Navigating native title and land access to create a pathway to production for mines

Negotiating land access is often complex, involving the management of native title rights, land access laws, and the engagement of multiple stakeholders with diverse interests. Competing land uses and the co-existence of multiple land uses is adding a significant amount of infrastructure and facilities to an already competitive landscape.

Securing access and approvals for projects continue to be key issues in the early stages of development. With this in mind, mining, resource and energy companies need to carefully navigate these legal and social frameworks to ensure projects can move forward without delay.

Native title: Understanding obligations

Under the Native Title Act 1993 (Cth), Aboriginal and Torres Strait Islander people have legally recognised rights in their traditional lands. Resource authority and development applications are often required to address native title, and companies may need to negotiate with native title parties to ensure their authority can be granted.

All parties should engage in good faith negotiations to reach an agreement. This means negotiations must be a genuine attempt to come to an agreement through a constructive, engaging, informative and honest process. Failing to negotiate in good faith can lead to challenges and delays.

Companies also have an opportunity to enter into partnerships with Traditional Owners rather than just ensuring compliance with the Act and these types of arrangements which promote a genuine relationship can be explored during the negotiation.

Land access: Balancing rights and responsibilities

There are also land access laws protecting the interests of landholders, and these laws vary across jurisdictions. For example, in Queensland, mining and resource companies must work within a coexistence framework that balances their interests with those of the landholder. This framework is outlined in the Land Access Code 2023 (Qld), which sets standards for negotiations and interactions between these groups.

Both groups have rights and obligations. Resource authority holders (such as parties with exploration permits) have the right to undertake authorised activities, but they also need to adhere to land access laws. This can include, for example, notification requirements or the need to negotiate an agreement.

Agreements in these cases take into account the significant impact of the authorised activities on the landholders’ use of their land. Therefore, negotiations may be with respect to access agreements, Conduct and Compensation Agreements (CCAs), deferral agreements or opt-out agreements.

Negotiations must be undertaken in good faith.

Securing the social licence to operate

Mining and resource development not only impacts the land, but also the communities in which they operate.

The ongoing acceptance of a project by the community is vital for its success. This can be earned and maintained through a consultation process designed to understand the community’s concerns, values and expectations.

Social performance is becoming increasingly important, particularly as Environmental, Social, and Governance (ESG) standards rise in prominence. It can shape the development of a resource project, as stakeholder trust, along with community and political support, are strong determinants of a project’s viability and long-term success.

In terms of mining developments, changes have been proposed to the JORC Code 2024 whereby social factors would form part of the material ESG considerations to disclose. The JORC Code (Australasian Code for Reporting of Exploration Results, Mineral Resources and Ore Reserves) is a code of practice developed by the Joint Ore Reserves Committee (JORC Committee).

How Xenith can help

Xenith offers a comprehensive suite of services designed to help mining, resource and energy companies successfully navigate native title, land access and community engagement.

We assist with:

• Cultural heritage and native title advice: Including gap analysis, compliance and reviews, strategic advice, facilitating relationships with Indigenous parties, negotiating agreements with native title parties, cultural heritage parties and traditional owner groups.

• Land access: Negotiating access agreements, including CCAs and land acquisitions, preparing land access strategies, negotiating third party agreements for linear projects.
• Community engagement: Supporting social performance strategies, conducting social impact assessments, and implementing systems to manage social risks.
• On-ground surveys: We provide experienced field staff to support on-ground logistics and compliance, ensuring that surveys meet regulatory requirements.
• Statutory guidance: Our experts guide clients through the statutory requirements of land access, helping them navigate the legal and procedural hurdles.

• Archaeological surveys and support: We conduct highly professional Indigenous and non-Indigenous archaeological surveys for urban, rural and remote projects.

By partnering with Xenith, resource companies can confidently move through the complexities of land access, native title negotiations and stakeholder management, ensuring their projects are set up for long-term success.

Case Study: Managing overlapping land uses

A client engaged Xenith to address the complex issue of overlapping land uses between traditional mining operations and emerging renewable energy projects.

Xenith’s work included:

• Identifying environmental and tenement constraints.
• Reviewing the applicable native title process.
• Reviewing technical factors such as geology, resource depth, economic constraints and opportunities of resource recovery.
• Developing a comprehensive risk assessment of the related economic, operational, access and approval requirements.

The report prepared by Xenith supported the client in its dealings with landholders, other resource companies, native title groups and energy providers.

It was also used in discussions with partners and financiers, having provided our client with the clarity and confidence needed to optimise their project and support future investment decisions.

Xenith – Know the way.

Get in touch with Xenith. Our team of experts will successfully help you navigate native title, land access and community engagement.