Mineral tenements and the Native Title Act 1993

Introduction

These guidelines provide information about native title, the procedures under the Commonwealth's Native Title Act 1993 (NTA), and how these apply to the processing of mineral tenements in Victoria.

The Earth Resources Regulation unit of the Department of Jobs, Precincts and Regions (the department) is responsible for the administration of exploration, mining, extractive industries, pipelines and petroleum tenements in Victoria. The NTA requires that Earth Resources Regulation complies with the requirements of the NTA prior to the granting of tenements that may affect native title.

These Guidelines are intended as information only. They are not to be used as a replacement for the relevant legislation, which includes the Mineral Resources (Sustainable Development) Act 1990 (MRSDA) and the NTA and do not constitute legal advice. You should seek your own legal advice prior to making decisions about native title and your tenement application.

Please note that this publication does not address Aboriginal cultural heritage, which is covered in separate legislation¹. For further information on aboriginal heritage matters, please contact Aboriginal Victoria.

What is Native Title?

The NTA came into effect on 1 January 1994. It was the legislative response to the decision of the High Court of Australia in Mabo v Queensland (No. 2) 1992. In Mabo (No 2), the Court decided that the doctrine of terra nullius should not have been applied to Australia and that the common law of Australia would recognise native title.

Section 223 of the NTA defines native title to mean, "the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

1. the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
2. the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
3. the rights and interests are recognised by the common law of Australia."

The NTA does not define what those native title rights and interests may consist of, or when they may exist, as this is determined on a case by case basis. They may however, include anything from a right to use land for ceremonial purposes or for hunting and gathering, to a right of exclusive possession of that land.

All Crown land is potentially subject to a native title, provided that a previous act of the Government has not extinguished native title. Accordingly, native title may exist in an area where, in accordance with their laws and customs, indigenous people have maintained their connection with the area, and their title over that land has not been extinguished by an act of government.

Note: Native title rights and interests differ from Indigenous land rights in that the source of land rights is a grant of title from government. The source of native title rights and interests is the system of traditional laws and customs of the native title holders themselves.

Federal Court of Australia

Applications for native title determinations are made to the Federal Court of Australia. The Federal Court of Australia is responsible for the management of all applications made under the Native Title Act 1993 (Cwlth) or a determination of native title or for compensation for the loss or impairment of native title. Those applications must be filed in the Court.

The Federal Court may refer the applicants to the National Native Title Tribunal (NNTT) for mediation on the issue of determination of native title over a specified area. If an agreement of all parties cannot be reached, the matter will be referred back to the Federal Court for a contested hearing, and determination. There may be only one determination of native title by the Federal Court over an area.

The National Native Title Tribunal

The National Native Title Tribunal³ (NNTT) is a Commonwealth agency established under Part 6 of the NTA. It operates as an impartial, independent administrative agency. The NNTT is not a court and cannot decide whether native title exists or does not exist, however the NNTT President and its Members make arbitral decisions in relation to future act matters. The NNTT is also responsible for making administrative decisions about the registration of claimant applications and indigenous land use agreements.

The NNTT also provides assistance in relation to Indigenous Land Use Agreements (ILUAs) and the Right to Negotiate (RTN) process, specifically by:

• Facilitating negotiation options;
• Chairing and facilitating meetings between parties;
• Assisting parties in resolution of objections made to registering area or alternative procedure agreements; and
• Undertaking indigenous research

Native Title Representative Body

First Nations Legal and Research Services (FNLRS) is a Native Title Representative Body and performs specified functions of a Native Title Representative Body (as defined under section 253 of the NTA) pursuant to section 203FE of the NTA. It is funded by the Australian Government and advocates for and often represents native title claimants and holders at the local, regional and state level. In some circumstances, FNLRS itself may need to be a party to the negotiations.

The role of FNLRS includes:

• Assisting claimants in the research, preparation and making of native title applications;
• Assisting in the resolution of disagreements between indigenous parties;
• Representing applicants in mediation the RTN process and legal proceedings related to native title;
• Certifying native title applications and ILUAs registration applications; and
• Becoming a party to ILUAs.

Note: some native title claimant groups have obtained their own legal representation and are not represented by the FNLRS.

Processing mineral tenement applications under the NTA

Native Title may exist over Crown land where it has not been extinguished by a prior validated act⁴. Prior validated acts are listed in Schedule 1, Part 2, Division 2B of the NTA and are described in section 249C.

