Detailed Outline

Administrative arrangements

The recognition and management of native title is important to the NSW Government.  Resolving native title claims and managing subsequent native title determinations in an effective and timely manner provides significant benefits for native title holders and the State. The NSW Government is committed to continuously improving NSW native title processes to ensure the timely and equitable resolution of native title claims.

It is important for the State to maintain a consistent approach to native title issues, particularly to ILUAs.

As the state minister for native title in NSW, the Attorney General is responsible for managing native title claims and approving ILUA negotiations.

The Attorney General is supported by the Native Title Team in the Governance & Legal division of the NSW Department of Planning Housing and Infrastructure. The Native Title Team coordinates input from relevant NSW Government agencies in relation to the conduct of native title litigation and whole of government ILUAs and briefs the Attorney General.

Future acts

Each government agency is responsible for complying with the requirements of the Native Title Act, including the future act provisions in Division 3 of Part 2, including putting appropriate procedures in place to ensure compliance and to seek legal advice where necessary.

Any instances of significant non-compliance with the Native Title Act or ILUAs should be raised with the Native Title team in the NSW Department of Planning, Housing and Infrastructure at [email protected]

Indigenous Land Use Agreements

The NSW Government supports the negotiation of ILUAs, where appropriate, to deal with native title issues.

Where an agency wishes to negotiate an ILUA to resolve native title issues within their portfolio, the agency must seek approval from the Attorney General. Some ILUAs may require Cabinet approval.

In seeking the Attorney General’s approval, the agency should identify:

• the area proposed to be covered by the ILUA.

• the objectives of the ILUA, including alignment with any NSW Government policies.

• confirm that agencies have the requisite funding for the negotiations; and

• the appropriate contact in the relevant minister’s office.

Where the ILUA will be negotiated with a registered native title body corporate, the agency should also confirm they have sufficient funding to cover any costs that will be payable under section 60AB of the Native Title Act.

The agency initiating the ILUA will be responsible for negotiating the ILUA with legal assistance from the NSW Crown Solicitor’s Office as well as strategic advice and oversight from the Native Title Team, Legal, in the Department of Planning, Housing and Infrastructure.

State agencies are responsible for seeking Ministerial approval and an appropriate budget for their involvement in the negotiation and implementation of ILUAs.

State agencies should ensure their approach is consistent with the broader NSW Government policy framework when negotiating ILUAs. 

A final draft of the ILUA must be provided to the Attorney General for approval before the State formally commits to entering it.

Management of native title claims

The overall management of native title claims and agreements by the NSW Government must be undertaken and executed in good faith. As such, it is critical that any issues are discussed with the Native Title Team and brought to the Attorney General’s attention.

The NSW Government seeks to resolve native title claims, where appropriate, through a negotiated consent determination that recognises the existence of native title, rather than through a litigated determination. Litigation is costly to both the State and native title claimants and consistent with the NSW Model Litigant Policy for Civil Litigation, is to be avoided where possible.

Where compensation is settled, the Attorney General will seek financial contribution from the Commonwealth. The NSW Government will ensure conditions for Commonwealth financial contribution are met, if applicable.

Chris Minns MP
Premier