Last year, in Charles on behalf of Mount Jowlaenga Polygon # 2 v Sheffield Resources Limited [2017] FCAFC 218, the Full Federal Court held that the obligation to negotiate in good faith under the right to negotiate provisions of the Native Title Act extends to all future act negotiations, including any negotiations after an application for a future act determination has been made (following the mandatory six month negotiation period).

While there is no legal obligation to continue to negotiate after making an application for a future act determination, the Full Federal Court held that if the parties choose to participate in any voluntary negotiations after making an application, those negotiations must be conducted in good faith. This means the good faith obligation continues until the future act determination has been made or an agreement has been reached. Relevantly, if there has been a failure to negotiate in 'good faith' by a party, other than a native title party, the National Native Title Tribunal has no power to make a determination on the application.

As a result of the Full Federal Court’s decision, the matter was remitted back to the National Native Title Tribunal and it recently determined that Sheffield Resources Limited had acted in good faith in its negotiations with traditional owners and so the Tribunal had jurisdiction to authorise the grant of the mining lease (Sheffield Resources Ltd and Another v Charles and Others on behalf of Mount Jowlaenga Poygon #2 [2018] NNTTA 48 (27 August 2018))

In our experience, most native title negotiations can be resolved by agreement with traditional owners and most proponents want to negotiate with traditional owners in good faith. The National Native Title Tribunal reported that in the 2016-17 year, of 23 future act determination applications, there were only four good faith challenges (which resulted in three determinations that good faith negotiations had not occurred).