DEFINING the ‘right’ Aboriginal people to negotiate land access with is the central issue in gaining timely access to ground that may be subject to Native Title.
Without proper identification, the developer risks delays as parties who have not been consulted may complain that their interests have not been properly accounted for.
The Native Title Act seeks to ensure certainty of identification of the relevant Indigenous parties but does not achieve this goal for those seeking to negotiate Indigenous Land Use Agreements.
The act includes in the Native Title group (which must be a party to the Area Agreement) all registered Native Title bodies corporate and all registered Native Title claimants to the land or waters in the agreement area.
It extends this to include "any other person who claims to hold Native Title in relation to land or waters in the area".
When coupled with the provisions governing Area Agreements, this regulation can create uncertainty, not just for development interests.
To obtain a registered ILUA, a developer must involve in negotiations all those who are registered Native Title claimants and those who express a Native Title interest in the land sought for development.
If they only deal with registered Native Title claimants and exclude those expressing interest, developers run the risk that the ILUA registration will either be substantially delayed or may not happen.
Such parties can object to an area agreement registration even if it is certified by the representative body for the area, or otherwise provide information to the Registrar of the National Native Title Tribunal about whether or not the requirements for registration have been met. In practical terms this operates as a built-in objection.
This means developers must bring more people to the table and adds to the cost and time it takes to negotiate an ILUA.
This is why most miners tend to prefer the right to negotiate procedure because the definition process in that procedure provides that, after four months the grantee party knows who it is negotiating with.
Under that process once agreement has been reached or an arbitral body makes a decision, the developer obtains certainty of title.
Another problem with an ILUA is that the registered Native Title claimants sometimes become upset that the developer is negotiating with people without registered interest and with who the registered Native Title claimant may have significant disagreements.
The need to manage the process is clear.
Commercial certainty is important but certainty for indigenous interests involves perceptions about the valuable status of being registered claimants and about the way in which the party provisions of the Native Title Act undermine the confidence of registered claimants about that status.
Policy makers may have created uncertainty for registered Native Title claimants in a climate where the High Court’s decision in Yorta Yorta has not helped.
With the right advice, strategic mechanisms can overcome these problems and make ILUAs work better for land access arrangements.
For more information contact Jonathan Fulcher or Peter Hwang at Minter Ellison. The Perth office number is 9429 7444.
