Draft Negotiating Framework

This negotiating framework agreement is made on <date>

Between:
<< name of applicants>>, the applicants of the native title determination application <<reference number>> (<<name of claim>>)
And
The State of <<name of state>>.


2. The purpose of this agreement is to establish a basis, process and timetable for negotiating between the parties with a view to resolving <<name of claim>> without the need for proceedings in the Federal Court of Australia.

3. The parties agree that there are other parties to the claim who will be informed of this agreement and invited to participate as appropriate in the negotiations under it.

4. The applicants and the State agree that they are prepared to negotiate upon the claim on the basis that an agreed determination of native title is possible in respect of areas under claim.

5. It is also agreed between the applicants and the State that any agreed determination of native title would be and could be expressed to be subject to existing valid laws of the Commonwealth and the State and any private rights that exist upon the land.

6. It is further understood that any agreed determination of native title shall not and shall not be taken to resolve the management issues arising out of the present and future interaction between native title and the laws of the Commonwealth and the State and any existing private interests in the land.

7. In progressing these negotiations the applicants undertake so far as practicable to provide continuity of representation through the following persons:
  • <<name of representative[s]>>

    8. In progressing these negotiations the State undertakes so far as practicable to provide continuity of representation through the following persons:
  • <<name of representative[s]>>

    9. All parties agree to comply with the timeframe established by this agreement and to use all reasonable endeavours to maintain the progress of the negotiations under it.

    10. The State will on or before <<insert date>>, provide to the applicants a statement of the limitations which in its view are by State law on the exercise of native title rights on the area under claim, for the if that extent that the native title rights claimed are the rights to use, occupy and enjoy the area[s] under claim (the question of exclusivity being dealt with as a separate issue).

    11. The applicants by <<insert date>> undertake to supply to the State a written statement of the form of native title determinations they would seek in respect of the areas under claim and a statement of the ways in which they would seek to exercise their native title consistent with existing laws of the State and Commonwealth.

    12. The State by <<insert date>> will supply to the applicants a written statement of the matters of which the State would need to be satisfied in order to agree to a determination of native title and the process by which the State would be so satisfied including:
  • the form of the material to be supplied;
  • the content of the material to be supplied;
  • the criteria by which the State will assess the material supplied;
  • the persons who will undertake the assessment; and
  • the process by which the State will decide of these specified matters.

    13. If the applicants agree to accept the requirements of the State they will supply the material sought by a date to be agreed at a meeting to be held by telephone conference between their representatives and the State representatives on or before <<insert date>>, which conference shall be convened by the National Native Title Tribunal ('the Tribunal').

    14. In the event that the applicants do not agree to accept the requirements of the State, or the State concludes upon the supply of the material that it is not satisfied of the requisite matters then the parties agree to refer the materials and any additional materials which they seek to rely upon to an independent evaluator agreed by the parties, or in default of agreement, nominated by the President of the Tribunal. Such evaluator may be a person who is a member of the Tribunal but shall not be a member who is involved as a mediator in relation to this application. The evaluator will convene a meeting of the representatives of the parties and after considering the material provided, and any other submissions made, will decide whether or not in his or her opinion the applicants have shown that they can make out a prima facie case for the existence of native title at common law. In doing so, the evaluator will not have regard to any issue of possible extinguishment of native title by prior inconsistent dealings.

    15. The process before the evaluator shall not involve more than one day of argument or submission and he or she shall publish a written opinion within seven days of the evaluation hearing, which opinion shall be provided to the applicants, the State and the Tribunal.

    16. In the event that the evaluator decides that the applicants can show a prima facie case of native title, the State undertakes to apply/have regard to that opinion in deciding whether or not it can agree to a determination of native title.

    17. The State will advise the applicants within one month of receiving the evaluator's opinion of whether or not it can agree to a determination of native title on any of the area[s] under claim. It will provide to the applicants a proposed draft determination and Heads of Agreement.

    18. The applicants will within 21 days of receiving the State's advice, advise the State in writing of whether they are prepared to agree to a native title determination in the form proposed or in some other form and will supply an alternative draft determination and Heads of Agreement.

    19. If agreement appears to the Tribunal to be possible with respect to a determination in any of the area[s] under claim, the Tribunal will advise other parties to the relevant claim and within 28 days of the applicant's response, fix a date for a conference to try to reach final agreement between all parties.

    20. The timetable set out in the negotiating agreement may be varied by agreement between the parties. The Tribunal reserves the right to refer all or any of the claims to the Federal Court in the event that it is satisfied that progress is not being made at a reasonable rate or that agreement or further agreement is unlikely.

    Signed for and on behalf of <name>



    <name>
    <position> etc.