THE NEGOTIATED PRICE OF CERTAINTY—RECENT DEVELOPMENTS IN NATIVE TITLE AGREEMENTS AFFECTING THE PETROLEUM INDUSTRY

Abstract

Development of Native Title agreements for Petroleum continues in parallel with the release of Court decisions on the law of Native Title. Negotiated agreements for three bidding rounds in the South Australian region of the Cooper Basin are now concluded, with exploration underway there and some new commercial production.

These agreements were negotiated under the Commonwealth Native Title Act’s ‘Right to Negotiate’. Agreed resolutions are virtually demanded by the competing tensions within the legislative machinery. The need for conjunctivity of title from the exploration to the development stages is now understood and has become accepted by advocates for Native Title claimants. Recent court decisions would appear to ease the path for applications to the National Native Title Tribunal where negotiations fail to reach agreement, expanding the range of strategies open to Petroleum explorers seeking new title grants.

Small negotiating teams facilitated progress. Despite a long first negotiation, subsequent negotiations have developed from that experience to form an efficient and cost-effective model which has now been replicated for more than 35 agreements conjunctive for all phases of activity. All those agreements address the key issues of title grants, both initially and consequently upon discoveries, Aboriginal heritage inspections and accommodation, including practical aides of indicative timelines and budgets for the latter, and compensation. Adaptation of these agreements is beginning in other parts of Australia. The temptation of Native Title advocates to test the envelope, however, must be expected with each new negotiation. Contrastingly, both the industry and state government agencies are seeking stabilisation of the terms of negotiated agreements to see how they will work in practice.

This paper describes the key terms and temptations encountered so far in this evolving dynamic.