Risk Management in the Native Title Era ù Negotiation Obligations and Approaches

Mining is a high risk industry where miners seek to secure certainty in all of their dealings. The introduction of native title to the Australian legal system with the High CourtÆs 1992 Mabo decision and subsequent Native Title Act 1993 has added to the risks associated with implementation and the ongoing operation of exploration and mining projects. The High CourtÆs Ward case in August 2002 confirmed Crown ownership of minerals and petroleum. But the Court also found that a mining lease that allowed an exclusive possession for mining purposes did not extinguish all native title rights and interests. Although the Court was specifically considering WA mining tenements, the WA mining lease is very similar to the mining leases and licences that exist across Australia, meaning that these tenements are unlikely to fully extinguish native title. The Ward case means that native title remains squarely on the table now and into the future for those involved in developing exploration and mining projects. However, certainty and workability is capable of being secured and this paper discusses some means by which this may be achieved. The paper starts by considering two of the many 1998 amendments to the æfuture actsÆ regime under the Native Title Act, Indigenous Land Use Agreements (ILUAs) and the application of ægood faithÆ negotiation to all negotiating parties. It then looks at native title agreements, other issues affecting negotiations and tips for negotiation technique.