Future Acts

The granting of an exploration licence, a retention licence, a prospecting licence or a mining licence on Crown land (or waters) subject to native title is considered to be a Future Act under section 233 the NTA.

A future act is any activity in relation to Crown land that may affect any native title right and interest, and includes a grant of a mining tenement over Crown land.

An act affects native title if it extinguishes native title rights and interests, or the act is wholly or partly inconsistent with the continued existence, enjoyment or exercise of native title rights and interests.

Therefore the Future Act provisions of the NTA (under Part 2, Division 3) have to be met before a tenement will be granted.

To meet these future act requirements, the tenement applicants are given the option to:

• undertake the RTN process with the native title party;
• reach an agreement by an ILUA with the native title party;
• excise all Crown land from their application except those areas where native title has been extinguished (such as roads and road reserves).

Applicants should seek their own independent legal advice on this issue before selecting one of these options.

For applications containing Crown land⁵, the department will carry out a Future Act Assessment in accordance with the NTA. This is to determine what native title requirements need to be addressed prior to the grant of the licence. Applicants will be subsequently advised on the outcome of the Future Act Assessment.

The right to negotiate process

The NTA establishes a Right to Negotiate (RTN) process. The process gives registered native title parties⁶ the opportunity to negotiate conditions or an agreement regarding the proposed action over land where a native title claim has been registered or subsequently determined.

The RTN process involves notification, negotiation and, if no agreement can be reached, referral to NNTT for arbitration. Once an agreement has been reached, the government can validly grant tenements that will affect native title rights and interests.

Under section 26-(1) of the NTA, the RTN process applies where the Government:

• creates a right to mine (except where this is for the sole purpose of constructing an infrastructure facility associated with mining); or
• varies a right to mine to extend the area to which it relates (increasing the area or term of a licence); or
• renews, re-grants, remakes or extends the term of an existing licence or lease, so as to create a right to mine; or
• compulsorily acquires native title rights and interests, (unless the acquisition is to confer rights on the Government party or the purpose of the
• acquisition is to provide an infrastructure facility); or
• any other act approved by the Federal Minister.

If any of the above acts affect native title, the act will only be valid if the RTN process is complied with.

Section 29 Notification Process - Public Advertising

Section 29 of the NTA requires that, where the Government intends to do a Future Act to which the RTN process applies (eg. the grant of an exploration or mining licence), it must:

• Advertise its intention to grant the tenement in both:
  • a major newspaper that circulates in the area to which the notice relates (eg. "The Age"), and
  • an Aboriginal newspaper ("The Koori Mail"); and
• Notify the following parties in writing, of its intention to grant the tenement:
  • any registered native title bodies corporate;
  • any registered native title claimants;
  • FNLRS (as the representative Body for Victoria);
  • the applicant (the "grantee party"); and
  • the NNTT.

The department will recover the advertising cost requirements from applicants. In recognition of the expense of this and in an effort to reduce these costs, the department undertakes group advertisements, of between 8 to 12 applications.

Group advertisements are undertaken approximately three times a year and are published on a Wednesday (to coincide with fortnightly publication dates for the Koori Mail). The cost of advertising under section 29 is generally between $1500 and $1900 and varies with the number of applications advertised in a particular group advertisement.

Section 29 notices must specify a "notification day". The notification day is the day by which it is reasonable to assume that all section 29 notices will have been received by, or come to the attention of the relevant parties.

Earth Resources Regulation also publishes Section 29 public advertisements on this website. View current advertisements under Section 29 of the NTA.

Other native title parties

Section 30 of the NTA, sets out the process by which a person may become a "native title party" with respect to a tenement application (eg. an exploration or mining licence). This may be done by:

1. a person(s) lodging a native title claim with respect to any of the land or waters that will be affected by the relevant tenement application within a 3 month period from the notification day; and
2. that claim being accepted for registration by the NNTT and subsequently registered on the Register of Native Title Claims within 4 months from the notification day.

Post 4 month period

(a) Where there is no native title party

Four months after the notification day, if no native title party claim has been registered over the area covered by the tenement application, then the Government may grant the tenement, as provided for by section 28(1)(a) of the NTA.

