Under the Native Title Act 1993, a 'future act' is a
proposed activity or development that affects native title. The act
can be an activity conducted on land or over waters which has the
potential to extinguish native title or establishing interests
which are inconsistent with the existence of native title.
With widespread exploration and mining activity occurring in
Western Australia where indigenous populations live, it is common
for the activities of resources companies to affect native
Where native title is likely to be affected, the entity carrying
out the proposed activity must provide notice to native title
parties outlining their intended activities. A native title party
has 4 months to object to the proposed activities after the service
of the notice.
If no native title parties come forward after 4 months of the
notice being served, the proposed activity can be done without
further consideration to the Act. If a native party objects to the
proposed activities, the 'right to negotiate' provisions
under the Act are activated, and the parties must negotiate 'in
good faith' for at least 6 months. The intention behind these
provisions is for the parties to come to an agreement regarding the
use of the land, and can include compensation paid for the impact
that the proposed activities have on native title. If an agreement
is reached, the parties will be contractually bound.
The right to negotiate is a common source of conflict between
parties, as the parties are being forced to negotiate and their
starting positions are usually opposite to each other.
Indigenous Land Use Agreements
Indigenous Land Use Agreements (ILUA) are
voluntary agreements between indigenous groups and others proposing
to use land that affects native title. The negotiations will be
between indigenous groups who are recognised as native title
holders (or who claim native title rights) over the land the
subject of the proposed activities, and the entity proposing to use
the land. Complications can occur when the proposed activities are
to be conducted over an area which overlaps multiple native title
claims. If this occurs, the ILUA may be negotiated with each group,
or jointly, depending on the consent of the parties.
These agreements are considerably more flexible than agreements
made under the 'right to negotiate' provisions of the Act.
The voluntary nature of the agreements usually makes negotiations
ILUAs can be made separately from the normal native title
process, or in conjunction with proceedings under the Act.
The negotiations are similar to any negotiations concerning
commercial agreements whereby the parties are negotiating for a
common goal. The contents of negotiations can cover a wide range of
issues, but will often be concerned with access to land, and
compensation for using the land. Often the native title party will
be negotiating for compensation for the use of the land, often in
the form of the provision of services and employment for native
After an ILUA has been negotiated, it is then registered with
the National Native Title Tribunal. Prior to registration, the NNTT
must notify certain people and organisations (including other
native title holders who may be affected). During the notification
period, if opposition to registration of the ILUA occurs, it may
not be registered.
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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