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Mineral tenements and the Native Title Act 1993

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INFORMATION REGARDING THE PROCESSING OF MINERAL TENEMENTS UNDER THE NATIVE TITLE ACT 1993 AS AT APRIL 2011

INTRODUCTION

These Guidelines provide information about native title, the procedures under the Commonwealth’s Native Title Act 1993 (NTA), and how these apply to the processing of mineral tenements in Victoria.

Earth Resources Regulation (ERR) of the Department of State Development, Business and Innovation (DSDBI) is responsible for the administration of exploration, mining, extractive industries, pipelines and petroleum tenements in Victoria. The NTA requires that ERR complies with the requirements of the NTA prior to granting of tenements that may affect native title.

These Guidelines are intended as information only. They are not to be used as a replacement for the relevant legislation, which includes the Mineral Resources (Sustainable Development) Act 1990 (MRSDA) and the NTA, and is not legal advice. You should seek your own legal advice prior to making decisions about your interests.

A summary of the policy used for the processing of mining tenements with respect to native title is contained in Appendix 1.

The Guidelines do not cover the issue of Aboriginal cultural heritage, which is covered in separate legislation (see the Aboriginal Heritage Act 2006 (Vic) and the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)). For further information on this issue contact Heritage Services Branch of Aboriginal Affairs Victoria (AAV).

What is Native Title?

The NTA came into effect on 1 January 1994. It was the legislative response to the decision of the High Court of Australia in Mabo v Queensland (No. 2) 1992. The NTA accepts and confirms the Mabo decision that the concept of terra nullius did not exist in Australia at the time of European settlement, and recognises the rights of and interests in the land by indigenous people.

Native Title is defined in section 223 of the NTA to mean, the communal, group or individual rights and interests of Aboriginal people or Torres Strait Islanders in relation to land or waters where those rights and interests are those possessed under traditional laws and customs, those laws and customs give a connection with the land or waters, and the rights and interests are recognised at common law.

The NTA does not define what those native title rights and interests may consist of, or when they may exist, as this is determined on a case by case basis. They may however, include anything from a right to use land for ceremonial purposes or for hunting and gathering, to a right of exclusive possession of that land.

In summary, native title may exist in an area where, in accordance with their laws and customs, indigenous people have maintained their connection with the area, and their title over that land has not been extinguished by acts of governments. Extinguishing acts include the grant of freehold title over land and the grant of a lease over land that gives exclusive possession.

NOTE: All Crown land is potentially subject to a native title, provided that a previous act of the Government has not extinguished native title.

Federal Court of Australia

All applications for native title determinations are made to the Federal Court of Australia. The Federal Court may then refer the applicants to the National Native Title Tribunal (NNTT) for mediation on the issue of determination of native title over an specified area. If an agreement of all parties cannot be reached, the matter will be referred back to the Federal Court for a contested hearing, and determination. There may be only 1 determination of native title by the Federal Court over an area.

The National Native Title Tribunal

The NNTT is a Commonwealth agency established under Part 6 of the NTA. Its role includes providing assistance in relation to Indigenous Land Use Agreements (ILUAs) and the Right to Negotiate (RTN) process, where it can provide:

  • Negotiation options;
  • Chairing and facilitating meetings between parties;
  • Assisting parties in resolution of objections made to registering area or alternative procedure agreements; and
  • Research. . Details of the NNTT can be found on their website at http://www.nntt.gov.au

Native Title Representative Body

Native Title Services Victoria Ltd (NTSV) is a Native Title Representative Body, as defined under section 253 of the NTA. It is funded by the Federal Government.

Their role includes:

  • Assisting claimants in the research, preparation and making of native title applications;
  • Assisting in the resolution of disagreements between indigenous parties;
  • Representing applicants in mediation the RTN process and legal proceedings related to native title;
  • Certifying native title applications and ILUAs registration applications; and
  • Becoming a party to ILUAs.

Note: some native title claimant groups have obtained their own legal representation and are not represented by the NTSV.

