Please find below a comprehensive fact sheet explaining some commonly asked questions in regards to compulsory acquisition. This fact sheet appeared in full in the most recent KLC newsletter. For more information regarding the native title act please visit the National Native Tribunal website: www.nntt.gov.au/
What power does the State Government have to take land?
The State Government has power to acquire anyone’s land for use by the State, including land where there is native title in existence. This will often happen when the State wants to make new roads and airports. Sometimes the State needs to take land that belongs to private land owners for these projects. When this happens it is called a compulsory acquisition.
Does this power extend to land where native title exists?
Yes. The Native Title Act 1993 (Cth) sets out what has to happen if the Government wants to acquire land over an area where native title exists.
These rules are contained in the Future Act provisions in the Native Title Act. One of the main reasons for the Commonwealth Government passing the Native Title Act was to provide a process which would allow the Government to do projects and development that would have some impact on native title.
The Premier has talked about compulsory acquisition of the land at James Price Point for a gas hub – what rights does the State have?
If the Government wants to take the land over the area of the gas hub, they can do so and if they take all of the rights and interests in the land including the native title rights and interests – this is called a compulsory acquisition. There might be some basis for objecting to the Government doing this; for example if the Government issued notice contains an error in the way it is written, it is possible to object to it on the basis that it is procedurally wrong, or if the type of compulsory acquisition the Government wants to go ahead with is described wrongly, it is possible to argue that the notice is legally wrong.
Objecting to the notice might delay the process by a couple of months. However, it is unusual for those objections to the notice issued by the Government to be successful in stopping the compulsory acquisition for good.
What are the different types of compulsory acquisition?
The Native Title Act makes different rules for two different types of compulsory acquisition these have a quite different impact on native title:
- Where the Right to Negotiate applies – Compulsory Acquisition for third parties, often mining or development companies
Under Government acquisitions for other people, like mining companies or developers the law provides that the parties have certain rights including the right to negotiate.
The right to negotiate is when the Native Title Act requires that the parties (which will include the State and the developer) have to negotiate in good faith with the native title holders with a view to reaching an agreement.
Under these processes the parties; the State and the Miner or Developer and the native title party (which is the Applicant in a registered native title claim) have a certain amount of time to reach an agreement on deciding how the if the act can be done, and what conditions can be imposed.
If the parties cannot reach agreement in six months then the question of if the act can proceed, which in this case is the compulsory acquisition of the land, can then be made by the National Native Title Tribunal.
- Where the Right to Negotiate does not apply – Compulsory Acquisition for Government purposes.
Compulsory acquisition for the Government purposes – this is generally when the Government takes land to use for Government purposes, which are often called public works. In this case the native title holders are provided with less rights and the right to negotiate will not apply to the compulsory acquisition.
In Western Australia the State must follow the Land Acquisition Act 1997 (WA), which creates rules for how the Government can take land. This Act says that the Government can take land for industrial purposes.
So it may be that the State will say that the gas hub is an industrial purpose that is an infrastructure facility, an infrastructure facility is defined in the Native Title Act as meaning various things including; “a storage, distribution or gathering or other transmission facility for oil or gas, or a derivative of oil or gas”, a port can also be an infrastructure facility.
What this means is that the State may be able to say that they are taking the land for the gas hub for the Government’s purposes. In this case the Native Title Act provides that the Government does not have to negotiate with the native title holders, but must pay compensation for any impact on native title rights and interests.
What Compensation is Payable?
If the Government takes the land for the benefit of a third party and there is a right to negotiate, part of the negotiation will be an Agreement which may include compensation.
If the Government takes the land for infrastructure and there is no right to negotiate, then the only compensation payable will be compensation on “just terms”. This usually means the amount a willing but not anxious buyer would pay for the land and the amount that a willing but not anxious seller would sell the land for. Any amount of compensation is likely to be much less than the benefits agreed upon in the Heads of Agreement and less than the benefits the KLC has been trying to negotiate under an ILUA.
Another problem with compensation under the Native Title Act is that if there is no right to negotiate, the State will not have to pay until after there has been a determination that native title exists in relation to that land and this may take years.
If the Right to Negotiate applies only the registered Applicant has the right to enter into discussion with the State and the Developer and they are the people who must sign any agreement reached.