4)(a) relates to validation by a non-claimant application whilst section 24AA(4)(j) provides for validation of acts that pass the ‘freehold test’. The validating subdivision pertaining to non-claimant applications appears in the list ahead of the subdivision validating acts that pass the ‘freehold test’. The effect of section 24MB(2) is that if the act is validated by a non-claimant application it is unnecessary to satisfy the ‘freehold test’. Second, the validating subdivisions are ranked according to the accompanying folio of procedural rights.[99] Thus, the more comprehensive range of procedural rights required to ensure validation of the future act through satisfaction of the ‘freehold test’ does not apply where validation is by a non-claimant application.

C Options for Validating Planning Schemes

As previously noted, the NTA provides for validation of a future act where the parties consent to the doing of the act within the terms of an ILUA. Importantly, under the NTA, the use of ILUAs is not limited to validating proposed future acts: ILUAs can also be utilised for subsequent validation of future acts invalidly carried out.[100]

Division 3, subdivisions B, C and D provide the statutory framework for the negotiation and registration of three forms of ILUA: Body Corporate Agreements, Area Agreements and Alternative Provisions Agreements. Whilst the mandatory parties and the circumstances which give rise to each agreement may vary, all three forms of ILUA are available for the purpose of authorising future acts.[101]

One of the benefits to government of entering into an ILUA to validate any proposed or past future act is the security that flows from registration. Unlike other agreements, the details of an ILUA can be registered[102] and upon registration ILUAs have effect as a contract. The fundamental difference, however, is that whereas contractual terms bind only parties to the agreement, the terms of a registered ILUA are binding upon all persons holding native title over land or waters in the area covered by the agreement even if they were not parties to the agreement.[103]

2 Non-Claimant Applications

Section 24AA(4)(a) of the NTA allows for validation of future acts where procedures indicate an absence of native title. The procedures to which section 24AA(4)(a) refers are those relating to non-claimant applications made pursuant to s 61 of the NTA. The concept of the non-claimant application is recognition within the NTA that parties other than those claiming to hold native title may want to know whether native title exists in relation to a particular area. Thus, an application for a determination of native title may be lodged by governments and persons who hold non- native title interests in relation to the whole of the area.[104]

When a determination of native title is sought by a non-claimant and no claimant application is lodged over the area, and the non-claimant application is neither dismissed nor withdrawn within the prescribed three- month notification period, section 24FA operates to validate the future act.[105] In other words, a planning scheme will be valid if government successfully applies for a native title determination over the area subject to planning control and if within three months no native title party is identified with respect to the area concerned. The protection conferred by section 24FA is limited to the period in which there is no relevant native title claim [106] and any subsequent determination that native title does exist will result in the prospective removal of section 24FA protection.[107]

The desire to ensure that economic development continues unimpeded by native title considerations is clearly evident in the provisions for validation by a non-claimant application and, as Bartlett points out, the provisions combined with the stringent requirements of the registration test ‘reduce the protection of native title until an approved determination of its existence is obtained.’[108]

3 Acts That Pass the Freehold Test

In the absence of an ILUA or non-claimant application, the validity of planning schemes will depend upon their satisfying the ‘freehold test’.[109]

The ‘freehold test’, like the provisions of the Racial Discrimination Act

1975 (Cth) (‘RDA’) it purports to emulate, is based on the principle of non- discrimination. Meeting that requirement, therefore, is conditioned upon the act applying in the same way to native title holders as it would if they instead held ordinary title to the land affected.[110] Alternatively, the effect of the act must not be such as to cause native title holders to be in a more disadvantageous position at law than they would be if they instead held ordinary title.[111] As freehold title is subject to local government planning control, planning schemes are acts which pass the freehold test.

Located low in the order of validating acts, acts that pass the freehold test are accompanied by a more extensive array of procedural requirements, including, albeit in limited circumstances, the right to negotiate. The right to negotiate provides native title parties with an opportunity to be involved in discussions about a proposed activity and incorporates aspects of notification, negotiation and, where requested, mediation and arbitration. [112]

A right to object to the carrying out of the act and to be consulted may also arise.[113]

The introduction of subdivision P by the 1998 amendments to the NTA modified the right to negotiate by limiting its application to:

(a) Certain permissible lease etc renewals (s 24IC); or (b) Acts that pass the freehold test (s 24MD).

