What is the right to negotiate?

The right to negotiate is a procedure under the Native Title Act 1993 that is followed to make sure that some of the things that can affect native title (called future acts) can be validly done. The types of future act the process applies to are the grant of exploration licences, mining leases and some compulsory acquisitions. These future acts require negotiations between native title parties, the government and the proponent. Grants of other mining tenements, such as exploration and prospecting licences, may not attract the right to negotiate (see below).

The right to negotiate is not a right to stop or veto projects from going ahead but it does give native title parties a right to have a say about the project.

The right to negotiate applies to certain future acts if either the area they relate to is covered, wholly or partly, by a registered native title claimant application (one that has satisfied all the conditions of the registration test), or if the Federal Court has determined that native title exists in the area concerned and there is a registered native title body corporate for that area. The registered native title claimant or the registered native title body corporate is the native title party that has the right to negotiate.

If a claimant application does not satisfy all of the registration test conditions, the claim may continue in the Federal Court. The claimant may also apply for reconsideration of the registration decision. While the application is not on the register, the claimants will not have procedural rights under the Act. For further information about registration, refer to the fact sheet What is the registration test?

The right to negotiate does not apply to other types of future acts, such as the construction of public works or the management of water. In these circumstances, claimants and native title holders may have other procedural rights such as the right to be notified, to comment or to be consulted, to object and to be heard by an independent umpire.

What triggers the right to negotiate?

The right to negotiate is triggered when a government issues a ‘section 29 notice’ that states the government intends to do a future act that is subject to that procedure. Notice is required by section 29 of the Native Title Act 1993, which sets out what must be done where native title will be affected by the future act.

The notice is given by placing an advertisement in major newspapers. It must also be given directly to any native title parties. If there is a native title representative body for the area, it is also notified.

People who claim to hold native title in the area, but have not yet made a native title claimant application, have three months from the date given in the section 29 notice to file a claim if they want to have the right to negotiate about the proposed future act. To get that right, their claim must also be registered within four months of the date given in the notice.

Negotiating

If the right to negotiate applies, the government, the developer and the registered native title parties must negotiate ‘in good faith’ at least about the effect of the proposed development on the claimants’ registered native title rights and interests with a view to obtaining the agreement of the native title parties to the future act being done.

The parties can ask the National Native Title Tribunal to mediate during the negotiations. If the negotiations do not result in an agreement one or more of the parties can ask the Tribunal (no sooner than six months after the notification date) to decide whether or not the future act can go ahead, or on what conditions it can go ahead. The Attorney-General also offers assistance in developing standard form agreements. Guidelines for the provision of assistance in native title cases are available at www.ag.gov.au or by calling the Department on (02) 6250 6770.

The fast-tracking process

There is a fast-tracking process (‘the expedited procedure’) for some future acts. This process arises when the government asserts in a section 29 notice that the future act can be fast tracked, usually where minimal impact on native title is expected, such as with some mineral exploration and prospecting licences. If the expedited procedure is used, and there is no objection by native title parties, the future act can be done without negotiations. Use of this fast-tracking process and the standard heritage agreements have resulted in most applications for exploration and prospecting licences being granted without major delays.

Native title parties can object to a proposed future act being fast-tracked. They have four months from the date given in the section 29 notice to lodge an objection application. If the objection is successful, the negotiation in good faith process is required. If the objection does not succeed, the proposed future act can go ahead without a negotiation process.

The Native Title Act provides for states and territories to set up their own bodies to handle future act matters apart from the Tribunal. Currently, only the South Australian Environment, Resources and Development Court handles right to negotiate matters.

Download a PDF version of this fact sheet (pdf 504KB)

This fact sheet is provided as general information only and should not be relied upon as legal advice for a particular matter.

Subject index