Native Title Future Act procedures
Activities affecting native title rights subject to NTA Future Act processes.
Who must comply
Commonwealth, state and territory governments doing the act, and the grantee parties who apply for it: mining and petroleum explorers and producers, infrastructure proponents and others seeking tenements or interests over land or waters where native title exists or is claimed. Native title parties are registered native title bodies corporate, registered native title claimants and representative Aboriginal and Torres Strait Islander bodies.
What triggers it
Applying for a mining right, compulsory acquisition or other grant that is a future act affecting native title; the government party must give notice under s 29 before the act is done.
When due
Before the act is done. Where the notice says the act attracts the expedited procedure, native title parties have 4 months from the notification day to object (s 32); claimants registered within 4 months of notification (on claims filed within 3 months) also become native title parties (s 30); an arbitral body determination can be sought once 6 months have passed without agreement (s 35).
Evidence required
Section 29 notices and notification day; register searches identifying native title parties; records of submissions and good-faith negotiation; signed s 31 agreement or registered ILUA; expedited procedure statement and any objection outcome; arbitral body determination where no agreement is reached; conditions attached to the grant.
Max penalty
There is no fine; the consequence is invalidity. If the future act procedures are not complied with, the act is invalid to the extent that it affects native title (s 24AA, s 25(4)), and the arbitral body cannot make a determination for a party that did not negotiate in good faith (s 36(2)).
Summary
Part 2 Division 3 of the Native Title Act 1993 governs 'future acts': government grants and other acts that affect native title, such as mining tenements, compulsory acquisitions and some lease renewals. A future act is valid only to the extent a provision of the Division covers it, and invalid to the extent it affects native title if the procedures are not followed. The main pathways are a registered indigenous land use agreement (ILUA), to which the native title parties consent, and the right to negotiate procedure (from s 25) for the creation of mining rights and certain compulsory acquisitions. Under the right to negotiate the government gives notice (s 29), native title parties can make submissions and all parties must negotiate in good faith towards an agreement (s 31). If none is reached after 6 months any party can seek a determination from the arbitral body, such as the National Native Title Tribunal (s 35).
Source legislation
Topics
Related
- CWLTHEPBC Act — National Heritage + Indigenous heritage valuesActions likely to have a significant impact on National Heritage Indigenous values require Commonwealth approval.
- WAAboriginal Heritage Act 1972 (WA) — s 18 consentAny use of land that may damage an Aboriginal site requires s 18 consent from the Minister.
- SAAboriginal Heritage Act 1988 (SA) — Minister's authorisationActivities that damage, disturb or interfere with an Aboriginal site, object or remains require Minister's authorisation in SA.
- NTNorthern Territory Aboriginal Sacred Sites Act 1989 — Authority CertificateUse of land that may affect a sacred site in the NT requires an Authority Certificate from AAPA.
- ACTHeritage Act 2004 (ACT) — Aboriginal places + objectsDisturbing an Aboriginal place or object in the ACT requires registration consultation + ACT Heritage Council approval.
- QLDAboriginal Cultural Heritage Act 2003 (Qld) — duty of careAnyone carrying out an activity that could harm Aboriginal cultural heritage in Qld owes a statutory duty of care.
Frequently asked questions
- Who must comply with Native Title Future Act procedures?
- Commonwealth, state and territory governments doing the act, and the grantee parties who apply for it: mining and petroleum explorers and producers, infrastructure proponents and others seeking tenements or interests over land or waters where native title exists or is claimed. Native title parties are registered native title bodies corporate, registered native title claimants and representative Aboriginal and Torres Strait Islander bodies.
- What triggers Native Title Future Act procedures?
- Applying for a mining right, compulsory acquisition or other grant that is a future act affecting native title; the government party must give notice under s 29 before the act is done.
- When is Native Title Future Act procedures due?
- Before the act is done. Where the notice says the act attracts the expedited procedure, native title parties have 4 months from the notification day to object (s 32); claimants registered within 4 months of notification (on claims filed within 3 months) also become native title parties (s 30); an arbitral body determination can be sought once 6 months have passed without agreement (s 35).
- What is the maximum penalty for Native Title Future Act procedures?
- There is no fine; the consequence is invalidity. If the future act procedures are not complied with, the act is invalid to the extent that it affects native title (s 24AA, s 25(4)), and the arbitral body cannot make a determination for a party that did not negotiate in good faith (s 36(2)).
- What evidence is required for Native Title Future Act procedures?
- Section 29 notices and notification day; register searches identifying native title parties; records of submissions and good-faith negotiation; signed s 31 agreement or registered ILUA; expedited procedure statement and any objection outcome; arbitral body determination where no agreement is reached; conditions attached to the grant.
Source: https://www.legislation.gov.au/C2004A04665/latest/text. Rules Mate is not a law firm. Always verify against the live regulator source before acting.