Native Title Act 1993: Implementation issues for resource developers

Abstract

There is little documented evidence that the Native Title Act 1993 (NTA) hampers mineral, oil and gas exploration and production because few genuine attempts have been made to work within the existing framework. From a public policy perspective and utilising an economics framework, this paper discusses the rationale and associated risks of the strategy of interested parties in challenging the effectiveness of the NTA. The analysis focuses on statutory provisions for a future acts regime and the right of negotiation under the NTA; provisions with potential to reduce transaction costs and enhance certainty are outlined. It is suggested that, rather than playing within the rules established under the NTA, most parties are focused on changing the rules. It is possible, however, to operate within the existing framework and extract gains from trade; the Mt Todd Agreement is discussed as an example. In conclusion it is argued that while the rules might need some alteration, and specific recommendations are made, legislative amendment will require the concurrence of all parties. Continued strategic behaviour, and associated avoidance behaviour by resource developers, is a high risk strategy that might result in net long-term losses for all parties.