(TECHHOU) House For - Law, Corporations Act, … title.pdf · 2011-08-17 · general exposition on...

Native Title

IntroductionIn the nearly twenty years since the High Court delivered its decision in Mabo v

Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1; 66 ALJR 408; BC9202681 (Mabo(No 2)) an understanding of the relevant provisions of the Native Title Act 1993 (Cth)1

(NTA) has become as essential for a mining lawyer as is knowledge of their jurisdiction’smining legislation. Often the relevant Mining Act will demand, either explicitly or byreference, adherence to the NTA provisions. Fortunately however, the “relevantprovisions” of the NTA are reasonably few in number and complexity, perhaps belying theactual process required to comply with them.

The purpose of this guide card is to examine these provisions and not to provide ageneral exposition on current native title jurisprudence. The guide card will address:

1. “Past acts” under the NTA, including consideration of:• the issue of the validity of historical (ie before the commencement of the

NTA) mining titles;• requirement to comply with the “future act procedures” under the NTA;

and• the role of the registration of native title claims.

2. The provisions under the NTA relating to “future acts”, including those relevantto the grant of:

• both mining and petroleum titles, including provisions dealing with:— Indigenous Land Use Agreements; and— the right to negotiate procedure, including its “expedited procedure”;

• minerals titles; and• petroleum titles.

1 A legislative reference in this guide card will be to the NTA unless other legislation is specified.

r LexisNexis Service 0280,051

Job: research/erl/allvols/serv_0/chapter_9_262684

Page: 3 Date: 11/8/2011 Time: 15:32:47

bwpageid:: 280051::

bwservice::0::

[The next page is 280,101]

ENERGY AND RESOURCES LAW

r LexisNexisService 0 280,052


Page: 4 Date: 11/8/2011 Time: 15:32:47

bwpageid:: 280052::

bwservice::0::

“PAST ACTS” AND EXTINGUISHMENT OF NATIVETITLE

When acting in a mining matter, a practitioner will need to consider whether or not they

must comply with the “future act” procedure provisions of the NTA. The notion of a “past

act” under the NTA is relevant to determining whether or not the “future act” provisions

of the NTA need be complied with.

[280,010] The definition and relevance of “past acts” and “futureacts”

Although it may seem non-sequential it is important to start with an understanding ofthe notion of a “future act” under the NTA to understand the significance of a “past act”in the context of the grant of a mining title.

A “future act” is (relevantly) defined in s 233 of the NTA as follows:

(1) . . . an act is a future act . . . if:(a) . . .

(ii) it is any other act that takes place after 1 January 1994; and(b) it is not a past act; and,(c) apart from this Act, either:

(i) it validly affects native title . . . to any extent; or(ii) the following apply:

(A) It is to any extent invalid;(B) It would be valid to that extent if any native title did not exist; and,(C) If it were valid it would to that extent affect native title.

Subsection 3 goes on to exclude an act done in relation to Aboriginal/Torres StraitIslander land the definition of which includes land held under the Aboriginal Land Rights(Northern Territory) Act 1976 (Cth). The grant of mining titles on this land is governed bya separate regime established under that latter Act.

The definition of “future act” picks up two other defined terms. These are the definitionof “act” and the definition of “affecting native title”:

• The term “act” is defined in s 226. In summary, an “act” is any act done by anyperson having any effect whether under statute, common law or equity.

• The definition of “affecting native title” is contained in s 227. This provides thatan act affects native title “if it extinguishes native title rights and interests or ifit is otherwise wholly or partly inconsistent with their continued existence,enjoyment or exercise.”

Relevantly, s 24OA provides that “unless a provision of this Act provides otherwise, afuture act is invalid to the extent it affects native title.” This means that the grant of amining (or other) title will extinguish native title.1 Even in the event that the legislationauthorising the grant asserts that the grant does not extinguish native title the creation ofthe rights comprising the title in a third party will necessarily be “wholly or partlyinconsistent with [the] continued existence, enjoyment or exercise” of those native titlerights. Unless a relevant provision of the NTA provides for the validity of the grant of atitle (or whatever act is in contemplation), that contemplated grant or act may be invalid.5

This raises two points:• It is the creation of a right which may be inconsistent with the enjoyment of a

native title right that constitutes the future act not the exercise of that right. Thispoint is made clear (in the context of extinguishment) by the High Court inWard.10 Thus, in the mining context, it is the grant of the title that may constitutethe future act, not the commencement of mining operations. On this basis it is the

[280,010]NATIVE TITLE



Page: 5 Date: 11/8/2011 Time: 15:32:47

bwpageid:: 280101::

bwservice::0::

grant of a title that must satisfy the future act requirements rather than anysubsequent authorisation for the commencement of mining operations.15

• If the grant of a mining title does not “affect native title” then that grant will notconstitute a future act and the NTA is never engaged. Accordingly, if all nativetitle rights and interests in the land the subject of a proposed title areextinguished, the grant of that title will not constitute a future act requiringcompliance with the NTA. It is on this basis that a brief discussion of the notionof “past act” and extinguishment is relevant. It also has relevance in the contextof confirming the validity of “historic titles” (those granted before the 1 January1994 date contained in the s 223 definition of future act).

Notes

1 The authority on this point is ample but most relevant is Western Australia v Ward (2002) 213 CLR 1;191 ALR 1; [2002] HCA 28; BC2002043 (Ward (HC)).

5 The notion of an invalid title is readily ascertainable. If however, the future act in question is, say, theconstruction of a highway the idea of an invalid highway is a little more problematic.

10 Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1; [2002] HCA 28; BC2002043 (HC) at [82].

15 For example an authorisation under s 35 Mining Management Act (NT).

[280,210] Extinguishment of Native Title before 1975Historically, at common law the grant by the Crown of an interest inconsistent with the

native title rights and interests extinguished those latter interests (Mabo No 2)1 to theextent of the inconsistency (Wik).5 Prior to October 1975, the grant of a title conferring:

• exclusive possession (such as a freehold title or a common law lease)extinguished all native title rights and interests in the subject land.

• rights less than exclusive possession (such as a mineral lease or a pastorallease) extinguished any native title rights and interests inconsistent with therights bestowed under the granted title.

However, in October 1975, with the commencement of the Racial Discrimination Act1975 (Cth) (RDA), the ability of the Crown in right of a state (or territory) to grant a titlewhich extinguished (in whole or part) native title rights was constrained.10

Notes

1 Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1; 66 ALJR 408; BC9202681 (Mabo No 2) at52.

5 Wik Peoples v Queensland (1996) 187 CLR 1; 141 ALR 129; [1996] HCA 40; BC9606282.

10 Mabo v Queensland No 1 (1988) 166 CLR 186.

[280,410] The position today — validated “past acts”Today, the NTA in Pt 2 Div 2 (ss 13A–22L) creates regimes for “validating” acts that

occurred:• before 1 January 1994 that may be invalid because of the existence of native

title (essentially because of the operation of the RDA as discussed above). Theseacts can be validated by a state or territory passing appropriate equivalentlegislation.1 These validated acts are “past acts.”5

• between 1 January 1994 and 23 December 1996,10 known as “intermediateperiod past acts.”

Acts which occurred prior to 1 January 1994 and which were not invalid because of theexistence of native title are not “past acts” (although in practice the term is often loosely

[280,010] ENERGY AND RESOURCES LAW



Page: 6 Date: 11/8/2011 Time: 15:32:47

bwpageid:: 280102::

bwservice::0::

applied to all acts prior to 1 January 1994). This includes, for example, acts occurring

prior to the commencement of the RDA or those done in relation to land where native title

was already extinguished (because of a failure of “connexion” — discussed below).

The regime in Pt 2 Div 2 provides:

• for compensation for any acquisition of property arising from the validation it

effects (and requires an equivalent provision in corresponding state and territory

legislation); and

• that different types (or categories) of past acts will effect varying “levels” of

extinguishment.

To a large extent (but not entirely) Div 2 has been overtaken by the provisions of

Div 2B (inserted subsequent to the Wik decision).

Division 2B (ss 23A–23JJ) deals with the extinguishment of native title that arose as a

consequence of acts that occurred prior to 23 December 1996, including:• “validated” past acts;• intermediate period past acts; and• acts that required no validation.

Division 2B provides that:• where such acts amounted to a grant of exclusive possession they operated to

completely extinguish all native title rights and interests in the subject land. Suchacts are identified as “Previous Exclusive Possession Acts” (PEPA).

• grants of “non-exclusive agricultural leases” or “non-exclusive pastoral leases”will constitute a “Previous Non-Exclusive Possession Act” (PNEPA) and willoperate to extinguish native title to the extent of any inconsistency. The terms“non-exclusive agricultural leases” and “non-exclusive pastoral leases” aredefined (s 253) but relevantly include the “pastoral lease” common in northAustralian jurisdictions.

As noted Div 2B operates concurrently (but not necessarily comfortably) with Div 2.Thus if the grant of a prior interest does not fall within the definition of either PEPA orPNEPA they may still constitute one of the categories of past act contained in Div 2.Division 2 (s 15) divides past acts (as defined above) into either category A, B, C or Dpast acts.

• Category A past acts (defined in s 229) are primarily grants of title amounting toexclusive possession. Such acts will completely extinguish native title. Thescope of this category is therefore largely superseded by the PEPA ofDivision 2B.15

• Category B past acts are largely superseded by the PNEPA.20 As with a PNEPA,a category B past act will extinguish native title to the extent of anyinconsistency.

• Category C past acts involve a “mining lease” (s 231). Category C past acts arevalidated but the “non-extinguishment principle” applies to them.

• Category D past acts include any past act that is not either category A, B or C.Category D past acts are validated but the “non-extinguishment principle”applies to them.