PROCESSING MINERAL TENEMENT APPLICATIONS UNDER THE NTA

Native Title may exist over Crown land where it has not been extinguished by a prior validated act. Some of these prior validated acts are listed in Schedule 1, Part 2, Division 2B of the NTA and are described in section 249C. Whether an application for a mining tenement is affected by a prior validated act will be determined upon application by the appropriate Government officers.

Future Acts

The granting of an Exploration or Mining Licence on Crown land (or waters), which may affect native title, is generally defined as a Future Act under section 233 the NTA.

In brief, a future act is any activity in relation to Crown land that may affect any native title right and interest, and includes a grant of a mining tenement over Crown land. An act affects native title if it extinguishes native title rights and interests, or the act is wholly or partly inconsistent with the continued existence, enjoyment or exercise of native title rights and interests. For example, exclusion from an area within a mining tenement on safety grounds, extinguishes native title for that period of time.

The Future Act provisions of the NTA (under Part 2, Division 3) have to be met before a tenement will be granted.

To meet these future act requirements, the tenement applicants are given the option to:

  • undertake the RTN process with the native title claimants ;
  • reach an agreement by an ILUA with the native title claimants;
  • excise all Crown land from their application and have the tenement processed in the normal manner.

Applicants should seek their own independent legal advice on this issue before selecting one of these options.

The option chosen may depend on various factors, such as the geology of the proposed tenement area, the percentage of Crown land in the tenement area, knowledge of w the native title claimants, company policy or the time available. The initial process is outlined in the following Flow Diagram.

NOTE: Earth Resources will carry out a future act assessment in accordance with the NTA to determine what native title requirements need to be addressed prior to the grant of the licence.  You will be advised when the assessment has been completed.

Flow Diagram of the Native Title Process for Mineral Tenements

Diagram showing Native Title process for Mineral Tenements. First step, Apply for a Mining Licence (MIN) or an Exploration Licence (EL), decide - Does the area contain Crown Land? if Yes, then ask Do you want to retain the Crown land? if yes, Follow the relevant native title procedure, see the Indigenous Land Use Agreements flow diagram or the Right to Negotiate process flow diagram. If you don't want to retain the Crown Land then Excise all Crown Land/waters except roads/road, then Tenement granted. If the area doesn't contain Crown Land at all, Contains only private land /- roads/road, Tenement granted.

RIGHT TO NEGOTIATE (RTN)

The NTA establishes a RTN process. The process gives registered native title claimants the opportunity to negotiate conditions or an agreement regarding the proposed action over land where native title claim has been registered. The RTN process involves notification, negotiation and, if no agreement can be reached, arbitration, before the government can validly grant tenements that will effect native title rights and interests.

Under section 26 (1) of the NTA, the RTN process applies where the Government:

(i) creates a right to mine (except where this is for the sole purpose of constructing an infrastructure facility associated with mining); or
 
(ii) varies a right to mine to extend the area to which it relates (increasing the area or term of a licence); or
 
(iii) renew, re-grants, remakes or extends the term of an existing licence or lease, so as to create a right to mine; or
 
(iv) compulsorily acquires native title rights and interests, (unless the acquisition is to confer rights on the Government party or the purpose of the acquisition is to provide an infrastructure facility); or
 
(v) any other act approved by the Federal Minister;

then if this act affects native title, the act will only be valid if RTN process is complied with.

Section 29 Notification Process - Advertising

Section 29 of the NTA requires that, where the Government intends to do a Future Act to which the RTN process applies (eg. the grant of an Exploration or Mining licence), it must:

a) Advertise its intention to do the grant the tenement in: i) a major newspaper that circulates in the area to which the notice relates (eg. "The Age"), and ii) an Aboriginal newspaper ("The Koori Mail");

b) Notify in writing, of its intention to grant the tenement:

i) any registered native title bodies corporate (to date, there are none in Victoria);

ii) any registered native title claimants;

iii) any representative Aboriginal/Torres Strait Islander bodies (the Representative Body for Victoria is Native Title Services Victoria Ltd (NTSV);

iv) the title applicant (the "grantee party"); and

v) the NNTT.

Note: The Department will recover from the tenement applicants the costs of compliance with advertising/notification requirements under the NTA.

