The proposed grants of all mining and petroleum titles are generally what the Native Title Act 1993 (Cth) (NTA) describes as “future acts”. These future acts are then subject to certain processes under the NTA before the grant may be considered valid, so far as it may affect native title.
Tenements that have the potential to cause major disturbance to the ground such as mining leases and petroleum production licences are subject to the highest form of future act rights known as the Right to Negotiate.
The Government Party, in this case the Department of Energy, Mines, Industry, Regulation and Safety (DEMIRS), must give notice of its intention to grant titles in the determined way to:
- native title holders and claimants
- representative bodies
- the National Native Title Tribunal (NNTT)
- the proposed grantee, and the public.
Applicants for mining and petroleum tenure, and some other tenement application types, must negotiate in good faith with a view to obtaining the agreement of each of the native title parties affected by the proposed grant of the tenure to the doing of the act, or the doing of the act subject to conditions. DEMIRS is also a negotiating party on behalf of the State.
If agreement is reached it is likely to include heritage protection protocols and other benefits depending on the type of applicant (corporate or individual) and the extent of the project.
If the parties are unable to reach an agreement within the statutory six month minimum period of the original notice, any party may apply to the NNTT for a final determination as to whether the proposal may proceed and only if parties are able to demonstrate that negotiations have been carried out “in good faith” (s35 NTA).
You can find out more information and download documents related to the Right to Negotiate Process, How to Negotiate in Good Faith and State Deeds in the right to negotiate document collection.