Both the terms mining lease and non-extinguishment principleare defined terms.

Mining lease is defined in s 245. The primary definition25 is a lease that permits use ofthe subject land solely or primarily for mining. The definition of mine in s 253 includes:

(a) explore or prospect for things that may be mined (including things covered bythat expression because of paragraphs (b) and (c)); or

(b) extract petroleum or gas from land or from the bed or subsoil under waters; or(c) quarry;




Page: 7 Date: 11/8/2011 Time: 15:32:47

bwpageid:: 280103::

bwservice::0::

but does not include extract, obtain or remove sand, gravel, rocks or soil from the natural

surface of land, or of the bed beneath waters, for a purpose other than:

(d) extracting, producing or refining minerals from the sand, gravel, rocks or soil; or

(e) processing the sand, gravel, rocks or soil by non-mechanical means.

The non-extinguishment principle is extensively defined in s 238 but can be

summarised as follows:

the act to which the principle applies is valid and will prevail against any native title rights to the

extent of any inconsistency. However, the act will not extinguish native title, which will revive

when the act ceases to have effect (eg when the mining lease expires).

In summary:

• PEPAs and category A past acts will completely extinguish native title.

• PNEPAs and category B past acts will extinguish native title to the extent of any

inconsistency.

• The non-extinguishment principle will apply to mining leases (category C past

acts) and category D past acts.

Notes

1 For example the Validation (Native Title) Act (NT) and Titles (Validation) and Native Title (Effect of

Past Acts) Act 1995 (WA).

5 The full definition of the term “past act” is contained in s 228.

10 The date of the Wik decision.

15 The possibility of a category A past act that is not a PEPA arises in certain specialised contexts and is

beyond the scope of this discussion.

20 The term is defined in s 230 as being the grant of a lease that is neither a category A past act nor a mining

lease. While there may be a number of forms of tenure that are a category B past acts that are not a

PNEPA, practically they will not amount to a significant land area.

25 The definition in s 245(2)–(4) goes on to make provision for the “dissection” of mining leases in effectas of 1 January 1994 that allowed use of the lease for (inter alia) residential purposes.

[280,610] Relevance of past acts to the grant of mining titlesExtinguishment by prior grant is relevant to ascertaining the validity of “historic”

mining titles. It can also be relevant to the grant of future mining titles. As the grant of amining title will only attract the operation of the NTA if the grant is a “future act”, if thetitle is in respect of an area completely coincidental with a PEPA (or category A past act)it will not constitute a future act. On the other hand, the grant of a (now expired)category C or D past act will have no effect on the existence of native title rights. Theeffect of a PNEPA (or a category B past act) in determining whether a coincidental miningtitle constitutes a future act is not a straightforward issue.

Current authority1 suggests that a pastoral lease and a mining lease will operate so asto leave in place the same native title rights and interests (ie both titles will extinguishnative title rights and interests to the same extent). One may be tempted to concludetherefore that the grant of a mining title over land comprised in a pastoral lease (aPNEPA) would not “affect native title” so as to constitute a future act — however, whilethere does not appear to be any authority directly on the point, this conclusion would notappear to be supported by the High Court5 and is certainly not in accordance with thepractice of state and territory authorities. The issue would appear to turn on the notion of“. . .otherwise wholly or partly inconsistent with [the] continued existence, enjoyment orexercise” (emphasis added) contained in the definition of “affects native title”.




Page: 8 Date: 11/8/2011 Time: 15:32:47

bwpageid:: 280104::

bwservice::0::

Presently, a PNEPA will not operate to effect extinguishment so as to make the grant ofa mineral title not a future act — however, the matter may be the subject of futureanalysis10 and litigation.

Notes

1 Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1; [2002] HCA 28; BC2002043 (HC), Daniel v

Western Australia [2005] FCA 536; BC200502613 and Neowara v WA [2004] FCA 292.

5 Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1; [2002] HCA 28; BC2002043 (HC) at[170]–[196] and at [396]–[425].

10 See M Storey, “Of Cows & Metal: Why Men Dig Holes”, (2005) 24 AERLJ 74.

[280,810] Connexion and ExtinguishmentAs identified in Mabo (No 2), native title is the common law recognition of rights and

interests of Aboriginal peoples or Torres Strait Islanders, arising pursuant to theirtraditional law and customs. In the event that those peoples cease to observe thosetraditional laws or customs they are said to have lost their connexion to the land.Consequently, the native title rights and interests in relation to that land are extinguished,irrespective of any prior tenure history. Members of the Yorta Yorta AboriginalCommunity v Victoria1 is the leading theoretical exposition of this process, but a morepractical example can be found in Risk v Northern Territory.5 Where native title isextinguished through a failure of connexion, there can be no future act under the NTA.

Two matters arise in this context:1. While extinguishment as a result of prior tenure can be identified from

documentary records, determining a failure of connexion is a question of law —to be determined by a court after having heard lay (Aboriginal) and expert(anthropological) evidence. There have been determinations as to the existenceof native title from the Wimmera in Victoria to the Torres Strait. It should notever be assumed that native title is extinguished by a failure of connexion.

2. The NTA puts in place an administrative process to accommodate the situationwhere an act that may constitute a future act is contemplated, in advance of anydetermination by the court of the existence of native title. This is the “native titleclaim registration” process contained in Pt 7 (ss 184–191). The claim registrationprocedures are discussed below in the context of future act procedures.

The registration of a native title claim is not a determination of native title by the court.If an act (eg the grant of a mineral title) occurs in relation to land the subject of aregistered native title claim, without adherence to the future act procedures of the NTA,and there is a subsequent determination that there is no native title in that land, the grantwill be valid (and will always have been valid).

However, practically, it is virtually inconceivable that a state or territory authoritywould proceed to grant a mineral title in the face of a registered claim or that the putativegrantee would be prepared to tolerate the risk to investment from invalidity and the riskof delay arising from the threat of injunctive action that would arise from such a course.The future act procedures of the NTA require a procedure of notification prior to theundertaking of a possible future act in order to allow a claim to be filed and registrationdetermined. For practical purposes the existence of connexion must be assumed uponsuccessful registration of a claim.

Notes

1 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; 194 ALR 538;[2002] HCA 58; BC200207517.




Page: 9 Date: 11/8/2011 Time: 15:32:47

bwpageid:: 280105::

bwservice::0::

5 Risk v Northern Territory [2006] FCA 404; BC200602251.

[281,010] Past Acts and Extinguishment: Conclusion and SummaryThe future act procedures of the NTA should be complied with unless all native title

rights and interests have been extinguished (ie a grantee and the relevant state or territoryauthority are satisfied that the area subject to the proposed mineral title grant isco-extensive with land for which the previous tenure extinguished native title).





Page: 10 Date: 11/8/2011 Time: 15:32:47

bwpageid:: 280106::

bwservice::0::

FUTURE ACTS

[281,210] Future Acts — IntroductionThe future act procedures relevant to the grant of a mining title are examined below.

There are two main procedures discussed, including those relevant to:1. an Indigenous Land Use Agreement (ILUA); and2. a “right to negotiate”.

There are however several other future act procedures which may be relevant to thegrant of mineral titles. These are identified at the conclusion of this section.

For a definition and explanation of the notion of a future act in the context of the NTA,see Section 1 of this guide card above.

[281,410] OverviewThe following is a brief overview of the structure of the future act provisions of the

NTA and also a description of the process of registration of native title claims, which iscentral to many of the future act provisions.

The NTA future act provisions are in Div 3 (ss 24AA–44G). Each of the 15subdivisions deals with a different class of future acts, not all of which are relevant to thisdiscussion. Sections 24AA and 24AB provide a “road map” as to which provision is toapply in a particular circumstance.

Section 24AA also provides that if the relevant future act provision is complied with,then the future act in question will be valid. This protection against an invalid future actis discussed below, in the context of the registration of native title claims.

There is a hierarchy to future act provisions given effect by s 24AB:• Subsection 24AB(1) provides that ILUAs are at the top of this hierarchy (ie if a

future act is authorised by an appropriate ILUA (discussed below) then therelevant ILUA provisions contained in subdivs B to E only need be satisfied andthe future act by type provisions contained in the following subdivisions can beignored).

• Subsection 24AB(2) provides that: “[t]o the extent that a future act is covered bya particular section in the list in paragraphs 24AA(4)(a) to (k), it is not coveredby a section that is lower on the list”: this is the hierarchy.

However, the procedures set out in subdiv P (the right to negotiate) apply to both thefuture acts identified in subdiv I (lease renewals) and subdiv M (which primarily dealswith the grant of mining titles and compulsory acquisitions). Relevantly in light of thediscussion in s 1, subs 24AA(6) notes that “. . .in general1 valid future acts are subject tothe non-extinguishment principle.”

Notes

1 The main exception to the “general” rule is ILUAs and compulsory acquisitions. The former of whichmay and the latter of which will extinguish native title.

[281,610] Registration of Claims and Compensation

[281,630] The process and effect of the registration of native title claims

The native title claim registration process is a threshold issue that applies generally toall future act provisions.

A determination of native title is a determination by a court (generally the FederalCourt: s 13). It is the result of an application to the court pursuant to s 61. Generally such




Page: 11 Date: 11/8/2011 Time: 15:32:47

bwpageid:: 280201::

bwservice::0::

an application will be by a group of Aboriginal peoples or Torres Strait Islanders; in

essence seeking a declaration by the court as to the existence (since the assertion ofsovereignty) and content (subsequent to any extinguishment by Crown tenure) of theirnative title rights and interests.1

It is commonplace for the time between lodging a determination application and finaldetermination by the court to exceed ten years. Clearly this is not a workable time framefor state and territory authorities or third parties to assess the impact of the possible legalrights of relevant Aboriginal peoples on a proposal. The native title claim registrationscheme, contained in Pt 7 (ss 184–191), is designed to overcome this practicalshortcoming in the NTA’s processes.

