Quarry activities and mining, exploration and petroleum
Right to Negotiate Process
Information is provided here about the right to negotiate process as it applies to Quarry activities. Applications for mining, exploration and petroleum and gas activities are now processed by the Department of Employment, Economic Development and Innovation. Further information about the right to negotiate process and applications for mining, exploration and petroleum activity can be found at DEEDI.
Alternatively, please contact with the Department of Employment, Economic Development and Innovation for further assistance:
Southern Region – Manager Native Title Services 3238 3844
Central Region – Principal Project Officer 4938 4609
Northern Region – Manager, Indigenous Land Access 4799 7676
Quarry Activities and Sales Permits
The Native Title Act 1993 (NTA) requires a right to negotiate process when the proposed grant of a lease, licence or permit for resource activities will affect native title. A Sales Permit for quarry activities (to get quarry materials as defined by the Forestry Act 1959) is regarded as a future act under the NTA. The NTA allows future acts to occur after native title has been addressed.
Quarry activities are administered by the Forestry Act 1959 and not the Mineral Resources Act 1989. A Sales Permit, issued by DERM Forest Products, is required to get quarry materials from State land and freehold land where ownership of the quarry material is reserved to the State.
Applications for a Sales Permit are made through the Forest Management Area offices of DERM Forest Products. A native title assessment is completed as part of the quarry application process. In some but not all cases native title needs to be addressed through the right to negotiate process. It must be noted that a Sales Permit cannot be issued if native title has not been addressed.
If native title needs to be addressed a statutory right to negotiate process prescribed by the NTA must be completed. It will include three (3) parties who are the State (government party), the quarry proponent (applicant for the Sales Permit) and the native title party (native title applicants or Traditional Owners whose interest will be affected by the quarry activity). The ”right to negotiate” provided to the native title party allows them to negotiate about the impact these activities will have on their native title.
All parties involved in the area of the quarry activity need to negotiate a native title agreement for that activity to proceed. Before negotiations commence the native title parties need to have a registered native title claim. A registered native title claim will allow them to exercise their right to negotiate. However, a native title determination is not required for these negotiations to occur.
The State will issue a notice of the commencement of the right to negotiate process. The notice (commonly called a government notice) is issued under section 29 of the NTA. From the date of the notice the statutory timeframe of six (6) months begins. Native title parties have the opportunity to respond to the notice and lodge a native title claim if they do not have one registered. The notification period allows three (3) months for claims to be lodged and a further one (1) month to have it registered.
Beyond the fourth month the native title parties can then negotiate with the quarry proponent and the State to reach a native title agreement. A section 31 agreement is the document that will contain the terms of that native title agreement including native title consent for the quarry activity. The agreement will be signed by all parties including the State.
The parties are encouraged to conduct good faith negotiations throughout the right to negotiate process. The National Native Title Tribunal can provide assistance to help the parties reach agreement in cases where good faith negotiations can no longer occur.
The right to negotiate process is an alternative to Indigenous Land Use Agreements providing a statutory timeframe for negotiations. The applicant for the quarry activity may elect to negotiate an Indigenous Land Use Agreement where the agreement deals with multiple activities and other leases, licences or permits. However, the right to negotiate can be more suitable for agreements about a specific activity or area.
Quarry activities involving environmental impact statements must have a registered cultural heritage management plan. Where quarry activities do not involve an environmental impact statement the native title agreement will need to take into account the Aboriginal Cultural Heritage Act 2003. Further information about Aboriginal Cultural Heritage can be found here.
Further information about quarry materials and Sales Permit applications can be found at DERM Forest Products quarry materials factsheet (PDF, 95K)*.
To discuss Sales Permits applications and whether native title will need to be addressed please contact the DERM Forest Products.
Native Title Information
General Information about the right to negotiate process and negotiation assistance can also be found through the National Native Title Tribunal. NNTT contact and RTN information.
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Last updated 9 September 2011