What is the right to negotiate?
The right to negotiate is a process under the Native Title Act that must be followed to ensure certain future acts are lawfully done. The right to negotiate applies to the grant of exploration and mining tenements (including oil and gas interests) and some compulsory acquisitions, unless the ‘expedited procedure’ or fast-tracking process applies.
If the right to negotiate applies, then the ‘negotiation parties’ must negotiate in good faith to get the consent of the ‘native title party’ (i.e. the registered native title claimant or registered native title body corporate) to the future act being done, with or without conditions applying.
The right to negotiate gives native title parties a chance to discuss the effect of the proposed future act, with the aim of reaching agreement about the act.
If the Government party thinks that the right to negotiate might apply to a proposed future act, it must give notice of its intention to do that act in the way required by the Native Title Act.
If a person or group thinks they hold native title on the future act area, but do not have a registered claim or determination, they can lodge a native title application with the Federal Court within three months from the notification day specified in the notice.
The Native Title Registrar must then endeavour to apply a registration test (a set of conditions in the Native Title Act which must be met) to that application. If the application passes the registration test, it is then placed on the Register of Native Title Claims (RNTC). The application must be on the RNTC within four months of the notification date for the applicants to secure the right to negotiate.
What is negotiation in good faith?
The right to negotiate not only requires the parties to discuss the effect of the future act on the native title parties’ registered rights and interests – it also requires them to negotiate in good faith. This means that parties must negotiate with an open mind and a genuine desire to reach agreement.
If a party asks the Tribunal to determine whether the future act may proceed and the Tribunal is satisfied that the grantee party or the Government party did not negotiate in good faith, the Tribunal is not entitled to make a determination.
To decide whether a party has negotiated in good faith, the Tribunal will consider the parties' conduct during the course of negotiations. It will ask, among other things:
- Did they actively communicate?
- Were meetings attended by people with authority to make decisions?
- Did they make genuine offers?
- Was information exchanged between the parties?
- How did the parties conduct themselves within the negotiations and outside negotiations?
- Was there a willingness to shift positions?