Acts that pass the freehold test for the purposes of subdivision P include:

(i) The creation of a right to mine, whether by the grant of a mining lease or otherwise; or variation of such a right to extend the area to which it relates;

(ii) Compulsory acquisition of native title rights and interests for the benefit of third parties where the acquisition is not for the purpose of infrastructure facilities or relates to land outside a town or city;

(iii) Other acts approved by the Commonwealth Minister for the purpose of s 26(1).

The effect of the right to negotiate provisions is that the imposition of planning control will not give rise to a right to negotiate. Further, whilst designation of land for community infrastructure evinces a ‘clear intention that the land be acquired’,[114] no right to negotiate is conferred upon native title holders where the compulsory acquisition is for the purpose of providing an ‘infrastructure facility’.[115]

Where the right to negotiate process is not activated, the NTA confers upon native title holders the same procedural rights and compensation entitlements enjoyed by ordinary title holders.[116] In relation to changes to a planning scheme, this means that the rights of notification, consultation and compensation enjoyed by landowners extend to native title holders. Thus, although the definition of ‘owner’ in the IPA appears to preclude native title holders,[117] the NTA mandates that the holders of native title be treated as owners. Existing lawful uses are also protected by the IPA’s provisions and planning schemes can neither prohibit those uses from continuing nor subject them to further regulation.[118]

The procedures for making and amending a planning scheme also apply to the designation of land; hence, when designating land for community infrastructure, local government must conform to the public notification and consultation requirements. Prior to the commencement of the public consultation period, the owner(s) of the land must also be notified of the designation.[119] Further, as the designation of privately owned land evinces an intention to compulsorily acquire, in the event that local government fails to reach an agreement with the owner of the land to buy or exchange the interest, notification of the intention to resume the land under the Acquisition of Land Act 1967 (Qld) is required.[120]

The impact of compulsory acquisition on native title rights and interests is governed by section 24MD(2) and section 24MD(3) of the NTA. Section 24MD(2) ensures equality of treatment of native title rights by providing that compulsory acquisition will only result in the extinguishment of native title rights and interests where three requirements are met. First, the relevant acquisition act must permit the compulsory acquisition of both native title rights and interests and non-native title rights and interests.[121]

Second, any non-native title rights and interests in relation to the land subject to compulsory acquisition must also be acquired.[122] Finally, the practices and procedures adopted in relation to the acquisition must not be such as to cause the native title holders any greater disadvantage than is caused to the holders of non-native title rights and interests.[123] The non- extinguishment principle applies in all other situations, and native title rights and interests will be merely suspended while the act continues to have effect.[124]

The Acquisition of Land Act 1967 (Qld) permits the acquisition of both native title and non-native title rights.[125] Thus, provided that the whole or part of any non-native title rights in relation to the land subject to compulsory acquisition are also acquired and the practices and procedures in relation to the acquisition do not disadvantage native title holders to a greater extent than ordinary title holders, the outcome of the acquisition will be the extinguishment of native title rights and interests.[126]

Where compulsory acquisition results in the extinguishment of native title rights and interests, the NTA provides further protection for native title holders by ensuring the payment of ‘just terms’ compensation in the event that the legislation authorising the compulsory acquisition does not do so.[127] As the Acquisition of Land Act 1967 (Qld) provides for ‘just terms’ compensation, that Act will govern compensation for designation of native title land rendering it unnecessary to invoke the compensation provisions of the NTA.[128] The NTA does, however, entitle native title holders to request non-monetary compensation and mandates that such requests must be considered and negotiated in good faith.[129]

If the ultimate outcome of designating land is the extinguishment of native title rights, there may be legitimate concerns that, simply by designating land for community infrastructure, government can pursue its land use objectives without further regard to native title. However, in addition to the time and cost of compulsory acquisition, there are a number of other provisions that guard against government adopting that course of action. First, designation of land for community infrastructure cannot be justified unless one of four public benefit criteria is satisfied. Section 2.6.2 lists those four criteria as it being concerned with: environmental protection or ecological sustainability; efficient allocation of resources; satisfying statutory requirements or budgetary commitments of the State or local government; and the community’s expectation for the efficient and timely supply of infrastructure. Second, as any designation of land forms part of a planning scheme, any decision to designate land will be subject to the duty to advance ecological sustainability or at least have regard to it.

