Statutory Right to Negotiate Over Mining: Native Title

msi - native titleBy Richard Bradshaw, Johnston Withers, Lawyers, Adelaide.

It is now 22 years since the High Court’s historic Mabo decision recognising the existence of native title in those parts of Australia where:

1. connection under traditional laws and customs has been maintained since the assertion of British sovereignty; and

2. the native title rights which existed at sovereignty have not been wholly extinguished by valid executive or legislative acts.

And it is 20 years since the Commonwealth’s Native Title Act 1993 came into force. Whilst the NTA has been amended on several occasions, the statutory ‘right to negotiate’ remains firmly in place.

This statutory right operates in particular before most mining or petroleum tenements (for exploration or production) may be granted over native title land. Except where an expedited procedure may be followed, the statutory right requires the State (or Territory), the native title parties and the tenement applicant to negotiate ‘in good faith’ for a period of up to six months, with a view to obtaining the agreement of the native title parties for the grant of the proposed tenement and as to the conditions to be attached to that agreement. These conditions may include provision for monetary payments (e.g. royalties) to the native title parties and/or other benefits.

Only after the requisite period has passed without agreement being reached may a negotiating party apply to the National Native Title Tribunal (NNTT), as the arbitral body, for a determination. Following a hearing, the NNTT then decides whether the tenement may be granted and, if so, on what conditions protecting the cultural and other interests of the native title parties. However, it is precluded from imposing any condition requiring royalty or similar payments to be made to the native title parties.

The ‘right to negotiate’ is now a process generally accepted and adhered to by all the parties and, for the most part, it works well.

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