Australian Government: Attorney-General's Department
Australian Government: Attorney-General's DepartmentAchieving a Just and Secure Society

Alternative state and territory native title regimes

 

State or Territory alternatives to the 'right to negotiate' procedures

The Native Title Act 1993 allows States and Territories to develop their own native title regimes that apply instead of the right to negotiate where the Australian Government Minister determines that the regime complies with criteria set out in the Native Title Act 1993.

This allows native title to be dealt with in a manner that is both flexible and appropriate to each jurisdiction. However, before approving the alternative laws of a State or Territory, or the type of act to be exempted, the Australian Government Minister must be satisfied that the criteria set out in the Native Title Act 1993 are met.

The type of procedural rights that native title holders must be given under State and Territory regimes varies depending on the type of land over which the act is to be done, and the type of act that is involved.

For right to negotiate matters, five different types of alternative State or Territory regimes are allowed under the Native Title Act 1993:

  1. replacement of the right to negotiate for an ‘approved exploration etc. act’ with a right to be consulted about ways of minimising the impact of the grant (section 26A),
  2. replacement of the right to negotiate for an approved gold or tin mining act with a right to be consulted about ways of minimising the impact of the grant (section 26B),
  3. exemption from the right to negotiate for certain opal or gem mining on land that has previously been mined (section 26C),
  4. the use of State or Territory right to negotiate provisions instead of those under the Native Title Act 1993 (section 43), and
  5. the use of State or Territory provisions which include an obligation to consult instead of the right to negotiate. 

This is for any act on ‘alternative provision areas’ to which the right to negotiate would otherwise apply (generally speaking, land where native title rights may co-exist with the rights of other landholders) (section 43A).

 

1. Approved exploration, fossicking, prospecting acts - section 26A

Section 26A of the Native Title Act 1993 provides that the Australian Government Minister may determine that an act, or that each act in a class of acts, is an approved exploration etc. act if:

  • the act, or acts included in the class of acts, consists of the creation or variation of a right to mine, where the right as so created or varied is a right to explore, prospect or fossick
  • the act or acts are unlikely to have a significant impact on the particular land or waters concerned
  • procedures are in place which meet the requirements of section 26A. The requirements are that registered native title bodies corporate and registered native title claimants are given a number of procedural rights for native title parties under the relevant State/Territory legislation, including the right to be notified and consulted about ways of minimising the impact of the grant on the relevant land, and
  • matters about which consultation must occur are the protection of sites, access and the way in which rights under the mining grant will be exercised.


2. Approved gold or tin mining acts - section 26B

Section 26B of the Act provides that the Australian Government Minister may determine that each act in a class of acts is an approved gold or tin mining act if:

  • acts in the class consist of the creation or variation of a right to mine, where the rights as so created or varied are rights to mine gold or tin in surface alluvium,

  • the holder of the tenement will be required to rehabilitate the land affected,

  • procedures are in place that meet the requirements of section 26B. The requirements are that registered native title bodies corporate and registered native title claimants are given a number of procedural rights for native title parties under the relevant State/Territory legislation, including the right to be notified and consulted about ways of minimising the impact of the grant on the relevant land, and

  • matters about which consultation must occur are the protection of sites, access and the way in which rehabilitation is to occur.

3. Excluded opal or gem mining - section 26C

Section 26C of the Act provides that the Australian Government Minister may determine that an area is an ‘approved opal or gem mining area’ where the Minister is satisfied that, immediately prior to making the determination, mining is being carried out in a substantial part of the area. Under subsection 26C(1), provided certain conditions are met, the right to negotiate provisions will not apply to an act consisting of the grant of a short-term opal or gem mining tenement within an ‘approved opal or gem mining area’. Subsection 26C(1A) provides that, subject to certain conditions, the right to negotiate provisions will not apply to the grant of a short-term opal or gem mining tenement that confers a right to explore or prospect within an ‘approved opal or gem mining area’.


4. Alternative Provision Areas - Section 43

Under section 43 of the Act a State or Territory can have alternative provisions which apply instead of the right to negotiate provisions in the Act. This is conditional upon a determination by the Australian Government Minister that the alternative provisions comply with the requirements set out in section 43 of the Native Title Act 1993.

