It's been almost 20 years since the introduction of the Native Title Act 1993 (the Act). Despite this, many parts of the Act are still unclear and require determination from the National Native Title Tribunal: in particular, the requirement to negotiate in good faith provisions.

The "right to negotiate" is a process that can apply to parties seeking approval to use land (usually related to mining) which is, or is likely to be, subject to native title, where the parties' actions would adversely affect native title rights. The right to negotiate procedure is not a right to veto or stop a project going ahead, but is a right for native title parties to have a say in the project and the use of the land.

Pursuant to s.29 of the Act, when native title rights are likely to be affected, the party seeking to use the land gives notice to registered native title claimants or native title body corporates, setting out the proposed actions to be conducted on the land (a "future act"). Native title holders have three months from the date given in the s.29 notice to file a claim if they want the right to negotiate about the proposed future act. The parties then have at least 6 months to negotiate in good faith about the effect of the proposed development on native title.

The right to negotiate provisions in the Act have often been contentious as the parties attempt to determine what "good faith" encompasses. This term can be subjective to the circumstances of each negotiation, often giving rise to conflicts between the negotiating parties. Additionally, the term "good faith" is not defined in the NTA and has itself been subject to judicial interpretation. Quite often, the parties involved in the negotiations (native title holders and resource companies) are being forced to negotiate and are opposed to each other from the beginning.

What constitutes good faith has been the subject of many determinations. Briefly, it requires the parties to act honestly with no ulterior motive or purpose, to engage in negotiation with an open mind, a willingness to listen, compromise and reach an agreement under which the native title party will agree to the proposed future act.

The National Native Title Tribunal will objectively assess whether or not a party has negotiated in good faith, taking into account the total conduct constituting the negotiations. The Tribunal may give consideration to the reasonableness or otherwise of any offers made by a negotiation party.

Amendments have been proposed to the Act via the Native Title Amendment Bill (the Bill). Amongst the proposed amendments is the codification of the definition of "good faith". The purpose of the Bill is to improve agreement-making, encourage flexibility in claim resolution and promote sustainable outcomes.

The Bill was first introduced into the Federal Parliament on 28 November 2012. With the change in government, the status of the Bill has lapsed, and the proposed amendments to the Act may not pass the new Parliament. The Liberal Party has recognised that reform is needed to the Act; however, it does not believe that the proposed amendments will make the negotiating process any more certain. Rather, it believes that the amendments are likely to increase the occurrence of litigation. It's unlikely that the Bill will be on the agenda of the new government when Parliament is recalled.

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