19th May 2020

Context

Mining, Exploration and Geoscience (MEG) is aware of the impact of the COVID-19 pandemic on industry and the wider community. It is important that MEG responds appropriately to ensure that all groups are supported throughout this time to promote resilient economies and strong key regional communities. MEG’s response involves adjusting procedural requirements to protect the more vulnerable communities during this period of uncertainty.

MEG and the Native Title Service Provider for Aboriginal Traditional Owners in New South Wales and the Australian Capital Territory (NTSCORP) have worked together to adjust the timeframes for the publication of section 29 notices under the Native Title Act 1993 when applicants request to undertake the Right to Negotiate processes.

MEG recognises that face to face meetings are essential for native title holders or claimants to properly engage in negotiations, provide instructions and informed consent to any proposed actions through the Right to Negotiate process. Current NSW legislation and health guidelines severely limit the ability of groups to meet and discuss proposed acts.

This update details the policy that MEG has implemented in relation to the advertising of section 29 notices. As the effect of COVID-19 on the community and the industry evolves, MEG will monitor the situation in relation to section 29 notices and will reassess its position no later than 1 September 2020.

Update - section 29 notices and COVID-19

Under the Native Title Act 1993, section 29 notices are required to be published to alert existing and potential native title parties of the government’s intention to do the proposed act (the grant of an authorisation or Minister’s consent to prospect on an existing authorisation, such as an exploration licence). Most commonly, section 29 notices are published when applicants request to undertake the Right to Negotiate processes.

MEG, in collaboration with NTSCORP, has developed the following policy (now in place) in relation to section 29 notices which meets the needs of native title parties and provides some flexibility for industry.

  • In areas where there is no approved determination of native title or no registered claimant application, section 29 notices will not be issued for the duration of this policy.
  • In areas where there is an approved determination of native title, section 29 notices will only be issued by MEG with the consent of the registered native title body corporate (RNTBC).
  • In areas where there is a registered claimant application, section 29 notices will only be issued by MEG with the consent of the applicant for the registered native title claim.
  • Where a RNTBC, or the applicant for a registered claim, gives its consent to a section 29 notice being issued, MEG will require proponents not to make future act determination applications at the end of the six month negotiation period until claimants have an opportunity to meet and discuss the notice once the restrictions on non-essential travel and limits on public gatherings are lifted.
  • Where the Right to Negotiate process has already commenced, MEG will consider each application in consultation with the affected parties.
  • In other exceptional circumstances, section 29 notices may be issued by MEG following consultation with NTSCORP.

Unless COVID-19 restrictions are lifted across NSW prior to 1 September 2020, this policy will remain in place until 1 September 2020, at which time it will be reviewed.

Further details regarding implementation and transitional arrangements are available on the dedicated COVID-19 response page on the MEG website.

Additionally, requests for information relating to native title and section29 processes may be made in writing to Mining, Exploration and Geoscience at resource.operations@planning.nsw.gov.au