One of the first factors that must be considered by a mining company when it wants to access land for exploration is whether Native Title exists.
Native Title refers to the rights of indigenous people to their traditional land and waters as recognised in legislation passed in response to the High Court’s Mabo decision of 1992 and the Wik decision of 1998 (see below). Native title may encompass full ownership rights or the right to hunt or fish or access certain places but it exists only if the particular indigenous group has maintained a traditional connection with that land/water, and if the title has not been extinguished by some other Act inconsistent with the group’s native title rights.
Claims to native title may be made on Crown land; state forests, national parks and public reserves; oceans, lakes, rivers and streams; pastoral leases; and land already owned or controlled by Indigenous people. Native title is generally extinguished on land that is privately-owned (freehold), held under residential lease, commercial lease and some other leases, or if it contains public works such as roads, railways, bridges, schools, hospitals and so on.
Mining companies must take native title into account when they want to go on to land to explore or mine. A rule known as "the right to negotiate" gives native title holders and native title claimants a right to have a say about how exploration and mining goes ahead on their traditional land. It is not a right to stop the project going ahead. The rule of negotiation must be followed in addition to all the usual rules that apply before exploration and mining proceeds. The NSW Aboriginal Land Council and the NSW Minerals Council have signed a Protocol for the Negotiation of Agreements for Exploration & Mining for New South Wales to assist this process.
There have been a large number of agreements between mining companies and indigenous groups over the years. Agreements can cover financial payments, employment, education or training for indigenous people, contracting with indigenous businesses or assistance with establishing and operating businesses, environmental management, rehabilitation after mining, land management and other conservation programs, community assistance programs, good neighbour programs and sport and cross cultural programs.
For further information on native title see the Department of Aboriginal Affairs.
Another factor that must be considered by mining companies when accessing land is potential implications on Aboriginal cultural heritage.