Changes to the right to negotiate

Both the registration test and the right to negotiate were substantially affected by the 1998 amendments to the Native Title Act. The new right to negotiate scheme further limits the kinds of acts that native titleholders and registered applicants may negotiate over. It also allows state and territory governments to introduce more limited rights in relation to proposed developments. Applications that were made prior to the amendments are already registered under the old system and will have access to the new right to negotiate provisions until they have been through the new registration test. The amendments allow state and territory governments to establish their own alternative procedures, to the satisfaction of the commonwealth minister.

In some circumstances, the right to negotiate has been removed in relation to some types of mineral exploration, opal and gem mining, some gold and tin mining and renewals of mineral tenements. In other circumstances, the right to negotiate has been replaced by 'a right to be consulted'. This may apply in the case of grants involving development in towns and cities and infrastructure development including mining infrastructure. Here, native titleholders and applicants will be notified and be allowed to lodge an objection. If they do object, they will be heard by an independent person and may be entitled to compensation for the loss or impairment of native title. These are statutory rights equivalent to those held by freehold titleholders. (s24MD)

Keywords: Native Title Act (1993), Native Title Amendment Act, 1998, native title claim, negotiation, 1998

Author: Strelein, Lisa