(b) Where there is a native title party

If there is one or more native title parties in relation to the licence application, then the Government, the tenement applicant (the grantee party) and the native title parties must negotiate in good faith with a view to reaching an agreement regarding the grant of the tenement, (section 31(1)(b) of the NTA).

Right To Negotiate Process

The NTA provides a minimum period of 6 months after the notification date for parties to negotiate about the grant of mineral tenements (this includes the 3 month notification period). Negotiations can commence from the notification day.

Following completion of the notification period:

1. The native title parties may request information about the tenement application. Information requested may include a brief description of the project, a copy of the licence application, relevant maps, work program information and company particulars.
2. Applicants should arrange an initial meeting with the native title party.
3. The parties commence negotiations towards a native title agreement. Negotiations may include issues such as protocols for cultural heritage protection, environmental matters, compensation, and employment and training opportunities.

Agreements

A mineral licence cannot be granted until all the parties have completed the RTN process and signed a section 31 agreement or a valid ILUA has been registered. Other statutory and regulatory requirements will also need to have been met in relation to the licence application.

No agreement

If an agreement is not reached within 6 months from the notification day, any party may refer the matter to the NNTT for determination by arbitration. The NNTT is required to make a determination as to whether the tenement can be granted and under what conditions, as soon as is practicable (6 months is the time suggested for a determination). Parties may continue to negotiate with a view to reaching agreement up until the date a determination on the RTN process is made. The RTN determination made by NNTT may be upheld or overturned by the Federal Minister upon request of the State Minister. The RTN determination may also be appealed to the Federal Court.

'In-Good-Faith' negotiations

All negotiations are to be undertaken in good faith. There is no definition of the term 'negotiate in good faith' in the NTA, but basically it means that the parties should approach and enter into negotiations with an open mind and genuine desire to reach an agreement.

The government is an equal party to these negotiations and should be involved, where considered relevant or appropriate. However, parties do not often involve government in negotiations of a commercial nature as outlined above in the Project Consent Deed.

Indigenous land use agreements

An Indigenous Land Use Agreement (ILUA) is a voluntary agreement made between native title holders or claimants over a particular area and other people or organisations (such as governments, miners, pastoralists, etc) about the use of land and waters in the native title determination or native title claim area.

These agreements allow people to negotiate flexible, pragmatic agreements to suit their particular circumstances. An ILUA can be negotiated over areas where native title has, or has not yet, been determined. They can be part of a native title determination, or settled separately from a native title claim. An ILUA can be negotiated and registered whether there is a native title claim over the area or not.

Applicants should note that when negotiating an ILUA (unlike RTN) there is no provision for arbitration if parties do not reach agreement.

What is an ILUA?

ILUAs can form as a result of the following topics:

• native title holders agreeing to a future development;
• how native title rights coexist with the rights of other people;
• access to an area;
• extinguishment of native title; and
• compensation

Types of ILUAs

There are 3 types of ILUAs under the NTA Part 2 (Division 3, subdivisions B, C and D):

• Body Corporate Agreements,
• Area Agreements; and
• Alternative Procedure Agreements.

Note: You should seek your own legal advice as to which ILUA would best suit your individual situation. Further details on these ILUA types can be found on the Native National Title Tribunal website.

Certification of an ILUA

Certification of an ILUA is the process where the native title representative body endorses the fact that during the negotiation of the agreement all reasonable efforts were made to ensure that persons who hold or may hold native title have been identified. In some cases the NNTT Register of ILUAs will use certification to determine registration.

Certification is only available for Area Agreements but is not mandatory.

Certification of Body Corporate and Alternative Procedure Agreements is not required.

Registration of ILUA

ILUAs must be registered on the Register of Indigenous Land Use Agreements (the Register) maintained by the Registrar of the NNTT. It is important to select the right type of ILUA for your circumstances because registration has important consequences.

Any party to the agreement can apply to the Registrar for registration of the ILUA, provided that all the other parties agree. The Tribunal cannot tell parties how to draft their agreement but, if it is to be registered, the agreement must comply with certain requirements under the NTA, the Native Title (Indigenous Land Use Agreements) Regulations 1999 (Cth) (the Regulations) and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) (the PBC Regulations).

Once registered with the NNTT, an ILUA

• binds all the parties and all persons claiming to hold the native title to the terms of the agreement;
• binds persons who are later found to hold native title in the area covered by the ILUA, even if they were not originally a party to the ILUA; and
• enables the proposed Future Act (eg. grant of a mining tenement) to take place.