The procedural provisions with respect to designation of land also render it an unattractive option. Where community infrastructure by a private sector entity is involved the designator must treat the proposal as though it were an application under s 29(2) of the State Development and Public Works Organisation Act 1971 (Qld).[130] Such applications are subject to a process of public consultation, and an assessment of any major environmental effects of community infrastructure must be undertaken.[131] Similar notification and public consultation requirements must also be met where infrastructure is to be supplied by a public sector entity. A Minister can proceed immediately to designation only if there has been a prior assessment of environmental effects and public consultation has already been carried out.[132] Following designation, notice must be given to each owner of the land and to any local government affected by the designation.[133]

CONCLUSION

Despite High Court opinion that a native title right to control the use of land will exist in limited circumstances, it would be imprudent for government to ignore the possible existence of such a right. In pursuing its land use objectives, government must be aware that any dealings with the land, which affect native title rights and interests, will trigger the future acts regime of the NTA. This regime seeks to protect native title and ensure equality before the law by conferring upon native title holders various procedural and compensatory rights. The validity of any future act will depend upon compliance with the validating provisions of the NTA, which in the absence of an ILUA or non-claimant application will require government to ensure that the rights enjoyed by those who hold ordinary title are extended to the holders of native title also.

[1] [2002] HCA 28 (Unreported, Gleeson CJ, Gaudron, Gummow and Hayne JJ, 8 August 2002).

[2] Ibid [76] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[3] Western Australia v Commonwealth (‘Native Title Act Case’) [1995] HCA 47; (1995) 183 CLR 373 (Mason CJ).

[4] In general, the aim of microeconomic reform is to improve service to clients through the provision of cost-effective, efficient and flexible work practices. More specifically, the aim of the IPA microeconomic reform is to serve the interests of developers by reducing bureaucratic red tape and improving the speed, quality and cost of decision-making. The IPA’s preoccupation with serving private interests manifests itself most obviously in the Integrated Development Assessment System, which integrates all State and local government decision-making processes in development approvals so as to provide a ‘one-stop shop’ for developers.

[5] IPA s 1.3.3.

[6] IPA s 1.2.2, 1.2.2.

[7] IPA s 1.2.1.

[8] IPA s 2.1.3A(1).

[9] IPA s 2.1.3A(2).

[10] IPA Schedule 10.

[11] IPA s 2.1.3A(4).

[12] Queensland Department of Communication, Information, Local Government and Planning, IPA Guidelines: Preparing IPA Planning Schemes (1999) 8.

[13] IPA s 2.1.3(1)(b),(c),(d).

[14] Local Government (Planning and Environment) Act 1990 (Qld) s 2.1, 2.2, 2.3.

[15] Explanatory Notes: Integrated Planning Bill 1997 (Qld) 22.

[16] IPA s 2.1.3(2).

[17] IPA s 2.6.17(2)(a).

[18] IPA s 3.5.14.

[19] IPA s 2.6.14, 2.6.15, 2.6.18.

[20] Mabo v State of Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1 (‘Mabo [No 2]’).

[21] Ibid 48 (Brennan J).

[22] Western Australia v Ward [2002] HCA 28 (8 August 2002), [26] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[23] Mabo [No 2] [1992] HCA 23; (1992) 175 CLR 1, 69 (Brennan J); 110–111 (Deane and Gaudron JJ); 180 (Beaumont and von Doussa JJ); Western Australia v Ward [2002] HCA 28, [26].

[24] Section 9(2)(a) of the Statutory Instruments Act 1992 (Qld) provides that a local law or other statutory instrument made by a local government is not subordinate legislation.

[25] IPA s 2.1.23(1); Statutory Instruments Act 1992 (Qld) s 7(1),(2),(3).

[26] This analysis of the type of potentially extinguishing act to which planning schemes may belong is of little significance when considering the ‘future acts’ provisions of the Native Title Act 1993 (Cth). Section 226 of the NTA provides an extensive definition of ‘act’ which clearly encompasses planning schemes. (See below.)

[27] Mabo [No 2] [1992] HCA 23; (1992) 175 CLR 1, 64 (Brennan J); 111 (Deane and Gaudron JJ); 195–6 (Toohey J); Wik Peoples v Queensland (1996) 187 CLR 1, 85 (Brennan CJ); 125 (Toohey J); 146-7 (Gaudron J); 185 (Gummow J); 247 (Kirby J); Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258, 269 (Gleeson CJ, Gaudron, Kirby and Hayne JJ); 288 (Gummow J).

[28] Ibid 64 (Brennan J); 111 (Deane and Gaudron JJ); 195–6 (Toohey J).

[29] Ibid 64 (Brennan J).

