It's been almost 20 years since the introduction of the
Native Title Act 1993 (the Act). Despite
this, many parts of the Act are still unclear and require
determination from the National Native Title Tribunal: in
particular, the requirement to negotiate in good faith
The "right to negotiate" is a process that can apply
to parties seeking approval to use land (usually related to mining)
which is, or is likely to be, subject to native title, where the
parties' actions would adversely affect native title rights.
The right to negotiate procedure is not a right to veto or stop a
project going ahead, but is a right for native title parties to
have a say in the project and the use of the land.
Pursuant to s.29 of the Act, when native title rights are likely
to be affected, the party seeking to use the land gives notice to
registered native title claimants or native title body corporates,
setting out the proposed actions to be conducted on the land (a
"future act"). Native title holders have three months
from the date given in the s.29 notice to file a claim if they want
the right to negotiate about the proposed future act. The parties
then have at least 6 months to negotiate in good faith about the
effect of the proposed development on native title.
The right to negotiate provisions in the Act have often been
contentious as the parties attempt to determine what "good
faith" encompasses. This term can be subjective to the
circumstances of each negotiation, often giving rise to conflicts
between the negotiating parties. Additionally, the term "good
faith" is not defined in the NTA and has itself been subject
to judicial interpretation. Quite often, the parties involved in
the negotiations (native title holders and resource companies) are
being forced to negotiate and are opposed to each other from the
What constitutes good faith has been the subject of many
determinations. Briefly, it requires the parties to act honestly
with no ulterior motive or purpose, to engage in negotiation with
an open mind, a willingness to listen, compromise and reach an
agreement under which the native title party will agree to the
proposed future act.
The National Native Title Tribunal will objectively assess
whether or not a party has negotiated in good faith, taking into
account the total conduct constituting the negotiations. The
Tribunal may give consideration to the reasonableness or otherwise
of any offers made by a negotiation party.
Amendments have been proposed to the Act via the Native Title
Amendment Bill (the Bill). Amongst the proposed
amendments is the codification of the definition of "good
faith". The purpose of the Bill is to improve
agreement-making, encourage flexibility in claim resolution and
promote sustainable outcomes.
The Bill was first introduced into the Federal Parliament on 28
November 2012. With the change in government, the status of the
Bill has lapsed, and the proposed amendments to the Act may not
pass the new Parliament. The Liberal Party has recognised that
reform is needed to the Act; however, it does not believe that the
proposed amendments will make the negotiating process any more
certain. Rather, it believes that the amendments are likely to
increase the occurrence of litigation. It's unlikely that the
Bill will be on the agenda of the new government when Parliament is
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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