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GRAHAM CASTLEDINE
CASTLEDINE GREGORY
It is far from certain that the National Native Title Tribunal will
automatically grant mining companies a mining lease once the
compulsory six months of negotiation time has elapsed between
themselves and registered native title claimants, as required by the
Native Title Act. Illustrating this fact through three interesting cases,
and discussing the broader implications for all mining companies,
is acknowledged expert in this area, Graham Castledine.
When the
Native Title Act
came into force in 1993, it introduced
a ‘right to negotiate’ for native title claimants and holders in
relation to proposed ‘future acts’ – being activities over land
which might impact on native title rights and interests. For
the mining industry, this meant that most mining lease
applications attracted the right to negotiate with registered
native title claimants.
To comply with the requirements of the Act, mining companies
must negotiate ‘in good faith’ with the native title party for a
period of at least six months. After that time, if agreement has
not been reached, the mining company may apply to the National
Native Title Tribunal (NNTT) for an order that the mining lease
may be granted.
Negotiations of this kind normally cover matters such as
financial benefits (including production payments), business
and education support, heritage protection processes and
employment opportunities. Native title parties have an incentive
to reach agreement on these matters because the NNTT cannot
make orders requiring the provision of financial benefits,
indigenous employment and the like.
The NNTT has the power to approve or refuse the grant of a
mining lease. Until recently, the NNTT has invariably allowed
THE BALANCING OF DIFFERENT
INTERESTS IN LAND AND WATER IS
AT THE HEART OF SUCCESSFUL
LAND ACCESS NEGOTIATION
NATIVE TITLE GREEN LIGHT
not always guaranteed
MINESITE 2011
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