Right to negotiate
The right-to-negotiate (RTN) process allows you to reach agreement with the native title party or parties that overlap your resource authority.
Resource authority types that can undertake the RTN process include:
- mining claim
- exploration permits for minerals or coal
- exploration permits for geothermal
- authority to prospect for petroleum
- mineral development licence (that include bulk sampling in the work program)
- mining leases
- geothermal leases
- petroleum leases.
Step 1 – Contact with native title parties
Before lodging your resource authority application with the Department of Resources, you should contact the relevant native title representative body (NTRB) for the application area and any registered native title party to establish whether they are willing to participate in RTN negotiations and if so how negotiations should proceed. Keep a record of your meetings for future reference.
For help determining the registered native title party, you can check the native title layers in GeoResGlobe or contact the National Native Title Tribunal (NNTT).
Step 2 – Lodge your application
When you lodge your resource authority application in MyMinesOnline, select ‘right to negotiate’ as your native title option and pay the native title advertising fee if applicable.
You must pay the native title advertising fee if the section 29 notice is to be publicly notified in both:
- the Koori Mail – a special interest publication catering mainly for the interest of Aboriginal and Torres Strait Island peoples
- a newspaper that circulates throughout the area to which the notification relates to.
Advertising cost options per permit:
- single advertisement – $3,000
- batch advertisement – $1,000 (when advertised with other resource authority applications).
Additional advertising fees may be requested if the cost is more than the native title fee paid. Where the advertising cost is less than the native title advertising fee paid, the difference will be refunded.
Applications that do not require public notification are those that fall within the boundaries of a 'Native title determination – native title does not exist’.
A further email will need to be sent to Native Title Services at the Department of Resources, email@example.com, confirming the native title negotiate representative for the application.
Step 3 – Section 29 notice
The department will begin the process of developing the section 29 notice to issue to the relevant parties:
- Native Title party
- the representative body
- the National Native Title Tribunal (NNTT)
- the applicant (grantee party).
The section 29 Notice identifies the resource authority application, native title party information and the notification date for the start of the notification period.
You can view Section 29 notices from the past 6 months.
Step 4 – Notification period
The section 29 notice will include a notification day, this is generally 2 weeks from the advertising date.
Any new native title claims must be lodged with the NNTT within 3 months of the notification day, and the claims must be registered within 4 months of the notification day in order for the negotiating party to have a right to negotiate for the resource authority application.
If there are no registered native title party or parties at the end of the 4-month notification period, the native title requirements of your application can be finalised.
You must negotiate with any native title party that overlaps your resource application area at the end of the 4-month notification period.
Negotiations must be done in good faith, with an open mind and the aim of reaching an agreement.
Parties to the negotiation include:
- the applicant (grantee party)
- the native title party (native title claimant or prescribed body corporation)
- the State.
The State is considered a party to the RTN process under the Native Title Act 1993 (Cwlth) and our representative will attend negotiation meetings where possible and monitor the progress of negotiations.
At any time during the negotiation process, any party can seek mediation assistance from the NNTT.
You must ensure you provide an update to the State about the negotiation progress at least every 2 months. This can be done by phone or email.
Step 5 – Agreement or mediation/determination
Section 31 and ancillary agreements
If parties are able to successfully reach an agreement, the applicant and native title party will sign an ancillary (private) agreement. A section 31 deed will also be executed by the grantee party, the native title party and a representative for the State.
The ancillary agreement contains the confidential details of the agreement, such as arrangements for land access, conduct and compensation, and the protection of native title rights and interests and cultural heritage. This is a confidential agreement between the applicant and the native title party.
The section 31 deed contains basic facts about the agreement, is lodged with the NNTT and made publicly available. The section 31 deed is generally requested from the State once parties have reached agreement in principal, to enable both agreements to be signed by the parties at the same time.
After the section 31 deed has been signed by the grantee party and the native title party, the section 31 deed is provided to the state for the State delegate to review and sign.
Once signed by the State, a copy of the signed section 31 deed is provided to all parties, including the NNTT, and the native title requirements of the resource application will be finalised.
If the parties are having difficulty reaching agreement, either party may request the NNTT to mediate negotiations. Mediation is a voluntary dispute resolution process involving an independent facilitator known as a mediator. The mediator assists the parties to identify issues, develop options, consider alternatives and reach agreement.
Future act determination application
If parties are unable to reach an agreement after 6 months from the notification day and negotiations have stalled, any party can lodge a future act determination application with the NNTT.
A future act determination is a decision made by a tribunal about whether a future act that has gone through the right to negotiate process may be done, may be done subject to conditions, or must not be done.
When a negotiation party applies for a future act determination, the tribunal will conduct an inquiry into whether the future act can proceed. In making a determination, the tribunal must take into account the matters set out in section 39 of the Native Title Act. The parties have the opportunity to produce evidence and make submissions to the tribunal on those matters.
The NNTT will not make a determination, if any of the parties claim that another party has not negotiated in good faith. If the NNTT finds this to be true, negotiations must start again for another 6-month period. Visit the NNTT website for more information about good faith and future act determination applications.
- Last reviewed: 3 Jan 2020
- Last updated: 6 Oct 2022