[30] For example, in Mason v Tritton (1994) 34 NSWLR 572 Kirby P of the Full Court of the Supreme Court New South Wales considered the impact upon native title of the Fisheries and Oyster Farms (General) Regulation 1989 (NSW), and in Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258 the regulatory scheme considered by the High Court was the Fauna Conservation Act 1974 (Qld).

[31] (1994) 34 NSWLR 572.

[32] It should be noted that Kirby P considered the ‘right to fish’ existed under common law native title, whereas Priestley JA was content to rely on the definition of native title pursuant to the NTA which specifically includes fishing rights.

[33] Mason v Tritton (1994) 34 NSWLR 572, 574 (Gleeson CJ), 575 (Kirby P), 604 (Priestley JA).

[34] Ibid 592.

[35] Ibid 572, 593.

[36] [1999] HCA 53; (1999) 166 ALR 258.

[37] Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258, 261 (Gleeson CJ, Gaudron, Kirby and Hayne JJ).

[38] Ibid 258, 261–2 (Gleeson CJ, Gaudron, Kirby and Hayne JJ).

[39] Ibid 258, 264–5 (Gleeson CJ, Gaudron, Kirby and Hayne JJ), 283 (Gummow J).

[40] Ibid 258, 267–8 (Gleeson CJ, Gaudron, Kirby and Hayne JJ). See also 283 (Gummow J).

[41] Ibid 258, 269 (Gleeson CJ, Gaudron, Kirby and Hayne JJ).

[42] Mason v Tritton (1994) 34 NSWLR 572, 580–2.

[43] Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258, 278.

[44] Ibid 270.

[45] Ibid.

[46] [1998] FCA 1478; (1998) 159 ALR 483.

[47] Ward v Western Australia [1998] FCA 1478; (1998) 159 ALR 483, 510.

[48] Ibid 508.

[49] Ibid 348.

[50] Ibid 189 (Beaumont and von Doussa JJ).

[51] Western Australia v Ward [2002] HCA 28 (8 August 2002), [76] (Gleeson CJ, Gaudron, Gummow and Hayne JJ), referring in particular to s 23A of the NTA.

[52] Western Australia v Ward [2000] FCAFC 191; (2000) 170 ALR 159, 181 (Beaumont and von Doussa JJ).

[53] Western Australia v Ward [2002] HCA 28 (8 August 2002), [308] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[54] Western Australia v Ward [2000] FCAFC 191; (2000) 170 ALR 159, 189 (Beaumont and von Doussa JJ).

[55] Western Australia v Ward [2002] HCA 28 (8 August 2002), [21] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[56] Ibid [29], [89], [94] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[57] Gleeson CJ, Gaudron, Gummow and Hayne JJ pointed out in Western Australia v Ward [2002] HCA 28 (8 August 2002) that s 225 of the NTA requires that determinations of native title ‘state the nature and extent of the native title rights and interests in relation to the determination area’.

[58] Western Australia v Ward [2002] HCA 28 (8 August 2002), [29].

[59] [1998] 67 FCA (14 February 1998).

[60] Mabo [No 2] [1992] HCA 23; (1992) 175 CLR 1, 68.

[61] Ibid 86.

[62] Western Australia v Ward [2002] HCA 28 (8 August 2002), [82] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[63] Ibid [219]–[220] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[64] Ibid [210] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[65] [1959] HCA 63; (1959) 102 CLR 54, 72–4.

[66] Western Australia v Ward [2002] HCA 28 (8 August 2002), [211] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[67] Mabo [No 2] [1992] HCA 23; (1992) 175 CLR 1, 68 (Brennan J).

[68] Western Australia v Ward [2002] HCA 28 (8 August 2002), [214]–[215].

[69] Ibid.

[70] Ibid [219]–[220] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[71] Ibid [93]–[94] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[72] Ibid [88] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[73] Ibid.

[74] Ibid [51] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[75] Ibid [52] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[76] Explanatory Notes: Integrated Planning Bill 1997 (Qld) 1. See also D Yarrow, ‘Planning Control and Native Title — A Queensland Perspective’ [1996] QUTLawJl 9; (1996) 12 Queensland University of Technology Law Journal 115, from which this history of planning control was extracted.

[77] [1979] HCA 54; (1979) 145 CLR 143.

[78] Town planning in Brisbane was formerly governed by the City of Brisbane Town Planning Act 1964 (Qld) until that Act’s repeal by the Local Government (Planning and Environment) Act 1990 (Qld).

[79] Local Government Act 1936 (Qld), s 33(22A) (amended by the Local Government and Another Act Amendment Act 1979 (Qld); Local Government (Planning and Environment) Act 1990 (Qld), s 2.21.

