The Commonwealth Native Title Act 1993 (NTA) provides a legislative regime for negotiating with native title parties before the State can grant any mining or exploration tenures. Such negotiations may involve Indigenous Land Use Agreements (ILUAs) or the right to negotiate process.

The commencement of the NTA on 1 January 1994 fundamentally changed tenure administration procedures with the State commencing a number of right to negotiate processes for the grant of mining leases. No right to negotiates were commenced for exploration permits because they were granted excluding native title land.

The NTA allows, subject to Commonwealth approval, each State or Territory to develop its own set of procedures for negotiating with native title holders in respect of mining and exploration. Queensland established its own set of procedures for exploration and mining tenements within Parts 12 to 19 of the  Mineral Resources Act 1989 (MRA) known as the Alternative State Provisions (ASPs) which commenced operation on 18 September 2000.

Up until 8 February 2002, the State used the ASPs to process tenement applications lodged after 15 September 2000 over land where native title may exist. The ASPs were introduced by the Queensland Government to facilitate the processing of such applications, replacing the more logistically difficult Commonwealth right to negotiate procedure. Procedures in the ASPs differ depending on whether activities under the tenement are likely to have a high or low impact on the land. 

In February 2001, legal action was commenced challenging the validity of the ASPs. As a result of a decision by Justice Wilcox on 8 February 2002, the high impact provisions of the ASPs were rendered invalid. This decision was appealed. 

On 27 November 2002, the Full Federal Court handed down a decision confirming the validity of the high-impact provisions. 

Thus over the period 8 February 2002 to 27 November 2002 this Department continued to process applications lodged after 15 September 2000 that involved low-impact activities. This included applications for prospecting permits allowing prospecting, low-impact exploration permits and low-impact mineral development licences. Once tenements are granted under the low-impact ASPs, tenement holders are required to negotiate an access agreement with the registered native title parties before entering the land.   

However, over the same period it was questionable how to progress all high-impact applications lodged after 15 September 2000, including applications for mining leases, mining claims, high-impact mineral development licences and high-impact exploration permits. Applicants still had the opportunity to advance their application to grant by negotiating their own ILUA or opting into a State-negotiated ILUA, if available. 

Following the Full Federal Court’s decision, all high-impact applications lodged after 15 September 2000 resumed or commenced processing under the ASPs.

A day after the Full Federal Court’s decision, the Premier and the Minister for Mines announced that this Department would continue receiving applications under the ASPs until 31 March 2003.  After this date, Queensland would revert to the Commonwealth procedures under the NTA. This announcement was made in consideration of a review of native title procedures made by the Department, involving submissions by major stakeholders.

To this effect, Part 2 and Part 6 of the Natural Resources and Other Legislation Amendment Act 2003 was passed to amend the MRA. These amendments allowed the ASPs to remain in place and continue to apply to all applications lodged between 15 September 2000 and 31 March 2003 and to those applications lodged prior to 18 September 2000 that were commenced under the ASPs. The MRA amendments commenced on 28 March 2003.

Several processes are now operating for dealing with native title issues associated with applications for mining and exploration tenements. These processes are:

• Indigenous Land Use Agreements (ILUAs),
• Right to negotiate process and Expedited Procedure under the Commonwealth Native Title Act 1993, and
• Alternative State Provisions under the MRA.

Processing arrangements for current exploration, mining and petroleum tenement applications