Fast-tracking exploration and prospecting tenements

The land you might want to explore or prospect may or may not be covered by a native title claim. Exploration and prospecting are kinds of activities known as 'future acts' under the Native Title Act 1993. A future act is a proposed activity or development on land and/or waters, such as mining, prospecting or exploration, that may affect native title.

Some future acts might have minimal impact on the native title rights and interests of Indigenous Australians and may qualify for fast-tracking. The fast-tracking process, also known as the 'expedited procedure', enables most minimal-impact applications to be granted without major delays or objections while native title claims are under way.

Some future acts go ahead without negotiations. Others go ahead after direct negotiations between the grantees and native title parties. In some cases the Tribunal decides if fast-tracking can apply.

Why does fast-tracking only apply to some activities?

The fast-tracking process applies to some exploration licences, prospecting licences, amalgamation applications, retention licences, and certain miscellaneous licences.

Fast-tracking only applies to tenement applications for activities that are:

• not likely to involve any major disturbance to any land or waters concerned; and
• not likely to interfere directly with the carrying out of community and social activities of native title holders; and
• not likely to interfere with areas or sites of particular significance to native title holders.

The fast-tracking process does not apply to applications for tenements, such as mining leases, that might have a more significant effect on native title rights and interests. In the case of these high-impact activities, miners are required from the outset to enter into negotiations with any registered native title parties whose native title rights and interests might be affected by the proposed grant.

These formal negotiations are often referred to as the 'right to negotiate' stream.

What happens when you make an application?

When you apply for a licence or permit, the government body who manages tenement applications (such as the Department of Industry and Resources or the Department of Natural Resources, Mines and Energy) publishes a notice in major newspapers, indicating that it intends to grant a tenement in that area. This is called a 'section 29' notice, because section 29 of the Native Title Act sets out what must be done.

In a section 29 notice the government will indicate whether the tenement it is intending to grant is an act that can be fast-tracked i.e. be put through the expedited procedure.

If the proposed grant is advertised under the expedited procedure, native title parties can lodge an objection. If there is no objection lodged, the tenement can be granted without delay.

What is an objection to the expedited procedure?

When a tenement is advertised, the relevant state or territory body contacts directly in writing any native title parties who already have a registered native title claim over that area. At this point native title parties may lodge an objection to the expedited procedure applying to the tenement.

Any objection must be lodged within four months of the notification date stated in the advertisement. An objection by a native title party is not an objection to the tenement being granted, but is an objection to the application being fast-tracked.

Lodging an objection means that native title parties are objecting to the grant being made without negotiations. An objection does not mean native title parties can stop the activity going ahead.

If there is no native title application over the area, Indigenous people can respond to the notice by lodging a native title claim. In order for Indigenous people to be involved in the objection process, their claim has to be lodged within three months of the notification date specified in the advertisement. The claim must also satisfy the conditions of the registration test within four months of that date. New claimants have to lodge their objection within the four-month time frame.

Negotiations

If there are objections at the end of the four-month period, the grantee and the native title parties are encouraged to reach an agreement through negotiations. The National Native Title Tribunal will set up a preliminary conference to begin negotiations between the parties.

If the parties reach an agreement early in the process it may lead to the native title party withdrawing their objection and the tenement being granted. An agreement may be reached on the basis of, for example, site clearance surveys, heritage protection agreements or other matters. For example, an agreement may be about protecting sites of significance, such as burial sites or ceremonial places.

If a negotiated agreement cannot be reached, the Tribunal will conduct a formal inquiry to determine whether the expedited procedure should apply or not. All parties are required to provide documentation and material that support their case.

At any stage in the negotiations the government may choose to withdraw the application, or the grantee party may request the government to withdraw the application from the fast-tracking process, and move it directly into the right to negotiate stream.

If the Tribunal determines that fast-tracking applies then the tenement can go ahead, and the grantee can get on with business straight away. If the Tribunal determines that fast-tracking does not apply then the tenement application will move into the right to negotiate stream, coordinated by the relevant state or territory government.

All parties then enter into formal negotiations in good faith. This is the usual process that applications for high-impact acts, like mining leases, automatically have to go through.

Parties might also agree to the expedited procedure not applying, if they decide that they would prefer to start formal negotiations under the right to negotiate.

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

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