The Department advertises section 29 notices as a group advertisement, to reduce costs. Group advertisements are issued approximately once a month, on a Wednesday (to coincide with publication dates for the Koori Mail, which is published fortnightly on Wednesdays). The cost of advertising under section 29 is generally between $1400 and $1700, and is dependent on the number of tenements advertised in the relevant group advertisement.

Section 29 notices are required to specify a "notification day". The notification day is the day by which, in the Department's opinion, it is reasonable to assume that all section 29 notices will have been received by, or come to the attention of the relevant parties.

Other native title parties

Section 30 of the NTA, sets out the process by which a person may to become a "native title party" with respect to a tenement application (eg. an exploration or mining licence). This may be done by:

(i) a person(s) lodging a native title claim with respect to any of the land or waters that will be affected by the relevant tenement application within 3 month period from the notification day; and
 
(ii) the claim is accepted for registration by the NNTT and entered on the Register of Native Title Claims within 4 months from the notification day.

(a) No native title party

If, by the end of 4 months after the notification day, there is no native title party registered for the relevant tenement application, then the Government may grant the tenement, as provided for by section 28(1)(a) of the NTA.

(b) Native title Party

If there are native title parties in relation to the tenement application, then the Government, the tenement applicant (the grantee party) and the native title parties must negotiate in good faith with a view to reaching an agreement regarding the grant of the tenement, (section 31(1)(b) of the NTA).

Right To Negotiate Process

The NTA provides a minimum period of 6 months after the notification date for parties to negotiate about the grant of mineral tenements (this includes the 3 month notification period).

Following completion of the notification period:

(a) The native title parties may request information about the tenement application, to be informed about the project prior to entering into negotiations. Information requested may include a brief description of the project, copies of tenement applications including maps, available work plan information and some information about the company. Applicants can expedite this by providing this information upon or prior to the request.
 
(b) Arrange an initial meeting with the native title claimants.
 
(c) Commence negotiations. Negotiations may include issues such as protocols for cultural heritage protection, environmental matters, compensation, and employment and training opportunities.

Agreements

An exploration or mining licence cannot be granted until all the parties have completed the RTN process and signed a section 31 agreement or a valid ILUA has been registered, and all other statutory and regulatory requirements have been met in relation to the licence.

Pro forma agreements

Pro forma agreements for a section 31 Deed for the RTN process for exploration and mining licences have been developed by the Government in association with the Victorian Minerals and Energy Council (VMEC), and the NTSV. These Deeds are considered to be an acceptable agreement under the RTN process for the grant, renewal, amalgamation or variation of an exploration or mining licence. They are intended to assist the parties to expedite and complete negotiations for particular exploration or mining titles. They set out the terms and conditions upon which exploration or production may proceed. Copies of these pro forma agreements are available on the MCA Website www.minerals.org.au, then click on Victoria/Publications and Codes.

In addition, the Government and the NTSV have developed a pro forma agreements for the Project Consent Deed. The Project Consent Deed is a separate agreement that is generally commercial and technical in nature, between the applicant and the native title party(s), regarding the grant of an exploration or mining licence. The Victorian Government is not generally a party to this type of agreement unless its contents directly affects, or require the involvement of, the Government ie royalty payments or the extinguishment of native title. The Project Consent Deed can cover a range of issues including cultural heritage protection and compensation, and is protected by confidentiality clauses.

Other Agreements

There is no requirement to use the pro forma agreements as these are tools only. The parties may reach their own agreements. Like the pro forma agreements, these agreements are generally in 2 parts. The first part is a formal agreement or section 31 agreement as required under the NTA, between the government, the grantee party and the native title party(s), and the second the Project Consent Agreement as discussed above.

No agreement

If an agreement is not reached within 6 months from the notification day, any party may refer the matter to the NNTT for determination by arbitration. The NNTT is required to make a determination as to whether the tenement can be granted, and under what conditions as soon as is practicable (6 months is the time suggested for a determination). Parties may continue to negotiate with a view to reaching agreement up until the date a determination on the RTN process is made. The NNTT's RTN determination may be upheld or overturned by the Federal Minister upon request of the State Minister, or appealed to the Federal Court.

