NATIVE TITLE AND ABORIGINAL HERITAGE ISSUES AFFECTING OIL AND GAS EXPLORATION AND PRODUCTION

Abstract

This paper is principally concerned with native title issues as they affect oil and gas exploration and production. However, it also reviews Aboriginal heritage laws and practices because they have the potential to be just as disruptive to an expeditious exploration program or to the construction of a production facility as do native title claims.

The paper focusses on onshore petroleum exploration and production because the right to negotiate under the Native Title Act (NTA) does not apply offshore. However, the paper does consider offshore because the NTA can still affect offshore petroleum explorers and producers; either because their area of interest could include an island within a State or Territory jurisdiction or because the facilities to treat the offshore oil and gas could be located onshore.

The paper examines the key provisions of the NTA which are relevant to petroleum explorers and producers, principally the subject of tenure to ground. It considers the validity of already granted titles. It then examines the process of application for new titles.

Although the NTA is the common source of problems throughout Australia, it is necessary for the paper to consider the situation in each State and Territory, since the titles are different and the government processes of dealing with native title issues differs in each jurisdiction.

Although the focus of the paper is on how to cope with the right to negotiate, the paper considers some of the categories of future acts in respect of which the right to negotiate does not apply (specifically, procedures for infrastructure titles, renewals and extensions of titles, the expedited procedure, indigenous land use agreements, reserve land and approved exploration etc acts).

The paper mentions the Federal Court decisions in the Miriuwung Gajerrong and Croker Island native title claims and ponders the options for the High Court in deciding the recent appeals.

The paper’s conclusion is that a negotiated agreement is the only way to cope with native title issues. The contents of such an agreement are considered.