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* NTA = Native Title Act 1993 (Cwlth)
this refers to the fast-tracking process for future acts that might have minimal impact on native title, such as the grant of some exploration and prospecting licenses. If this procedure is used, and no objection is lodged, the future act can be done without the normal negotiations with the registered native title parties required by the NTA.
a decision by the National Native Title Tribunal that the expedited procedure (fast-tracking) does or does not apply to the doing of a certain future act. This decision is made when parties have reached agreement.
this term is used when Australian law does not recognise native title rights and interests because some things governments did, or allowed others to do, in the past have made recognition legally impossible. These things include the passing of laws or the grant of other interests inconsistent with the continued enjoyment of native title.
Native title is a bundle of rights. Complete extinguishment is when the whole bundle of rights is extinguished. Partial extinguishment is when one or more specific rights are extinguished.
As a general rule, once they are extinguished, native title rights can never be recognised again under Australian law. However, in certain circumstances, the NTA allows the courts to ignore the effect of extinguishment. Generally, this may happen if, at the time the application is made, the relevant area is:
- vacant Crown land or unallocated State land (and not subject to reservation etc. for a public purpose)
- a pastoral lease held by, or for, the claimants or
- specifically set aside for, or held for the benefit of, Aboriginal People or Torres Strait Islanders (for example, under land rights legislation or as a reserve for the use and benefit of Indigenous Australians).
this test requires that, when certain future acts are proposed, native title holders must be given the same procedural rights as those who hold ‘ordinary title’. In everywhere but the Australian Capital Territory and the Jervis Bay Territory, ‘ordinary title’ means freehold (s. 253, Subdivision M of Part 2 Division 3 NTA).
a proposal to do something (e.g. pass legislation or permit a development on a particular area) that will affect native title (or would if the act were valid to that extent) by extinguishing it or creating interests that are inconsistent with the continued existence, enjoyment or exercise of native title. Examples of future acts include the grant of mining or exploration rights and the compulsory acquisition of native title.
The NTA gives native title holders and registered native title claimants procedural rights in relation to certain future acts. Depending on the type of future act these rights range from being notified, to being given an opportunity to comment, through to the right to negotiate. For some future acts, for example the renewal of certain interests over the same area on the same terms, there are no procedural rights (Part 2 Division 3 NTA).
a decision by the National Native Title Tribunal that a future act may proceed and whether conditions apply to the doing of the act. The decision is made when parties have reached agreement about the act and have consented to those conditions (if any).
An application made by the Government, native title or grantee party to the National Native Title Tribunal, or other recognised body, for a determination as to whether a future act may proceed, and if so what, if any, conditions should apply (ss. 35 and 77 NTA). To date the only bodies recognised under s. 207A of the NTA are the Supreme Court of South Australia and the Environment Resources and Development Court of South Australia.
a decision by the National Native Title Tribunal either that a future act cannot be done, or can be done with or without conditions. In making the determination, the Tribunal takes into account (among other things) the effect of the future act on the enjoyment by the native title party of their registered rights and interests and the economic or other significant impacts of the future act and any public interest in the act being done.
this term is not defined in the NTA. The NTA places an obligation on all negotiation parties to negotiate in good faith in relation to the doing of future acts to which the right to negotiate applies (s. 31(1)(b) NTA). A list indicating what may constitute good faith in the right to negotiate context appears in Western Australia v Njamal People (1996) 134 FLR 2112. Refer also to later cases on the same point.
The NTA also requires all parties and their representatives to act in good faith in relation to the conduct of the mediation of a native title application referred to the National Native Title Tribunal by the Federal Court under s. 86B (s. 136B(4) NTA).
the person or corporation who has applied to the government for it to do a future act in relation to which the right to negotiate applies. Most commonly this is for the grant of mining tenements such as exploration licences and mining leases (s. 29(2)(c) NTA).
a voluntary agreement about the use and management of an area of land or waters where native title exists or might exist. The agreement is made between one or more native title groups and others (such as miners, pastoralists or governments). A registered ILUA is legally binding on the people who are parties to the agreement as well as all native title holders for that area.
the NTA provides for the National Native Title Tribunal to undertake inquiries in relation to:
(a) future act determination applications or an expedited procedure objection applications (ss. 32, 35, 75, and 139(b))
(b) special inquiries at the direction of the Commonwealth Minister in relation to a particular matter or issue relating to native title (ss. 137, and 139(c))
(c) an objection to the registration of an alternative procedure agreement (ss. 24DJ(1), 77A, and 139(d))
(d) native title applications concerning the whole or part of a proceeding that has been referred to the Tribunal for mediation under s. 86B and raises a matter or issue relevant to the determination of native title under s. 225 (s. 138A).
In some cases an inquiry will be made based on written evidence submitted to the Tribunal, without holding an inquiry hearing.
when the National Native Title Tribunal hears evidence and submissions by parties who are in a right to negotiate inquiry (i.e. a future act determination application inquiry or an expedited procedure objection application inquiry). In some cases a determination will be made based on written evidence submitted to the Tribunal, without holding an inquiry hearing.
generally, it is an act (excluding most legislative acts) that:
- was done between 1 January 1994 (the date when the NTA commenced) and 23 December 1996 (the date of the Wik decision) (inclusive)
- was over an area that is, or was, freehold or leasehold, or an area on which a public work is, or was, situated, and
- was invalid to any extent because of the existence of native title (s. 232A NTA).
see Approved Determination of native title
a decision by the Federal Court or the High Court of Australia or a recognised body that native title does or does not exist in relation to a particular area of land or waters, which is made following a trial process. To date the only bodies recognised under s. 207A of the NTA are the Supreme Court of South Australia and the Environment, Resources and Development Court of South Australia.
the process of bringing together people with an interest in an area covered by a native title claimant application who are parties to the application, to help them to reach agreement about such things as:
- whether or not native title exists
- who holds the native title
- what the native title rights and interests are
- what other interests exist in the area and
- the relationship between native title and other rights and interests.
Mediation allows everyone involved to explore the potential for agreement, including agreement about a consent determination or an indigenous land use agreement.
a process which allows negotiation parties, with the assistance of a mediator, to discuss their interests in the area, identify the issues, consider alternatives and explore ways to reach agreement about whether a future act should be done. Mediation processes are useful where negotiation is not progressing.
a person appointed by the Governor-General as a member of the National Native Title Tribunal under the NTA. Some members are full-time and others are part-time appointees. (Part 6, Division 2 NTA).