"In-Good-Faith" negotiations

All negotiations are to be undertaken in good faith. There is no definition of the term 'negotiate in good faith' in the NTA, but basically it means that the parties should approach and enter into negotiations with an open mind and genuine desire to reach an agreement.

The government is an equal party to these negotiations and should be involved, where considered relevant or appropriate. However, parties do not often involve government in negotiations of a commercial nature as outlined above in the Project Consent Deed.

The RTN process is outlined in the following flow diagram.

Flow Diagram of the Right To Negotiate process

 Flow diagram of Right to Negotiate process. First, enter into the RTN process, Advertise & notify the relevant parties under section 29, A native title claim has been accepted by the NNTT 4 months from issue of s29 notice? If yes then Can reach an agreement with the native title claimants? If yes, then Section 31 Agreement is signed-off and Tenement granted. If an agreement can't be reached with the native title claimants then Refer matter to NNTT for mediation after 6 months from issue of s29 notice. Is the NNTT in favour of grant of tenement? If yes, then will the decision be appealed? If no, Tenement granted if yes, Appeal upheld by Commonwealth Minister and Tenement granted or refused by Minister. If the native title claim has not been accepted by the NNTT 4 months from issue of s29 notice then the Tenement is granted.

INDIGENOUS LAND USE AGREEMENTS

An Indigenous Land Use Agreement (ILUA) is a voluntary agreement made between native title holders or claimants over a particular area and other people or organisations such as governments, miners, pastoralists, tourism developers and councils about the use of land and waters in the native title claim area.

ILUAs are generally regarded as the "preferred method" as they are flexible, cater for local or regional needs, offer legal certainty and they are usually quick and convenient alternatives to the negotiation or consultation processes required for the validity of Future Acts. Applicants should note however, that certification and registration of ILUAs may take time and resources, and that when negotiating an ILUA (unlike RTN) there is no provision for arbitration if parties do not reach agreement.

What is an ILUA?

ILUAs must be about at least 1 of the following matters:

  • the doing of particular Future Acts or classes of Future Acts, including any conditions (eg. granting a tenement);
  • particular Future Acts or classes of Future Acts that have already been done (other than Intermediate Period Acts), including validation (eg. renewal of a tenement);
  • changing the effects on native title of any Intermediate Period Acts or classes of Intermediate Period Acts (eg. variation of a tenement increasing the area or term);
  • withdrawing, amending, varying or doing any other thing in relation to a native title determination application, (eg. a claimant application, revised native title determination application or compensation application) in respect of the agreement area;
  • the relationship between native title rights and interests and other rights and interests in relation to the agreement area;
  • the manner in which native title rights and interests or other rights and interests are exercised in relation to the agreement area;
  • extinguishment of native title rights and interests in relation to the agreement area by surrender to the Commonwealth, a State or Territory;
  • compensation for any Past Act, Intermediate Period Act or Future Act;
  • access rights of native title claim group members for registered claims to non-exclusive agricultural or pastoral leases;
  • any other matter concerning native title rights and interests in relation to the agreement area.

Types of ILUAs

There are 3 types of ILUAs under the NTA Part 2 (Division 3, subdivisions B, C and D):

  • Body Corporate Agreements,
  • Area Agreements; and
  • Alternative Procedure Agreements.

Note: You should seek your own legal advice as to which ILUA would best suit your individual situation.

Body Corporate Agreements (Division 3, Subdivision B)

This types of ILUA can only be made with the registered native title body corporate. This means that there must be a determination (or determinations) of native title in relation to the entire agreement area. If there is a registered native title body corporate (or bodies corporate) for part of the area only, a different type of ILUA must be made.

Parties to the agreement:

  • any Registered native title body corporate; and
  • the government and any other person.

Area Agreements (Division 3, Subdivision C)

  • This type of ILUA can be considered if there is no registered native title body corporate for the entire agreement area. It can be made to cover any matter relating to native title, ie. the grant of a exploration or mining licence or to reach an agreement with respect to other matters simultaneously (eg. to extinguish native title by surrender to government for the sale of Crown land).

