The Native Title Act (the Act) allows two ways to deal with applications to mine,
explore or prospect for minerals—through an indigenous land use agreement
(ILUA) or through the right to negotiate process. The National Native Title Tribunal
manages some elements of the Commonwealth right to negotiate scheme. ¹ ILUAs are
not managed by the Tribunal, but the Native Title Registrar is responsible for
their registration.
ILUAs are a recent type of agreement which became available following the 1998
amendments to the Native Title Act. The right to negotiate process has been
in place since the commencement of the Act in 1994. There are three types of
ILUAs to choose from, depending on the circumstances—area agreements,
alternative procedure agreements and body corporate agreements. The Tribunal
provides information on the three types and their purposes. Developers, miners,
explorers and native title claimants or holders need to decide which method
of agreement-making best suits their needs. The following comparison of ILUAs
and the right to negotiate looks at timeframes, parties, subject matter and
certainty. Note that some, but not all, state governments have asserted that
grants to prospect and explore qualify for fast-tracking and therefore do not
attract the right to negotiate.
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ILUAs |
Future Act Right to Negotiate |
| Timeframes for commencement of negotiations |
Negotiations can commence at any time before or after the mining grantee
has applied to the state or territory government for a mining or exploration
tenement. |
Although negotiations can commence at any time, agreements are normally
made after the four-month notification period has finished. Notification
is when the state or territory government issues a ‘section 29’
notice indicating that it proposes to grant the mining or exploration
tenement. |
| Timeframes once negotiations have started |
ILUA negotiations have no set timeframes. It is up to the parties to
determine how long the negotiations take.
ILUAs take time to negotiate to ensure that adequate consultation takes
place for informed consent by all persons who hold or may hold native
title. If the developers’ planned dates are less than six months
away, an ILUA will not serve their purposes.
A further six months should be allowed as a minimum once an application
to register the ILUA is made to the Tribunal. The Registrar must notify
the public and allow time for any objections to the registration of
the ILUA to be considered.
|
There are no set right to negotiate timeframes. However, if the parties
are unable to reach an agreement despite negotiating in good faith, then
any party can request the Tribunal to determine the matter if at least
six months have passed since the notification day.
The Tribunal must take all reasonable steps to make a determination as
to whether the future act can be done, as soon as practicable after the
request has been made.
The Tribunal normally makes its determination within six months of
the request.
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Parties—
governments |
The state or territory government must be a party when extinguishment
of native title is being negotiated. Otherwise its role as a party is
not compulsory. |
The state or territory government is always a party to the negotiations,
and must undertake those negotiations in good faith. |
Parties—
native title claimants |
All registered native title claimants and all registered native title
bodies corporate (RTNBC) for the area must be parties to an ILUA. Any
potential native title holders in the area not a party to an ILUA at the
time will be bound by its terms once it is registered. This provides certainty
for future developments and the opportunity for the developer and the
native title holders to commence a relationship that can last long-term. |
All registered native title bodies corporate and/or native title claimants
which cover the area of the proposed future act, who are registered at
the time of the four-month closing date published in the section 29 notice
must be parties to the negotiations and agreement.
Where a proposed tenement straddles more than one registered native
title claim or determination area, or there are overlapping registered
claims or determinations over the area of the proposed tenement, separate
agreements may be necessary between each of the native title parties,
the grantee party and the government party.
The native title parties must negotiate in good faith. |
Parties—
miners, explorers or prospectors |
|
The miner, explorer or prospector (the ‘grantee party’)
who expects to benefit from the proposed future act, is always a party
to the negotiations, and must undertake those negotiations in good faith. |
| Parties and the Tribunal |
Negotiations are conducted by the parties, although the Tribunal can
be asked to assist. |
Any party can ask the Tribunal to mediate and assist the parties reaching
an agreement. The Tribunal is often asked to mediate. |
Subject matter—
scope |
The scope of what is to be included in an ILUA is very broad under the
terms of the Act. There are three types of ILUAs to choose from.
ILUAs can cover developments other than mining such as local government
activities, the provision of public works or infrastructure, as well as
extinguishment of native title rights and interests, and compensation
for the loss or impairment of native title rights and interests.
The type
of benefits for native title holders are unlimited in scope and are up
to the parties to negotiate, but have included:
• Employment and training
• Protocols and agreements for future developments
• Fostering of good long-term relationships between Indigenous people
and grantees, and government agencies
• Use and access agreements between native title groups and mining
companies
• Compensation payments if there is a loss or impairment of native
title.
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The Act provides that future act negotiations are unlimited in scope.
However, most states and the Northern Territory require a tripartite agreement
(also referred to as a State Deed) to be entered into which confirms the
validity of the grant.
In addition, ancillary (confidential) agreements can be made (between
the grantee and the native title party) which may include, in appropriate
circumstances, elements such as:
• Employment, education and training
• Heritage protection
• Compensation payments
• Dispute resolution mechanisms
• Establishment of liaison committees
• Cross-cultural awareness training.
