About Future Acts
A 'future act' is an act done after the 1 January 1994 which affects native title. The future act can be a proposed activity or development on land and or waters that has the potential to affect native title by extinguishing it or by creating interests that are inconsistent with the existence or exercise of native title.
Common examples of future acts in Western Australia (WA) are the proposed grants of mining or land titles by the Department of Mines and Petroleum and the Department of Regional Development and Lands respectively.
Visit the Department of Mines and Petroleum website for information about licences, permits and native title.
The Future Act Process
The future act process provides native title holders and registered native title applicants with specified rights from the time a claim is registered, until it is determined. These rights vary from the right to be consulted, to the right to negotiate over some future acts, or activities on the land.
The State must notify native title holders or native title applicants registered under the Native Title Act (NTA) of the intention to carry out a future act. In most cases native title holders and registered native title applicants instruct their representatives (usually one of the native title representative bodies) to represent them in ongoing proceedings or negotiations regarding the future act.
Native Title Parties, as well as members of the public, are notified of proposed future acts in WA (to which the Right to Negotiate applies) under Section 29 of the NTA.
The Right to Negotiate
Registered native title claimants and native title holders (Native Title Parties) have the right to negotiate (RTN) about some proposed activities and development, such as mining, insofar as the proposal may affect their native title rights and interests.
If the government considers that the future act will have minimal impact on native title (eg. some exploration and prospecting licences), the Section 29 notice will include a statement to the effect that the act attracts the 'expedited procedure'. This means that the government considers that the act should be 'fast-tracked'. If the expedited procedure is used, the future act can be done without negotiating with the Native Title Parties.
If no native title parties come forward after four months from the date given in the Section 29 notice, the act can be done without further reference to the NTA. If, however, there are objections at the end of the four month period, the government, the developer and the Native Title Party must negotiate 'in good faith' for at least six months about the effect of the proposed development on the registered native title rights and interests. The parties can ask the National Native Title Tribunal to mediate during the negotiations. If the negotiations do not result in an agreement, after the parties have negotiated for at least six months, the parties can ask the National Native Title Tribunal to decide whether or not the future act should go ahead, or on what conditions it should go ahead.
Learn more about future act agreements in WA.
The Expedited Procedure
Native Title Parties can object to an application being fast-tracked. Lodging an objection means that the Native Title Party is objecting to the grant being made without reference to the RTN procedures. Native Title Parties have four months from the date given in the Section 29 notice to lodge an objection. If the National Native Title Tribunal receives an objection, it will set up a preliminary conference with the Native Title Party, the developer, and the government party, to facilitate discussions between the parties.
The preliminary conference is usually scheduled within 28 days from the date the Tribunal receives the objection. An agreement may be reached on the basis of, for example, site clearance surveys, heritage protection agreements or other matters. If a negotiated agreement cannot be reached, the Tribunal will conduct a formal inquiry to determine whether the expedited procedure should apply or not.
If the Tribunal determines that the expedited procedure applies, the development can then go ahead without a negotiation process. If, however, the Tribunal determines that the expedited procedure does not apply, the proposed future act is moved into the RTN stream. All parties then enter into formal negotiations in good faith.
Other Procedural Rights
In some situations, the RTN does not apply. In these circumstances, Native Title Parties may have the right to be notified, to be consulted, to object and to be heard by an independent umpire.
Visit the National Native Title Tribunal website for information about future act applications, procedures, guidelines and the future acts hearing list.