The parties to an Area Agreement:

  • must include the all registered native title claimants or the representative body or the body corporate. Where there is no registered native title claimant it mus also include the government (if extinguishing native title) and the applicant;
  • may include persons who claim to hold native title, the NT representative body if there is a registered claimant, any other person and the government (if not extinguishing native title).

Note – a pro forma ILUA has been prepared by the government in association with VMEC and NTSV.

Alternative Procedure Agreements (Division 3, Subdivision D)

The parties to an Alternative Procedure Agreement:

  • must include the registered native title representative body or body corporate, if no claimant is registered, the government (if extinguishing native title) and the applicant;
  • may include the registered native title claimant, persons who claim to hold native title, and any other person.

There does not need to be a registered body corporate (or bodies corporate) in relation to the whole of the agreement area. However, there must be at least one registered native title body corporate in relation to part of the agreement area or at least one representative body in relation to part of the area. An Alternative Procedure Agreement must not provide for the extinguishment of native title.

Certification of an ILUA

Certification of an ILUA is the process where the native title representative body endorses the fact that during the negotiation of the agreement that all reasonable efforts were made to ensure that persons who hold or may hold native title have been identified. In some cases the NNTT Register of ILUAs will use certification to determine registration.

Certification is only available for Area Agreements but is not mandatory.

Certification of Body Corporate and Alternative Procedure Agreements is not required.

Registration of ILUA

ILUAs must be registered on the Register of Indigenous Land Use Agreements (the Register) maintained by the Registrar of the NNTT. It is important to select the right type of ILUA for your circumstances because registration has important consequences.

Any party to the agreement can apply to the Registrar for registration of the ILUA, provided that all the other parties agree. The Tribunal cannot tell parties how to draft their agreement but, if it is to be registered, the agreement must comply with certain requirements under the NTA, the Native Title (Indigenous Land Use Agreements) Regulations 1999 (Cth) (the Regulations) and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) (the PBC Regulations).

Once registered with the NNTT, the ILUAs

  • bind all the parties and all persons claiming to hold the native title to the terms of the agreement;
  • bind persons who are later found to hold native title in the area covered by the ILUA, even if they were not originally a party to the ILUA; and
  • enable the proposed Future Act (eg. grant of a mining tenement) to take place.

Once the Registrar is satisfied that the application and ILUA comply with the requirements of the NTA and the Regulations, the Registrar will give notice (advertise) of the ILUA. The ILUA Notice will include the names and addresses of all parties, and is to be given to the following people or organisations (if they are not parties to the ILUA):

  • the Federal Minister;
  • the relevant State or Territory Minister;
  • any representative body for the area;
  • any local government body for the area; and
  • any other person or incorporated body whom/which the Registrar considers appropriate given the nature of the agreement.

The notification period for an ILUA is three months except for a Body Corporate Agreement where the notification period is one month. Objections to the agreement may be made during the notification period. Following the notification period, and provided all the objections (if any) are resolved the ILUA can be registered.

An ILUA will remain registered, unless:

• there is an approved determination of native title in relation to any of the agreement area and the persons who are determined to hold native title are not the same as those who had previously been determined either to hold it (for Body Corporate Agreements) or to authorise it (for Area Agreements). However the agreement can remain registered if those persons satisfy the Federal Court that they accept the terms of the agreement:

  • the agreement expires;
  • all the parties advise the Registrar in writing that they wish to terminate the agreement; or
  • the Federal Court orders that the agreement be removed from the Register on the grounds that a party would not have entered into the agreement but for fraud, undue influence or duress by any person.

The ILUA process is outlined in the following flow diagram.

Flow Diagram of the Indigenous Land Use Agreements process

Diagram showing the Indigenous Land Use Agreements process. First, enter into the ILUA process, then liase with NTSV to determine who the relevant parties are, then Agreement has been reached with all relevant parties. If yes, then Submit an ILUA with the NNTT that satisfies all the requirements of the NTA and the Regulations, if no Refer matter to NNTT for mediation then continue, advertise & notify the relevant parties, Objections have been lodged within 3 months (one month for BCAs) of notification? If no, then Register an ILUA with the NNTT and Tenement is granted, if yes then Objections are heard and either dismissed or upheld. If upheld then Tenement is refused.

