The right to negotiate and the expedited procedure
Under Part 2, Division 3 of the Native Title Act 1993, registered native title claimants and registered native title bodies corporate (native title parties) are entitled to special procedural rights in relation to acts to which Subdivision P applies - namely the grant of certain mining tenements and certain compulsory acquisitions of native title rights and interests. This package of procedural rights is called the 'right to negotiate'. One of the fundamental principles of the right to negotiate is that any relevant act will be invalid to the extent that it affects native title unless it is done in accordance with the procedures set out in the Native Title Act 1993.
Generally, to validly do an act that attracts the right to negotiate a government has two options. It can either negotiate an Indigenous Land Use Agreement (ILUA) with the native title holders and carry out the act in the manner allowed by that ILUA, or it must comply with the 'right to negotiate' procedures set out in Subdivision P of the Native Title Act 1993. Section 29 of the Native Title Act 1993 requires that before the doing of a future act under Subdivision P, the relevant government must give notice to native title parties and the public.
Under section 31 of the Native Title Act 1993, unless the ‘expedited procedure’ (see below) applies to the act in question, the government is also required to give native title parties the opportunity to make submissions about the proposed act. All of the negotiation parties (the government, the applicant for the mining grant and the native title parties) are required to negotiate in good faith with a view to obtaining agreement that the act be done and, if so, on what conditions.
Determination by an arbitral body
Where notice of a proposed future act is given under section 29, the parties have a period of six months to negotiate agreement about the proposed act. If no agreement is reached in that time, then under section 35 of the Native Title Act 1993 any of the parties can apply to the arbitral body (usually the National Native Title Tribunal) for a determination under section 38 in relation to the proposed act. The arbitral body may make a determination that the act must not be done, the act may be done, or that the act may be done subject to conditions to be complied with by any of the parties.
The expedited procedure
Acts attracting the expedited procedure are defined in section 237 of the Native Title Act 1993. They are acts that are unlikely to interfere directly with the community or social activities of the relevant native title holders, or to interfere with areas or sites of particular traditional significance to the relevant native title holders. An act 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, will not attract the expedited procedure.
Under section 32 of the Native Title Act 1993, if the government considers that an act is an act attracting the expedited procedure, the government may include a statement to that effect in the notice under section 29. Acts attracting the expedited procedure can be done without following the negotiation procedure under section 31 of the Native Title Act 1993 (as outlined above).
A native title party may, within four months after being given the notice under section 29 of the Native Title Act 1993, lodge an objection with the arbitral body (generally the National Native Title Tribunal) against the inclusion in the notice of a statement that the act attracts the expedited procedure. If no objections are lodged the government may do the act.
If a native title party lodges an objection, the arbitral body must determine whether the proposed act attracts the expedited procedure. If the arbitral body determines that the proposed act does attract the expedited procedure, then the government may do the act.
If the arbitral body determines that the proposed act does not attract the expedited procedure, then the government party must give the native title parties an opportunity to make submissions regarding the proposed act. The negotiation parties are required to negotiate in good faith with a view to obtaining agreement about the doing of an act.
Alternative State and Territory Native Title Regimes
The Native Title Act allows States and Territories to develop their own native title regimes that apply instead of the right to negotiate where the Commonwealth Minister determines that the regime complies with criteria set out in the Native Title Act 1993.