The native title claim registration scheme provides for an administrative assessment bythe Registrar of the National Native Title Tribunal (or their delegate) of a native titledetermination application5 that has been filed in the Federal Court.10 If a claim is acceptedfor registration its details are included in the Register of Native Title Claims.

Sections 190B and 190C provide for the criteria — both procedural and merit-based —upon which the claim is assessed, including matters such as:

• sufficient identification of area;• identity of claim group;• authorisation of claim group; and• overlapping claims.

Significantly, s 190B(6) provides that “[the] Registrar must consider that prima facie atleast some of the native title rights claimed in the application can be established.” Thenote to this subsection explains the section’s significance (and to a large extent that of theentire Division), and provides:

If the claim is accepted for registration, the Registrar must, under para 186(1)(g), enter on theRegister of Native Title Claims details of only those claimed native title rights and interests thatcan, prima facie, be established. Only those rights and interests are taken into account for thepurposes of subs 31(2) (which deals with negotiation in good faith in a “right to negotiate”process) and subs 39(1) (which deals with criteria for making arbitral body determinations in a“right to negotiate” process).

The procedural steps in registering a claim may be summarised as follows:1. Filing — After being filed in the Federal Court, the claim is given to the Native

Title Registrar;2. Notice — The Registrar must give notice of the application to the relevant state

or territory minister and to any relevant Native Title Representative Body;15

3. Assessment — The Registrar must consider any information supplied by theclaimants and the state and territory government in assessing the applicationunder ss 190B and 190C.20 The assessment is to take place as soon aspracticable, but within two months if the claim is affected by a notice unders 24MD(6B)(c) (which deals with acquisitions), or within four months if theclaim is affected by a notice under s 2925 (which deals with inter alia the grantof mining titles).

4. Determination/Review — If the Registrar determines not to register a claim theclaimants may seek to have that decision reviewed by either the Federal Court30

or the National Native Title Tribunal.35 A decision by the Registrar may also bethe subject of judicial review proceedings initiated by other parties.40

Once a decision as to registration of the claim is made, notice is also given to therelevant local government, the Commonwealth minister, registered (ie land titlesor mining) proprietary interest holders, other registered native title holders orclaimants, the Native Title Representative Body, other persons whose interest




Page: 12 Date: 11/8/2011 Time: 15:32:47

bwpageid:: 280202::

bwservice::0::

may be affected and the public.45 This allows these groups to seek to be joinedas parties in the Federal Court proceedings.

The fact of registration of a claim will enliven procedural rights in the native titleclaimant group in respect of each future act procedure (this is aside from the significanceof the content of registered claimed rights to the right to negotiate process as described inthe “note”). However, with very few exceptions,50 a native title claim which is notregistered will have no procedural rights in respect of a future act procedure.

At this point the significance of the validation provisions referred to in ss 24AA(3) and(4), and referred to above, becomes pertinent. If a future act procedure has been correctlyfollowed, the resultant future act will not be able to be impeached, even if an unregisterednative title claim is ultimately successful in the Federal Court.

Notes

1 The requirements for the content of a determination of native title are set out in ss 55–57 but are notdirectly relevant to the current discussion. Note also that s 61 provides for several other forms of nativetitle determination application. For example the “non-claimant application” where a non native titleparty seeks a determination that native title does not exist.

5 Section 184 provides that in this context a native title determination application is referred to as a“claim”.

10 Section 190A(1).

15 Section 66(2) and (2A). A “representative (Aboriginal/Torres Strait Islander) body” is defined in s 253.Its functions are largely defined at s 202(4) as representing Aboriginal and Torres Strait Islander peoplein making determination applications, assisting in resolving disputes between applicant groups, assistingin negotiations and proceedings, certifying determination applications and ILUAs (see below) andbecoming a party to an ILUA.

20 Section 190A(3).

25 Section 190A(2).

30 Section 190F.

35 Section 190E.

40 See for example Northern Territory v Doepell (2003) 133 FCR 112; 203 ALR 385; [2003] FCA 1384;BC200307316, which also illustrates how the claim registration provisions are generally viewed asbeneficial legislation and interpreted accordingly.

45 Section 66(3) and (6).

50 Those there are involve ILUAs and are discussed below.

[281,830] Indigenous Land Use Agreements (ILUAs)The ILUA is often seen as the preferred future act procedure to be adopted, particularly

in the context of mining proposals. There are three very good reasons for this:1. An ILUA, essentially a particular form of statutory contract, gives the parties to

it freedom to contract both in terms of processes and outcomes, that may notexist in the regular future act processes.

2. The voluntary nature of the ILUA illustrates and advertises a cooperativeapproach between both proponents and native title holders (or claimants).

3. An ILUA can potentially address more than one future act. Not infrequently asingle ILUA between a (putative) miner and the relevant native title parties canauthorise the grant of several exploration titles and any subsequent mining titles.In the ordinary course of events one would expect that the certainty thus createdwould come at some cost.

While at its core an ILUA is a straightforward contract, its particular statutory featuresattract some complex provisions in the NTA. The provisions are examined below in thefollowing method:




Page: 13 Date: 11/8/2011 Time: 15:32:47

bwpageid:: 280203::

bwservice::0::

• description of the different types of ILUA under the NTA;• consideration of the process of registration and objections to registration;• consideration of the legal effect of an ILUA, including the significant issue of at

what stage an ILUA acquires legal effect: upon execution or registration.

It should be noted that it is not within the scope of this guide card to provide precedentsin relation to the content of the ILUAs it describes.

[281,850] Types of ILUA: Part 2 Division 3 subdivisions B to D

The NTA establishes three types of ILUA, provided for in Pt 2, Div 3, subdivss B–Drespectively:

1. body corporate agreements;2. area agreements; and3. alternative procedure agreements.

Subdivision E goes on to establish provisions regarding the effect of ILUAs that havegeneral application to each type of ILUA.

It is an implied requirement with respect to all ILUAs that they must relate to a defined(or at least definable) area of land. Although this requirement is not explicitly stated in thelegislation1 it springs from the fact that the mandatory parties to each type of ILUA areascertained geographically. In addition, the requirement is made explicit under the NativeTitle (Indigenous Land Use Agreement) Regulations 19995 (Cth) (the ILUA Regulations).The ILUA Regulations require “a complete description of the agreement area”.10 This isnot to suggest that the ILUA may not have effect beyond the defined area of land, but thatits foundation is with respect to the area so defined.

[281,870] Body Corporate Agreements

A body corporate agreement can only be made where there is one or more RegisteredNative Title Body Corporate (RNTBC) in relation to all of the area in question.15 As theRNTBC only comes into effect subsequent to a determination of native title by the FederalCourt, this requirement has the effect that body corporate agreements can only be madeafter a determination of native title with respect to the whole of the area the subject of theILUA. This is provided in the Explanatory Memorandum:

Subdivision B deals with “body corporate agreements”. Body corporate agreements can only bemade if there are one or more registered native title bodies corporate which hold the native titleto, or have been appointed to act for the native title holders of, the whole of the area covered bythe agreement. A body corporate agreement can cover any matter relating to native title and aregistered native title body corporate can make such an agreement with any other person. Theprocedural requirements for registration of a body corporate agreement reflect the fact that boththe existence of native title has been demonstrated and the holders identified.20 (Emphasis in theoriginal).

The content of the ILUA must address one or more of the matters prescribed under24BB(a)–(f). However, these subsections are in such broad terms as to allow the ILUA todeal with any matter concerning native title.25 Section 24BB specifically refers to suchmatters as:

• the doing of future acts;• the manner of exercise of native title rights and interests;• the relationship between native title rights and interests and other rights and

interests in the area;• extinguishing native title rights and interests by surrender to the Commonwealth

or a state or territory;• compensation;• or any other matter concerning native title rights and interests in the area.




Page: 14 Date: 11/8/2011 Time: 15:32:47

bwpageid:: 280204::

bwservice::0::

The Tribunal publishes a document, “Body corporate agreements: guidelines forregistration”,30 which states, citing s 24BB as authority:

A body corporate agreement can be about almost anything related to native title rights andinterests. It must be about at least one of the issues set out in the Act, and it can be about othermatters as well. The details of the agreement will depend entirely upon the needs andrequirements of the parties involved.

The Tribunal’s interpretation of s 24BB may go further than is supported by thelegislation. As noted above, the preface to the section prescribes that the content of a bodycorporate agreement must be about one or more of the matters specified in the section. Thespecified matters include “any other matter concerning native title rights and interests inthe area”. Section 24BB is silent on the issue of inclusion of additional matters in anagreement, but it does not explicitly authorise the inclusion of matters in addition to thosespecified.35 The Tribunal’s interpretation would also appear consistent with the statementin the Explanatory Memorandum that: “A body corporate agreement can cover any matterrelating to native title. . .”.

The parties to a body corporate agreement must include all relevant RNTBC’s (sees 253 — the term is virtually synonymous with Prescribed Body Corporate (PBC)) for thearea.40 Any other person, including government, may be a party. The Commonwealth,state or territory must be a party if the ILUA involves the surrender of native title rightsand interests.45 The relevant representative bodies (if any) need not be a party to theILUA. However, if they are not a party, the RNTBC must inform the representative bodyof the proposed agreement before entering the agreement.

