Registered Native Title claimants and determined Native Title holders have certain rights under the provisions of the Native Title Act 1993 (Cth) (NTA) future act regime, when governments intend to conduct business such as the granting of mineral tenure that are future acts under the NTA.
A 'future act' is an act done after the 1 January 1994, which affects Native Title. The future act can be a proposed activity or development on land and or waters that has the potential to affect Native Title, by extinguishing it or by creating interests that are inconsistent with the existence or exercise of Native Title.
Common examples of future acts in Western Australia are the proposed grants of mining or land titles by this department as well as the Department of Lands.
In the first instance the NTA affords any holder or claimant for Native Title the right to be notified of the application for the mining title and of the government's intention to grant the title.
The NTA stipulates that a future act process need only apply where Native Title exists or is claimed to exist. To ensure validity, prudence would dictate that these processes should also be followed where Native Title may exist.
Mining Lease applications can be processed in parallel with the NTA upon request from the applicant. If the request is not made Mining Act processing may be completed first.
A tenement cannot be granted unless it has satisfied the future act requirements of the NTA (except in some special circumstances where pre-existing rights apply, such as in some State Agreement Acts - see S24IC of NTA) or where appropriate evidence is available that proves Native Title has been extinguished such as the granting of freehold tenure.
Work intended to be carried out on Mining Lease tenements is of importance to NTA procedures (particularly negotiation and the National Native Title Tribunal (NNTT) hearing processes) in terms of its potential impact upon any registered Native Title rights and interests. Therefore, the detailing of proposed work is crucial to assessing the impact on Native Title and determining the scope of an agreement.
Find out more, see Flowchart of Native Title and Mining Act Processes
Right to Negotiate Process
The proposed grants of all mining titles are generally what the NTA describes as “future acts” which are then subject to certain processes under the NTA before the grant may be considered valid so far as it may affect native title. Tenements that have the potential to cause major disturbance to the ground such as mining leases are subject to the highest form of future act rights known as the Right to Negotiate.
The Government Party (DMIRS) must give notice of its intention to grant titles in the determined way to:
- native title holders and claimants,
- representative bodies,
- the National Native Title Tribunal (NNTT),
- the proposed grantee, and the public.
The applicants for mining leases (and some other tenement application types) must negotiate in good faith with a view to obtaining the agreement of each of the native title parties affected by the proposed grant of the tenement to the doing of the act or the doing of the act subject to conditions . DMIRS is also a negotiating party on behalf of the State.
If agreement is reached it is likely to include heritage protection protocols and other benefits depending on the type of applicant (corporate or individual) and the extent of the project.
If the parties are unable to reach an agreement within the statutory six month minimum period of the original notice, any party may apply to the NNTT for a final determination as to whether the proposal may proceed and only if parties are able to demonstrate that negotiations have been carried out “in good faith” (s35 NTA).
Find out more, refer to the following information:
Expedited procedure process
Section 237 of the NTA defines a future act that attracts the expedited procedure as one that is:
- not likely to interfere directly with the community or social activities
- not likely to interfere with areas or sites of particular significance
- not likely to involve major disturbance to any land or waters concerned.
Where exploratory tenement applications are concerned, such as Exploration and Prospecting Licences, the department asserts that the expedited procedure applies and includes a statement to that effect in the section 29 NTA notice of its intention to grant.
The State Government has a policy whereby applicants for exploration licences and prospecting licences will have to sign and offer a Regional Standard Heritage Agreement (RSHA) or prove they have an existing Alternative Heritage Agreement in place. This must happen before the applications will be submitted to the NTA Expedited Procedure (Kimberley Region excluded).
A series of RSHAs were negotiated between mining peak industry groups and Native Title representative bodies, with the State Government facilitating and mediated by the NNTT. The RSHAs provide Aboriginal heritage protection and offer all parties with standard fees and procedures for heritage clearances that are at an acceptable standard to industry.
The department asserts that the expedited procedure applies to exploratory titles based on the protection offered by RSHAs and by the combination of the regulatory procedures offered under the Aboriginal Heritage Act 1972 and the Mining Act 1978.
A Native Title party affected by the proposed grant have the right to object to the expedited procedure statement within four months of the notification day. If no objections to the statement are received, the application may be granted.
If one or more Native Title party objects against the inclusion of the expedited procedure statement, the NNTT must make a determination whether the act is in fact an act attracting the expedited procedure. If the determination is that the expedited procedure applies the government party may grant the tenement.
If the objection is upheld the application proceeds into the right to negotiate process.
Often parties reach agreement within the expedited inquiry process resulting in the objection being withdrawn and the grant proceeding.
A flowchart for Processing Applications for prospecting and exploration licences under the NTA and a corresponding Information Paper detail the process for processing applications for prospecting and exploration licences under the NTA. A specially prepared copy of a statutory declaration for an exploration licence or a prospecting licence, which is referred to in the Information Paper, is also provided for use.
For potential impact to Aboriginal heritage and the nature and level of potential impact of the proposed activities upon prospecting and exploration licences refer to the Aboriginal Heritage Due Diligence Guidelines.
Copies of agreements:
Infrastructure facility process and water
A separate procedure was included in the NTA in 1998 to recognise that infrastructure required to support mining and other proposals needed to be treated differently. Most of the State’s miscellaneous licences and general purpose leases qualify for this process. Tenement applicants are required to consult with any Native Title party affected by the tenement if they object within two months of the notification date about ways of minimising the Act’s impact on their rights and interests.
The consultation rights are subtly different and meant to be less onerous than the right to negotiate process. If the objection persists, the NTA requires an Independent person to determine the matter, currently the Chief Magistrate in Western Australia.
A miscellaneous licence for the purpose of ‘search for groundwater’ or for ‘taking water’ will be processed by the department when Mining Act compliant under the provisions of Section 24HA of the NTA. After notification by the department, the Native Title party has the right to comment on the act or class of acts to be done.
Please refer to the attached information paper for more information.
Indigenous Land Use Agreement
An Indigenous Land Use Agreement (ILUA) is a voluntary agreement between Aboriginal groups and others about the use and management of land and waters.
An ILUA is much more flexible than an RTN agreement and may include a broader range of interests. An ILUA can address past and intermediate acts as well as future acts. It may also replace the future act process entirely. ILUAs can:
- address issues of access, compensation, extinguishment and coexistence
- be made separately from the formal Native Title process, form a part of that process or pave the way for a Native Title determination
- not extinguish Native Title but may, by agreement, allow for the surrender of Native Title.
There are a number of ILUAs where the State Government is a party to the agreement usually for developments that are of major importance to the State. Examples of these can be found on the Land, Approvals and Native Title Unit website.
From a mining exploration perspective the Esperance Nyungar ILUA proponent standard Heritage Agreement has a copy available under Agreements on this page.
There are a number of third party mining ILUAs where the State Government is not a party. As the granting authority, however, the department has concerns that procedures agreed to in such ILUAs may not provide the certainty required for valid grants of tenure. Accordingly the State has prepared guidelines for parties entering into such agreements that are available under the Native Title management page.
Please refer to Guide for Third Party Indigenous Land Use Agreements