Changes to the ‘right to negotiate’ process under the Native Title Act

On 25 September 2021 the remaining amendments from the Native Title Legislation Amendment Act 2021 (Cth) (Amending Act) commenced. Parties involved in existing and new right to negotiate processes will need to be mindful of the change to the execution requirements for section 31 agreements.

Consideration will need to be given as to whether there are any conditions imposed on the authority of the registered native title claimants under the Native Title Act. Until now there was no statutory process or register for conditions imposed on the authority of the registered native title claimants. It will now be possible to do a search of the Register of Native Title Claims maintained by the National Native Title Tribunal to identify whether the default position (sign by majority) applies or not.

Signing of section 31 agreements

From 25 September 2021, a section 31 agreement under the Native Title Act will be able to be signed by a majority of the registered native title claimants for a native title claim.

A ‘section 31 agreement’ or ‘State deed’ is the agreement signed at the completion of the ‘right to negotiate’ process. The ‘right to negotiate’ or ‘RTN’ is the most common process used under the Native Title Act nationally for the grant of mining leases and onshore petroleum leases. States typically have a standard form of section 31 agreement, the terms of which are relatively similar between the States.

New sections 31(1C) and section 31(1D) were inserted into the Native Title Act on 25 September 2021. Sections 31(1C) and 31(1D) permit the signing of section 31 agreements by a majority of the registered native title claimants for a native title claim as the “default position”. The default position will apply unless there are conditions imposed under the Native Title Act on the authority of the registered native title claimants for the signing of section 31 agreements. The conditions of authority imposed under the Native Title Act will be searchable with the National Native Title Tribunal.

Does this apply to current negotiations under the right to negotiate?

Yes. Section 55(3) of the Amending Act contains a transitional provision that effectively says that new section 31(1C) and section 31(1D) apply to any agreement under section 31(1) (b) of the NTA made after 25 September 2021. We read this to say that current negotiations (section 29 notices issued before 25 September 2021) should be able to avail themselves of the new execution provisions.