The right to negotiate and native title future acts: implications of the Native Title Amendment Bill 1996

Abstract

The paper describes the right to negotiate process that has been established under the future acts regime of the Native Title Act 1993 and presents a preliminary review of key amendments to the current process proposed by the Howard Government. The right to negotiate is critical to mainstream land management and resource development on claimed native title lands, and so remains contentious and subject to mounting industry and government criticism concerning transactions costs and alleged unnecessary delays. At the same time, there remains considerable confusion about its nature and operation, and a lack of recognition of actual outcomes. In order to assess the implications of amendments proposed in the Native Title Amendment Bill 1996, the paper first describes the key statutory components and flow of the right to negotiate as it currently stands. The focus is on how the legislative framework has been practically implemented, highlighting difficulties and outcomes to date. The foreshadowed amendments to the right to negotiate are then critically assessed, including: the proposed exclusions mechanism; the conjunctive right to negotiate and project acts; parallel processing; compulsory acquisition powers; Ministerial intervention; and the new claims registration test. The paper assesses the capacity of the amendments to either relieve or exacerbate identified difficulties, and considers their broader implications for native title.