To meet the requirements under section 43, the alternative provisions must provide registered native title bodies corporate and registered native title claimants with a package of procedural rights essentially equivalent to 'right to negotiate' provisions under the Native Title Act 1993. Section 43 is designed to apply to any act to which the right to negotiate would have otherwise applied regardless of the type of land in relation to which the act is to be done.

5. Alternative provision areas - section 43A

Under Section 43A of the Act State or Territory provisions that relate to an ‘alternative provision area’ can apply instead of the right to negotiate under the Native Title Act 1993. This is conditional upon the Commonwealth determining in writing that the State or Territory provisions meet the requirements set out in section 43A of the Native Title Act 1993.

To meet the requirements under section 43A, the alternative provisions must provide registered native title bodies corporate and registered native title claimants with certain procedural rights such as the right to be notified and consulted, the right to object and the right to have that objection heard by an independent body.

Alternative provision areas are, generally speaking, areas such as pastoral leasehold land, where the rights of native title holders co-exist with the rights of other landholders.

Alternative provisions determined under section 43A only apply to acts done on land that is within such an area.

Determinations are disallowable instruments

Section 214 of the Native Title Act 1993 provides that a determination under section 26A, 26B, 26C, 43 or 43A is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. This means that, under section 48 of the Acts Interpretation Act 1901, such determinations:

  • must be published in the Commonwealth Gazette
  • must be laid before both houses of Federal Parliament within 15 sitting days of being made, and
  • can be disallowed by either House within 15 sitting days of being tabled.

State or Territory alternative ‘right to negotiate’ regimes in operation

Three States have alternative ‘right to negotiate’ regimes in operation.

South Australia

South Australia has three section 43 regimes:

On 18 October 1995 the Special Minister of State (who was the Australian Government Minister at that time) determined that the provisions of the Land Acquisition Act 1969 (SA) and the Mining Act 1971 (SA) complied with section 43 of the Native Title Act 1993:

On 16 April 1997 the Minister for Aboriginal and Torres Strait Islander Affairs (the Australian Government Minister at that time) determined that the provisions of the Opal Mining Act 1995 (SA) complied with section 43 of the Native Title Act 1993 and would have effect instead of the right to negotiate:

New South Wales

New South Wales has two section 26A determinations, two section 26C determinations and a determination and approval under previous section 26 of the Native Title Act 1993.

On 17 October 2000 the Attorney-General made two determinations under section 26A in relation to low impact minerals exploration under the Mining Act 1992 (NSW) and low impact petroleum exploration under the Petroleum (Onshore) Act 1991 (NSW):

Both determinations commenced operation on 13 December 2000 when they were notified in the Commonwealth Gazette.

Under the determinations, the right to negotiate provisions in the Native Title Act 1993 do not apply to the grant of low impact prospecting titles under the Mining Act 1992 (NSW) and low impact petroleum exploration under the Petroleum (Onshore) Act 1991 (NSW). Instead, the native title procedures set out in the NSW Acts apply.

These procedures require the tenement holder to enter into an access arrangement with any native title parties in the relevant area.

On 16 February 2000 the Attorney-General determined under section 26C of the Native Title Act 1993 that two areas at Lightning Ridge in New South Wales are approved opal or gem mining areas:

Both determinations commenced operation on 18 February 2000 when they were published in the Commonwealth Gazette.

Under these determinations, the right to negotiate provisions in the Native Title Act 1993 do not apply to the grant of certain types of opal or gem mining tenements within the determined areas.

On 6 November 1996 the Minister for Aboriginal and Torres Strait Islander Affairs, who was the Australian Government Minister at the time, made a determination under previous paragraph 26(3)(b) of the Native Title Act 1993 excluding certain low impact acts from the right to negotiate provisions, provided the prior written consent of the NSW Minister for Mineral Resources has been obtained in relation to the doing of the acts:

On 6 November 1996 the Minister for Aboriginal and Torres Strait Islander Affairs also made an approval under previous paragraph 26(2)(e) of the Native Title Act 1993 (unamended).  This approval made the giving of prior written consent required for acts specified in the Native Title (Right to Negotiate (Exclusion) – NSW Land – Determination No.1 of 1996, subject to the right to negotiate provisions of the Native Title Act 1993:

This determination and approval remain in force by virtue of transitional provisions included in Schedule 5 of the Native Title Amendment Act 1998.

