It’s not uncommon for valuers to come across issues when dealing with the valuation and management of land subject to native title – the recognition by Australian law of Aboriginal and Torres Strait Islander people’s traditional rights and interests in land and waters held under traditional law and custom.
Established by the High Court of Australia in 1992, the Native Title Act allows claimants to make an application to the Federal Court of Australia to have their native title recognised by Australian law.
Native title has been recognised for around 32 per cent of the Australian land mass, with the rights and interests held by Aboriginal and Torres Strait Islander people depending on traditional laws and customs, what has occurred historically on their land and what interests are now held by others in the area concerned.
Generally speaking, native title must give way to the rights held by others and can co-exist with some forms of title such as pastoral leases and Crown land.
Native title rights and interests may include rights to live on the area, access the area for traditional ceremonies, visit and protect important places and sites, hunt, fish and gather food or traditional resources like water, wood and ochre or to teach law and custom on country.
Native title and valuations
When dealing with land subject to native title claims – or where it may exist, has been claimed or has been determined – valuers might need help identifying information crucial to the valuation, the Australian Property Institute’s Native Titles Issues guidance paper claims.
“It is important for valuers to be aware of the possibility that native title may exist in certain circumstances and in areas where it has not been extinguished, regardless of whether there is currently a native title application or determination to indicate its existence,” the paper explained.
The first step for valuers dealing with land subject to such claims is to prepare a tenure history of the land with a registered surveyor – the report should provide copies of documents related to the tenure history, deposited plans and Crown land survey information.
“The tenure search is pivotal in deciding whether native title has survived, the nature of the surviving property rights associated therewith and the nature of impairment or even extinguishment of such rights,” the paper explained.
Before using registers, valuers are urged to do background research with the existing and previous owners (and employees) of the property or local council to find out any additional information that could offer assistance with the valuation report.
Government departments dealing with utilities, health and environment, and mining might also have approval and licensing records and other useful information.
When to use registers
There are four registers held by the National Native Title Tribunal – an independent body established under the Native Title Act 1993 – which cover land and waters in each state and territory, and deals with registered claims, determinations, indigenous land use agreements and unregistered claims.
A formal search of the registers can be conducted by tribunal staff, with written applications needed to be as detailed as possible to expedite the search.
“Details such as county, parish and local government area are a starting point. However, the provision of deposited plans or other survey information will also assist the registry staff,” the paper explained.
Once a valuer receives confirmation from the registry as to whether the land is subject to a native title claim, further enquiries must be made to relevant indigenous representative bodies – indigenous records and information can be obtained from state or territory indigenous heritage authorities.
“District or regional offices of the relevant national parks and wildlife authorities may be able to assist with detailed information about local indigenous people and their reliquary,” the report explained.
“Local historical societies are also important resources as they often hold rare and valuable information about early non-Indigenous settlement and their interface with the local Indigenous people.”
When to perform site inspections
When conducting an inspection of a property for the purpose of providing a valuation or other property assessment, valuers should be aware of the potential of co-existing native title prior to the inspection.
During an inspection for this purpose, valuers should attempt to identify any physical evidence of Aboriginal cultural heritage site and items that could suggest the exercise of native title rights – signs include camp sites, artefacts, stone grooves, rock paintings, or other utilitarian evidence.
While a valuer can preform a preliminary identification of physical evidence of Aboriginal cultural heritage items, evidentiary proof of native title and the ascertaining of the ambit of the property rights must be left to those with specialist qualifications in the fields of anthropology and archaeology.
“Valuers should exercise great caution if they suspect the presence of such evidentiary material prior to an on-site inspection. It is possible that offence may be unwittingly given to Indigenous people through either photographing such materials, or even by entering an area which has special significance,” the report read.
“It should be remembered that sites of significance to indigenous people are not necessarily evidenced by the presence of recognisable topographical features such as rock outcrops or caves – such sites can sometimes be present in apparently featureless tracts of land, which would be otherwise ignored by untrained or uninformed observers,” the report explained.
What if there’s no obvious native title?
There will be instances where preliminary research and site inspections cause the valuer to suspect the property is or could be subject to co-existing native title.
If a claim could restrict the future use of the site or mitigate against a financial consideration, the valuer must recommend the client seek a detailed native title assessment from appropriately qualified professionals.
“Should subsequent investigation show that the land is subject to existing or potential co-existing native title interests this property valuation or assessment will require revision,” the paper read.
Where detailed information cannot be obtained, valuers should prepare their report on the basis that the property is not subject to a co-existing native title interest.
Read a detailed overview of this topic by downloading the guidance paper on the Australian Property Institute’s resources hub.