Registered Native Title claimants and determined Native Title holders have certain rights under the provisions of the Native Title Act 1993 (Cth) (NTA) Future Act regime when governments intend to conduct business such as the granting of mineral and petroleum titles.
A future act is an act done after the 1 January 1994 that affects Native Title. The future act can be a proposed activity or development on land and or waters that could affect Native Title by extinguishing it, or by creating interests that are inconsistent with the existence or exercise of Native Title. For example, the granting of mining, petroleum or land tenure by the Department of Energy, Mines, Industry Regulation and Safety (the Department) as well as the Department of Planning, Lands & Heritage (DPLH).
The NTA affords any holder of, or claimant for Native Title, the right to be notified of the application for the mining and petroleum tenure and of the government’s intention to grant the title.
In Western Australia, the granting of mining, exploration and petroleum tenure is administered by the State Government. This includes the submission of applications to the future act procedures. This is done to ensure validity of title.
A tenement cannot be granted unless it has satisfied the future act requirements of the NTA, except in some special circumstances where pre-existing rights apply, such as in some State Agreement Acts (see S24IC of NTA) or where there is appropriate evidence that proves Native Title has been extinguished, such as the granting of freehold tenure.
Work intended to be carried out on mining and petroleum tenure is important to NTA procedures -particularly negotiation and the National Native Title Tribunal (NNTT) case management processes - in terms of its potential impact on any registered Native Title rights and interests. Therefore, the detailing of proposed work is crucial to assessing the impact on Native Title and determining the scope of an agreement.