Queensland

Queensland has three section 26A determinations and four section 43 determinations applying to applications made before 1 April 2003 under the Mineral Resources Act 1989 (Qld).

On 31 May 2000 the Attorney-General made a number of determinations under section 26A and section 43 of the Native Title Act 1993. The general effect of the determinations was that the right to negotiate procedures established under the Native Title Act 1993 did not apply to applications made under the Mineral Resources Act 1989 (Qld).

The Queensland Government amended the Mineral Resources Act in 2003 with the effect that the right to negotiate procedure established under the Native Title Act 1993 applies to applications made under the Mineral Resources Act 1989 (Qld) on and from 1 April 2003. The following paragraphs outline the effect that the determinations had immediately before to 1 April 2003. Generally, the determinations will remain effective for tenement applications lodged before 1 April 2003.

On 31 May 2000 the Australian Attorney-General made three determinations under section 26A of the Native Title Act 1993  in relation to low impact exploration tenements granted under the Mineral Resources Act 1989 (Qld):

All three determinations commenced operation on 18 September 2000 when they were notified in the Commonwealth Gazette.

The effect of the determinations was that the right to negotiate provisions in the Native Title Act 1993 did not apply to the grant of low impact mineral development licences, low impact exploration permits and low impact prospecting permits under the Mineral Resources Act 1989 (Qld). Instead, the native title procedures set out in the Mineral Resources Act 1989 (Qld) applied.

Section 43 determinations

On 31 May 2000 the Australian Attorney-General made four determinations under section 43 of the Native Title Act 1993:

The effect of the determinations was that the right to negotiate provisions in the Native Title Act 1993 did not apply to the grant of mining leases, mining development licences, exploration permits and mining claims under the Mineral Resources Act 1989 (Qld). These determinations, together with the Attorney-General’s determinations under section 26A, were challenged in the Federal Court and were found to be invalid and without legal effect. However, on appeal, the Full Federal Court overturned that decision, meaning that the determinations are valid - see State of Queensland v Central Queensland Land Council Aboriginal Corporation [2002] FCAFC 371 (27 November 2002)


Disallowed Determinations

The Australian Attorney-General has also made a number of determinations in relation to Northern Territory and Western Australian legislation, and other determinations relating to Queensland legislation, but these were disallowed by the Senate.

State/Territory Alternative Bodies

Part 12A of the Native Title Act 1993 provides a framework by which State or Territory bodies can determine native title matters under State or Territory laws for the purposes of the Native Title Act 1993, or carry out the functions of the arbitral body (usually the National Native Title Tribunal) and/or Native Title Registrar in accordance with the provisions of the Native Title Act 1993.

If certain criteria are satisfied, section 207A provides that the Australian Government Minister can determine that a court, office, tribunal or body of a State or Territory is a ‘recognised State/Territory body’. Recognised State/Territory bodies can, among other things, determine native title claims and compensation claims and act as the arbitral body for the purposes of ‘right to negotiate’ matters.

Under section 207B, provided the relevant criteria are met, the Australian Government Minister can make a determination allowing an ‘equivalent body’ to perform specific functions or exercise specific powers of the National Native Title Tribunal or Native Title Registrar.

State/Territory Alternative Bodies operating

Currently, only one state has Alternative State/Territory Bodies in operation.

South Australia

South Australia has a determination under section 251 (now section 207A) of the Native Title Act 1993.

On 18 October 1995 the Special Minister of State (who was the Australian Government Minister at that time) determined that the Environment, Resources and Development Court of South Australia and the Supreme Court of South Australia were ‘recognised State/Territory bodies’ under subsection 251(1) (now section 207A) of the Native Title Act 1993:

Australian Government Minister

Under the current Administrative Arrangements Order, the Australian Attorney-General is the Minister administering the Native Title Act 1993, except for Division 6 of Part 2 and Part 11 (which relate to prescribed bodies corporate and representative Aboriginal/Torres Strait Islander bodies, respectively), which are administered by the Minister for Families, Housing, Community Services and Indigenous Affairs.