A separate procedure was included in the Native Title Act 1993 (Cth) (NTA) in 1998 to recognise that infrastructure required to support mining and other proposals needed to be treated differently. Most of the State’s miscellaneous licences and general-purpose leases and petroleum licences qualify for this process.
Tenement applicants are required to consult with any Native Title party affected by the tenement (if they object within two months of the notification date) about ways to minimise the Act’s impact on their rights and interests.
The consultation rights are subtly different and meant to be less onerous than the Right to Negotiate Process. If the objection persists, the NTA requires an Independent Person to determine the matter, currently the Chief Magistrate in Western Australia (WA).
A miscellaneous licence for the purpose of ‘search for groundwater’ or for ‘taking water’ will be processed by the Department when Mining Act compliant under the provisions of Section 24HA of the NTA. After notification by the Department of Energy, Mines, Industry Regulation and Safety (DEMIRS), the Native Title party has the right to comment on the act or class of acts to be done.
In accordance with section 24MD(6B)(f)(ii) of the NTA by the Native Title Legislation Amendment as at 2021, the State will refer the objections to be heard by the Independent Person for WA, as it has been more than eight months since the notification and the objection has not been withdrawn.
Geothermal Titles
The grant of geothermal titles does not fall within the definition of a creation of a right to mine within the meaning of section 26 (1)(c)(i) of the Native Title Act 1993 (NTA). The right to negotiate under Subdivision P therefore does not apply.
Where a future act process is required, the grant of a geothermal title is likely to be a future act pursuant to section 24MB(1)(b)(i) NTA, to which the procedural rights in section 24MD (6) and (6A) NTA need to be complied with before a title is granted.
The procedural rights afforded to holders of ordinary title (i.e. Freehold land) are also afforded to any native title holders and registered native title claimants.
Please refer to the information paper for more details.
Documents related to Infrastructure Facility Process, Water and Independent Persons Decisions can be found at the document collections page.