Agreements can also be given effect by parties requesting the Tribunal
to make a future act determination by consent. Such agreements, however,
cannot include profit sharing provisions, as the Tribunal cannot make
a determination that the native title party is entitled to payments
worked out by reference to profits, income or production.
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Subject matter—
cost effectiveness |
An ILUA can cover future mining activities, and/or multiple projects
in one agreement. An ILUA is potentially more cost effective in the long
run than the right to negotiate process for large, complex projects or
many tenement applications in one area. The technicalities of an ILUA
require a degree of expertise in the drafting. |
Only those proposed grants advertised in the section 29 notice can be
the subject of the agreement, although the agreement can deal with sequential
or related project acts. |
Subject matter—
other native title business |
Parties may decide to deal with future act matters at the same time
as their native title determination application, and an ILUA is the vehicle
to allow that to happen. |
Future act matters are processed independently from a native title determination
application. |
Certainty—
validation of invalid future acts |
ILUAs can validate certain future acts that were invalidly done in the
past. A future act will be made valid if the parties to the ILUA consent
to its validation, and the Crown is a party. |
The right to negotiate cannot operate to validate those acts done by
governments (such as the grant of a mineral tenement) which were done
invalidly. |
Certainty—
authorisation by the native title parties |
For body corporate agreements the prescribed body corporate must get
the consent of the ‘native title holders’.
For area agreements, all agreements have to be authorised by all those
identified as persons who hold or may hold native title for the area.
To be registered, an agreement then must be ‘certified’
either by the representative body or by the Registrar.
For alternative procedure agreements there is no certification process
for the ILUA application; rather, the native title representative body
has to be a party to the ILUA.
Only for area agreements is authorisation of the agreement a condition
of registration. Authorisation is potentially more complex than obtaining
the consent of all registered native title claimants. Questions may
arise regarding what constitutes authorisation by a particular claim
group and whether all potential native title holders have been identified.
Delays may also occur where native title claimants are not represented
by the representative body. |
When agreement is reached, all registered native title claimants and/or
the registered native title body corporate at the time of the four-month
closing date of the section 29 notice must sign tripartite agreements
consenting to the grant of the tenement. |
Certainty—
finalisation of the agreements |
The ILUA must be lodged with the Registrar for registration.
Before registration the Registrar checks the ILUA for compliance against
the regulations.
The Registrar notifies the public and those with an interest in the
area that the ILUA has been lodged.
In some cases, objections can be lodged with the Registrar against
the registration of the ILUA.
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The state or territory department checks the tripartite agreement for
compliance against its own policy.
A copy of the tripartite agreement must be lodged with the Tribunal.
There is no formal notification or registration process by the Tribunal.
Confidential ancillary agreements are not usually lodged with the Tribunal.
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Certainty—
registration and public access |
The Registrar places the ILUA on the Register of Indigenous Land Use
Agreements. The Registrar maintains the register and certain details of
the ILUA are available to the public. However, confidential details of
the agreement are not disclosed on the register. The Registrar will not
disclose confidential details unless compelled by law or the parties have
consented to that disclosure. |
The copy of the agreement held by the Tribunal is not generally available
to the public.
The Tribunal will disclose the details of the agreement if compelled
by law or the parties have consented to that disclosure.
|
Certainty—
if negotiations fail |
If after all obstacles to registration of the ILUA are considered and
further negotiations fail to overcome the objection, there is no process
available to finalise the agreement. It must go back to the parties to
renegotiate. |
If an agreement cannot be reached, any party can apply to the Tribunal
to arbitrate and determine the matter. The Tribunal will hold an inquiry
and make a determination on whether or not the mining, exploration or
prospecting tenement can be granted. A decision must be made. In the majority
of cases the decision is made within six months. |
Certainty—
grant of tenements |
Following registration of the ILUA the grantee party notifies the government
party requesting that the ILUA tenement/s be granted. The government may
grant the tenement/s. |
Following signing of the tripartite agreement the government party may
grant the tenement;
or
Following a determination by the Tribunal that the future act may be done
(with or without conditions) the government party may grant the tenement/s;
or
If the Tribunal determines that the future act cannot be done, no grant
may be made.
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Certainty—
contractual |
Once registered, an ILUA has the effect of a contract. It binds all
native title holders for the area whether or not they are parties to
the agreement. |
Both the tripartite agreement and the ancillary agreement are contracts
between the parties who sign them. |
Certainty—
deregistration |
The details of an ILUA may be removed from the register under the
following conditions:
• if there is a new determination of native title over the area
and the native title holders who authorised the agreement are not the
recognised native title holders in the determination;
• if the agreement expires;
• if the Federal Court orders that it be removed;
• all the parties advise the Registrar in writing that they wish
to terminate the agreement.
|
As contracts, both the tripartite agreement and the ancillary agreement
are not affected if subsequent to the agreement, native title claims lose
their registration or a determination is made that native title does not
exist. |
