Consultation begins for NSW Government’s new native title policy

The NSW Government has begun consulting with native title groups on developing a new policy for how native title claims could be settled in New South Wales. The policy aims to provide an alternative, out-of-court pathway for resolving claims and compensation, while supporting Aboriginal self-determination and decision-making.

The Department of Planning, Housing and Infrastructure (Department) is holding independently facilitated consultation sessions with native title groups in February, March and April 2026.

At this stage, it is unclear to what extent local councils and other stakeholders will be involved in the development of the policy and nor how it may impact on council interests. Given councils’ Crown land manager responsibilities and their status as respondent parties to native title claims, the policy will likely have implications for councils including compliance obligations when managing Crown land.

Purpose of the proposed policy

According to the Department, the proposed policy aims to:

• recognise native title rights by consent through negotiation
• support Aboriginal self-determination and decision-making
• provide an out-of-court pathway for fair and timely compensation
• build stronger relationships between government and native title holders
• establish arrangements for managing native title rights alongside government responsibilities.

Key principles

The policy is intended to be built on the following key principles:

• self-determination – Aboriginal people decide their own aspirations and priorities
• equity – a fair and consistent approach for all native title groups
• timeliness – faster, non-adversarial settlements
• cost-effectiveness – reducing the financial and emotional burden of court processes on communities.

Proposed approach to compensation for native title groups

The policy will allow for the making of consent determinations, subject to the NSW Government being satisfied about whether native title exists, who the holders are and the nature and extent of the native title rights and interests, at the same time as a whole-of-government Indigenous Land Use Agreement (ILUA) and a compensation package.

The policy also proposes an out-of-court compensation settlement option for native title holders entitled to compensation under the Native Title Act 1993 (Cth). This option would be available to groups who are recognised by the Federal Court as native title holders and who have entered into an ILUA with the NSW Government. This provides an alternative to commencing a compensation application in the Federal Court for past acts over the same area.

The Government proposes that compensation be calculated based on the costs of governance and to realise the aspirations of body corporates, rather than by valuing land for cultural loss (as in the Timber Creek decision) or analysing the history of each parcel of land (as would be required in a Federal Court claim).

Compensation would take into account:

• the annual costs of running a registered native title body corporate, including employment, office    space, operating, and governance costs
• the annual costs for joint management governance of national parks in the native title holder’s Country
• the annual costs of resourcing a joint management ranger program
• an annual budget to support the realisation of the economic, environmental, social and cultural aspirations determined by the registered native title body corporate, including through acquisition of land and water if the group chooses.

Compensation would be paid as a lump sum into a trust on behalf of the beneficiaries. A professional trustee would be appointed initially with the trustee deed providing a process for the transition of the trustee to the registered native title body corporate.

Indigenous land use agreements

Alongside consent determinations and compensation, the policy proposes that an ILUA be proactively developed between the native title groups and the NSW Government. These agreements are intended to include:

• a plan to manage the co-existence of native title rights and government responsibilities. For example, agreeing not to hunt with firearms, restricting the use of fires at certain times, controlling dog access in certain areas and limiting camping to designated areas
• procedures for future acts that the government may wish to undertake. For example, the ability to respond to emergency incidents, remediation works, leases and licences with third parties on public lands, construction of public works and visitor facilities, and land management activities including fire, weed and pest management
• outcomes for native title holders. For example, for transferring of Crown land to the native title group, appointment of registered body corporates as Crown Land Managers, and disregarding prior extinguishment in national parks.

The government will provide funding for registered native title body corporates to participate in the ILUA-making process.

Court remains an alternative pathway

The policy would not prevent a native title group from choosing, as an alternative, to proceed with their claims and/or compensation applications in the courts.

Implications for local councils

It is currently unclear to what extent the NSW Government will consult with other interested parties, including councils, in developing the policy. The potential implications for local government interests, including in Crown land, are also yet to be seen.

Councils and other parties that are not part of a claim group can provide feedback to the Department here.

Our native title team has extensive experience in representing local governments and other respondent parties in native title claims and can assist with your submission. If you have any questions, please contact us here.

Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Jenny Humphris

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