From time to time the National Parks and Wildlife Service (NPWS) may give notice of proposals to enter into agreements with native title holders under section 47C of the Native Title Act 1993 (Commonwealth).
What is native title?
Native title rights are the legally recognised rights of native title holders in land and waters based on Aboriginal and Torres Strait Islander people's traditional laws and customs. While each determination of native title will vary to reflect the rights and interests that are recognised, native title often includes rights to access and use land and waters for a variety of purposes, including the right to hunt, gather, fish, camp, protect places and sites of significance, and teach and pass on knowledge.
Aboriginal and Torres Strait Islander people may make an application to the Federal Court under the Native Title Act 1993 (Commonwealth) for a determination that recognises native title. The native title applicants provide evidence about their traditional laws and customs and the native title rights and interests being claimed. The NSW Government provides evidence about where native title has been extinguished by previous government acts, such as the creation of freehold title, certain leaseholds and public works.
Native title claims may be resolved though contested litigation, though many claim are resolved through negotiations between the NSW Government, native title claimants and other interested parties for a determination of native title by consent. Often the NSW Government and native title claimants will seek to negotiate an indigenous land use agreement.
Where native title is recognised by the Federal Court, the determination sets out who holds the native title rights, what rights are recognised, where they exist and where they have been extinguished, and how native title rights co-exist with other rights and interests in the determination area.
What happens when native title is determined over a park?
National parks include areas where native title is recognised and where it has been extinguished.
There are many parks in New South Wales, where native title rights have been recognised by the Federal Court.
Where native title is recognised, native title rights co-exist with other interests within the park, meaning:
- parks continue to be managed and used as parks
- public access and use of parks continues
- native title holders have legally recognised rights to access the parks and practise their culture in parks, including camping and using resources.
What is a Native Title Act section 47C notice?
The Native Title Legislation Amendment Act 2021 amended the Native Title Act 1993 (Commonwealth) by including a new provision, section 47C, which enables the NSW Government and native title holders to agree to disregard prior extinguishment, and confirm recognition, of native title over park areas. An agreement under section 47C to disregard extinguishment of native title over national parks and reserves would result in native title holders being able to exercise their native title rights, as determined by the Federal Court, across a larger area of the national park estate. This contributes to Closing the Gap targets.
A section 47C agreement can be negotiated when settling native title claims or after a determination of native title has been made by the Federal Court, which would involve applying to the Federal Court to amend the original determination. The agreement must go through a public notification process, with a 3-month period for public comment.