PROCESSING MINERAL TENEMENT RENEWALS UNDER THE NTA

All renewals will be assessed on a "case by case" basis. Under section 26D of the NTA the RTN process will not apply to the renewal of valid mining (and exploration) tenements if the creation of that right does not:

(i) extend the area of the earlier granted tenement;

(ii) create a term longer than that of the earlier tenement;

(iii) create a right of exclusive possession; or

(iv) create any other new rights. Renewals that do not fit into any of the categories below, will be treated by the Department as new applications for the purposes of native title.

Past Acts

Tenements originally granted before 1 January 1994 are generally valid past acts for the purposes of native title. If tenements meet the NTA requirements for Past Acts, they can be validly renewed without going through the RTN process.

The Department will renew Exploration and Mining Licences that were originally granted before 1 January 1994 or are otherwise valid as described above without following the RTN process. Such renewals will be valid with respect to native title.

Intermediate Period Acts

Certain tenements originally granted after 1 January 1994 may also be valid acts, They include:

  • tenements that were not invalid to any extent under section 28 of the NTA when they were originally granted (ie. tenements that complied with the RTN process, to the extent required under the NTA); and
  • tenements granted on or before 23 December 1996 that are Intermediate Period Acts and have been validated in accordance with Division 2 or 2A of the NTA (see discussion below).

The 1998 amendments to the NTA allowed the States and Territories to validate certain acts that took place between 1 January 1994 and 23 December 1996 (date of the High Court’s decision on Wik) which would otherwise have been invalid, to the extent that these acts affected native title. For a tenement to be validated as an Intermediate Period Act there must (before the act was done) have been a grant of a freehold or leasehold estate, or the construction of a public work, over any of the land or waters concerned.

Certain exploration and mining licences granted between 1 January 1994 and 23 December 1996 are considered to be "category C Intermediate Period Acts", as defined by section 232D of the NTA. Subdivision I and section 26D of the NTA provide that such tenements can be validly renewed on Crown land without going through the RTN process.

The NTA amendments enable States and Territories to enact this validation regime by passing legislation that complements Division 2A of the NTA. In Victoria the Land Titles Validation Act 1994 (LTVA) was amended and commenced on 24 November 1998. The amended section 13A of LTVA provides that every Intermediate Period Act attributable to the State is valid and is taken to have always been valid. If it is determined that the doing of Intermediate Period Acts affected native title, the native title holders (if any) may be entitled to compensation.

Section 22H of the NTA requires, where the State undertook acts which consisted of the creation, variation or extension of a right to mine (including exploration) between 1 January 1994 and 23 December 1996, the State must, before the end of 6 months after the commencement of the LTVA, give notice in the prescribed way of those acts. Victoria gave notice pursuant to section 22H of the NTA regarding its acts prior to 24 May 1999.

If you are seeking renewal of a licence granted during this period, your tenement may be an Intermediate Period Act, and its renewal may not require that the RTN or ILUA process be undertaken. If your tenement application was originally granted or was renewed during the intermediate period, please contact your Client Services Officer to discuss native title issues with respect to your renewal application. You may also wish to seek your own legal advice regarding NTA provisions with respect to Intermediate Period Acts.

APPENDIX 1 - SUMMARY OF THE POLICY FOR PROCESSING MINERAL TENEMENTS UNDER THE NTA

1. Exploration and Mining Licence Applications

Licence type Land Status Policy
Exploration Licence application Contains Crown Land
  • Excise all Crown land except roads / road reserves; or
  • RTN; or
  • ILUA
Contains only private land +/roads / road reserves
  • No NTA process required
Mining Licence application Contains Crown Land
  • Excise all Crown land / waters except roads / road reserves; or
  • RTN; or
  • ILUA

Note: No RTN or ILUA required if an earlier NTA agreement or determination was made for an EL over the same area, that agreement contemplated mining, and any conditions under that agreement have been complied with by non-NT parties (see s26D NTA).

