Negotiation in good faith under the Native Title Act: A critical analysis

After briefly exploring the historical and ideological origins of the right to negotiate embodied in s31(1)(b) of the Native Title Act, this paper analyses the relevant case law in which the Tribunal and Court gave substance to the vague and sparse language in s31(1)(b). It is suggested that notwithstanding the body of existing legal authority, the right to negotiate remains inherently difficult to enforce from the perspective of native title claimants and holders. In particular, the paper explores the recent Full Court decision in FMG Pilbara Pty Ltd v Cox, which arguably limited the value of the right to negotiate. The paper concludes that while the benefits of a statutory right to negotiate should not be underrated, s31(1)(b) requires amendment if it is to be both substantive and enforceable.