Exploration and mining on native title
On native title affected land, you must consult with Aboriginal people who hold or have claimed native title rights over land about the proposed activities:
Read more on native title affected land.
The three main processes used to address native title for these activities in the NT are:
- Right to negotiate (RTN) procedure
- Expedited procedure
- Indigenous Land Use Agreement (ILUA).
How to apply
The type of title you're applying for will determine which process you must follow.
You must also address potential impacts on native title rights and interests.
The Native Title Act 1993 will affect most applications for mineral and petroleum titles, except an extractive mineral lease.
If you're applying for a:
- mineral exploration licence, you will usually follow the expedited process.
- mineral and extractive mineral leases, you will usually follow the RTN procedure or ILUA.
All petroleum exploration permit applications are subject to the RTN procedure.
The right to negotiate (RTN) procedure is a process used for high impact future acts.
This involves a negotiation process with registered native title parties to reach an agreement on how mining activities can occur on the land.
This can include the grant of a mining lease or an exploration permit on native title affected land.
The RTN process doesn't give a native title party the right to stop the grant of a lease or permit.
It does provide a native title party the right to:
- be involved in discussions
- have their say about the proposed activities on the land
- be compensated for any impacts to their rights and interests.
The RTN includes the following steps.
Read the right to negotiate procedure flowchart for more information.
Notify the public
After you apply for a lease or exploration permit, the DPIR will:
- write to all affected parties to notify its intention to grant the lease or exploration permit, and
- advertise Section 29 notice of the Native Title Act (NTA) in major newspapers.
Section 29 notice must specify a notification day. This date will trigger a four month notification period.
If a person wishes to become a native title party, they must lodge a claim with National Native Title Tribunal (NNTT) within three months of the notification day.
New claims must be registered within four months of the notification day to secure the RTN process.
Existing registered claims will secure the RTN.
If at the end of the four months there are no registered native title claims, your application can proceed towards grant.
Good faith negotiations
At the end of the four month period, the DPIR will issue Section 31 RTN letters under the NTA to any:
- registered body corporate
- registered native title claimant or holder
- representative body (land council)
- permit or lease applicant.
Section 31 requires the parties to negotiate in good faith. These parties include:
- native title claimant or holder (native title party)
- you (grantee party)
- the DPIR (government party).
There are no set right to negotiate time frames.
The RTN process can take twelve months to complete if negotiations are successful.
It may take longer if negotiations stall and your application is referred to the NNTT for mediation or arbitration.
You are required to progress your application from the date of the Section 31 RTN letter.
You should make contact with the land council as soon as you receive your Section 31 RTN letter to begin negotiations with native title parties.
No agreement reached
If negotiations have stalled or no agreement is reached within the expected time frames, the matter may be referred to the NNTT.
Any of the negotiation parties can refer to the NNTT.
You can apply to the NNTT for:
- mediation assistance under Section 31(3) of the NTA, or
- a future act determination under Section 35 of the NTA.
A future act determination is a decision made by the NNTT about whether a future act may be:
- subject to conditions, or
- must not be done.
The NNTT will:
- determine whether the grant can proceed and what conditions may be imposed on the parties
- usually make a determination within six months after receiving the application.
For more information on future act determination applications, go to the National Native Title Tribunal website.
If negotiations are successful, the native title parties will reach agreement and sign a Section 31 deed under the NTA.
An underlying ancillary agreement between the parties may also be reached.
A Section 31 deed is an agreement between:
- the native title parties, and the
- NT Government.
The deed confirms that the grant of the lease or exploration permit can occur.
An ancillary agreement is a confidential agreement between you and the native title party. It may include conditions relating to:
- education and training
- heritage protection
- compensation payments.
You can contact the Native Title and Aboriginal Land Rights Unit to request a copy of the Section 31 deed and information sheet.
The deed and information sheet should not be relied upon as legal advice.
It is recommended that independent legal advice be sought regarding the deed prior to the parties signing it.
After all parties have completed the RTN process and signed the Section 31 deed, the DPIR will grant the lease or exploration permit.
The expedited procedure is a process used for future acts with minimal impact on native title rights.
Read the expedited procedure flowchart for more information.
An application for a mineral exploration licence (EL) will follow the expedited procedure.
The activities have minimal impact on native title rights and interests.
After you apply for an EL, the DPIR will:
- write to all affected parties to notify its intention to grant the EL, and
- advertise Section 29 notices of the NTA in major newspapers.
Section 29 notice must state the grant of the EL attracts the expedited procedure.
The notice must also specify a notification day. This date will trigger a four month notification period.
A native title party affected by the proposed grant has the right to object to the expedited procedure.
An objection must be lodged with the National Native Title Tribunal (NNTT) within four months of the notification day.
If an objection is lodged, the NNTT will decide if the grant of the EL can proceed under the expedited procedure or not. They will make one of the following decisions.
- If yes, the EL application can proceed to grant.
- If no, the EL application must go through the right to negotiate process.
If no objections are received, the application can proceed to grant.
After the grant of your EL, the department will manage your title under the relevant laws and regulations that cover exploration in the NT.
Applications for exploration and mining tenure may also be granted where the applicant and the native title representative body (land council) enters into an Indigenous Land Use Agreement (ILUA) registered with the National Native Title Tribunal (NNTT).
These are flexible agreements for small exploration or large mining projects.
This involves an negotiation process with native title parties to reach a formal agreement on how mining activities can occur on the land.
For more information on ILUAs, go to the National Native Title Tribunal website.
Last updated: 08 September 2020
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