The ILUA may be given for any consideration (including a grant of freehold or otherinterest in land) and subject to any conditions as the parties determine.50

[281,890] Area Agreements

Section 24CB provides that an area agreement must relate to matters that are verysimilar to a body corporate agreement.55 These ILUAs may be given for any consideration(including a grant of freehold or other interest in land) and subject to any conditions theparties determine.60

An essential difference between area agreements and body corporate agreements is withrespect to the native title parties. An area agreement cannot be made if there are RNTBCwith respect to the whole area.65 Pursuant to s 24CD the “native title group” must be aparty to an Area Agreement. The “native title group” is defined in s 24CD as comprisingall registered native title claimants70 with respect to the area and all RNTBC with respectto the area.75 If any section of the area (or all of it) is not covered by a determination ora registered determination application, the native title group must also include “anyperson who claims to hold native title” in the area and (or) any relevant representativebody.80 The representative body and “any person who claims to hold native title” may alsoinclude parties in the event that the whole of the area is subject to a determination anddetermination application.85 If it is not intended to include the representative body as aparty, the native title group must inform the representative body of the intention to enterthe agreement.90

As with body corporate agreements, for area agreements any other person, includinggovernment, may be a party. The Commonwealth, state or territory must be a party if theILUA involves the surrender of native title rights and interests.95

A summary of the intended scope of area agreements is provided in the ExplanatoryMemorandum:

Subdivision C covers “area agreements”. This type of agreement has considerable flexibility interms of the content, parties and area to be covered by the agreement. The most important




Page: 15 Date: 11/8/2011 Time: 15:32:47

bwpageid:: 280205::

bwservice::0::

condition for area agreements is that all the registered native title claimants and registered nativetitle bodies corporate for the area to which the agreement relates must be parties to it. However,where all of the area has been subject to a determination that native title exists (which wouldmean that there is a registered native title body corporate for all parts of the area), the agreementcould be registered provided it complied with subdiv B.100 (Emphasis in the original).

Area agreements allow the possibility of pre-determination agreement as to themanagement of assumed native title rights and interests, without the necessity of provingthe existence of the assumed native title (as distinct from body corporate agreements). Inpractice, it is common for negotiations leading to an area agreement that involves a stateor territory, to also lead to agreement regarding a consent determination of native titlepursuant to s 87.105

[281,910] Alternative Procedure Agreements

The scope of alternative procedure agreements is similar to that of area agreementswith one significant exception — there is no mention of an alternative procedureagreement dealing with the extinguishment of native title in s 24DB.110 In fact, this isspecifically prohibited under s 24DC.

Section 24DB provides for:• an alternative procedure agreement to deal with matters such as the doing of

future acts;• the manner of exercise of native title rights and interests;• the relationship between native title rights and interests and other rights and

interests in the area;• compensation; or• any other matter concerning native title rights and interests in the area and access

to non-exclusive leases.

There is also a significant difference with respect to the parties to such alternativeprocedure agreements. The native title group for an alternative procedure agreement mustcomprise all RNTBC for the area and all representative bodies for the area. At least onesuch body must exist with respect to the area.115 An area agreement cannot be made ifthere are RNTBC with respect to the whole area.120 It must also comprise all “relevantgovernments”.125 The alternative procedure agreement may also include native titleclaimants (registered or unregistered) and any other person.130

The Explanatory Memorandum summarises the scope of alternative procedureagreements:

The third type of agreement is an “alternative procedures agreement” and is covered bysubdiv D. Because (unlike body corporate agreements and area agreements) it is not arequirement that native title holders are parties, alternative procedure agreements cannot resultin extinguishment of native title. Subject to this limitation, they may cover a wide range of nativetitle matters. An alternative procedure agreement can be made even if there are registered nativetitle claimants for the area who are not parties to it, but all the registered native title bodiescorporate and representative Aboriginal/Torres Strait Islander bodies (if any) for the area must beparties. However, where all of the area has been subject to a determination that native title exists(which would mean that there is a registered native title body corporate for all parts of the area),the agreement could be registered provided it complied with subdiv B.135 (Emphasis in theoriginal).

As with other ILUAs, alternative procedure agreements may also be given for anyconsideration (including a grant of freehold or other interest in land) and subject to anyconditions the parties determine.140

The alternative procedure ILUAs are of little practical relevance. As of June 2011, therehave been no registered alternative procedure ILUAs.




Page: 16 Date: 11/8/2011 Time: 15:32:47

bwpageid:: 280206::

bwservice::0::

[281,930] Procedural Requirements — Registration and Objections

To have effect as an ILUA under the NTA an agreement must be registered on theRegister of Indigenous Land Use Agreements.145 Each of subdivs B, C and D includerequirements for registration. These are broadly similar, with some specific differencesarising with respect to each type of ILUA.

In each subdivision there is a requirement that the parties to the ILUA agree to itsregistration.150 Notice of the agreement must be given to relevant individuals or bodieswho are not parties to the agreement, including:

• the Commonwealth Minister;• the state or territory Minister;• any local government body for the area;• any other person the Registrar considers relevant; and• the public.155

Notice must also be given to any representative body with respect to agreements undersubdiv B and C.160 Despite this requirement for notice, there is a more limited “standing”requirement to object to registration and for the Registrar refusing to register a putativeILUA.

With respect to body corporate agreements, the only obstacle that can exist toregistration is if a relevant representative body advises that it was not informed of theintent to register the agreement165 and the Registrar concurs in this view.170

The grounds for objection to registration of an area agreement will depend uponwhether all representative bodies have certified that they have made all reasonable effortsto consult with all people who hold or may hold native title in the area, and that suchpersons have authorised the making of the agreement,175 or whether the parties seekingregistration include a statement to the same effect.180

The distinction is described in the Explanatory Memorandum:

The first alternative is that the agreement must have been certified by all representativeAboriginal/Torres Strait Islander bodies (representative bodies) for the area covered by theagreement . . .

Under subs 202(8) of the NTA . a representative body can only certify an ILUA if it is satisfiedthat:

• all reasonable efforts have been made to identify all the actual or potential native titleholders for the area covered by the agreement; and

• all of the persons so identified have authorised the making of the agreement.

The second alternative involves a process of identifying all actual or potential native title holdersfor the area covered by the agreement. This requirement is met if the application for registrationof the area agreement includes a further statement that both the conditions set out below aresatisfied and also gives a further statement that briefly sets out why the Registrar should besatisfied these conditions are met:

• all reasonable efforts have been made to identify all persons who hold or may hold nativetitle in relation to the land or waters in the area. The reasonable efforts must includeconsulting all representative bodies for the area; and

• all of the persons so identified have authorised the making of the agreement.185

The basis for objection varies depending upon whether the first or second alternativepath to registration is adopted:

1. If the representative body certification procedure under s 24CG(3)(a) is adopted,the objection can only be from a person alleging to hold native title and on thebasis that such efforts were not made or such agreement not obtained. In such acase registration can only proceed if such objection(s) are withdrawn or if theRegistrar is satisfied there is insufficient basis in the allegation.190




Page: 17 Date: 11/8/2011 Time: 15:32:47

bwpageid:: 280207::

bwservice::0::

2. If the parties supply a statement under s 24CG(3)(b), registration of the ILUAwill proceed provided that all registered native title claimants195 are parties to theagreement and the Registrar is satisfied of the accuracy of the s 24CG(3)(b)statement.200

The intent of the arrangement under this alternative is that if there are potentialnative title holders who are not parties to the agreement who object to itsregistration, then such persons can become registered native title claimantsduring the notice period. If the determination application is registered205 then theobjectors must consent (become parties) to the ILUA or registration of the ILUAcannot proceed. An objector who does not obtain registered native title claimantstatus has no recourse. However, if there is a subsequent native titledetermination in their favour (despite the determination application not beingaccepted for registration) the ILUA is de-registered.210

Objection to an alternative procedures agreement can be made by a person claiming tohold native title in the area215 but is on a different basis to objection to an area agreement.An objection to an alternative procedures agreement is on the basis that it would not be“fair and reasonable to register the agreement.”220

[281,950] The ILUA Register

The legislative foundation for the establishment and maintenance of the Register ofIndigenous Land Use Agreements is found in Pt 8A of the Act.225 The Part details theinformation to be kept on the Register and provides that the Register is to be public.230

Legislative authority is provided for the details of an agreement to be kept confidential(excluding matters such as parties, duration and area).235

Part 8A also deals with removal of agreements from the Register.240 An agreement isremoved from the Register only in specific cases:

• if the agreement expires;• by consensual agreement of all parties;245 or• in the case of a body corporate agreement or an area agreement, if there is a

native title determination or a determination variation that determines personsother than the parties to the agreement are native title holders250 (there is nosimilar provision with respect to alternative procedure agreements). In the caseof such a determination the “new” native title holders may apply to the FederalCourt to be joined to the agreement. The court has a discretion to allow theagreement to remain registered in such a case if satisfied the applicants “acceptthe terms of the agreement”.255

The “note” to s 199C provides that if the details of an agreement are removed from theRegister “the Agreement will cease to have effect under this Act from the time the detailsare removed.”

Finally, the Federal Court can order an agreement removed from the Register ifsatisfied “that a party would not have entered into the agreement but for fraud, undueinfluence or duress by any person (whether or not a party to the agreement).”260 Such anorder can only be made on the application of a party to the agreement or by a relevantrepresentative body.265. If the agreement is removed from the Register the court mayorder the payment of compensation by the perpetrator of the fraud, undue influence orduress “to any party to the agreement who will suffer loss or damage as a result of theremoval of the details.”270

[281,970] Legal Effect of an ILUA: Part 2 Division 3 subdivision E

Subdivision E applies to all three types of ILUAs. It is titled “Effect of registration of




Page: 18 Date: 11/8/2011 Time: 15:32:47

bwpageid:: 280208::

bwservice::0::

indigenous land use agreements” and is comprised of only four sections. A generalintroduction to the subdivision is included in the Explanatory Memorandum:

Subdivision E explains the effects of registered agreements. The agreement, once registered, istaken to have contractual effect between the parties and also binds all native title holders for thearea regardless of whether they are parties to it . . . Also, if the agreement is to be supported bylegislation so that it can be fully implemented, the relevant parliament can pass legislationdespite any other provisions in the NTA. Registration of an agreement ensures the validity offuture acts which it covers or authorises. Generally the non-extinguishment principle applies.275

(bold emphasis in the original, italic emphasis added).

