Take a visual journey through each of the three administrative ways native title is negotiated.
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A native title claim is an application made by a person or persons who claiming to hold native title.
The process under the Native Title Act begins when a native title claim group (the “applicant”) files an application in the Federal Court seeking a determination that recognises that group as native title holders of the land and/or waters in question.
The application is then referred to the Native Title Registrar (“Registrar”) of the National Native Title Tribunal, who assesses the application against the requirements of the registration test.
If the application meets all the requirements of the test, the applicants gain certain rights, such as the right to negotiate about mining on the application area.
The Registrar then gives notice of the application, including to the general public. This process permits people with interests in the area the subject of the application the opportunity of becoming parties to the application, i.e.. involved in the claim process. They do this by applying to the Federal Court to become a party to the application in question.
The Federal Court of Australia is responsible for managing the mediation of native title applications. Under the Native Title Act 1993 (Cwlth) mediation is the preferred way of achieving an outcome to a native title application. Mediation brings the parties together and assists them to reach a lasting agreementabout the matters which are in issue.
If an agreement is reached about the claim for native title, the parties can apply to the court for a determination of native title. If the court decides to make the determination, it is called a consent determination.
If no agreement is reached, the application may have to be determined by the court following a trial.
Alternatively, parties may reach an agreement about matters other than native title.
Final decisions over native title claims can take time. A system was devised to facilitate dealings that would affect native title both during the claim process and after native title is recognised. This is called the 'future act process'.
Native title claimants and those recognised as native title holders have the right to negotiate about some future acts, such as the grant of a mining lease or proposed developments. Claimants only gain this right if their native title claim satisfies all of the registration test conditions.
The Tribunal administers the process that deals with future acts that attract the right to negotiate under the Commonwealth legislation - that is, generally, future acts relating to mining leases and some compulsory acquisitions. The Tribunal's role in this process includes mediating between parties, conducting inquiries and making decisions (called ' future act determinations') where parties can't reach agreements.
An ILUA is an agreement between a native title group and others.
ILUAs can cover a wide variety of subjects and may be used as part of the negotiations leading to a consent determination of native title. Alternatively, they may be made entirely separate from the determination process.
The parties to the agreement apply to the Registrar of the Tribunal to have the agreement registered. If an ILUA is entered onto the Register of Indigenous Land Use Agreements, it binds all native title holders to the terms of the agreement, even those who are not a party to the agreement, so long as it remains on the Register.