Issue Brief 22 / 1997

The provision of the right to negotiate is critical to future land management and resource development on claimed native title lands. It is also a key element of the recognition and protection of Indigenous native title rights to land. There has been mounting industry criticism concerning alleged delays and costs associated with the right to negotiate process. But there is also considerable confusion about how the right actually operates, and a lack of recognition of the outcomes achieved to date.

The right to negotiate process

The Native Title Act 1993 provides native title parties with a statutory right to negotiate over certain future actions (called 'future acts') carried out by governments on claimed native title land, before those actions can legally take place. For example, native title parties have a right to negotiate with governments and other interests (such as resource developers) about:

• the creation or variation of a right to mine on their land;
• extending or varying the period of a mining right (except if that extension is already a legal right); and
• a government's compulsory acquisition of native title land where the purpose is to transfer rights or interests in that land to another party.

There are three classes of parties involved in the right to negotiate process: the government party, the native title parties, and the grantee party (usually a mining or other resource development company).

Important characteristics of the right to negotiate

It is important to remember that the right to negotiate:

• can be carried out with native title claimants and holders;
• is not a veto right for Aboriginal people;
• is not concerned with determining whether native title exists or not;
• operates in a strict time frame;
• has strict legal conditions attached to its conduct and content;
• is a right for all three parties, not just native title parties;
• gives legal certainty and validity to a future act; and
• Native Title Representative Bodies do not have a right to negotiate, but can represent claimants or holders who do have the right.

The three stages of the right to negotiate:

• Notification: A government must notify native title parties of its intention to 'do a future act' (for example, grant a mining lease) over an area of land. This notification period lasts for 2 months during which time a native title party must register a native title claim over the same area of land with the National Native Title Tribunal. If there is no claim registered, the proposed future act is cleared for grant and may go ahead. Any later native title claimants are unable to secure a right to negotiate over a specific future act once its notification period ends
• Negotiation: This is the actual period when the right to negotiate is exercised and lasts for 6 months if the act is to do with mining, or 4 months if it is to do with exploration or prospecting. The negotiation time starts from the beginning of the notification period, not at the end. Negotiations must be carried out in good faith by the government party, and can include discussion of profit-sharing payments to the native title party. Parties can ask the Tribunal to mediate during this period.
• Arbitration: If negotiations fail to achieve an agreement between the parties, then an arbitral body makes the determination about whether the future act can be done, and if so, on what conditions. These arbitral conditions cannot include profit-sharing payments to the native title party. The arbitration period lasts 6 months for mining and 4 months for exploration and prospecting (the time starts from when a party applies to the arbitral body). The relevant Commonwealth Minister can override the arbitral body's determination.

Possible amendments to the right to negotiate

Major amendments are proposed to the right to negotiate. Some amendments are designed to streamline and improve the process for all parties. However, a number of others will substantially restrict the beneficial operation of the right to negotiate for native title parties, and other amendments are aimed at speeding up the progress of resource development on native title lands. The key areas of change are likely to include:

• the time allowed for notification will be increased from 2 to 3 months;
• the time allowed for negotiation will be reduced from 6 months, in the case of mining, to 4 months;
• the effective time available for negotiations will therefore be reduced to 1 month after the end of the 3 month notification period;
• the time allowed for arbitration will be reduced from 6 months, in the case of mining, to 4 months;
• the Commonwealth Government will be able to exclude certain classes of activities from the right to negotiate (such as exploration, fossicking and prospecting);
• native title parties will have a 'once only' right to negotiate over a proposed mine, not separately at the exploration and production stages;
• a number of related future acts can be grouped together into a single 'project act', with a 'once only' right to negotiate applying;
• compulsory acquisitions by government can be excluded by the Minister for Aboriginal Affairs from the right to negotiate;
• native title processes and State and Territory administrative procedures can run in parallel;
• a new claim registration test will effectively reduce the coverage of claimant groups able to secure the right to negotiate; and
• Ministerial intervention will be possible at all stages of the negotiations and arbitration process.

An additional series of amendments have been proposed in response to the High Court's Wik decision, the impact of which will be to substantially further reduce the right to negotiate of native title parties.

On paper, some of the amendments appear to speed up the right to negotiate process by fast-tracking negotiations and arbitration, and by enabling the Minister to intervene and make the determinations. However, these changes are at the expense of the current balance in the legislation between mainstream land management and the recognition and protection of native title. They will also result in a significant curb to the broader and beneficial exercise of the right to negotiate by native title parties.

This issue brief summarised CAEPR Discussion Paper No. 124, 'The right to negotiate and native title future acts: implications of the Native Title Amendment Bill 1996' by D.E. Smith in 1996. It was prepared by Diane Smith and edited by Linda Roach.