Section 24EB deals with future acts and ILUAs. It provides that an ILUA may validlyauthorise the doing of a specified future act or class of future acts (or the doing of thesethings subject to conditions), provided a statement to this effect is included in theILUA.280 If the right to negotiate provisions of subdiv P are to be avoided, a statement tothis effect is also required.285 Similarly, a specific statement that native title is to besurrendered is also required, if this is to be the effect of the agreement.290 Unless there issuch a statement, the “non-extinguishment principle” (that is that native title will “revive”after the doing of the act)295 will apply to the future act.300 Significantly,subss 24EB(4)–(6) provide that compensation for the future act under the Act is denied fornative title holders within the scope of the agreement, except for compensation providedfor under the agreement. Subsection 24EB(7) provides that a native title holder, not withinthe scope of the agreement, is still entitled to compensation (as determined under Pt 2Div 5 of the NTA).

Section 24EBA is in similar terms to s 24EB, but applies with respect to validatingfuture acts that have already been done. Section 24EC preserves the power of theCommonwealth, states and Territories to make agreements (or legislate in relation to suchagreements) with native title holders, relating to native title rights and interests. Howeversuch agreements cannot be with respect to the doing of future acts. Accordingly, s 24ECimplies that ILUAs provide the exclusive means by which agreements relating to thedoing of future acts may be reached.

Section 24EA is potentially the most significant single provision with respect to ILUAs.It relates to the crucial question of when an ILUA has legal effect — upon execution bythe parties or upon registration (or some combination of both alternatives).

The relevant portions of s 24EA are:

Contractual effect of registered agreement

24EA (1) While details of an agreement are entered on the Register of Indigenous LandUse Agreements, the agreement has effect, in addition to any effect that it may have apartfrom this subsection, as if:

(a) it were a contract among the parties to the agreement; and(b) all persons holding native title in relation to any of the land or waters in the area

covered by the agreement, who are not already parties to the agreement, werebound by the agreement in the same way as the registered native title bodiescorporate, or the native title group, as the case may be.

(2) Only certain persons bound by agreement To avoid doubt, a person is not boundby the agreement unless the person is a party to the agreement or a person to whomparagraph (1)(b) applies.

(Emphasis in subsection (1) added)

Subsection 24EA(3) preserves the power of the Commonwealth, state and territorygovernments to legislate to give effect to their obligations under an ILUA.

The Explanatory Memorandum provides the following commentary on this provision:

The Bill provides that registered ILUAs have contractual effect during any period when the




Page: 19 Date: 11/8/2011 Time: 15:32:47

bwpageid:: 280209::

bwservice::0::

details of the agreement are entered on the Register of Indigenous Land Use Agreements. [. . .]Specifically the Bill deems the following to be the case:

• In addition to the effect it has apart from the NTA, the agreement has effect as if it werea contract among the parties to the agreement. [. . .] Except as mentioned below, it isintended that only the parties to the agreement are bound by it.

• All native title holders in relation to any of the land or waters covered by the agreement,but who are not parties to the agreement are taken to be bound by the agreement. They arebound in the same manner as the registered native title bodies corporate (in the case of abody corporate agreement) and the native title group (in the case of an area agreement oralternative procedures agreement). . .305

(emphasis added)

There is no authority and little academic discussion with respect to s 24EA.310 Themost detailed consideration is provided in an article by Gooden and Dorsett (published in2000),315 the key discussion being:

There are two possible interpretations [of subs 24EA(1)]. First, it may provide that contractualstatus of agreements is conferred only upon registration. In this case the phrase ‘apart from anyeffect [the agreement] might otherwise have’ is highly ambiguous. On the other hand the phrasecould be interpreted as confirming that on contractual status being conferred by s 24EA,common law contractual principles will then apply generally to the agreement.

Alternatively, the section may also be construed as simply acknowledging that a contract hasbeen entered into at common law prior to registration. In this instance registration merely confersby means of the NTA, certain characteristics on a class of contracts to be known as ILUAs.

Thus, registration transforms a contract into an ILUA. The section, then, confirms that onregistration certain consequences follow, most notably that in particular circumstances nativetitle holders who are not parties to the agreement are bound by it. Therefore, the phrase ‘apartfrom any effect [the agreement] might otherwise have’ merely confirms the applicability ofgeneral contractual principles to the agreement. Further, the provisions relating to removal of theILUA from the Register of Land Use Agreements could be used in order to strengthen thisinterpretation of s 24EA.

The possibility of competing interpretations of s 24EA means that it is unclear exactly when anILUA gains contractual effect.

The distinction between the contractual effect (or not) of an unregistered ILUA, is notnecessarily resolved through clarification of the issue regarding s 24EA(1) referred toabove. Gooden and Dorsett focus upon the phrase “in addition to any affect [theagreement] might otherwise have.” However, the relevant phrase from the subsection is:“the agreement has effect, in addition to any effect that it may have apart from thissubsection, as if. . .”.

The reference to the subsection would suggest that the phrase refers only to the effectsof the subsection itself — ie that it is a contract between the parties and between othernative title holders. Gooden and Dorsett appear to suggest the subsection is not implyingan ILUA has contractual effect because of the provisions of the subsection, but rather thatit has contractual effect on persons who would not otherwise be parties to it (thosereferred to in s 24EA(1)(b)).

Thus, the ILUA may stand as a contract at common law between the parties to it,independently of registration. This conclusion is supported by the reference in para 7.21of the Explanatory Memorandum, that: “in addition to the effect it has apart from theNTA, the agreement has effect as if it were a contract among the parties to the agreement”.

However, there is a difference between the subsection and the ExplanatoryMemorandum para 7.21 at the first dot point and on this issue (one referring to any effectan agreement may have apart from the subsection, the other referring to effects other than




Page: 20 Date: 11/8/2011 Time: 15:32:47

bwpageid:: 280210::

bwservice::0::

under the NTA). To confuse the situation further, the Explanatory Memorandum at the

introductory sentence to para 7.21 and para 7.6 would appear to suggest that the

agreement has no contractual effect until registered.

Putting aside consideration of this issue momentarily, there would be no contractual

effect on non-parties (as defined). This interpretation is supported by reference tos 24EA(2), which emphasizes that s 24EA is primarily concerned with defining parties.

The only clear effect of s 24EA(1) would therefore be to bind all native title holderswithin the area of the agreement, whether or not they were themselves parties to theagreement. This provision is considered as providing transaction security, seen asessential to an agreement process.

However, aside from an alternative procedures agreement, s 199C casts some doubt onthis. An area agreement or prescribed body corporate agreement will be de-registered ifthere is a determination of native title, involving native title holders not involved in theILUA process. While s 199C may lessen the transaction security provided bys 24EA(1)(b) with respect to “undiscovered” native title holders, the latter section wouldappear to operate effectively with respect to the “successors in title” of the native titleparties to an ILUA.

Section 24EA(2) appears to have been intended as a statutory reinforcement of thedoctrine of privity of contract, with respect to non-native title interests — in light of theabrogation of that doctrine effected by 24EA(1)(b).

Notes

1 It is implied in the fact that the preface to ss 24BB, 24CB and 24DB are all in identical terms “Theagreement must be about one or more of the following matters in relation to an area. . .”

5 SR 335 of 1999.

10 Regulation 6(2)(c) with respect to body corporate agreements, reg 7(2)(d) with respect to areaagreements and reg 8(2)(d) with respect to alternative procedure agreements.

15 Section 24 BC.

20 Explanatory Memorandum, para 7.3.

25 The one exception is the validation of intermediate period acts which can only occur in accordance withDiv 2A s 24BB(aa). In summary, an intermediate period act (defined in s 232A) is an act that occurredbetween 1.1.94 and 23.12.96 and involved the grant of freehold, a lease or the construction of a publicwork where this act would have been invalid because of the existence of native title.

30 This is available at: http://www.nntt.gov.au.

35 The same statement is included in the Tribunal’s guidelines dealing with area agreementshttp://www.nntt.gov.au. Section 24CB is cited as authority with respect to these ILUA’s.

40 Section 24BD(1).

45 Section 24BD(2) and (3).

50 Section 24BE.

55 The only difference between the two sections (viz 24BB and 24CB) lies in s 24CB(g). This provides thatarea agreements can be with respect to rights of access to non-exclusive agricultural and pastoral leases,a matter that may be dealt with under s 24BB(d) or (f) to the extent it needs to be resolved in apost-determination environment.

60 Section 24CE.

65 Such an agreement would be a body corporate agreement pursuant to subdiv B.

70 A term defined at s 253.

75 Section 24CD(2)(a) and (b).

80 Section 24CD(2)(c) and (3). It is here that an unregistered claimant may have an impact of future actprocedures.




Page: 21 Date: 11/8/2011 Time: 15:32:47

bwpageid:: 280211::

bwservice::0::

85 Section 24CD(4).

90 Section 24CD(7).

95 Section 24CD(5) and (6).


105 The matters to be considered by the court in making such a determination were considered by Branson J

in Kelly (on behalf of the Byron Bay Bundjalung People) v NSW Aboriginal Land Council [2001] FCA

1479; BC200107405. See also Congoo v Queensland [2001] FCA 868; BC200103690.

