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The right to negotiate

What does the ‘right to negotiate’ involve?

The ‘right to negotiate’ applies to the following kinds of future acts:

  • creating a ‘right to mine’ (e.g. the grant of a mining or exploration tenement, or a petroleum permit)
  • varying a ‘right to mine’ to increase the footprint
  • acquiring native title rights and interests for development, unless the purpose is to:
    • create an interest in the land for the Government party; or
    • set up an infrastructure facility.

If the right to negotiate applies, then:

  • the Government party must give all native title parties an opportunity to make submissions to the Government party about the future act
  • the Government party, any grantee party and any native title parties must negotiate in good faith with a view to obtaining the agreement of each of the native title parties:
    • to the doing of the act; or
    • the doing of the act subject to conditions to be complied with by any of the parties.

Negotiation in good faith requires the negotiation parties to act ‘with honesty and sincerity of intention’ with the aim of reaching agreement, and to do what is reasonable in the circumstances.

Negotiations must be about the effect of the proposed act on the registered native title rights and interests, but can cover a range of subject matters.

Who are the negotiation parties?

The parties who must participate in negotiations are:

  • the Government party (i.e. the Commonwealth, State or Territory government proposing to do the act)
  • any grantee parties (i.e. any person who has requested or applied for the act)
  • any native title parties (i.e. any native title claimant or prescribed body corporate registered at the relevant time).

Prescribed bodies corporate may charge other negotiation parties a fee for costs incurred by the prescribed body corporate in negotiating a future act agreement. This is set out in section 60AB of the Native Title Act.​