The granting of a mining lease is a future act.
A Future Act is an act done after 1 January 1994 which affects native title. Activity or development on land can be a future act if it has the potential to affect native title by extinguishing it or by creating an interest that is inconsistent with the existence or exercise of native title.
According to Australian law, except where native title has been wholly extinguished by historical grants of freehold, leasehold and other interests, native title exists where aboriginal people have a traditional connection to the land and waters.
Right to Negotiate Process
The Native Title Act 1993 (Cth) requires that most mining tenements comply with a process called the “Right to Negotiate”. The Government Party must give notice of its intention to grant a mining tenement to:-
- the native title holders and claimants;
- any native title representative bodies;
- the National Native Title Tribunal (NNTT);
- the proposed Grantee; and
- the public.
If there is no native title claim over the mining tenement, 4 months after notification, the law states that Mining Lease may be granted. If a native title claim exists, the Mining Lease applicant, native title parties and the State must negotiate in good faith with a view to reaching agreement that the mining tenement is granted.
If a legal agreement is reached it may include cultural heritage protection protocols and other benefits depending on the type of mining lease and the extent of the project.
If the Parties are unable to reach an agreement within the statutory 6-month minimum negotiation period, any party may then apply to the NNTT for a determination as to whether the mining lease should be granted, and under what conditions. It is always best to seek legal advice from an experienced Lawyer in this case.
The NNTT may only make a determination if the party seeking a determination is able to demonstrate that legal negotiations have been carried out “in good faith” (in accordance with section 35 of the Native Title Act 1993 (Cth)).
Alternatively, the parties may negotiate an Indigenous Land Use Agreement (“ILUA”).
To find out more about Australian Law and Native Title, contact one of our friendly lawyers at Preston Law in Cairns on ph 4052 0700.