110 In addition the reference to an ILUA of this sort altering the effects of s 22B with respect to intermediate

period acts is omitted.

115 Section 24DD(2).

120 Section 24DD(1). Such an agreement would be a body corporate agreement pursuant to subdiv B.

125 Which is the state or territory government unless the area extends beyond jurisdictional limits in which

case the term also includes the Commonwealth: s 24DE(3).

130 Section 24DE(4).


140 Section 24DF.

145 Section 24EA.

150 Sections 24BG, 24CG ands 24DH. Subdivision B also allows a party to later advise it does not wish to

proceed with registration: s 24BI(2).

155 Section 24BH, s 24CH, s 24DI.

160 Representative bodies must be a party to alternative procedure agreements under subdiv D.

165 Per s 24BD(4)(a).

170 Section 24BI.

175 Section 24CG(3)(a), 24CI(1), s 202(4) and 202(8).

180 Per Section 24CG(3)(b) and s 24CL.

185 Explanatory Memorandum, para 22. 7 to 22.9.

190 Section 24CK(2).

195 Or those who sort registration within the notice period and obtained registration afterwards as a resultof a successful application for review of decision to refuse registration of their native title determinationapplication — s 24CL(2)(b)(ii).

200 Section 24CL.

205 That is the determination application satisfies the requirements of s 190A.

210 Section 199C(1).

215 Section 24DJ(1).

220 Sections 24DJ(1) and 24DL(2)(c).

225 In particular s 199A.

230 Sections 199B and 199D.

235 Section 199E.

240 Section 199C.

245 Section 199C(1)(c)(i) and (ii).

250 Section 199C(1)(a) and (b).

255 Section 199C(1A).

260 Section 199C(3) see also s 199C(1)(c)(iii).

265 Section 199C(2)

270 Section 199C(4).




Page: 22 Date: 11/8/2011 Time: 15:32:47

bwpageid:: 280212::

bwservice::0::


280 Section 24EB(1)(b).

285 Section 24EB(1)(c).

290 Section 24EB(1)(d). This of course is only with respect to body corporate and area agreements asalternative procedure ILUA’s cannot provide for extinguishment: s 24DC.

295 See s 238 and the discussion above.

300 Section 24EB(3).


310 The primary specialist text in the area, C Mantziaris and D Martin, Native Title Corporations: A Legal

and Anthropological Analysis, The Federation Press, 2000 at pp 247–256, concentrates on the effects ofs 24EA(1)(b) to the exclusion of 24EA(1)(a).

315 L Gooden and S Dorsett, “The Contractual Status of ILUAs” Land Rights, Laws: Issues of Native Title,AIATSIS vol 2, No 1 2000 at p 3 (of the article).

[282,170] The Right to Negotiate Procedure

[282,190] Structure and Overview

The Right to Negotiate (RTN) procedure is (with the ILUA provisions) the mostimportant of the NTA future act procedures relevant to the grant of mining or petroleumtitles. It is the future act procedure that the NTA specifies as applying to the majority ofexploration and mining titles (unless an appropriate ILUA is in effect). Despite theuniformity demanded by the NTA, the RTN is also an area where there is significantlydifferent jurisdictional practice, arising in part from the particularities of jurisdictionaltitles, and in part simply as a result of institutional cultural factors.

An overview of the RTN may be summarised as follows:• The RTN is founded in subdivs M and P.• It provides that if a state or territory government intends to grant a “right to

mine” — a term which includes exploration, mining and petroleum titles (notingthe definition of “mining lease” and “mine” in ss 245 and 253, and discussed at[1.3] above) — must give notice of the proposal. The s 29 notice is given to anyregistered native title claimants and to the relevant Representative Body (seeabove [2.3.1]).

• After a period of three to four months, it is necessary for the state or territorygovernment to reach a negotiated agreement in relation to the granting of themining title with any native title claimants that are registered at that time.

• If agreement cannot be reached after a minimum of 6 months of “good faith”negotiations between the parties (government, grantee and native title), a partymay refer that matter for arbitration to the National Native Title Tribunal(NNTT). The NNTT can determine that the title should be granted, be grantedsubject to conditions (the usual outcome) or should not be granted.

• The RTN contains various “ministerial override” provisions that have never beenutilised.

• The RTN contains a shortcut “expedited procedure” that will authorise the grantof exploration titles in jurisdictions that have tailored their exploration titles to fitthe requirements of the NTA (primarily the Northern Territory). The expeditedprocedure still involves the s 29 notice requirements, but will avoid therequirement to negotiate in good faith.

The policy context of the RTN is that:• The vast majority of the future act procedures in the NTA provide for registered

native title claimants to be given notice of a proposal and a right to commentupon it.




Page: 23 Date: 11/8/2011 Time: 15:32:47

bwpageid:: 280213::

bwservice::0::

• The extensive RTN provisions practically apply to two areas:(a) a compulsory acquisition of native title rights, the dire and permanent

consequences of which are obvious; and(b) the grant of a right to mine, which will attract the non-extinguishment

principle.• It is a procedural right bestowed upon native title holders/claimants when the

holders of most Crown grants have, at best, procedural rights to notice andcomment (perhaps “objection”) in the face of the reservation of minerals to theCrown.

• In short, the RTN is clearly “beneficial legislation” carrying with it all thestatutory interpretative consequences that flow from this classification. This factis worth bearing constantly in mind when embarking on the RTN, as it shouldaffect any assessment of litigation as a component of an approach to gaining atitle.

Section 24MB(1)(b)(i) provides that subdiv M applies to future acts “that could be doneto the land concerned if the native title holders concerned instead held ordinary title to it”.Recalling that subdiv M is close to the bottom of the future act hierarchy describedearlier,1 the provision applies to onshore future acts that are not addressed by an earliersubdivision. Section 24MD(1) provides “that subject to subdiv P . . . the act is valid”.

Subdivision P, “Right to negotiate”, is contained in ss 25–44. Section 26(1)(c)(i)provides that the subdivision applies to the creation of a right to mine5 by a state, territoryor the Commonwealth. Section 26(2) identifies and excepts a number of future acts thatwould otherwise be within the scope of the RTN. Exceptions relevant to mining, identifiedin this provision, are included in the discussion in the following section.

Subdivision P is made more cumbersome than it needs to be, through the inclusion ofreferences to “alternative state or territory provisions.”10 The alternative provisionsinvolve a mechanism that was designed to allow a state or territory to set up a parallelRTN structure. The Commonwealth Minister’s approval of the Northern Territory’s“alternative provisions” arrangements was disallowed by the Senate on 31 August 1999.The Queensland “alternative provisions” arrangements were challenged in the FederalCourt, and rescinded in 2003 by the Queensland government. Only South Australia hasalternative provisions regimes in place and the benefits of this arrangement are dubious.However, in the meantime the existence of these alternative provisions explains whysubdiv P refers to, for example, the generic “arbitral body”15 rather than the NNTT.

To summarise:• Subdivision M requires the importation of the RTN procedures in subdiv P, for

the grant of a exploration or mining title to be valid.• Section 28 explicitly provides that an act to which the RTN applies is invalid (“to

the extent that it affects native title”), unless one of the RTN outcomes describedin that section applies.

[282,210] Notification and Procedural Requirements

Subsection 29(1) imposes a notice requirement on the “Government party”20 to givenotice, in the prescribed manner, of the proposal to grant a mining title. The form of theprescription is contained in subcl 6(5) of the Native Title (Notices) Determination 1998made under the NTA. Issues such as the decision to notify, and the precise form of thenotice, were the subject of extensive litigation in the early years of this century.25

However, a decade on, these matters are de rigour for relevant state and territoryauthorities. The form of a standard s 29 notice is well settled in every jurisdiction and itis unlikely that a putative grantee would have input into the form of such notices at thisstage.




Page: 24 Date: 11/8/2011 Time: 15:32:47

bwpageid:: 280214::

bwservice::0::

Subsection 29(3) requires that notice is given to:• any Registered Native Title Body Corporate (RNTBC — ie post determination

native title holding body — see [2.3.1] above);• any relevant registered native title claimant (any relevant RNTBC and registered

native title claimant are termed a “native title party”30);• the person applying for the title (the “grantee party”);35 and• the public.40

Aside from containing the prescribed information relating to the location and nature ofthe act the notice must also contain a statement to the effect that persons have until threemonths after the nominated “notification day” in which to seek to have a claim registered,and thus to become a native title party.45 If the title grant is claimed to be subject to theexpedited procedure,50 the s 29 notice must also include a statement to this effect.55

Similarly, the s 29 notice must also stipulate whether the “multiple acts” or “project acts”provisions apply.60

[282,230] “Good Faith” Negotiations

Unless the expedited procedure applies, s 31 provides for the “normal negotiationprocedure” in which parties will “. . .negotiate in good faith with a view to obtaining theagreement of the native title parties to [the doing of the act or the doing of the act subjectto conditions]”.65 The result of these negotiations will be a written agreement setting outthe grant of the title. This agreement is referred to differently in different jurisdictions —sometimes referred to as a tripartite agreement, sometimes as a s 31(1)(b) agreement.Copies of the s 31(1)(b) agreement are kept by the government party and the NNTT.Commonly, the s 31 agreement will be fairly barren but will be accompanied by anagreement between the native title party and the grantee party detailing the operativeterms of their agreement. This latter agreement is sometimes referred to as an “ancillaryagreement” and is often subject to confidentiality provisions as between the parties.Subsection 31(3) provides that the NNTT (arbitral body) must assist this process ifrequested through the provision of mediation services.

