Australia: Federal Court confirms National Native Title Tribunal’s approach to future act determinations

In Watson on behalf of Nyikina & Mangala v Backreef Oil Pty Ltd [2013] FCA 1432, the Federal Court of Australia rejected several challenges to the National Native Title Tribunal’s approach to determining whether or not interests in land that are subject to the ‘right to negotiate’ provisions of the Native Title Act 1993 (Cth) should be granted. The decision reinforces that the tribunal’s task is the application of the criteria set out in the Native Title Act 1993 (Cth) to the specific evidence and information brought before it and underscores the need for parties to carefully address those criteria with detailed contentions and supporting materials.

Backreef Oil Pty Ltd and Oil Basins Ltd (together the proponent) applied for an onshore petroleum exploration permit over an area in the Kimberley region of Western Australia, approximately two thirds of which is subject to the Nyikina & Mangala native title claim.

Western Australia applies the ‘right to negotiate’ provisions of the Native Title Act 1993 (Cth) to the grant of permits, requiring the proponent to negotiate in good faith with the Nyikina & Mangala people (native title party) with a view to obtaining their agreement to the grant of the permit…

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