Once the Registrar is satisfied that the application and ILUA comply with the requirements of the NTA and the Regulations, the Registrar will give notice (advertise) of the ILUA. The ILUA Notice will include the names and addresses of all parties, and is to be given to the following people or organisations (if they are not parties to the ILUA):

• the Federal Minister;
• the relevant State or Territory Minister;
• any representative body for the area;
• any local government body for the area; and
• any other person or incorporated body whom/which the Registrar considers appropriate given the nature of the agreement.

The notification period for an ILUA is three months except for a Body Corporate Agreement where the notification period is one month. Objections to the agreement may be made during the notification period. Following the notification period, and provided all the objections (if any) are resolved the ILUA can be registered.

An ILUA will remain registered, unless:

• there is an approved determination of native title in relation to any of the agreement area and the persons who are determined to hold native title are not the same as those who had previously been determined either to hold it (for Body Corporate Agreements) or to authorise it (for Area Agreements). [Note: the agreement can remain registered if those persons satisfy the Federal Court that they accept the terms of the agreement];
• the agreement expires;
• all the parties advise the Registrar in writing that they wish to terminate the agreement; or
• the Federal Court orders that the agreement be removed from the Register on the grounds that a party would not have entered into the agreement but for fraud, undue influence or duress by any person.

Details of the ILUA process can be found on the Native National Title Tribunal website.

The NNTT website also records registered ILUAs. To search for ILUA extracts visit the Native National Title Tribunal website.

Processing mineral tenement renewals under the NTA

All mineral licence renewals will be assessed on a "case by case" basis. Under section 26D of the NTA, the RTN process will not apply to the renewal of valid mining (and exploration) tenements if the creation of that right does not:

1. extend the area of the earlier granted tenement;
2. create a term longer than that of the earlier tenement;
3. create a right of exclusive possession; or
4. create any other new rights. Renewals that do not fit into any of the categories below, will be treated by the department as new applications for the purposes of native title.

Past Acts

Tenements originally granted before 1 January 1994 are generally valid past acts for the purposes of native title. If tenements meet the NTA requirements for past acts, they can be validly renewed without going through the RTN process.

The department will renew exploration and mining licences that were originally granted before 1 January 1994 or are otherwise valid as described above without following the RTN process. Such renewals will be valid with respect to native title.

Intermediate Period Acts

Certain tenements originally granted after 1 January 1994 may also be valid acts, including:

• tenements that were not invalid to any extent under section 28 of the NTA when they were originally granted (ie. tenements that complied with the RTN process, to the extent required under the NTA); and
• tenements granted on or before 23 December 1996 that are Intermediate Period Acts and have been validated in accordance with Division 2 or 2A of the NTA (see discussion below).

The 1998 amendments to the NTA allowed the States and Territories to validate certain acts that took place between 1 January 1994 and 23 December 1996 (date of the High Court's decision on Wik) which would otherwise have been invalid, to the extent that these acts affected native title. For a tenement to be validated as an Intermediate Period Act there must (before the act was done) have been a grant of a freehold or leasehold estate, or the construction of a public work, over any of the land or waters concerned.

If you are seeking renewal of a licence granted during this period, your tenement may have an Intermediate Period Act status, and its renewal may not require that the RTN or ILUA process be undertaken. If your tenement application was originally granted or was renewed during the intermediate period, please contact your Licensing Officer to discuss native title issues with respect to your renewal application. You may also wish to seek your own legal advice regarding NTA provisions with respect to Intermediate Period Acts.

Appendices

Footnotes

¹(see the Aboriginal Heritage Act 2006 (Vic) and the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth))

³National Native Title Tribunal Website

⁴An applicant will need to provide supporting evidence if they believe that one or more Crown land parcels contained within their application has been extinguished from native title on the basis of a prior validated act.

⁵Outside the Dja Dja Wurrung Recognition and Settlement Agreement Area – see the Department of Justice and Regulation Website

⁶A registered native title body corporate (RNTBC) or a registered native title claimant.

⁷The Victorian Government is not generally a party to this type of agreement unless its contents directly affects, or require the involvement of, the Government ie royalty payments or the extinguishment of native title.

Page last updated: 14 Dec 2022