Contains only private land +/roads / road reserves
  • No NTA process required

2. Exploration and Mining Licence Renewals

Land Status NT Status Policy
Containing Crown land

Tenements that have completed NTA Future Act processes:

  • Granted before 1/1/94; or
  • Granted between 1/1/94 and 23/12/96 and validated as Intermediate Period Acts; or
  • Have completed NTA Future Act processes (ie. RTN or ILUA)
  • No excision of Crown land, RTN or ILUA required provided that the area, term or rights created under the original licence are not increased by the renewal.
  • If the area, term or rights created under the original licence are increased by the renewal, then RTN, ILUA or excision of Crown land is required on renewal.

 

Tenements that have not completed NTA Future Act processes:

  • Granted between 1/1/94 and 23/12/96 without completing NTA Future Act processes and not validated as Intermediate Period Acts; or
  • Granted after 23/12/96 without completing NTA Future Act processes
  • Excise all Crown land / waters except roads / road reserves; or
  • RTN; or
  • ILUA
Containing only private land +/roads
/ road reserves
N/A No NTA process required

3. Amalgamation of Tenements

Land Status NT Status Policy
Contains Crown land

1. Tenements that have completed NTAFuture Act processes:

  • Granted before 1/1/94; or
  • Granted between 1/1/94 and 23/12/96 and validated as Intermediate Period Acts; or
  • Have completed NTA Future Act processes (ie. RTN or ILUA)
Tenements can be amalgamated as long as the earliest tenement granted becomes the on-going tenement. If an amalgamation takes place and a later title becomes the ongoing tenement, then the Future Act provisions of the NTA will apply to the amalgamation and an ILUA must be reached or RTN completed prior to the amalgamation occurring.

 

2. Tenements that have not completed NTA Future Act processes:

  • Granted between 1/1/94 and 23/12/96 without completing NTA Future Act processes and not validated as Intermediate Period Acts; or
  • Granted after 23/12/96 without completing NTA Future Act processes
As above
  Tenements with different NT status (Categories 1 and 2 above) Tenements with different Native Title status will not be amalgamated.

4. Variation of Tenements

NT Status Policy
All tenements containing Crown land that may be subject to native title.

The variation of tenements is allowed providing that the variation does not extend the area of the tenement or extend the term of the tenement.

Regulation 29(1) ,(2) and (7) of the Mineral Resources Development Regulations 2002 will not affect NT – and are therefore not subject to RTN.
Regulation 29(1), (2) and (7) are permissible.
Regulation 29 (3) – (6) are Future Acts which require RTN.

Variations to incorporate areas previously under a tenement containing Crown land in accordance with Regulation 29 (3)– (6) will not be completed UNLESS:
The licensee has been through the RTN process or reached an ILUA; or
The expired tenement involved in the Regulation 29 (3) – (6) contains only freehold land.

5. Miner’s Rights and Tourist Fossicking Authorities

Issue Land Status Policy
Miner’s Rights Tourist Fossicking Authorities (TFAs) Crown land Tenements can be granted without any procedural requirements under the NTA. s.24LA (low impact Future Acts) of the NTA applies.

APPENDIX 2 - GLOSSARY OF TERMS AND ABBREVIATIONS

Act
When used in Past, Intermediate Period or Future acts refers to the grant, issue, variation, extension, renewal, revocation or suspension of a tenement or instrument

TO
Tenements Officer
Cth
Commonwealth of Australia
DSDBI
Department of State Development, Business and Innovation (DSDBI)
ERR
Earth Resources Regulation of the Department of State Development, Business and Innovation
Future Act
Acts that took place after 23 December 1996 that has been validated under the Commonwealth's 1998 NTA amendments
Grantee Party
The tenement applicant
ILUA
Indigenous Land Use Agreement
Intermediate Period Act
Acts that took place between 1 January 1994 and 23 December 1996 containing private land or lease or public work over any of the land or waters concerned that have been validated under the Commonwealth's 1998 NTA amendments
NTSV
Native Title Services Victoria Ltd
Mabo
The decision of the High Court of Australia in the Mabo v Queensland (No. 2) 1992 case. The Mabo decision is that the concept of terra nullius was not relevant to Australia at the time of European occupation and that the rights and interests in land by indigenous inhabitants are recognised.
Mine
Under section 253 of the NTA, the term is specifically defined to include:
a) explore or prospect for things that may be mined (including things covered by that expression because of paragraphs (b) and (c)); or
b) extract petroleum or gas from land or from the bed or subsoil under waters; or
c) quarry but does not include extract, obtain or remove sand, gravel, rocks or soil from the natural surface of land, or of the bed beneath waters, for a purpose other than:
d) extracting, producing or refining minerals from the sand, gravel, rocks or soil; or
e) processing the sand, gravel, rocks or soil by non-mechanical means.
MRSDA
Mineral Resources (Sustainable Development) Act 1990

