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 title.
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 more productive.
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 title holders.
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.