Section 33 provides that an agreement under s 31(1)(b) may deal with any range ofmatters, but may particularly go to an entitlement to payments to the native title parties.This is worked out by reference to profits, income derived or things produced under theproposed title.70 The provision is significant because s 38(2) provides that a determinationby an arbitral body must not include a condition of entitlement to payments calculated onthis basis (the policy basis clearly being an encouragement to reach agreement bynegotiation rather than arbitration).

Aside from detailing the normal negotiation process, the particular significance of thes 31 process is that it must have been satisfactorily completed before the next step —arbitration by the NNTT — can be invoked by any of the negotiation parties. Unless it canbe demonstrated that “good faith negotiations” have taken place in the six months sincethe notification day, the NNTT (or other arbitral body) will not have the power to makea determination.75 This highlights the significance that has attached to the meaning of“good faith negotiations”.

Given the jurisdictional significance, there has been considerable authority as to therequired content of good faith negotiations. This is described in detail in the Lexis NexisNative Title service at [2572]–[2578]. The following is a brief summary of the relevantconclusions from that discussion:

(a) The requirement for good faith rests on the grantee and government party.(b) The evidential burden of establishing an absence of good faith rests on the party

asserting such an absence.(c) The generally identified indicia against which the arbitral body (NNTT) will




Page: 25 Date: 11/8/2011 Time: 15:32:47

bwpageid:: 280215::

bwservice::0::

assess whether there has been good faith negotiations are set out in WesternAustralia v Njamal People (1996) 134 FLR 211 (the Njamal indicia) as follows:

• unreasonably delaying the initiation of communications in the firstinstance;

• failing to communicate with the other parties within a reasonable timewithout explanation;

• failing to:— make proposals in the first place;— contact one or more of the other parties;— follow up on a lack of response from the other parties;— attempt to organise a meeting between the native title and grantee

parties;— take reasonable steps to facilitate and engage in discussions between

the parties;— respond to reasonable requests for relevant information within a

reasonable time;— make counter proposals;— do what a reasonable person would do in the circumstances;

• stalling negotiations by unexplained delays in responding tocorrespondence or telephone calls;

• unnecessarily postponing meetings;• sending negotiators without authority to more than argue and listen;• refusing to agree on trivial matters, for example refusal to include statutory

provisions into an agreement;• shifting position just as an agreement is in sight;• adopting a rigid non-negotiable position;• any unilateral conduct which harms the negotiation process, for example

issuing inappropriate press releases;• refusing to sign a written agreement in respect of the negotiation process or

otherwise;• whether or not the government party has made reasonable or substantive

offers or concessions, if this assists in an overall assessment of that partiesnegotiation behaviour.

Njamal also makes clear that good faith negotiation does not require capitulation or thatan agreement is necessarily reached.

Aside from the behaviour of the parties, the content of negotiations need not extendbeyond the particular act the subject of the s 29 notice (ie need not go to settlement of theclaim generally). Further negotiation with a particular native title party, need only be inrespect of those parts of the future act area over which the native title party has aregistered claim (or a determination).

On a practical level, the assertion of an absence of good faith will require a“jurisdictional” hearing by the NNTT before the substantive matter can be dealt with. Thedelay involved in such preliminary proceedings (including the possibility of subsequentjudicial review proceedings), can expose a party to significant delay and expense with noreal prospect of an effective costs sanction.

[282,250] Arbitral Determinations

Section 38(1) provides that the arbitral body may make a determination that the act:• must not be done;• may be done; or,• may be done subject to conditions.




Page: 26 Date: 11/8/2011 Time: 15:32:47

bwpageid:: 280216::

bwservice::0::

Section 38(2) provides that an arbitral body determination must not include a condition

regarding an entitlement to payments to the native title parties worked out by reference to

profits, income derived or things produced under the proposed title.

Section 39 sets out the matters to be taken account of by the arbitral body in making its

determination, including the effect of the grant of the title on:

• enjoyment of the native title parties registered claimed rights;

• life;

• culture;

• traditions;

• social and economic development; and

• access, including access for cultural purposes and sacred site interference.

These factors are balanced against the economic significance (local, state and national)

of the proposal.

In terms of outcomes, as at June 2011, NNTT determinations had been made as

follows:

• two that the future act could not be done;

• 28 that the future act can be done subject to conditions (24 of these were in WA);

• 27 that the future act can be done (21 of which were in WA).

• three determinations that good faith had not been satisfied (from WA), and 33

that it had (27 from WA).

Two conclusions spring from these statistics:

1. Considering the number of determinations against the number of titles granted,

clearly it is rare that the grant of a mining title will be the subject of a future act

determination.

2. Western Australia is the jurisdiction where the arbitral process is most frequently

used. By comparison to WA there has been one future act determination in the

NT. It was in 1998 and did not involve a mining title. Jurisdictional factors can

then impact upon the likelihood of recourse to the arbitral process. One of these

factors is a jurisdiction’s propensity to effectively use the expedited procedure.

[282,270] The Expedited Procedure

The expedited procedure is designed as a mechanism by which certain “low impact”

mining titles can be granted without the need to comply with the negotiation provisions

of the RTN. In the Northern Territory, where the procedure is used extensively, it is used

only in relation to mineral exploration titles — not in respect of mineral productive title

or at all in relation to petroleum titles. This is because these latter titles will not satisfy the

low impact requirements of the procedure.

A s 29 notice may include a statement that the government party considers the act to be

one which attracts the expedited procedure (ie the grant of the mining interest).80 Under

the NTA an act is one that attracts the expedited procedure if it satisfies the definition

contained in s 237. The provision states:

237 A future act is an act attracting the expedited procedure if:

(a) the is not likely to interfere directly with the carrying out of the community or

social activities of the persons who are holders . . . of native title in relation to the

land or waters concerned; and

(b) the act is not likely to interfere with areas or sites of particular significance, in

accordance with their traditions, to the persons who are holder (disregarding any

trust created under Division 6 of Part 2) of the native title in relation to the watersconcerned; and




Page: 27 Date: 11/8/2011 Time: 15:32:47

bwpageid:: 280217::

bwservice::0::

(c) the act is not likely to involve major disturbance to any land or waters concerned

or create rights whose exercise is likely to involve major disturbance to any land or

waters concerned.

If a s 29 notice includes a statement that the act attracts the expedited procedure, then

the provisions of s 32 apply. These provisions allow for a native title party to object to the

statement that the act attracts the expedited procedure:85

• if there is no such objection, the government party may do the act;90

• if there is an objection, that objection is determined by the NNTT:95

— if the objection is upheld the right to negotiate applies;100

— if not, the government party may proceed and do the act.105

In the period from approximately September 2000 to 2002 there were over 200

objections to the application of the expedited procedure to the grant of an exploration

licence in the territory. It was found to apply in the majority of cases. Since that time, the

expedited procedure is used in the territory generally without objection. However, the

period of conflict represented by the high number of objections early in the last decade

produced a wealth of jurisprudence on the application of the procedure.

The general approach of the NNTT to objections to the expedited procedure is found inthe decision of Member Sosso in Moses Silver/Ashton Exploration Pty Ltd/NorthernTerritory DO01/13, unreported NNTT, 1 February 2002 (Moses Silver). One key elementof this general approach, that has application to all three limbs of s 237, is the notion of“predictive assessment”. This notion underlies most of the changes to s 237 achieved bythe 1998 amendments to the NTA. In the original 1993 version of s 237, each subsectionis commenced with the words: “the act does not. . .”. Following the 1998 amendments thiswas changed to: “the act is not likely to. . .”.

The amendment was in response to the Full Federal Court decision of Dann v WesternAustralia (1997) 74 FCR 391; 144 ALR 1; BC9701670. In that decision the courtdetermined that (under the original version of s 237) the task of the Tribunal was todetermine whether the terms, conditions, rights and obligations under the grant of aninterest, was such as to have any of the effects referred to in s 237.110

Subsequent to the 1998 amendments, the task became:

. . . to assess whether, as a matter of fact, the proposed future act is likely to give rise to theinterference or disturbance referred to in parts (a), (b) and (c) of s 237. That involves a predictiveassessment not confined to a consideration of the legal rights conferred by the grant of theproposed tenement.115

In Moses Silver, the NNTT clarifies that in making this predictive assessment, evidenceof the intent of the grantee is relevant (but not determinative) in determining the activitieslikely to be undertaken.120 Further, absent evidence to the contrary, the Tribunal willpresume that a grantee will comply with the statutory obligation and conditions attachingto a licence.125

[282,290] RTN Conclusion

The ILUA future act provisions and RTN provisions (including the expeditedprocedure) will be the relevant procedures for the grant of a mining title in the majorityof cases. One feature that is common to both the ILUA and RTN provisions, is that thegrant of a mining title will generally require agreement being reached with registerednative title claimants (the expedited procedure aside). There had been, in total, seventyseven Future Act arbitral determinations by the NNTT across the whole of Australia since1995. While this outcome may suggest some shortcoming in the RTN process, it certainlysuggests reaching agreement with registered native title claimants is, in the vast majority




Page: 28 Date: 11/8/2011 Time: 15:32:47

bwpageid:: 280218::

bwservice::0::

of cases, a requisite to the grant of a mining title. The decision to proceed by way of ILUAor RTN, may really be one of administrative convenience rather than assertion of legalright.

While the ILUA and RTN provisions dominate the interaction of the NTA with thegrant of mining titles, there are a number of other provisions which will, occasionally,have application as examined below.

Notes

1 In fact the only lower subdivisions are N, which deals with offshore places, and O, that advises thatunless a future act is authorised by another subdivision it is invalid (s 24OA).