Native Title Claim Group
(a) in relation to a claim in an application for a determination of native title made to the Federal Court— all the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed; or

(b) in relation to a claim in an application for an approved determination of native title made to a recognised State/Territory body—the person or persons making the claim, or on whose behalf the claim is made.

NNTT
National Native Title Tribunal
DSDBI
Department of State Development, Business and Innovation (DSDBI)
NTA
Native Title Act 1993 (Cth)
Past Act
Acts that took place prior to 1 January 1994 that have been validated under the Commonwealth's 1998 NTA amendments
PBC Regulations
Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth)
RTN
The Right to Negotiate process
Wik
Native title decision by the High Court of Australia made on the 23 December 1996 that resulted in amendments to the NTA in 1998.

APPENDIX 3 - LEGISLATION

Land Titles Validation Act 1994 (Vic)
Mineral Resources (Sustainable Development) Act 1990
Native Title Act 1993 (Cth)
Native Title (Indigenous Land Use Agreements) Regulations 1999 (Cth)
Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth)

APPENDIX 4 - FURTHER INFORMATION ON ILUAs OR RTN

For additional information, please contact:

Department of State Development, Business and Innovation

Earth Resources Information Centre
Minerals and Petroleum Division
Ground Floor, 113 Exhibition Street, Melbourne 

Other useful sources of information can be obtained from:

National Native Title Tribunal (NNTT)

Level 6, Commonwealth Law Courts Building
305 William Street
GPO Box 9973
Melbourne VIC 3001
Telephone: (03) 9920 3000 Facsimile: (03) 9606 0680
Free call: 1800 640 501 or their website http://www.nntt.gov.au

Native Title Services Victoria (NTSV)

For further information on ILUAs or the RTN contact NTSV at:
Level 2 - 642 Queensberry Street 
PO Box 431 NORTH MELBOURNE VIC 3051
Telephone: (03) 9321 5300
Free call: 1800 791 779

Heritage Services Branch, Aboriginal Affairs Victoria (AAV)

The Heritage Services Branch is the Victorian Government’s central point of advice on Aboriginal Affairs in Victoria. The branch is responsible for the development and implementation of policy relating to the investigation, interpretation and management of the Aboriginal cultural heritage of Victoria. It also works with Aboriginal communities and organisations, Commonwealth, State and local Government and private sector to ensure the appropriate management of Aboriginal archaeological sites, objects and places.

They can provide information on:

  • the presence of known Aboriginal cultural heritage sites and places within or in the vicinity of any planned land development, use or management activities
  • whether or not planned activities are in a region likely to contain previously unrecorded Aboriginal archaeological sites and places, and whether an Aboriginal cultural heritage survey will be required (to be undertaken by a qualified archaeologist)

For further information contact them at:

Department of Planning and Community Development
1 Spring Street MELBOURNE 3000
Telephone: (03) 9208 3333 Facsimile: (03) 9208 3292

Minerals Council of Australia – Victorian Division (MCA)
10-16 Queen St
Melbourne Victoria 3000

Ph: (03) 8614 1851 Fax: (03) 9629 8603
Email: info.vic@minerals.org.au

Also see Building Relationships, Working with the Indigenous People of Victoria, a Guide for Explorers and Miners, a booklet published by the Victorian Chambers of Mines that is designed to assist explorers and miners to establish and maintain effective relationships with Indigenous communities. The booklet is available from the National Library of Australia at http://catalogue.nla.gov.au/Record/2364613.