Three Approaches to Native Title

1.     Native title claims (applications and determinations)

A native title claim is an application madeby a person or persons who is claimingto hold native title.The process under the Native Title Actbegins when a native title claim groupfiles an application in the Federal Courtseeking a determination that recognisesthem as native title holders.

The application is then referred to the Native Title Registrar of the National

Native Title Tribunal who assesses the application against the registration test.

If the application meets all the requirements of the test, the applicants gain certain rights, such as the right to negotiate about mining on the application area.

The Registrar of the Tribunal then notifies the public of the application to give

people with interests in the claimed area the chance to step forward and become

involved in claim process. They do this by applying to the court to become a party

to the application.

The application is then usually referred to the Tribunal for mediation. It brings the parties together and assists them through mediation to reach agreement about native title issues that are claimed. If an agreement is reached about the claim for native title, the parties can apply to the court for a determination of native title. If the court decides to

make the determination, it is called a consent determination. If no agreement is

reached, the application may have to be determined by the court following a trial.

2. Indigenous land use agreements (ILUA)

An ILUA is an agreement between a native title group and others.

ILUAs can cover a wide variety of subjects and may be used as part of the negotiations leading to a consent determination of native title. Alternatively, they may be entirely separate from the determination process. The parties to the agreement apply to the Registrar of the Tribunal to have the agreement registered. If an ILUA is entered onto the Register of Indigenous Land Use Agreements, it binds all native title holders to the terms of the agreement, even those who are not a party to the agreement, so long as it remains on the Register.

3.Future act agreements

Final decisions over native title claimscan take time. A system was devised tofacilitate dealings that would affect nativetitle both during the claim process andafter native title is recognised. This iscalled the ‘future act process’Native title claimants and those recognisedas native title holders have the right tonegotiate about some future acts, suchas the grant of a mining lease or proposeddevelopments. Claimants only gain this

right if their native title claim satisfies all of the registration test conditions. The Tribunal administers the process that deals with future acts that attract the right to negotiate under the Commonwealth legislation – that is, generally, future acts relating to mining leases and some compulsory acquisitions.

The Tribunal’s role in this process includes mediating between parties, conducting inquiries and making decisions (called ‘ future act determinations’) where parties can’t reach agreements.

This information was kindly supplied by the National Native Title Tribunal.