Expedited procedure explained
The expedited procedure is a fast-tracking process for future acts (usually the grant of an exploration or prospecting licence, or a petroleum special prospecting authority) that the government agency responsible for the act considers will have minimal impact on native title.
If the government party believes the expedited procedure applies, it must be stated in the notice and, unless a registered claimant or prescribed body corporate objects, the right to negotiate will not apply to the act.
Section 237 of the Native Title Act 1993 (Cth) (NTA) defines a future act that attracts the expedited procedure as one that is:
- not likely to interfere directly with the community or social activities
- not likely to interfere with areas or sites of particular significance
- not likely to involve major disturbance to any land or waters concerned.
Mineral tenure and Regional State Heritage Agreements (RSHAs)
The State Government has a policy where applicants for exploration licences and prospecting licences need to sign and offer a RSHA or prove they have an existing Alternative Heritage Agreement in place. This must happen before the applications can be submitted to the NTA Expedited Procedure (Kimberley Region excluded).
Where an application affects more than one native title group, the applicant must sign and offer a RSHA to all groups where the claims are abutting. Where there are two or more overlapping claims, the applicant is only required to send one RSHA to the group of their choosing and offer all parties with standard fees and procedures for heritage clearances that are at an acceptable standard to industry.
The procedure for processing applications for prospecting exploration licences and retention licences under the NTA can be found in this Information Paper. A specially prepared copy of a statutory declaration for an exploration, prospecting and retention licence, which is referred to in the Information Paper, is provided for use at the link above.
A Native Title party affected by the proposed grant has the right to object to the expedited procedure statement within four months of the notification day. If no objections to the statement are received the application may be granted.
If one or more Native Title party objects to the inclusion of the expedited procedure statement, the National Native Title Tribunal (NNTT) must make a determination whether the act is in fact an act attracting the expedited procedure. If the determination is that the expedited procedure applies, the government party may grant the tenement. If the objection is upheld, the application proceeds into the right to negotiate process.
Often parties reach agreement within the expedited inquiry process resulting in the objection being withdrawn and the grant proceeding.
For potential impact to Aboriginal heritage and the nature and level of potential impact of the proposed activities on prospecting and exploration licences please refer to the Department of Planning, Land and Heritage (DPLH) website.
Native Title case management
The Department of Energy, Mines, Industry Regulation and Safety (the Department) expedited procedure process was implemented on 1 June 2022 and provides the Department with greater discretion in the application of the expedited statement to such tenements.
Prior to 2022, State policy on the inclusion of the expedited procedure statement in notices issued under section 29 of the Native Title Act 1993 (Cth) applied a ‘blanket approach’ to the application of the expedited statement to particular kinds of tenements, namely prospecting licences, exploration licences, and retention leases (exploratory titles).
The department applies a case management approach to exploratory titles, such as exploration and prospecting licences and undertakes an assessment to identify whether an application falls within an area of particular significance, also known as a “Hotspot”. The Case Management approach involves:
- An early risk assessment and triage process to identify applications that are at a high risk of a determination by the National Native Title Tribunal (NNTT), where the expedited procedure does not apply should an objection to the assertion of the expedited procedure statement be lodged with the Tribunal
- Active case management to encourage applicants and native title parties (NTPs) to achieve early agreement making
- Education and engagement with NTPs
- Clear engagement protocols for applicants and NTPs to promote early engagement and agreement making between industry and NTPs
- Ongoing discussions with the NNTT regarding the operation of the expedited procedure process; and,
- Ongoing discussions with the Chief Magistrate regarding matters to be resolved in the Wardens Court.
The purpose of this process is to encourage early agreement making between parties and reduce delays to the grant of exploratory titles.
The documents below provide further information on the new expedited procedure process.
