Future Act Agreement (Native Title Act 1993 (Cth)) (Australia)
SummaryAn agreement made under the future act provisions of the Native Title Act 1993 (Cth) about a 'future act' (a proposed activity or development that may affect native title) which requires an agreement with the native title parties in order for the performance of the proposed activity to be valid.
Extended DefinitionThese agreements only need to be made for those types of future acts that require either a determination from the National Native Title Tribunal about whether the act can be done or the consent of the relevant native title party.
These types of future acts afford the relevant native title parties the 'right to negotiate' under the NTA and include the grant of exploration or mining tenements and some compulsory acquisitions of land. Other types of future acts, where the right to negotiate does not apply, only give the right to be informed or consulted – future act agreements do not need to be made for these types.
Part 2, Division 3, of the NTA contains the future act provisions. Agreements about future acts and native title can be made under these provisions. As section 31 of the Act states that the parties are to negotiate in good faith with a view to reaching agreement, these agreements are often referred to as 'section 31 agreements'. These include:
1. A State Deed or tripartite agreement. This is an agreement between the state or territory (government); the grantee; and native title parties that an act may be done. The government party has the opportunity to check that the Deed complies with relevant state/territory legislation. Generally, this type of agreement is given to the Tribunal to show that the parties have reached an agreement under section 31. Section 41A(1)(a) of the act requires the parties to give the Tribunal a copy of a s 31 agreement.
2. A Future Act Ancillary Agreement or Project Consent Deed. This is generally a confidential agreement between the grantee and native title parties containing details of the conditions of the doing of an act. It may include provisions relating to employment and training, environmental or cultural heritage protection or compensation and payments. It is made in conjunction with, or ancillary to, a State Deed. By using the format of a State Deed and Ancillary Agreement, the details of the conditions of the agreement do not need to be provided to the Tribunal and can remain confidential between the parties.
3. A Future Act Consent Determination. When parties reach an agreement about a future act, this can be given effect by requesting that the Tribunal make a consent determination. If a party makes an application under s 35 of the NTA for a future act determination, the Tribunal can make a determination in relation to whether future acts can proceed on land and waters where native title may exist. When all parties involved in the application reach an agreement about the proposed future act during the course of the proceedings, they can advise the Tribunal of this by providing a Minute Of Consent Determination, after which the Tribunal makes a Consent Determination. (Note: this is a Future Act Consent Determination. Native Title Consent Determinations relate to the existence of native title over an area – see 'Consent Determination (Native Title Act 1993 (Cth)) (Australia)')