Future Acts in Native Title

• The right to be notified about the future act
• The opportunity to comment about the future act
• The right to be consulted about the future act
• The right to object to the future act
• The right to negotiate over particular aspects of the future acts including the ways in which an activity is to be carried out/undertaken on the land

The State must notify native title parties registered under the Native Title Act 1993 (Cth) (NTA) of the intention to carry out a future act within the area covered by their native title determination or registered application.

The notification will advise what procedural rights apply in relation to the proposed future act to be carried out.  

In most cases native title holders and registered native title applicants instruct  representatives  to assist them in ongoing legal proceedings or negotiations regarding the future act.

The right to negotiate applies to future acts described under sub division P of the Native Title Act 1993 (Cth) (NTA), such as the grant of a mining lease or the compulsory acquisition of native title rights and interests.

The parties must negotiate 'in good faith' for at least six months and can ask the National Native Title Tribunal to mediate.

If an agreement is not reached after the parties have negotiated for at least six months, the parties can ask the National Native Title Tribunal to decide whether or not the future act should proceed, and if so, on what conditions it should go ahead. 

For information about future act applications, procedures, guidelines and the future act hearings list, visit the National Native Title Tribunal website. 

The WA Government considers that certain types of future acts (such as the grant of exploration and prospecting licences) will have minimal impact on native title rights and interests and therefore should be fast-tracked, or carried out without the requirement to negotiate with the Native Title Parties.  This is referred to as the 'expedited procedure'. The notification of such acts will propose that the grant of the act should be expedited.

Native Title Parties can object to an application being fast-tracked within four months from the date given in the notification. Lodging an objection means that the Native Title Party is objecting to the grant being expedited. When the National Native Title Tribunal receives an objection it will first seek to confirm if parties are willing to negotiate to have the objection withdrawn. 

If a negotiated agreement cannot be reached in a timely manner, the Tribunal will conduct a formal inquiry to determine whether the expedited procedure should apply or not. 

If the Tribunal determines that the expedited procedure applies, the future act can proceed without further negotiation. If the Tribunal determines that the expedited procedure does not apply, the proposed future act is subject to the 'right to negotiate' process. All parties must then enter into formal negotiations in good faith.

Visit the National Native Title Tribunal website for information about future act applications, procedures, guidelines and the future acts hearing list.

Visit the Department of Mines, Industry Regulation and Safety for further information about grants of resources tenure and native title.