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

Articles Written by William Oxby (Partner)

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. 

Important Disclaimer: The material contained in this article is comment of a general nature only and is not and nor is it intended to be advice on any specific professional matter. In that the effectiveness or accuracy of any professional advice depends upon the particular circumstances of each case, neither the firm nor any individual author accepts any responsibility whatsoever for any acts or omissions resulting from reliance upon the content of any articles. Before acting on the basis of any material contained in this publication, we recommend that you consult your professional adviser. Liability limited by a scheme approved under Professional Standards Legislation (Australia-wide except in Tasmania).

Related insights Read more insight

The NSW housing supply problem – the making of the TOD SEPP and 4 other areas to watch

The NSW State Government is well underway in utilising a number of levers to address the housing supply crisis, particularly with the commencement of the TOD SEPP. The question remains as to...

JWS strengthens environment, planning and ESG expertise with appointment of Julia Green

Leading independent Australian law firm Johnson Winter Slattery (JWS) has appointed Julia Green as a Special Counsel in its Environment & Planning team.

What is a “right to mine” and what is an “infrastructure facility” in the Native Title Act?

The High Court has delivered its decision in Harvey v Minister for Primary Industries and Resources [2024] HCA 1.