Native Title, Licences and Permits

Grant of Titles or Authorities

In an offshore place (i.e. seaward of the low water mark), the Commonwealth Native Title Act 1993 (NTA) requires Section 24NA(8) to be observed prior to the grant of a petroleum title or authority.

This section provides for any determined native title holders or registered native title claimants and Native Title Representative Body to have the same procedural rights (e.g. the right to be notified) as they would have in relation to the act on the assumption that they instead held any corresponding rights and interests in relation to the offshore place that are not native title rights and interests (e.g. common law rights to fish and navigate)

In the inter-tidal zone, the NTA requires Section 24MD(6A) to be observed prior to the grant of a petroleum title or authority. This requires any determined native title holders or registered native title claimants and Native Title Representative Body that exist in the area of the petroleum title application to have the same procedural rights (e.g. to be notified and have the opportunity to make comment) as they would have in relation to the act on the assumption that they instead held ordinary title to any land adjoining or surrounding the waters concerned. 

Prior to the grant of Special Prospecting Authorities, Access Authorities and Consents to Scientific Investigations the same procedures will be followed that exist for petroleum titles in the offshore areas.

Renewal

Petroleum titles issued in respect to offshore and inter-tidal areas under the Petroleum (Submerged Lands) Act 1982 (WA) may be renewed as a matter of right in some instances and at the discretion of the Minister in others.

In all cases, where a renewal affects native title rights the renewal will be a permissible future act under the NTA (Section 24IC), and will be valid provided native title holders are afforded the same procedural rights as are afforded to the holders of corresponding rights and interests which are not native title rights.

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Commonwealth Native Title Act 1993 – Future Act Processes

A future act is an act done after 1 January 1994 the date of the commencement of the Commonwealth Native Title Act 1993 (NTA), which affects native title. An act affects native title if it extinguishes or is otherwise wholly or partly inconsistent with the continued existence, enjoyment or exercise of native title.

The NTA seeks to protect native title rights by prescribing procedures which must be complied with by Government before a future act can be validly done.

Right to Negotiate Process

Different subdivisions of the NTA apply to different types of activity. Where it is proposed that a petroleum or geothermal title be granted in respect of land and some waters where native title may exist, and the exploration or production activities affect the native title rights and interests held in relation to the land and water area, then the Right to Negotiate provisions of the NTA (Subdivision P), must first be observed before the title can be granted.

The fundamental principle of the right to negotiate is that any relevant act will be invalid to the extent that it affects native title unless it is done in accordance with the procedures set out in the NTA. These are either to comply with the right to negotiate procedures set out in Subdivision P of the NTA or to negotiate an Indigenous Land Use Agreement.

Indigenous Land Use Agreements

Indigenous Land Use Agreements (ILUA) are voluntary agreements made with native title parties about the use and management of land and waters. An act can be generally done under an ILUA registered with the National Native Title Tribunal, whether or not it falls within any of the categories of acts allowed for under the future act regime. This requires the native title parties to give their agreement or consent to the act being done. Even if an act could be done under another subdivision of the future act regime, an ILUA may be the preferred option.

The NTA provides for different types of ILUA’s to be registered, dependent upon there being native title holders for the whole of the area the subject of the ILUA, or whether there are native title bodies corporate or representative bodies for the area concerned.

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Special Prospecting Authorities, Access Authorities and Consents to Scientific Investigation do not constitute a form of title as such but authorise access to land for the purposes of conducting a range of geological and geophysical activities and, in some circumstances, limited drilling activities.

These forms of Authority provide authorisation to conduct specific activities for limited and generally short periods of time; usually only a matter of a few months

Where land subject to any of these kinds of authority may be the subject of native title rights the question of whether native title is "affected" by the grant of an authority depends upon the inter-relationship between the nature of the activities authorised and the extent and nature of the native title rights to which the land is subject.

Where it is determined that native title is affected by the grant of a Special Prospecting Authority, Access Authority or Consent to a Scientific Investigation, the applications will be submitted to either the expedited procedure specified in Section 32 or the right to negotiate procedures (Section 31) of the Commonwealth Native Title Act 1993 (NTA). If it is determined that native title is not affected by the grant, then the authority will be granted in accordance with the low impact provisions (Section 24LA) of the NTA.

Expedited Procedure

A future act that is unlikely to interfere directly with community or social activities of the relevant native title parties, or interfere with areas or sites of particular traditional significance to the native title parties is an act that attracts the expedited procedures of the Commonwealth Native Title Act 1993 (NTA).

Under the expedited procedure, once the government has issued a notice in accordance with Section 29 of the NTA, the native title party may within four months after the notice has been issued lodge an objection with the arbitral body (National Native Title Tribunal) against the inclusion of the expedited statement in the notice.

If the native title party lodges an objection, the arbitral body must determine whether the proposal attracts the expedited procedure. If the arbitral body determines it does, the government may do the act, if not then the parties must enter into right to negotiate negotiations.

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Grant and Renewal Processes for Petroleum Pipeline Titles under the Commonwealth Native Title Act 1993

The grant and renewal of the petroleum pipeline licence (which involves no land tenure) under the Petroleum Pipelines Act 1969 (WA) is a separate process to native title future act processes concerning the land upon which a pipeline is constructed.

When a pipeline is to be constructed over land the subject of a registered native title claim or determination, then agreement must be reached with the native title parties concerning an easement or lease of land under the Land Administration Act 1997 (WA), or alternatively the land must be compulsorily acquired.

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