THE 'RIGHT TO NEGOTIATE' UNDER THE NATIVE TITLE ACT 1993

Abstract

One of the most controversial and complex aspects of the Commonwealth Native Title Act 1993 is the so-called 'right to negotiate' which is conferred on both registered native title holders and on native title claimants where a Government seeks to take action which would adversely affect any native title held or claimed. Whilst the concept behind the 'right to negotiate' is essentially a simple one, the attempt of the drafters to reconcile many competing land interests has led to an especially complex regime with particular pitfalls for those associated in the petroleum and natural resources industries. This paper is written with a view to explaining the effect of the 'right to negotiate' provisions for petroleum exploration and production companies. In this writer's view, there are aspects of the current legislation which strike the wrong balance between Aboriginal and development interests. The new Federal Government has foreshadowed that it will introduce amendments to the Act, and by the time this paper is presented at the Darwin Conference there could be substantial changes in the offing.