NSW gets serious about Native Title Act compliance

The Crown Land Management Act 2016 (NSW) squarely addresses Native Title Act compliance and liability for native title compensation - by pushing it away from the Crown.  While most of the Act commenced in mid-2018, the changes to the management of Crown land through the appointment of Crown land managers commences in 1 July 2019.

Over the past couple of years, New South Wales has been in the process of reforming its system of Crown land management with the consolidation of the regimes under the Crown Lands Act 1989 (NSW), Crown Lands (Continued Tenures) Act 1989 (NSW), Western Lands Act 1901 (NSW) and others into one piece of legislation - the Crown Land Management Act 2016 (NSW) (Crown Land Act).

From a native title perspective the key developments are:

• Crown land manager: Reserve Crown land will be managed by an appointed Crown land manager.
  - reserve trust managers will become the Crown land managers for the relevant land while other Crown land managers will be appointed;
  - it is contemplated that a local Aboriginal land council or prescribed body corporate representing determined native title holders might be appointed as a Crown land manager.
• Native title manager: Crown land managers and local councils in whom Crown land has been vested must obtain advice from a qualified native title manager in respect of certain dealings with land.  Native title managers will have the assistance of the Native Title Manager Workbook (Workbook), published in late 2017, which provides 144 pages of detailed guidance on the application of the Native Title Act 1993 (Cth) (Native Title Act) to standard dealings in Crown land.
• 'Excluded land' and native title certificates: The advice of a native title manager is not required where it can be demonstrated, by prescribed means, that native title does not or is unlikely to exist.  Notably, the native title manager's advice is unnecessary in respect of land for which a "native title certificate" has been issued by the Minister, "at the Minister's absolute discretion".  The Workbook states that these will be issued "rarely".
• Liability for native title compensation shifted: Crown land managers and local councils in whom Crown land has been vested will be liable for native title compensation for acts that impact on native title rights and interests, including by way of a statutory indemnity in favour of the State.