[80] Yarrow, above n 76, 129.

[81] IPA s 1.5.1.

[82] The various procedural rights are conferred upon a ‘native title party’. Section 253 of the NTA states that the term ‘native title party’ has the meanings given by sections 29(2)(a) and 30 of the NTA which, in turn, define a ‘native title party’ to include any registered body corporate and any registered native title claimant. One exception to the requirement of registration exists in relation to Area Agreements.

In the absence of a registered claim or determination of native title, section 24CD(3) provides that the ‘native title group’ will consist of any one or more non- registered claimants or common law holders.

[83] Prior to the 1998 amendments, the provisions of the NTA allowed the NNTT to make native title determinations which, upon registration in the Federal Court, would take effect as an order of that Court. Those provisions effectively allowed the Tribunal to exercise judicial power and were, therefore, in contravention of the separation of powers doctrine contained within the Commonwealth Constitution.

(See Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245; Fourmile v Selpam Pty Ltd [1998] FCA 67; (1998) 80 FCR 151).

[84] NTA s 225.

[85] NTA s 63.

[86] NTA s 190A(6).

[87] Senator N Minchin, Towards a More Workable Native Title Act, quoted in R H Bartlett, Native Title in Australia (2000) 129.

[88] NTA s 190B(2),(3),(4).

[89] NTA s 190B(5),(6).

[90] NTA s 190B(7).

[91] NTA s 190B(8), (9).

[92] NTA s 190C(2),(4).

[93] NTA s 190C(3).

[94] NTA s 190A(6).

[95] NTA s 227.

[96] NTA s 24AA(2).

[97] NTA s 24AB(1).

[98] NTA s 24MB(2)

[99] Bartlett, above n 87, 328.

[100] NTA s 24AA(3).

[101] A detailed discussion of the various forms of ILUA, the subject matter of such agreements, and who must, or may be, a party to the agreement is beyond the scope of this article. For a more detailed discussion see P Butt, Land Law (4th ed, 2001) 849; Bartlett, above n 87, 406.

[102] NTA s 199A.

[103] NTA s 24EA.

[104] Sections 61(2), (3) and (4) of the NTA provide for lodgment of non-claimant applications by persons who hold non-native title interests in relation to the whole of the area subject to the determination, the Commonwealth Minister, or the State or Territory Minister where the determination sought is within the jurisdictional limits of the State or Territory concerned. ‘Non-claimants’ and the relevant ‘interests’ are defined in s 253 of the NTA.

[105] NTA s 66.

[106] NTA s 24FB, FC, FD, FE.

[107] Native Title: Legislation With Commentary by the Australian Government Solicitor (1998) 30.

[108] Bartlett, above n 87, 329.

[109] NTA s 24AA(4)(j).

[110] NTA s 24MA(a). ‘Ordinary title’ is defined in s 253 to include freehold in fee simple.

[111] NTA s24 MA(b).

[112] NTA s 29, 31,35.

[113] NTA s 32.

[114] Explanatory Notes: Integrated Planning Bill 1997 (Qld) 59.

[115] NTA s 26(1)(c)(iii)(B).

[116] NTA s 24MD(3), (6A).

[117] The term ‘owner’ of land is defined in schedule 10 of the IPA to mean a person who for the time being is entitled to receive the rent for the land or would be entitled to receive the rent for it if it were let to a tenant at a rent.

[118] IPA s 1.4.1.

[119] IPA s 2.6.14.

[120] Section 7.

[121] NTA s 24MD(2)(a)(i),(ii).

[122] NTA s 24MD(2)(b).

[123] NTA s 24MD(2)(ba).

[124] NTA s 24MD(3), 238.

[125] Pursuant to s 148(1) of the Native Title Act 1993 (Qld) ‘the whole or a part of native title rights and interests may be acquired under a State Compulsory Acquisition Act in the same way that other interests in land may be acquired.’

[126] NTA s 24MD(2).

[127] NTA s 25(1)(b).

[128] Section 150(1) of the Native Title Act 1993 (Qld) makes provision for every State Compulsory Acquisition Act to award ‘just terms’ compensation for the acquisition of native title rights and interests in accordance with the Commonwealth NTA.

[129] NTA s 24MD(2)(d).

[130] IPA s 2.6.3.

[131] State Development and Public Works Organisation Act 1971 (Qld) s 29.

[132] IPA schedule 7, s 1.

[133] IPA schedule 7, s 2.