5 Except one for the sole purpose of the construction of an infrastructure facility as to which see s24MD(6B) discussed below.

10 For example see s 43.

15 See for example s 27.

20 That is the state, territory or Commonwealth government proposing to grant the mining title: s 26(1).

25 See for example Holt v Manzie (2001) 114 FCR 282; 66 ALD 305; [2001] FCA 627; BC200102866(decision to notify); Dixon v Northern Territory (2001) 166 FLR 29 (requirement to notify, requisitedetail and mapping); Williams v Minister for Land and Water Conservation (NSW) (2003) 128 FCR 517;[2003] FCA 360; BC200302068 (requisite detail).

30 Section 30 sets out the detail of the identity of a native title part in various circumstances (eg the makingof a determination within the three month notice period etc).

35 The “government party”, the “grantee party” and any “native title party” are together referred to as the“negotiation parties”: s 30A.

40 Subsection 29(3). The form of notice is prescribed in subcl 6(1), (2)(f) and (5) of the Native Title

(Notices) Determination 1998.

45 Subsection 29(4). As discussed above [2.4.5] if a claim is filed within three months and registered withinfour months from the notification day the claimants become native title parties: s 30(1).

50 Discussed below at 2.5.5.

55 Subsection 29(7).

60 Referred to in subs 29(8) and 29(9) respectively and discussed below.

65 Section 31(1)(b): emphasis added.

70 Section 33(1).

75 The Full Federal Court in FMG Pilbara Pty Ltd v Cox (2009) 175 FCR 141; 255 ALR 229; [2009]FCAFC 49; BC200903410 draws a distinction between jurisdiction and power at this point noting thatthe NNTT would have jurisdiction to make a determination even in the absence of good faith providedthat no party took the point. The question then goes to its power to make a determination when a partyhas taken the point (at [11]).

80 NTA s 29(7).

85 Section 32(3).

90 Section 32(2).

95 As the arbitral body pursuant to s 27. The “objection” is to the assertion that the act is one which satisfiesthe s 237 definition.

100 Section 32(5).

105 Section 32(4).

110 See Dann v WA (1997) 74 FCR 391; 144 ALR 1; BC9701670 per Tamberlin J at 400. The decision wasa reversal of the approach of the NNTT as outlined in Western Australia v Thomas (1996) 133 FLR 124.The Tribunal adopted this approach in part in recognition of the fact that the mere grant of a licence itselfhas no effect on native title — it is the exercise of rights under the licence that may create an effect (seeThomas at 153). The 1998 amendments clarified that what was to be considered was the effect of thegrant not the grant itself.




Page: 29 Date: 11/8/2011 Time: 15:32:47

bwpageid:: 280219::

bwservice::0::

115 Smith v Western Australia (2001) 108 FCR 442; [2001] FCA 19; BC200100042 per French J at 450.

120 Moses Silver at [25]–[32].

125 Moses Silver at [24].

[282,490] Other Relevant Future Act Procedures

[282,510] Section 24IC Lease Renewals and Section 26D

In the case of the renewal, re-grant or extension (collectively referred to below as“renewal”) of certain mining titles, s 26D will operate in conjunction with subdiv I, suchthat these renewed titles do not have to go through the RTN.

Section 26D exempts the creation of a right to mine done by renewal, from the RTN insubdiv P. The exemption is subject to the requirement that the:

• original mining title was created before 23 December 1996;• physical area included in the renewal is not extended;• renewed term is not longer than the original terms; and• renewal does not create any additional rights.

In the event s 26D is satisfied, the renewal does not require compliance with the RTN,but does require compliance with subdiv I (dealing with lease renewals). In turn, subdiv I(in particular s 24ID) will validate, subject to the non-extinguishment principle, renewalsof mining titles without a requirement to comply with any future act procedures, providedthat the renewal satisfies the requirements of s 24IC. Relevant to mining titles, theserequirements are that:

• the original title (not including any renewal) was granted before 23 December1996;

• the renewal does not extend the scope or legal character of the rights bestowed;and

• the renewal maintains any reservations beneficial for Aboriginal people.

If any of these requirements are not satisfied the renewal will require satisfaction of theRTN.

[282,530] Section 26D(2) “Conjunctive Agreements”

Subsection 26D(2) provides another exception to the RTN requirements — if thes 31(1)(b) agreement or s 38 arbitral determination that led to the grant of a title under theRTN process, had a statement excluding the application of the RTN from any subsequenttitle, then that statement will be effective. For example, if the s 31(1)(b) agreementauthorising the grant of an exploration title included a provision authorising the grant ofa subsequent mining title, without application of the RTN, this will be effective. Anagreement of this sort is generally known as a “conjunctive agreement.”

The provision can be quite effective, particularly in the context of petroleumexploration and production. Weighed against this effectiveness is the transaction cost ofnegotiating provisions relevant to a productive title, that may well never eventuate.

[282,570] Section 26B (Gold and Tin Mining) and Section 26C (Opal or Gem Mining)

These sections operate to exempt certain classes of mining title from the RTN, in theevent that Commonwealth ministerial declaration with respect that class of title is made.As at June 2011, there have been no such determinations made under s 26B and only onemade under s 26C (that determination applied to certain limited areas of New SouthWales).

[282,590] Certain Extractive Titles

Extractive mining titles will still be included in the definition of a “right to mine” underthe NTA and their grant will require compliance with a relevant future act procedure.




Page: 30 Date: 11/8/2011 Time: 15:32:47

bwpageid:: 280220::

bwservice::0::

However, the definition of “mine” in s 253 which was central to the definition of a “right

to mine” contained the following exception:

. . . does not include extract, obtain or remove sand, gravel, rocks or soil from the natural surface

of land, or of the bed beneath waters, for a purpose other than:

(d) extracting, producing or refining minerals from the sand, gravel, rocks or soil; or

(e) processing the sand, gravel, rocks or soil by non-mechanical means.

Therefore, an extractive mineral title limited to the constraints of this exception would

not constitute a “right to mine” and would not require compliance with the RTN. A

number of jurisdictions have such titles.1 However, the grant of such titles does constitute

a future act for which subdiv M contains the relevant procedure.

As the limited extractive title is not a “right to mine” (either generally or limited to

infrastructure purposes) — nor is it an acquisition — the relevant provisions of subdiv M

are 24MD(1), (3) and (6A):

• Section 24MD(1) provides that the act is valid.

• Section 24MD(3) provides that the non-extinguishment principle applies and

compensation either under the NTA or other applicable law may be payable.

• Section 24MD(6A) provides that registered claimants have the same procedural

rights as if they instead held a fee simple.

In respect of this type of limited extractive mineral title, the NTA does not impose any

greater procedural requirement than that which would be necessary under the relevant

Mining Act.

[282,610] Subdivision F: Procedures indicate absence of native title

Part 2 Div 3 subdiv F, ss 24FA–24FE, have relevance in circumstances where there has

been a determination that there are no native title rights and interests in relation to a

particular area (ie in the Federal Court). In this circumstance the subdivision provides that

any future act is valid, will extinguish native title and that compensation may be payable.

The subdivision is directed towards a situation where a subsequent variation of a

determination identifies that there were native title rights in relation to the land in

question. It provides security for any tenure in these circumstances.

In the event that a title is proposed over land which is subject to a determination that

there are no native title rights and interests in relation to it, subdiv F will operate to

validate such tenure without any particular future act procedural requirements.

The subdivision also creates a mechanism whereby:

• a future act can be done in relation to an area the subject of a non-claimant

application under s 61;

• enjoy the same protection as if a determination had been made in relation to the

area; and

• unless there are, within three months, registered claimants in response to the

application.

In this way, the subdivision provides an alternative (and higher order) future act regime

to the RTN in circumstances where there are no registered claimants in relation to an area.

However, in these circumstances there is no real content to the RTN (as it is only a

registered claimant that is a native title party). As such, it is unlikely that the subdivision

would be used as an alternative mechanism for the grant of a mining title as, in the

ordinary course, the first step in such a grant is the publication of the s 29 notice pursuant

to the RTN, which effectively predetermines which procedure will be followed.




Page: 31 Date: 11/8/2011 Time: 15:32:47

bwpageid:: 280221::

bwservice::0::

Notes

1 For example, in NT, the “Extractive Mineral Permit”.





Page: 32 Date: 11/8/2011 Time: 15:32:47

bwpageid:: 280222::

bwservice::0::

CONCLUSIONThe purpose of this guide card is to provide a succinct summary of those aspects of the

NTA that are relevant to the grant of a mining title. Complicated as they may be at times,the technical aspects of the NTA do not pose the greatest challenge raised by native titleto a miner — the real challenge the NTA poses is the need to develop a workingrelationship with the relevant “native title parties”.

Native title considerations can be dealt with easily and expeditiously when all partiesare cooperating. In the absence of such goodwill, however, the NTA can create a labyrinthof seemingly endless notifications, negotiations, arbitrations and ultimatelydeterminations, merely to obtain an exploration title. If the usual lore of needing athousand exploration titles to obtain one productive title is followed, then it can beappreciated that, even with the best lawyering possible, a miner who does not develop acooperative relationship with the native title parties will not succeed in their trade.




Page: 33 Date: 11/8/2011 Time: 15:32:47

bwpageid:: 280301::

bwservice::0::


ENERGY AND RESOURCES LAW



Page: 34 Date: 11/8/2011 Time: 15:32:47

bwpageid:: 280302::

bwservice::0::

Date post:	10-Jul-2018
Category:	Documents
Upload:	buidan
View:	213 times
Download:	0 times

(TECHHOU) House For - Law, Corporations Act, … title.pdf · 2011-08-17 · general exposition on...

Documents